Punjab-Haryana High Court
Sumitra Devi And Anr vs Hari Ram And Ors on 6 May, 2024
Author: Archana Puri
Bench: Archana Puri
2024:PHHC:062796
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(i) FAO-3607-2009 (O&M)
Sumitra Devi and another
...Appellants
VERSUS
Hari Ram and others
...Respondents
(ii) Cross Objection-9-CII-2015 (O&M)
Sumitra Devi and another
...Appellants
VERSUS
Hari Ram and others
...Respondents
Date of Decision: May 06, 2024
CORAM: HON'BLE MRS. JUSTICE ARCHANA PURI
Present: Mr.Anurag Jain, Advocate
for the appellants.
Mr.D.R.Bansal, Advocate
for respondent No.3.
Mr.Anil K. Sokal, Advocate for
Mr.Vaibhav Jain, Advocate
for respondent No.4/cross-objector.
****
ARCHANA PURI, J.
FAO-3607-2009 has been filed by the appellants-claimants,
thereby, questioning the adequacy of the compensation awarded by learned
Motor Accident Claims Tribunal, on account of death of Anil Kumar, in a
motor vehicular accident, which took place on 02.11.2003.
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Vide impugned Award dated 24.03.2009, learned Tribunal had
decided four claim petitions, arising out of the same accident.
The facts germane, to be noticed, are as follows:-
That, on 02.11.2003, at about 5.00 a.m., Pawan Kumar, Sunil and Anil
Nagpal were going from Hisar to Patiala in Esteem car bearing registration
No.DL-3CK-3010, for their personal work. Anil Kumar was driving the car,
at a moderate speed. At about 6.15 a.m., when they reached bus stand of
village Gagankheri, a Max bearing registration No.RJ-21C-7064, came from
Jind side, being driven by respondent No.1-Hari Ram, in a rash and
negligent manner and struck the same into the Esteem car, as a result
whereof, Pawan and Sunil received multiple injuries and Anil Kumar died
instantaneously. Ashwani Nagpal, brother of the deceased, was also coming
in his car and he shifted the injured to the hospital. The driver of the Max
ran away from the spot. It is specifically pleaded that accident had taken
place, due to rash and negligent driving of the offending vehicle by
respondent No.1-Hari Ram and FIR was also got registered.
Two claim petitions were filed by injured Pawan Kumar and
Sunil Kumar i.e. 165-MACT and 166-MACT, respectively, for seeking
compensation, on account of injuries sustained by them. Case No.164-
MACT was filed by Anjali, widow of deceased Anil Kumar, whereas, case
No.164(A)-MACT was filed by parents of the deceased, for seeking
compensation, on account of death of Anil Kumar.
It is the pleaded case of the appellants-claimants that Anil
Kumar was doing business of spare-parts under the name and style of M/s
New Spare House, at shop No.406, Ground Floor, Auto Market, Hisar and
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used to earn Rs.25,000/- per month. He was an income tax assessee. The
appellants-claimants claimed that they had spent Rs.5000/- on transportation
of dead body and also spent of Rs.1 lakh, on funeral and last rites.
However, the respondents denied the accident in toto. Besides
taking various preliminary objections, with regard to cause of action, locus
standi, estoppel, maintainability, mis-joinder and non-joinder of necessary
parties, also, it was alleged that no accident had taken place near village
Gagankheri on 02.11.2003 at about 6.15 a.m. and a false case has been
registered against respondent No.1-Hari Ram. Vehicle bearing registration
No.RJ-21C-7064 was never involved in the accident. On similar lines, even
the written statement was filed by Respondent No.2-owner.
Respondent No.3-insurance company also filed written
statement, thereby, taking similar preliminary objections and also further,
asserted about the claim petition to have been filed in contraventions of
provisions of Motor Vehicles Act, 1988 and that the Max bearing
registration No.RJ-21C-7064 was not being driven by a person, holding a
valid and effective driving licence, nor the person, under the employment of
the insured, at the time alleged accident and that the fitness of the said
vehicle had expired. However, it was admitted that Max vehicle in question
was insured with the answering respondent.
On appraisal of the evidence, adduced on record, learned
Tribunal, while considering the testimonies of various witnesses, more
particularly, of PW-7 Anjali, who is widow of the deceased as well as PW-6
Sumitra Devi, who is mother of the deceased, and considering the income
tax record, proved through PW-8 Rajesh Kumar, had concluded about
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deceased Anil Kumar indulging in the business of sale of spare parts. While
taking it to be so, the income tax returns Ex.PW8/A to Ex.PW8/G were
taken into consideration. It was concluded by learned Tribunal that the
earnings of the deceased for the assessment year 2002-2003 was Rs.60,070/-
and he paid income tax to the tune of Rs.1014/-. Thus, his total income tax
Rs.59,056/-. Further also, for the assessment year 2003-04, the income of the
deceased was Rs.91,680/- and he paid income tax, to the tune of Rs.7336/-
and thus, the total income was Rs.84,344/-. Considering both the aforesaid
income tax returns, mean income of both the assessment years, was taken as
his income, which came to be Rs.71,701/- per annum. Out of the same,
deduction was made to the extent of 1/3rd towards personal expenses of the
deceased and the dependency was worked upon as Rs.47,801/-. Considering
the age of deceased Anil Kumar to be 35 years, multiplier of '15' was
applied and the compensation was worked upon as Rs.7,17,015/-. Besides
the same, another amount of Rs.20,000/- was granted, on the count of
'funeral and last rites' and on the count of 'loss of estate', Rs.2500/- was
granted. In total, the compensation was granted to the extent of
Rs.7,39,515/-.
This extent of compensation was apportioned between the
parents and widow of the deceased, to the extent of 30%(parents) and 70%
(widow). Besides the same, the widow was also held entitled to Rs.5000/-,
on the count of 'loss of consortium'.
Also further, it should be noted even though, the claim for ill-
fated car was also made, but however, considering the fact that neither
Anjali nor Sumitra Devi, while stepping into witness box as PW-7 and PW-6
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respectively, had uttered about any family settlement reached between the
parties to the lis, relating to the car in question, as none of them was held
entitled to any compensation, vis-a-vis, the damage caused to the car in
question. As a result thereof, the compensation, as worked upon aforesaid,
was granted on account of death of Anil Kumar. Besides the same, the
liability fastened upon the respondents was joint and several.
Feeling aggrieved by this extent of compensation granted, the
appellants, who are parents of the deceased have filed the present appeal.
Be it noted that no appeal, as such, has been filed by any of the
respondents, upon whom, the liability was fastened. However, Anjali, who
was impleaded as respondent No.4, in the appeal filed at the instance of the
parents of the deceased and also, who had separately filed the claim petition,
in the capacity of being widow of the deceased, though, had not filed
separate appeal, but however, she had filed cross-objections, in the appeal,
thereby, seeking enhancement of the compensation awarded to her. In the
grounds of appeal, she had asserted that apportionment of the compensation,
ought to be in the ratio of 80:20. Be it noted that qua compensation, on
account of damage caused to the ill-fated car, there is no such claim made, at
the instance of Anjali, widow of the deceased.
While making reference to the evidence adduced before learned
Tribunal, it has been submitted by learned counsel for the appellants that the
compensation has been worked upon, miserably on lower side, which calls
for extensive enhancement on various counts, to which amiss has been given
by learned Tribunal. It is submitted that the income tax returns, as such,
have not been appraised in proper perspective. The annual income, so taken,
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is on lower side, as a result whereof, the work on of the compensation, is
miserably low. Even, addition on the count of 'future prospects', has not
been made. Besides the same, under the conventional heads, the
enhancement is called for.
It is further submitted by learned counsel for the appellants that
learned Tribunal had erroneously reached the conclusion about neither
widow nor mother of the deceased to be entitled to compensation, on
account of damage caused to the esteem car, of which the deceased was the
occupant, at the relevant time. Even though, it is submitted that Sumitra
Devi, in her affidavit Ex.PW6/A, had not stated about the car, which was
registered in the name of Anjali, to have fallen to her share, but however, it
is submitted that learned Tribunal, besides the aforesaid fact, has not taken
into consideration, the judgment delivered by the Civil Court in a suit
bearing No.249C of 2003, decided on 11.08.2004, wherein, Sumitra Devi
had sought declaration against Smt.Anjali as well as Oriental Insurance
Company Limited.
Learned counsel for the appellants also submitted that looking
at the aged parents of the deceased, the apportionment of the compensation,
done by learned Tribunal is also erroneous. The apportionment ought to
have been in the ratio of 50:50.
Learned counsel for the appellants has drawn the attention of this
Court to the judgment, which has been proved on record as Ex.PA, as well
as decree sheet Ex.PB. Besides the same, copy of the compromise, which
was reached between Anjali and Sumitra Devi, with regard to their
entitlement to share of properties in the name of Anil Kumar, was proved on
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record as Ex.PC. It is submitted that as per this compromise, which was
duly signed by Sumitra Devi as well as Anjali, the claim qua car bearing
registration No.DL-3CK-3010 was foregone by Anjali, in favour of Sumitra
Devi. On the basis thereof, it is submitted that learned Tribunal, oblivious of
this decree, had deprived Sumitra Devi of her rightful compensation, on the
basis of the report Ex.P6 proved by PW-2 Rajiv Gupta, Surveyor Loss and
Assessor, wherein, assessment of the damage caused to the car in the
accident in question, was worked upon.
In view of the aforesaid submissions, learned counsel for the
appellants has made a prayer for the acceptance of the appeal and to enhance
the compensation manifold.
On the other hand, learned counsel for the insurance company
has resisted the claim of the appellants. He submits that the compensation
granted, cannot be said to be on lower side. Further, it is submitted that
rightly the claim qua the damage caused to the car in the accident in
question, has been denied by learned Tribunal, as no satisfactory evidence,
relating to the same, was led by mother or widow of deceased. As such, he
made a prayer for dismissal of the appeal.
Further, learned counsel for cross-objector, who is respondent
No.4, in the present appeal, has resisted the claim of the appellants. In fact,
objections have been filed, at the instance of Anjali, thereby, also seeking
enhancement of the compensation. Besides the same, qua the apportionment
also, it is submitted that, at the maximum, it ought to be to the extent of
80:20. Furthermore, it is submitted that qua the damage caused to the car,
since Anjali is the registered owner, she has rightful claim to the
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compensation, vis-a-vis, damage to the car in question. With these
submissions, learned counsel for cross-objector has made a prayer for
dismissal of the appeal and acceptance of the cross-objections.
However, the compensation, as worked upon by learned
Tribunal, as detailed aforesaid, as per prevalent law, definitely, calls for red-
determination.
At this juncture, it is pertinent to mention that it is submitted by
learned counsel for the appellants-claimants that respondent No.4-Anjali,
who is widow of the deceased, had performed re-marriage and therefore, she
is not entitled to any compensation, on account of death of Anil Kumar, her
husband. However, qua this issue, it is pertinent to mention that while
conducting cross-examination, suggestions had been put to Anjali, with
regard to her re-marriage, but however, she had denied about the same. No
concrete evidence is coming forth, with regard to her re-marriage. Otherwise
also, fact of re-marriage (if any had taken place), the same, does not amount
to denial of compensation to her. The re-marriage, as such, could not be a
reason to deprive widow of her rightful claim. Re-marriage of widow has
nothing to do with her right, which accrued to her to seek compensation, on
account of loss, which has accrued to her, as a result of unnatural demise of
her husband. Her decision to re-marry is entirely her personal choice and
nobody can have say in the same. In this regard, beneficial reference is
made to decision rendered in Reliance General Insurance Co. Ltd. vs.
Rajni and others, 2024 ACJ 317, wherein, widow was held to be entitled to
compensation, on account of death of her husband, in a motor vehicular
accident, even though, she had re-married.
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In the aforesaid judgment, reliance was further placed upon
in Dincy Devassy vs. United India Insurance Company and others, 2019
ACJ 1428, wherein, it was concluded that right of the widow to claim
compensation crystallized upon her husband's life, being tragically snatched
away in the motor accident. Therefore, simply because she had re-married,
her claim does not abate or lessen. Considering the same, the Hon'ble Court
had removed the disparity between the apportionment of the compensation,
so worked upon, granted to the widow as well as the parents of the deceased
and held each of the claimants, to be entitled to receive equal share in the
awarded amount. This decision was further challenged by way of filing of
SLP (C) No.9844-2010, titled as Bridget Irene and another vs. Dincy
Devassy and another, decided on 06.04.2021, wherein, the Hon'ble Apex
Court was not inclined to interfere in this matter and the Special Leave
Petition was dismissed.
In view of the aforesaid case law, widow Anjali, as such, is also
entitled to compensation, besides the parents.
Learned Tribunal had considered the mean income, while
taking consideration two income tax returns of the deceased, which are for
the assessment years 2002-2003 Ex.PW8/C and 2003-2004 Ex.PW8/E.
However, it should be kept in mind that accident had taken place on
02.11.2003. The income tax return for the assessment year 2003-2004 was
filed by Anil Kumar, soon before his death. This is the last income tax
return filed by the deceased. There is progressive enhancement in the extent
of income given in two income tax returns, so proved in evidence. In the
income tax return for the assessment year 2002-2003, the income of the
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deceased as Rs.60,070/- and the income tax Rs.1014/- was paid and the
income was taken as Rs.59056/-. However, for the assessment year 2003-
2004, the total income was Rs.91680/-. The income tax returns are the
reliable source of evidence, which ought to be taken into consideration. The
income tax return for the assessment year 2003-2004 is latest in time, which
was filed by the deceased himself, soon before his death and thus, it ought to
be taken into consideration. In the same, the income is shown to be
Rs.91680/- per annum and there is no reason, as such, to take the mean
income of the two income tax returns, there being progressive enhancement
in the income in the later return. As such, mean income cannot be taken into
consideration.
In the income tax return for the assessment year 2003-2004, the
total income tax payable is shown to be Rs.5000/- and after making
deduction of the same, the income works out to be Rs.86,680/- per annum.
From the income tax returns only, the date of birth of Anil Kumar is evident
to be 02.12.1969 and thus, he was 34 years at the time of accident. To the
aforesaid amount, keeping in view the age of the deceased, as per Pranay
Sethi's case, addition of 40%, on the count of 'future prospects' ought to be
made. Thus, the annual income of the deceased is worked upon as
Rs.86680+Rs.34672(40%)=Rs.1,21,352/-.
However, looking at the number of dependents, as per Sarla
Verma's case, the deduction ought to be made to the extent of 1/3rd and
after deducting the same, the annual dependency is worked upon as
Rs.121352-40450(1/3rd)=Rs.80,902/-.
National Insurance Company Limited vs. Pranay Sethi and others, 2017(4) RCR (Civil) 1009
Smt.Sarla Verma vs. Delhi Transport Corporation and anr., 2009(3) RCR (Civil) 77
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Learned Tribunal had erroneously applied the multiplier of '15',
but however, considering the age of the deceased to 34 years, as per Sarla
Verma's case, appropriate and suitable multiplier, to be applied is '16' and
while applying the same, the loss of dependency, works out to be
Rs.80902x16= Rs.12,94,432/-.
Further, it is pertinent to mention that learned Tribunal had
granted a sum of Rs.5,000/-, on the count of loss of consortium only to
Anjali, widow of the deceased. However, as per 'Magma General
Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others,
2018 (18) SCC 130', all the dependents are entitled to loss of consortium,
may it be 'parental', 'spousal' or 'filial' consortium. In the present case, the
appellants-claimants, who are parents of the deceased, are entitled to
compensation, on the count of 'loss of consortium'. Considering the same,
as per Pranay Sethi's case (supra), the compensation payable, on the count
of 'loss of consortium', to each of the dependents, considering the
enhancement clause of 10%, after every three years of the passing of the
judgment, works out to be Rs.48,400/- to each of the dependents (i.e.
Rs.48400x3=Rs.1,45,200/-) and on the similar pattern, on the counts of 'loss
of estate' and 'funeral expenses', the compensation payable, comes to be
Rs.18,150/-, on each count.
Considering the same, the compensation payable on account of
death of Anil Kumar, is computed, as herein given:-
Loss of dependency : Rs.12,94,432 /-
Loss of consortium : Rs.1,45,200/-
Loss of estate : Rs.18,150/-
Funeral expenses : Rs.18,150/-
Total : Rs.14,75,932/-
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Now, arises the question of apportionment of the compensation.
Learned Tribunal had apportioned the compensation, so worked upon,
between the parents and widow of the deceased to the ratio of 30:70.
However, this apportionment cannot be considered to be appropriate.
Definitely, lesser amount has been granted to the parents of the deceased.
Though, submission is made by learned counsel for the cross-objector about
the apportionment ought to be in the ratio of 80% to the widow and 20% to
the parents, but however, the submission so made, is not tenable.
To work upon the loss caused to the parents as well as to the widow,
on account of death of Anil Kumar, in the fitness of the circumstances, the
apportionment is made to the extent of 40% in favour of the parents (i.e.
20% each to father and mother) and 60% in favour of the widow.
The total compensation as now awarded is Rs.14,75,932/-.
After deducting the amount awarded by learned Tribunal, the differential
amount comes to be Rs.14,75,932-7,39,515=Rs.7,36,417/-. The
apportionment shall to be extent of 40:60 ratio, as observed aforesaid. If any
amount earlier granted, shall be adjusted from the share, as now worked
upon. However, on the enhanced amount of the compensation i.e.
Rs.7,36,417/-, the appellants-claimants and respondents No.4/cross-objector
shall be entitled to the interest, at the rate of 6% per annum, from the date of
filing of the present appeal, till realization of the enhanced amount of
compensation.
Further, it is pertinent to mention that Rs.5,000/- as earlier
granted by learned Tribunal to Anjali, widow of the deceased, on the count
of 'loss of consortium', shall be adjusted from the aforesaid amount, as
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apportioned above.
Now, let us consider the entitlement of the appellants-claimants,
vis-a-vis, damage caused to the ill-fated car, of which Anil Kumar was the
occupant, at the time of accident. It is categoric claim of the appellants-
claimants that the car was badly damaged in the accident and the said car, in
the family settlement, had fallen to the share of Sumitra Devi and it was
claimed that damage caused to the car was to the extent of Rs.2,00,000/-,
which was required for repair of the car.
In the light of the same, learned counsel for the appellants-
claimants has also made reference to the testimony of PW-2 Rajeev Gupta,
Surveyor Loss and Assessor. He had inspected the ill-fated car bearing
No.DL-3CK-3010, Maruti Esteem Car of 1997, for the purpose of
assessment of loss of vehicle and had made the report, which is Ex.P6.
Photographs are also part of his report Ex.P6. In the light of the report
furnished by Rajeev Gupta, it is submitted that learned Tribunal had
erroneously deprived the compensation to appellant-claimant Sumitra Devi.
It is further also submitted that even though, Sumitra Devi had
pleaded about the car having fallen to her share in the family settlement, but
however, this was not considered by learned Tribunal. In this regard, learned
counsel submits the judgment passed by Civil Court with regard to
settlement, so reached with Anjali, qua the car in question, has been proved
on record and the same ought to have been taken into consideration. So far
as, cross-objector Anjali is concerned, she has maintained total silence, with
regard to her entitlement to the car in question.
Considering the same, it is pertinent to mention that Sumitra
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Devi had filed a suit against Anjali as well as the insurance company, for
seeking declaration to the effect that she is legally entitled to half share of
the properties, in respect of policies, which stood in the name of Anil Kumar
i.e. deceased and furthermore, had also sought relief of mandatory injunction
as well as permanent injunction. The said suit is bearing Civil Suit No.249-
C of 2003, instituted on 31.05.2004, which was decided on 11.08.2004. The
judgment of the said suit has been proved as Ex.PA, copy of decree sheet is
Ex.PB. The aforesaid judgment was passed, on the basis of the compromise
arrived between Sumitra Devi and Anjali. The suit was decreed, on the basis
of the compromise, which has been proved on record as Ex.PC.
Perusal of this compromise categorically reveals that Anajli,
who is owner of the car bearing registration No.DL-3CK-3010 had foregone
all her ownership rights, in favour of Sumitra Devi. As per the compromise,
now Sumitra Devi claimed to be entitled to compensation, qua damage
caused to the car in the accident in question. The arrival of the compromise,
as such, is not disputed by learned counsel for respondent No.4/cross-
objector. In view of the recitals aforesaid, about foregoing of ownership
rights by Anjali, in the car in question, in favour of Sumitra Devi, on the
basis whereof, judgment was passed by Civil Court, copy whereof is Ex.PA
and decree sheet is Ex.PB, Sumitra Devi, as such, is entitled to
compensation, qua damaged caused to the car. Therefore, findings recorded
by learned Tribunal, thereby, depriving both Sumitra Devi and Anjali, qua
compensation, on this account, is hereby set aside and Sumitra Devi is held
entitled to the compensation, on the count of damage caused to the car.
In this backdrop, now the report furnished by Surveyor Loss
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and Assessor, which is proved as Ex.P6, ought to be taken into
consideration. Considering the same, it is pertinent to mention that the
liability on total loss basis, after deducting salvage value is mentioned as
Rs.1,14,000/-, whereas, on repair loss basis, the liability after deducting
salvage is Rs.1,57,095.68. Therein, the assessment was made, while
considering damage caused to each part of the body of the car. The
photographs are also coming on record, which depicts about the extensive
damage near total loss, caused in the accident. Working upon the same and
while doing some moderation, on the count of damage caused to car bearing
registration No.DL-3CK-2010, in the fitness of circumstances, this Court
deems it appropriate to grant Rs.1,40,000/- to Sumitra Devi. Thus, besides
the aforesaid amount, as apportioned aforesaid falling to share of Sumitra
Devi, she is also entitled to Rs.1,40,000/-, on the count of damage to the car.
The insurance company is directed to pay the aforesaid amount of
Rs.1,40,000/- to appellant-claimant Sumitra Devi, within a period of two
months from today onwards. In the eventuality of non-payment of the
aforesaid amount, the insurance company shall be liable to pay interest @
6% from the date of filing of the present appeal, till realization of the
aforesaid amount.
In view of the aforesaid observations, the appeal filed by the
appellants-claimants i.e. FAO-3607-2009 stands allowed, whereas, XOBC-
9-CII-2015 filed by respondent No.4/cross-objector, stands partly allowed.
May 06, 2024 (ARCHANA PURI)
Vgulati JUDGE
Whether speaking/reasoned Yes
Whether reportable Yes/No
