Punjab-Haryana High Court
Sudesh & Ors vs Bhadur Singh & Ors on 2 May, 2024
Neutral Citation No:=2024:PHHC:064882
FAO-4590-2017 (O&M) -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO-4590-2017 (O&M)
Date of Decision:-02.05.2024
Smt. Sudesh and Others
... Appellants
Versus
Bhadur Singh and Others
... Respondents
-.-
CORAM: HON'BLE MRS. JUSTICE RITU TAGORE
-.-
Argued by: Mr. Sajjan Singh Malik, Advocate
for the appellants.
Service of respondents No.1 to 3 dispensed with
vide order dated 29.08.2019.
Mr. Diwan S. Adlakha, Advocate
for respondent No.4/Insurance Company.
-.-
RITU TAGORE, J.
1. This is claimants' appeal for enhancement of compensation
amount.
2. Learned Motor Accident Claims Tribunal, Rohtak (herein after
referred to as 'the Tribunal'), vide award dated 01.02.2017, granted
₹6,02,500/- as compensation for the death of Lachhman, aged 30 years, a
self-employed person in business 1ofof 12
dairy farming and cattle feed.
Neutral Citation No:=2024:PHHC:064882
3. For the sake of convenience the parties shall be referred to as per
their status before the learned Tribunal.
4. The relevant facts for adjudication of this appeal are that on
08.10.2015 deceased-Lachhman was going to Rohtak from his village
Shimli, District Rohtak on motorcycle bearing No.HR-12-J-3543, when
reached on Jhajjar-Rohtak road, meantime, a truck bearing No.RJ-11GA-
5784 (referred as offending vehicle) driven by respondent No.1 at a very
high speed and in rash and negligent manner, came from Rohtak side and hit
motorcycle of the deceased. As a result thereof, deceased fell down on the
road and sustained grievous injuries. The deceased was taken to Rohtak by
Ajay s/o Man Singh, where he was declared brought dead.
5. The accident was reported to police, where upon FIR No.0641
dated 09.10.2015 under Sections 279, 304-A IPC was registered at Police
Station Sadar, Rohtak against respondent No.1-Bahadur Singh.
6. Claimants filed petition No 6/2016 under section 166 Motor
Vehicles Act 1988 (for short 'the Act'), seeking compensation of
₹,50,00,000/- (Fifty lacs only) from the respondents (driver, Superdar, owner
and the insurance company) of the offending vehicle, for loss of dependency,
love and affection etc to them on account of death of Lachhman in the
accident.
7. Respondents upon notice from the Tribunal, filed the reply and
denied the accident and involvement of the offending vehicle, and further
pleaded that accident could not have happened on the west side of the road in
the manner it has been alleged. Respondent No.4, in addition, pleaded
violation of terms and conditions of policy with respect to driving licence of
driver-respondent No.1 being not2 valid
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and effective. By denying the other
Neutral Citation No:=2024:PHHC:064882
averments of the claimants as to their entitlement, prayed for the dismissal of
petition.
8. From pleading of the parties, learned Tribunal framed following
issues:-
1. Whether accident in question occurred due to rash and negligent
driving of vehicle i.e. truck bearing registration No.RJ-11GA/5784
by respondent No.1? OPP
2. If issue No.1 is proved, whether Lachman son of Tek Ram has died
due to the injuries received by him in the above- said accident, if so
to what amount of compensation and from whom the claimants are
entitled to? OPP
3. Whether there was willful violation of the terms and conditions of
the insurance policy, if so to what effect? OPR3
4. Relief.
9. The parties led their respective evidence as detailed in the
Award. Thereafter, learned Tribunal on the appraisal of facts, pleading and
evidence on record, held that deceased died due to the injuries sustained in
the accident in question, involving the offending vehicle. However,
concluded that accident occurred on account of equal contributory
negligence of both, deceased and respondent No.1, the driver of the
offending vehicle, as both failed to observe the traffic rules while driving
their vehicles. Learned Tribunal on assessment of income, age of the
deceased, the dependency of claimants upon him, granted compensation of
₹6,02,500/- along with cost and interest @ 9% per annum, from the date of
institution of petition, till realization and made respondents jointly and
severally liable to pay compensation.
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Neutral Citation No:=2024:PHHC:064882
10. Being aggrieved by the findings of the learned Tribunal on
contributory negligence and inadequacy in the compensation amount,
claimants filed the instant appeal for reappraisal of the evidence on the issue
of negligence and enhancement in the quantum of compensation.
11. Learned counsel for the appellants-claimants, contended that
learned Tribunal erred in holding that accident occurred on account of equal
contribution of both the deceased and driver of the offending vehicle. As a
matter of fact, learned Tribunal misread the evidence, much less the site plan
Ex. R1 and erred in ignoring the testimonial account of sole eye-witness Ajay
(PW-3), who categorically deposed that accident occurred due to the sole
negligence of the driver (respondent No1) of the offending vehicle that led to
the registration of FIR Ex. P5 against the driver alone. In this regard a prayer
was made to reverse the finding of contributory negligence against the
deceased by holding respondent No.1 sole responsible for causing the
accident.
12. Learned counsel for the appellants-claimants further urged that
learned Tribunal failed to grant compensation towards future prospect, loss
of estate, love and affection, mental agony, transportation etc. Further
deduction of 1/4th of income towards personal expenses of deceased instead
1/6th due to large dependency upon the deceased has also been challenged
being not in consonance with the settled position of law and guidelines laid
by the Courts governing the issue. It is also urged that considering the age of
the deceased, multiplier of 17 is required to be applied in place of 16. Based
on above submissions, it is urged that compensation should be redetermined.
13. Contrary to it, learned counsel for the Insurance Company
supported and defended the findings
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of the learned Tribunal by urging that
Neutral Citation No:=2024:PHHC:064882
evidence clearly demonstrate that deceased also contributed in causing the
accident as he did not observe the traffic rules, while negotiating the national
highway, while coming from village Shimli and approaching the Jhajjar-
Rohtak road. Learned counsel, however, could not deny that compensation
needs to be reassessed, in the light of ratio of National Insurance Company
Ltd. Vs. Pranay Sethi and others' (2017) 16 SCC 680 and followed in
other judicial precedents. Learned counsel, however, pleaded that fixed
amount under the head of 'loss of consortium' is to be given as per the
observations made in Shri Ram General Insurance Company Ltd. vs.
Bhagat Singh Rawat and others' 2023 ACJ 2330.
14. I have heard learned counsel for the parties and have gone
through the record with their valuable assistance.
15. Insofar as the findings of learned Tribunal, holding both
deceased and driver (respondent No.1), contributed in causing the accident
are concerned, same are well reasoned and are based on sound appreciation
of evidence. Learned counsel for the claimants failed to point out any flaw in
the observation of the learned Tribunal holding that deceased was required to
take 'U' turn to approach Jhajjar-Rohtak road for going towards Rohtak
while coming from Shimli. It is own case of the claimants that deceased was
going towards Rohtak from his village Shimli. Although eye-witness Ajay
(PW-3) denied negligence of the deceased, yet the site plan Ex.R1 shows that
accident took place just on the national highway near the point, where road
from Shimli meets the highway. This shows that deceased was also negligent
while driving the vehicle as he did not take due care and caution and should
have followed the principle of 'wait and watch' before approaching the main
road from the bye or side lane of village
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Shimli.
Neutral Citation No:=2024:PHHC:064882
16. It is settled position of law that the Tribunal is to assess the
evidence independently from the evidence collected in criminal case, such as
registration of FIR, framing of charge-sheet, conviction or acquittal of the
driver in criminal case on the issue of negligence of the driver(s) and cause
of accident. After re-appraisal of the evidence on issue No.1, it is held that
learned Tribunal has rightly concluded that accident occurred due to the
contributory negligence of both the deceased and the driver of the offending
vehicle. The findings of the Tribunal on the aforesaid issue being based on
correct appreciation of the evidence, thus requires no interference from this
Court and are affirmed.
17. Now coming on the quantum of compensation, there is no
dispute that deceased was aged 30 years at the time of his death. The
dependency of claimants upon the deceased is also not in dispute. The
determination of the deceased's monthly income at ₹7,500/- by the learned
Tribunal based on minimum wages, could not be faulted by the claimants,
who failed to provide any other evidence to establish that deceased was
earning more than ₹7,500/- per month. The deduction of 1/4th from the
income of the deceased towards his self-maintenance and expenses is also in
consonance with the ratio of judgment of Hon'ble the Supreme Court in
National Insurance Company Ltd. Vs. Pranay Sethi and others' (2017)
16 SCC 680 and Sarla Verma Vs. Delhi Transport Corporation 2009(3)
RCR (Civil) 77, wherein it is observed that when dependent's family
members are between 4 to 6, 1/4th deduction from the income of deceased is
to be made on self-expenses of the deceased.
18. The learned Tribunal, however faulted in applying multiplier of
16, after taking the age of deceased,
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30 years. The table given in Sarla
Neutral Citation No:=2024:PHHC:064882
Verma (supra) provides for multiplier of 17, for the persons falling in the
age group of 26-30; and multiplier of 16 for the persons coming in the
bracket age of 31-35 years. So in this case, keeping in view the age of
deceased as 30 years at the time of his death, multiplier of 17 needs to be
adopted.
19. Admittedly, the grant of compensation under the conventional
heads does not concord with the judicial precedents, governing the issues.
20. Insofar as grant of compensation under the conventional heads is
concerned, learned counsel for the claimants while referring to Pranay Sethi
(supra), Magma General Insurance Company Ltd. Vs. Nanu Ram alias
Chuhru Ram and others (2018) SCC Online SC 1546 and Rajwati alias
Rajjo and others vs. United India Insurance Company Ltd. and others
2023 (1) R.C.R. (Civil) 205, submitted that each claimant is entitled to be
awarded compensation for 'loss of consortium'. Opposing the arguments,
learned counsel for the respondents, while placing reliance on Shri Ram
General Insurance Company Ltd. vs. Bhagat Singh Rawat and others
2023 ACJ 2330, submits that consolidated amount fixed under one head is to
be given, not per legal heir.
21. In Pranay Sethi case (supra) Constitutional Bench of Hon'ble
the Supreme Court delivered the judgment on 31.10.2017 and observed that
reasonable figures on the conventional heads, namely, 'loss of estate'
₹15,000/-; 'loss of consortium' ₹40,000/- and 'funeral expenses' ₹15,000/-
should be granted and further observed that aforesaid amount should be
enhanced at the rate of 10% in every three years.
22. Thereafter, two Judge Bench of Hon'ble the Supreme Court in
Magma General Insurance Company
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Neutral Citation No:=2024:PHHC:064882
Pranay Sethi case (supra) awarded compensation of ₹40,000/- each, to
father and sister of the deceased for 'loss of consortium'. Thereafter, three
Judge Bench of Hon'ble the Supreme Court in United India Insurance
Company Ltd. vs. Satinder Kaur @ Satwinder Kaur and others 2021
(11) SCC 780 granted ₹40,000/- to each of the three children for 'loss of
parental consortium'. Again in N. Jayasree and other vs. Cholamandalam
MS General Insurance Company Ltd. 2021 (4) R.C.R. (Civil) 642
awarded ₹44,000/- towards 'loss of spousal consortium' and ₹44,000/- each
to two children towards 'loss of parental consortium'. In Rajwati alias
Rajjo and others case (supra), Hon'ble the Supreme Court, while relying
upon Satinder Kaur @ Satwinder Kaur and others (supra), granted
₹44,000/- to each appellant towards 'loss of consortium'. Again, in recent
pronouncement of Rahul Ganpatrao Sable vs. Laxman Maruti Jadhav
(Dead) through LRs and others 2023 (3) R.C.R. (Civil) 573, Hon'ble the
Supreme Court held that all the dependents should be separately awarded
towards 'loss of consortium' and amount of ₹40,000/- to each of the
dependents towards 'loss of consortium'.
23. In Shri Ram General Insurance Company Ltd. case (supra),
the Insurance company, had raised two fold issue before Hon'ble the
Supreme Court. The Hon'ble Court issued notice in terms as "The notice in
terms of order dated 13.10.2020 was confined only to two aspects i.e., the
sum for loss of love and affection being ₹50,000/- and for loss of consortium
for ₹40,000/- could not have been granted to each of the three dependents
separately but in toto and that would be the amount quantified. This was in
terms of the judgment in Pranay Sethi and others (supra). While answering
to the aforesaid query, Hon'ble the Supreme Court observed on 27.03.2023
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Neutral Citation No:=2024:PHHC:064882
as under :-
"5. Learned counsel for the respondents did endeavour to
persuade us that it should be per the legal heir by relying
on 'Magma General Insurance Company Ltd. Vs.
Nanu Ram alias Chuhru Ram and others' (2018) SCC
Online SC 1546.
6. We are, however, of the view that the total amount has
to be assigned under a particular heading and that will
go depending on the number of legal heirs present.
7. The amounts fixed in terms of Pranay Sethi's case
(supra) are Rs.50,000/- and Rs.40,000/- respectively
under the two heads and that should be the total amount
payable."
24. In Shri Ram General Insurance Company Ltd. case (supra),
a three Judge Bench decision of Hon'ble the Supreme Court in Satinder
Kaur @ Satwinder Kaur and others case (supra) was not brought to the
notice of Hon'ble Bench. In view of the consistent view taken by Hon'ble
the Supreme Court, followed in Rahul Ganpatrao Sable case (supra),
elaborating on the issue, the contention of learned counsel for the Insurance
Company that a consolidated sum of ₹40,000/- with applicable increase
under the head of 'loss of consortium' be awarded and not separately to each
claimant, cannot be accepted. 'Loss of consortium', be filial, parental or
spousal, affects each individual in its own way. Indeed, said loss cannot be
measured in terms of money, suffered by each individual relation in a death
case. In a recent judgment of Hon'ble the Supreme Court delivered on
05.07.2023 in Rahul Ganpatrao Sable case (supra), it has been
categorically observed that all the dependents be separately awarded for loss
of consortium.
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Neutral Citation No:=2024:PHHC:064882
25. Keeping in view that deceased was self-employed and aged 30
years, future prospects 40% required to be given, as per ratio of Pranay
Sethi's case (supra).
26. Perusal of the Award shows that the learned Tribunal granted
₹1,00,000/- towards 'loss of consortium' and ₹25,000/- as funeral expenses
and added in the total of 'loss of dependency', assessed ₹10,80,000/- and
thereafter deducted half of the assessed amount i.e., ₹12,05,000/- towards
contributory negligence and granted ₹6,02,500/-. To the considered opinion
of this Court, the learned Tribunal has faulted in its approach. The aforesaid
amount under conventional heads ought not to have been considered towards
contributory negligence. The compensation is re-determined as under :-
Name of the deceased - Lachhman
Age - 30 years
Status - Married
Amount given by learned MACT - `6,02,500/-
along with 9% interest per annum
Reassessment of award amount
Sr. No. Heads Income (in Rupees)
1. Annual Income `90,000/-
(`7,500/- per month x 12)
2. Future prospects @ 40% `10,500/-
(`7,500 + `3,000/-)
3. Deduction 1/ 4th `7,875/-
(`10,500/- / 2625)
4. Multiplier of 17 on total income `16,06,500/-
(`7,875/- x 12 x 17)
5. Contributory negligence 50% `8,03,250/-
6. Loss of estate & funeral `36,000/-
expenses
(10% increase in every three
years in view of Pranay Sethi
(supra)
7. Loss of consortium `2,88,000/-
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Neutral Citation No:=2024:PHHC:064882
(spousal and parental) x 6 (`48,000/- x 6)
(10% increase in every three
years in view of Pranay Sethi
(supra)
8. Total `11,27,250/-
27. The total loss of dependency assessed by this Court is
₹8,03,250/- out of which the learned Tribunal has assessed 'loss of
dependency' as ₹10,80,000/- and after making a deduction of contributory
negligence, it comes out to be ₹5,40,000/-, same is, therefore, deducted from
the total 'loss of dependency' assessed by this Court i.e. ₹8,03,250/- (-)
₹5,40,000/- (granted by MACT) = ₹2,63,250/-.
28. ₹2,88,000/- and ₹36,000/- as assessed being compensation
under the conventional head is added in the amount of total loss of
dependency of ₹2,63,250/-, which comes out to be ₹5,87,250/-.
29. Learned Tribunal has granted interest at 9% per annum, which
seems excessive, considering the prevalent bank rate of interest. Therefore,
the interest as granted by the learned Tribunal needs to be reduced and grant
of interest @ 7.5% per annum is deemed appropriate. Accordingly, same is
granted.
30. In view of the above, the impugned award is accordingly
modified to the aforesaid extent. The insurance company is therefore
directed to deposit the amount of ₹5,87,250/- along with interest at the rate
of 7.5% per annum from the date of filing of the petition till its realization,
with the learned Tribunal within a period of 30 days from the date of receipt
of certified copy of this judgment.
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Neutral Citation No:=2024:PHHC:064882
31. Since the main case has been decided, pending miscellaneous
application(s), if any, are also disposed of accordingly.
(RITU TAGORE)
02.05.2024 JUDGE
Gaurav Sorot
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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