Punjab-Haryana High Court
Balwant And Others vs Shamsher Singh And Others on 5 November, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:146858
FAO-1729-2006
- 1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
383
FAO-1729-2006
Date of decision: 05.11.2024
BALWANT AND OTHERS ....Appellants
Versus
SHAMSHER SINGH AND OTHERS ...Respondents
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present : Mr.Sushil Sheoran, Advocate for
Mr. R.A. Sheoran, Advocate
for the appellants.
Mr. Gursharan Singh, Advocate
for respondent No.1.
Mr. Vinod Gupta, Advocate
for respondent No.3-Insurance company.
SUDEEPTI SHARMA. J.(Oral)
1. The present appeal has been preferred against the award dated
06.02.2006 passed in the claim petition filed under Section 166 of the Motor
Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Bhiwani (for
short, 'the Tribunal') for enhancement of compensation granted to the appellants,
who are the family members of the deceased.
FACTS NOT IN DISPUTE
2. Brief facts of the case are that 19.8.2004 deceased Sandeep was at his
house due to closure of his school on account of Teez festival. On that day,
buffaloes of claimants did not return after drinking water from the village pond.
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Claimant Balwant and his son Sandeep went in search of their buffaloes through
kacha path and came to Dadri-Mohindergarh road. When they reached near the
field of one Raje Ram, said Raje Ram met them and told that he had seen their
buffaloes going towards Village Mandoli. Sandeep was at some distance, whereas
Balwant and Raje Ram were discussing about the buffaloes, in the meantime, one
truck of big body bearing registration No. HR-37B- 9971 being driven by
respondent no. 1 in a rash and negligent manner came from Dadri side and hit
against his son Sandeep from behind and crushed him under its tyres, as a result of
which Sandeep died at the spot. The accident had taken place due to sole rash and
negligent driving of respondent No.1. Post mortem of the dead body of deceased
Sandeep was conducted at General Hospital, Charkhi Dadri. FIR No. 154 dated
19.08.2004 was registered against respondent No.1 under Sections 279/304-A IPC
at Police Station Sadar Dadri.
3. Upon notice of the claim petition, respondents appeared and denied
the factum of accident/compensation.
4. From the pleadings of the parties, the Tribunal framed the following
issues:-
(1) Whether the accident in question resulting into death of
Sandeep took place due to rash and negligent driving of
truck No. HR- 37-B-9971 by its driver respondent No.1?
OPP
(2) If issue no. 1 is proved, to what amount of compensation
claimants are entitled to and from whom on account of
death of Sandeep? OPP
(3) Whether respondent 1 was not holding a valid driving
licence at the time of accident in question? OPR-
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Insurance company.
(4) Whether the insurance company is not liable to pay the
amount of compensation as alleged? OPR-Insurance Co.
(5) Relief.
5. After taking into consideration the pleadings and the evidence on
record, the learned Tribunal awarded compensation to the tune of Rs.2,00,000/-
alongwith interest @ 9% per annum. Hence the claimants/appellants filed the
present appeal for enhancement of compensation awarded by the Tribunal.
SUBMISSIONS OF THE COUNSELS FOR THE PARTIES
6. The learned counsel for the claimants-appellants contends that the
amount assessed by the learned Tribunal is on the lower side. He further contends
that nothing has been awarded regarding the consortium and loss of estate,
transportation and funeral expenses. Therefore, he prays that the present appeal be
allowed and compensation should be enhanced as per latest law.
7. Per contra, learned counsel for the respondents, however, vehemently
argues that the award has rightly been passed and the amount of compensation as
assessed by the learned Tribunal has rightly been granted.
8. I have heard learned counsel for the parties and perused the whole
record of this case.
9. A perusal of the award indicates that deceased- Sandeep at the time of
occurrence was 16 years of age. He was a student of 10+1 class and was a
brilliant student. Furthermore, no amount was calculated for future prospects, loss
of consortium and loss of estate. Moreover, amount awarded for funeral expenses
is on lower side. Therefore, the award requires indulgence of this Court.
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10. The facts of the case are undisputed. The deceased was 16 years of
age at the time of accident and was stated to be a brilliant student. This Court is of
the considered view that the learned Tribunal has gravely erred in law by applying
the 2nd Schedule of Section 163-A of the Motor Vehicle Act, 1988 to assess the
notional income of the deceased at Rs.15000/- per annum in the absence of any
evidence of income of the deceased. Given that the claim was instituted under
Section 166 of the Motor Vehicle Act, 1988, the Tribunal ought to have assessed
the notional income in the light of the specific facts and circumstances of the case,
particularly, keeping in mind that the deceased was 16 years old and a brilliant
student.
11. In such cases, there is no fixed or uniform formula for determining
the income of a student where no tangible proof of earning is available on record.
Consequently, while calculating the notional income, the Tribunal should have
taken into account both the academic qualification and extra curricular
engagement of the deceased.
12. The Hon'ble Supreme Court in V. Mekala Vs. M. Malathi and
another (2014) 11 SCC 178 has considered the notional income of a student
studying in 11th standard, who was injured in a road accident that took place in the
year 2005 as Rs. 10,000/- per month. In the said case, the Hon'ble Supreme Court
whiletaking the notional income of the injured as Rs. 10,000/- per month had
considered the fact that the injured was a brilliant student as she had secured first
rank in the 10th standard and was likely to have a better future in terms of
educational career by acquiring a basic or master's degree in professional courses
which could have gotten her a suitable public or private employment but on
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account of the permanent disablement she suffered due to injuries sustained by her
in the accident, that opportunity is lost to her.
13. A two Judge Bench of the Hon'ble Supreme Court in Arvind Kumar
Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254, speaking through
Justice R.M. Lodha, has held as under:-
"14. On completion of Bachelor of Engineering (Mechanical) from the
prestigious institute like BIT, it can be reasonably assumed that he
would have got a good job. The appellant has stated in his evidence
that in the campus interview he was selected by Tata as well as
Reliance Industries and was offered pay package of Rs.3,50,000 per
annum. Even if that is not accepted for want of any evidence in support
thereof, there would not have been any difficulty for him in getting
some decent job in the private sector. Had he decided to join
government service and got selected, he would have been put in the pay
scale for Assistant Engineer and would have at least earned Rs. 60,000
per annum. Wherever he joined, he had a fair chance of some
promotion and remote chance of some high position. But uncertainties
of life cannot be ignored taking relevant factors into consideration. In
our opinion, it is fair and reasonable to assess his future earnings at
Rs. 60,000 per annum taking the salary and allowances payable to an
Assistant Engineer in public employment as the basis. Since he suffered
70% permanent disability, the future earnings may be discounted by
30% and, accordingly, we estimate upon the facts that the multiplicand
should be Rs.42,000 per annum."
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14. A two Judge Bench of the Hon'ble Supreme Court in Ashvinbhai
Jayantilal Modi Vs. Ramkaran Ramchandra Sharma and another (2015) 2 SCC
180 speaking through Justice V. Gopala Gowda J., while assessing the
compensation in the case of a 19 years old medical student, who was pursuing his
MBBS course but lost his life in a motor vehicular accident, has held as under:-
"11. The deceased was a diligent and outstanding student of medicine
who could have pursued his MD after his graduation and reached
greater heights. Today, medical practice is one of the most sought after
and rewarding professions. With the tremendous increase in demand
for medical professionals, their salaries are also on the rise. Therefore,
we have no doubt in ascertaining the future income of the deceased at
Rs 25,000 p.m. i.e. Rs 3,00,000 p.a. Further, deducting 1/3rd of the
annual income towards personal expenses as per Oriental Insurance
Co. Ltd. v. Deo Patodi [(2009) 13 SCC 123 : (2009) 5 SCC (Civ) 29 :
(2010) 1 SCC (Cri) 963] and applying the appropriate multiplier of 13,
keeping in mind the age of the parents of the deceased, as per the
guidelines laid down in Sarla Verma case [Sarla Verma v. DTC,
(2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri)
1002] , we arrive at a total loss of dependency at Rs 26,00,000 [(Rs
3,00,000 minus 1/3 × Rs 3,00,000) × 13]."
15. In view of V. Mekala's case (supra), in the instant case,
considering that the deceased was 16 years old student at the time of death
and the accident took place in the year 2004, this Court assess the notional
income of the deceased as Rs.6,000/- per month. Further the multiplier of 18
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is to be applied. The claimants are to be awarded future prospects @ 40%.
The claimants are to be awarded the compensation under the conventional
heads i.e loss of estate, loss of consortium etc. Therefore, the impugned
award requires interference by this Court.
SETTLED LAW ON COMPENSATION
16. 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
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
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getting married in a short time, in which event the contribution to the
parent(s) and siblings is likely to be cut drastically. 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
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
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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.
17. 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;
(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 Rajesh
refers to Santosh Devi, it does not seem to follow the same. The
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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
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.
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* * * * *
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
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
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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."
18. 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
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,
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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.
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
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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 the sister of the deceased, an amount of Rs 40,000 each for
loss of filial consortium.
CONCLUSION
19. 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
06.02.2006 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.6000/-
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2 Future prospects @ 50% Rs.3,000 (50% of Rs.6,000)
3 Deduction towards personal Rs.9,000 x 1/2=Rs.4500
4. Total Income Rs.9,000 - Rs.4500 = Rs. 4500
5 Annual Dependency Rs.9,72,000 ( Rs.4500 x 12 x 18)
6 Loss of Estate Rs.18,000/-
7 Funeral Expenses Rs.18,000/-
8 Loss of Consortium Rs.96,000/-
Filial : Rs.48,000 x 2
Total Compensation Rs.11,04000/-
Amount Awarded by the Rs.2,00,000/-
Tribunal
Enhanced amount Rs.9,04,000/-
20. 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% per annum on the enhanced amount from the date of filing of claim petition till
the date of its realization.
21. The Insurance Company is directed to deposit the enhanced amount
of compensation along with interest with the Tribunal within a period of two
months from today. The Tribunal is further directed to disburse the enhanced
amount of compensation along with interest in the accounts of all the
claimants/appellants in equal shares as minors have attained the age of majority as
per ratio settled in the award dated 06.02.2006. The claimants/appellants are
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directed to furnish their bank account details to the Tribunal.
22. Disposed off accordingly.
23. Pending applications, if any, also stand disposed of.
(SUDEEPTI SHARMA)
05.11.2024 JUDGE
amandeep
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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