Punjab-Haryana High Court
Gurdial Kaur And Others vs Raman Kumar And Others on 20 April, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
2024:PHHC:063580
FAO-571-2007 (O&M)
-1-
552
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
FAO-571-2007 (O&M)
Date of Decision : 20.04.2024
Gurdial Kaur & Others ....Appellants
VERSUS
Raman & others ....Respondents
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Ashwani Arora, Advocate for the appellants.
Mr. Varun Sharma, Advocate for respondent - Insurance Co.
-.-
SUDEEPTI SHARMA, J. (Oral)
1. The present appeal has been preferred against the award dated
16.10.2006 passed by the learned Motor Accident Claims Tribunal, Narnaul,
whereby the appellants have been awarded compensation to the tune of
Rs.7,79,000/-, for enhancement of the same to the tune of Rs.30 lakh along with
12% interest from the date of filing of the claim petition.
2. The brief facts of the case as mentioned in the claim petition are that
on 11.06.2001, at about 5.30 pm Bachna Ram was walking in front of the gate of
CMC Hospital, Sector 17, Chandigarh when a three wheeler bearing registration
No.HR-37-8093 came at a fast speed and struck against him and against the door
of the above said Hospital. Due to the impact, Bachna Ram fell down on the road
and received serious injuries. He was taken to PGI, Chandigarh immediately
where he died on 13.06.2001. The accident took place due to rash and negligent
2024:PHHC:063580
FAO-571-2007 (O&M)
driving of the three-wheeler by Ram Kumar (respondent No.1). It was the
contention of the claimants that the deceased was about 51 years of age at the time
of accident and was employed as Meter Reader in Municipal Corporation, Public
Health Department, Sector 9 Chandigarh and his monthly income was Rs.10,000/-
per month. Claimant No.1 is the widow and claimant Nos. 2 to 7 are the children of
the deceased. Claimants further asked for enhancement of compensation to the
tune of Rs.30 lakhs.
3. Upon notice, respondents appeared and denied the factum of claim.
4. From the pleading of the parties, the Tribunal framed the following
issues:-
1. Whether deceased Bachan Ram died in Motor Vehicle accident
cause by respondent No.1 by driving three wheeler No.HR-37-8093 in
a rash and negligent manner? OPP
2. If issue No.1 is proved, whether the claimants are entitled to
compensation being the legal representatives of late Bachan Ram?
OPP
3. Whether respondent No.1 was not holding a valid driving
licence at the time of accident? OPR-3
4. Relief.
5. The learned counsel for the claimant-appellants submits that the future
prospects have not been granted to the claimant. He further submits that deduction
should be 1/5th instead of 1/3rd towards personal expenses which is on the lower
side. He further submits that no amount has been awarded towards Consortium
and the claimants would be entitled to 20% increase on the amount under the
2024:PHHC:063580
FAO-571-2007 (O&M)
conventional heads. Further, the contention is that the interest awarded @6% is
also on the lower side.
6. Per contra, learned counsel appearing on behalf of the respondent
No.3 (insurance company) has stated that admittedly there are seven claimants and
majority of them are major. Claimant Nos. 3 and 7 were minor at the time of filing
of the claim petition. Therefore, the present appeal deserves to be dismissed.
7. Learned counsel for the appellants-claimants has relied upon
judgment of Hon'ble Supreme Court in the case of National Insurance Co. Ltd.
Vs. Birender and Others [2020 ACJ 759] to contend that even major married and
earning sons of the deceased being legal representatives have right to apply to
compensation in case of accidental death. Relevant portion of the judgment is
reproduced herein:-
"15. It is thus settled by now that the legal representatives of the
deceased have a right to apply for compensation. Having said that, it
must necessarily follow that even the major married and earning sons
of the deceased being legal representatives have a right to apply for
compensation and it would be the bounden duty of the Tribunal to
consider the application irrespective of the fact whether the
concerned legal representative was fully dependant on the deceased
and not to limit the claim towards conventional heads only. The
evidence on record in the present case would suggest that the
claimants were working as agricultural labourers on contract basis
and were earning meager income between ₹ 1,00,000/- and
₹1,50,000/- per annum. In that sense, they were largely dependent on
the earning of their mother and in fact, were staying with her, who
met with an accident at the young age of 48 years.
2024:PHHC:063580
FAO-571-2007 (O&M)
16. The next issue is about the deduction of the amount receivable by
the legal representatives of the deceased under the 2006 Rules from
the compensation amount determined by the Tribunal in terms of the
decision of three-Judge Bench of this Court in Shashi Sharma (supra).
This Court, after analysing the relevant rules, opined as follows:-
23. Reverting back to Rule 5, sub-rule (1) provides for the
period during which the dependants of the deceased employee
may receive financial assistance equivalent to the pay and other
allowances that was last drawn by the deceased employee in
the normal course without raising a specific claim. Sub-rule (2)
provides that the family shall be eligible to receive family
pension as per the normal Rules only after the period during
which they would receive the financial assistance in terms of
sub-rule (1). Sub-rule (3) guarantees the family of a deceased
government employee of a government residence in occupation
for a period of one year from the date of death of the employee,
upon payment of normal rent/licence fee. By virtue of sub-rule
(4), an ex gratia assistance of 25,000 is provided to the family
of the deceased employee to meet the immediate needs on the
loss of the bread earner. Sub-rule (5) clarifies that house rent
allowance shall not be a part of allowance for the purposes of
calculation of assistance.
24. .....As regards the second part, it deals with income from
other source which any way is receivable by the dependants of
the deceased government employee. That cannot be deducted
from the claim amount for determination of a just compensation
under the 1988 Act.
25. The claimants are legitimately entitled to claim for the loss
of "pay and wages" of the deceased government employee
againtitled to claim for the loss of pay and was the case may be,
covered by the first part of Rule 5 under the 1988 Act. The
2024:PHHC:063580
FAO-571-2007 (O&M)
claimants or dependants of the deceased government employee
(employed by the State of Haryana), however, cannot set up a
claim for the same subject falling under the first part of Rule 5-
"pay and allowances", which are receivable by them from
employer (the State) under Rule 5(1) of the 2006 Rules. In that,
if the deceased employee was to survive the motor accident
injury, he would have remained in employment and earned his
regular pay and allowances. Any other interpretation of the
said Rules would inevitably result in double payment towards
the same head of loss of "pay and wages" of the deceased
government employee entailing in grant of bonanza, largesse or
source of profit to the dependants/claimants.....
26. Indeed, similar statutory exclusion of claim receivable
under the 2006 Rules is absent. That, however, does not mean
that the Claims Tribunal should remain oblivious to the fact
that the claim towards loss of pay and wages of the deceased
has already been or will be compensated by the employer in the
form of ex gratia financial assistance on compassionate
grounds under Rule 5(1). The Claims Tribunal has to
adjudicate the claim and determine the amount of
compensation which appears to it to be just. The amount
receivable by the dependants/claimants towards the head of
"pay and allowances" in the form of ex gratia financial
assistance, therefore, cannot be paid for the second time to the
claimants. True it is, that the 2006 Rules would come into play
if the government employee dies in harness even due to natural
death. At the same time, the 2006 Rules do not expressly enable
the dependants of the deceased government employee to claim
similar amount from the tortfeasor or insurance company
because of the accidental death of the deceased government
employee. The harmonious approach for determining a just
compensation payable under the 1988 Act, therefore, is to
2024:PHHC:063580
FAO-571-2007 (O&M)
exclude the amount received or receivable by the dependants of
the deceased government employee under the 2006 Rules
towards the head financial assistance equivalent to "pay and
other allowances" that was last drawn by the deceased
government employee in the normal course. This is not to say
that the amount or payment receivable by the dependants of the
deceased government employee under Rule 5(1) of the Rules, is
the total entitlement under the head of "loss of income". So far
as the claim towards loss of future escalation of income and
other benefits is concerned, if the deceased government
employee had survived the accident can still be pursued by
them in their claim under the 1988 Act. For, it is not covered by
the 2006 Rules. Similarly, other benefits extended to the
dependants of the deceased government employee in terms of
sub-rule (2) to sub-rule (5) of Rule 5 including family pension,
life insurance, provident fund, etc., that must remain unaffected
and cannot be allowed to be deducted, which, any way would
be paid to the dependants of the deceased government
employee, applying the principle expounded in Helen C.
Rebello v. Maharashtra SRTC, 1998(4) RCR (Civil) 177:
(1999) 1 SCC 90 and United India Insurance Co. Ltd. v.
Patricia Jean Mahajan, 2002(3) RCR (Civil) 534 : (2002) 6
SCC 281 cases.
27. A priori, the appellants must succeed only to the extent of
amount receivable by the dependants of the deceased
government employee in terms of Rule 5(1) of the 2006 Rules,
towards financial assistance equivalent to the loss of pay and
wages of the deceased employee for the period specified."
(emphasis supplied)
The learned Judge of the High Court has, however, after adverting to
the decision of the same High Court in Ajmero (supra), went on to
2024:PHHC:063580
FAO-571-2007 (O&M)
observe that 50% of the amount receivable by the legal
representatives of the deceased towards financial assistance under the
2006 Rules is required to be deducted from the compensation amount.
In the relied upon decision, the same learned Judge had occasion to
observe as follows:-
"... However, perusal of the judgment would reveal that the
Court has not adverted to the issue that had the Rules of 2006
extending assistance to family of a deceased employee been not
in existence, family would have been entitled to pension to the
extent of 50% of the last drawn pay. As per the settled position
in law, the pensionary benefits available to family of a deceased
employee are not amenable for deduction for computing loss of
dependency. There is nothing on record suggestive of the fact
that in addition to compassionate assistance under the Rules,
family of the deceased is being paid pension till the age of
superannuation. Rather Rule 5(2) of the 2006 Rules specifically
denies family pension as per normal rules..."
8. I have heard learned counsel for the parties and thoroughly gone
through the record.
9. Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi
Transport Corporation and Another [(2009) 6 Supreme Court Cases 121], laid
down the law on assessment of compensation and the relevant paras of the same
are as under:-
"30. Though in some cases the deduction to be made towards
personal and living expenses is calculated on the basis of units
indicated in Trilok Chandra, the general practice is to apply
standardised deductions. Having a considered several subsequent
decisions of this Court, we are of the view that where the deceased
2024:PHHC:063580
FAO-571-2007 (O&M)
was married, the deduction towards personal and living expenses of
the deceased, should be one-third (1/3rd) where the number of
dependent family members is 2 to 3, one-fourth (1/4th) where the
number of dependent family members is 4 to 6, and one-fifth (1/5th)
where the number of dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants are the
parents, the deduction follows a different principle. In regard to
bachelors, normally, 50% is deducted as personal and living
expenses, because it is assumed that a bachelor would tend to spend
more on himself. Even otherwise, there is also the possibility of his
getting married in a short time, in which event the contribution to the
parent(s) and siblings is likely to be cut drastically. c Further, subject
to evidence to the contrary, the father is likely to have his own income
and will not be considered as a dependant and the mother alone will
be considered as a dependant. In the absence of evidence to the
contrary, brothers and sisters will not be considered as dependants,
because they will either be independent and earning, or married, or
be dependent on the father.
32. Thus even if the deceased is survived by parents and siblings,
only d the mother would be considered to be a dependant, and 50%
would be treated as the personal and living expenses of the bachelor
and 50% as the contribution to the family. However, where the family
of the bachelor is large and dependent on the income of the deceased,
as in a case where he has a widowed mother and large number of
2024:PHHC:063580
FAO-571-2007 (O&M)
younger non-earning sisters or brothers, his personal and living
expenses may be restricted to one-third and contribution to the family
will be taken as two-third.
* * * * * *
42. We therefore hold that the multiplier to be used should be as
mentioned in Column (4) of the table above (prepared by applying
Susamma Thomas³, Trilok Chandra and Charlie), which starts with
an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to
25 years), reduced by one unit for every five years, that is M-17 for 26
to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14
for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two
units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56
to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
10. Hon'ble Supreme Court in the case of National Insurance Company
Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under
Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following
aspects:-
(A) Deduction of personal and living expenses to determine
multiplicand;
(B) Selection of multiplier depending on age of deceased;
(C) Age of deceased on basis for applying multiplier;
(D) Reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses, with escalation;
2024:PHHC:063580
FAO-571-2007 (O&M)
(E) Future prospects for all categories of persons and for different
ages: with permanent job; self-employed or fixed salary.
The relevant portion of the judgment is reproduced as under:-
"52. As far as the conventional heads are concerned, we find
it difficult to agree with the view expressed in Rajesh². It has
granted Rs.25,000 towards funeral expenses, Rs 1,00,000
towards loss of consortium and Rs 1,00,000 towards loss of
care and guidance for minor children. The head relating to loss
of care and minor children does not exist. Though Rajesh²
refers to Santosh Devi, it does not seem to follow the same. The
conventional and traditional heads, needless to say, cannot be
determined on percentage basis because that would not be an
acceptable criterion. Unlike determination of income, the said
heads have to be quantified. Any quantification must have a
reasonable foundation. There can be no dispute over the fact
that price index, fall in bank interest, escalation of rates in
many a field have to be noticed. The court cannot remain
oblivious to the same. There has been a thumb rule in this
aspect. Otherwise, there will be extreme difficulty in
determination of the same and unless the thumb rule is applied,
there will be immense variation lacking any kind of consistency
as a consequence of which, the orders passed by the tribunals
and courts are likely to be unguided. Therefore, we think it
seemly to fix reasonable sums. It seems to us that reasonable
figures on conventional heads, namely, loss of estate, loss of
2024:PHHC:063580
FAO-571-2007 (O&M)
consortium and funeral expenses should be Rs.15,000,
Rs.40,000 and Rs.15,000 respectively. The principle of
revisiting the said heads is an acceptable principle. But the
revisit should not be fact-centric or quantum-centric. We think
that it would be condign that the amount that we have
quantified should be enhanced on percentage basis in every
three years and the enhancement should be at the rate of 10%
in a span of three years. We are disposed to hold so because
that will bring in consistency in respect of those heads.
* * * * *
59.3. While determining the income, an addition of 50% of
actual salary to the income of the deceased towards future
prospects, where the deceased had a permanent job and was
below the age of 40 years, should be made. The addition should
be 30%, if the age of the deceased was between 40 to 50 years.
In case the deceased was between the age of 50 to 60 years, the
addition should be 15%. Actual salary should be read as
actual salary less tax.
59.4. In case the deceased was self-employed (or) on a fixed
salary, an addition of 40% of the established income should be
the warrant where the deceased was below the age of 40 years.
An addition of 25% where the deceased was between the age of
40 to 50 years and 10% where the deceased was between the
age of 50 to 60 years should be regarded as the necessary
2024:PHHC:063580
FAO-571-2007 (O&M)
method of computation. The established income means the
income minus the tax component.
59.5. For determination of the multiplicand, the deduction for
personal and living expenses, the tribunals and the courts shall
be guided by paras 30 to 32 of Sarla Verma⁴ which we have
reproduced hereinbefore.
59.6. The selection of multiplier shall be as indicated in the
Table in Sarla Verma¹ read with para 42 of that judgment.
59.7. The age of the deceased should be the basis for applying
the multiplier.
59.8. Reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses should be Rs
15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid
amounts should be enhanced at the rate of 10% in every three
years."
11. Hon'ble Supreme Court in the case of Magma General
Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram &
Others [2018(18) SCC 130] after considering Sarla Verma (supra) and
Pranay Sethi (Supra) has settled the law regarding consortium. Relevant
paras of the same are reproduced as under:-
"21. A Constitution Bench of this Court in Pranay Sethi² dealt
with the various heads under which compensation is to be
awarded in a death case. One of these heads is loss of
2024:PHHC:063580
FAO-571-2007 (O&M)
consortium. In legal parlance, "consortium" is a compendious
term which encompasses "spousal consortium", "parental
consortium", and "filial consortium". The right to consortium
would include the company, care, help, comfort, guidance,
solace and affection of the deceased, which is a loss to his
family. With respect to a spouse, it would include sexual
relations with the deceased spouse.
21.1. Spousal consortium is generally defined as rights
pertaining to the relationship of a husband-wife which allows
compensation to the surviving spouse for loss of "company,
society, cooperation, affection, and aid of the other in every
conjugal relation".
21.2. Parental consortium is granted to the child upon the
premature death of a parent, for loss of "parental aid,
protection, affection, society, discipline, guidance and
training".
21.3. Filial consortium is the right of the parents to
compensation in the case of an accidental death of a child. An
accident leading to the death of a child causes great shock and
agony to the parents and family of the deceased. The greatest
agony for a parent is to lose their child during their lifetime.
Children are valued for their love, affection, companionship
and their role in the family unit.
2024:PHHC:063580
FAO-571-2007 (O&M)
22. Consortium is a special prism reflecting changing norms
about the status and worth of actual relationships. Modern
jurisdictions world-over have recognised that the value of a
child's consortium far exceeds the economic value of the
compensation awarded in the case of the death of a child. Most
jurisdictions therefore permit parents to be awarded
compensation under loss of consortium on the death of a child.
The amount awarded to the parents is a compensation for loss
of the love, affection, care and companionship of the deceased
child.
23. The Motor Vehicles Act is a beneficial legislation aimed at
providing relief to the victims or their families, in cases of
genuine claims. In case where a parent has lost their minor
child, or unmarried son or daughter, the parents are entitled to
be awarded loss of consortium under the head of filial
consortium. Parental consortium is awarded to children who
lose their parents in motor vehicle accidents under the Act. A
few High Courts have awarded compensation on this count.
However, there was no clarity with respect to the principles on
which compensation could be awarded on loss of filial
consortium.
24. The amount of compensation to be awarded as consortium
will be governed by the principles of awarding compensation
under "loss of consortium" as laid down in Pranay Sethi². In the
present case, we deem it appropriate to award the father and
2024:PHHC:063580
FAO-571-2007 (O&M)
the sister of the deceased, an amount of Rs 40,000 each for loss
of filial consortium.
12. In view of the law laid down by the Hon'ble Supreme Court in the
above referred to judgments, the present appeal is allowed. The award dated
16.10.2006 is modified accordingly. The appellants-claimants are entitled to
enhanced compensation as per the calculations made here-under:-
Sr. Heads Compensation Awarded
No.
1 Monthly Income Rs.8756/-
2 Future prospects @ 15% Rs.1313/- (15% of 8756)
3 Deduction towards personal 2014
expenditure i.e. 1/5th of (8756 + 1313)
4. Total Income 8055
i.e. 4/5th of (8756 +1313)
5 Annual Dependency Rs.10,63,260/-
(8055 x 12 x 11)
6 Loss of Estate Rs.18,000/-
7 Funeral Expenses Rs.18,000/-
8 Loss of Consortium Rs.3,36,000/-
Parental : Rs.48,000/- x 6
Spousal : Rs. 48,000/-
Total Compensation Rs.14,35,260/-
Amount Awarded by the Tribunal Rs.7,79,000/-
Enhanced amount Rs.6,56,260/-
13. So far as the interest part is concerned, as held by Hon'ble Supreme
Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176
and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5
Supreme Court Cases 107, the appellants-claimants are granted the interest @9%
2024:PHHC:063580
FAO-571-2007 (O&M)
per annum on the enhanced amount from the date of filing of claim petition till the
date of its realization.
14. The Insurance Company is directed to deposit the awarded amount
along with interest with the Tribunal within a period of two months from today.
The appellants-claimants including appellant Nos. 3 and 7 i.e. son and daughter of
the deceased respectively, who are stated to have attained majority, are directed to
furnish their bank accounts details to the Tribunal. The Tribunal is further directed
to disburse the enhanced amount of compensation along with interest as stated
above equally in the bank accounts of the appellants-claimants.
15. Pending applications, if any, also stand disposed off.
April 20, 2024 (SUDEEPTI SHARMA)
tripti JUDGE
Whether speaking/non-speaking : Speaking
Whether reportable : Yes/No
