Punjab-Haryana High Court
Vijay Kaushik And Ors vs Kailash Kundalik And Ors on 5 November, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:152596
FAO-2324 of 2007 (O&M)
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
FAO-2324 of 2007 (O&M)
Date of Decision: November 05, 2024
Mrs. Vijay Kaushik and ors. ......Appellants
Vs.
Kailash Kundalik Mahajn & ors ......Respondents
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Ashwani Arora & Mr. Vipul Sharma, Advocates
for the appellants
Mr. Lalit Garg, Advocate, for respondent No. 3 and 4.
Mr. R.C. Gupta, Advocate, for respondent No. 6
***
SUDEEPTI SHARMA J.
1. The present appeal has been preferred against the award dated
28.02.2007 passed in the claim petitions filed under Section 166 of the Motor
Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Chandigarh
(for short, 'the Tribunal') for enhancement of compensation granted to the
claimants/appellants, who are family members of the deceased-Dr. Rakesh
Kaushik.
FACTS NOT IN DISPUTE
2. The brief facts of the case are that on the intervening night of
27/28.12.2001, Dr. Rakesh Kaushik (since deceased) was going from Pune to
Aurangabad in a jeep bearing registration No. MH-20-U-5549 being driven by
Sheikh Gayas. After they reached near Sodala Tehsil Niwasa District Ahmednagar,
in the meantime, a truck bearing registration No. MH-18-A-7069 came from the
opposite side in a rash and negligent manner, driven by respondent No. 1 and
struck into the jeep in which Dr. Rakesh Kaushik (since deceased) was travelling.
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As a result of this accident, the driver of the jeep Sheikh Gayas and other occupant
Parshant Narinder Tiwari died at the spot and Dr. Rakesh Kaushik received serious
and multiple injuries on his person. He was rushed to a hospital to begin with and
remained admitted in various hospitals for his treatment and ultimately he expired
on 13.01.2003 in PGI, Chandigarh due to the injuries suffered by him in the said
accident.
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 Dr. Rakesh Kaushik died on the intervening
night of 27/28.12.2001 at about 1 A.M. in the area of Sodala
Tehsil Niwasa District Ahmedanagar on account of rash and
negligent driving of Truck No. MH-18-A-7069 by respondent
No. 1? OPP
2.Whether the claimants are entitled to compensation being Lrs
of Rakesh Kaushik?If so how much and from whom? OPP
3.Whether the driver of the offending vehicle was not holding a
valid and effective driving licence at the of time of accident?
OPR
4.Relief."
5. After taking into consideration the pleadings and the evidence on
record, the learned Tribunal awarded compensation to the claimants to the tune of
Rs.34.51 lakhs by both sets of respondent Nos. 1 to 4 and respondent Nos. 5 and 6
in the ratio of 50:50 jointly as well as severally. Further Insurance Company-
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respondent Nos. 3 and 4 was granted liberty to proceed against the insured i.e
owner of offending truck bearing registration No. MH-18-A-7069.
SUBMISSIONS OF LEARNED COUNSELS FOR THE PARTIES
6. Learned counsel for the appellants/claimants contends that the income of
the deceased assessed by the Tribunal is on the lower side, as all the documents
relating to his income which were placed on record before the Tribunal, showed his
income as Rs.49795/-. Further no future prospects were granted to the claimants. The
appellants were entitled to future prospects of 30%. He further contends that nothing
has been granted towards pain and suffering, suffered by the deceased, while he was
on bed.
7. Learned counsel for the appellant has further relied upon a judgment of
Hon'ble the Supreme Court in a case of New India Assurance Co. Ltd vs. Ashish
Ravinder Kulkarni and others, 2023 ACJ 1997 to contend that since the deceased
was a regular employee, 30% addition should be made towards future prospects
instead of 25%.
8. Per contra, learned counsel for the respondent-Insurance Company has
vehemently argued that the learned Tribunal has erred in law in taking the income of
the deceased at Rs.25000/- per month, as the claimants could not prove the alleged
income from the World Bank. He has relied upon Form No. 16 produced by the
claimants and contends that as per Form No. 16, the learned Tribunal ought to have
taken the income of the deceased as Rs.12000/- per month. Further No Income Tax
return of the deceased was produced by the claimants to prove the factum of other
source of income of the deceased. The claimants have not even produced any witness
with respect to salary certificate of the deceased. The learned Tribunal has wrongly
assessed the income of the deceased by taking into consideration all the earnings of
the deceased from other institutions.
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8. Further, learned counsel for the Insurance Company has vehemently
argued that the learned Tribunal has erred in law while applying the multiplier of 15,
as the date of birth of the deceased was 16/04/1954 and thus, the multiplier of 14
should have been applied instead of 15.
9. Learned counsel for the Insurance Company has further submitted that
there is a typographical error in the award, as the recovery rights should be given to
respondent Nos. 3 and 4-United India Insurance Co against respondent No. 2 (Owner
of offending truck MH-18-A-7069)
10. Learned counsel for the Insurance Company has vehemently argued that
the learned Tribunal has erred in law in awarding the amount of Rs.2000/- and
Rs.5000/- for funeral expenses as well as for loss of consortium, twice.
11. Learned counsel for the Insurance Company has further argued that the
claimants are not entitled for pain and suffering, in view of judgment of Hon'ble the
Supreme Court of India in a case of The Oriental Insurance Co. Ltd vs. Kahlon @
Jasmail Singh Kahlon (deceased) through his LR Narinder Kahlon Gosakan and
another, 2021 (4) RCR (Civil), 1
11. I have heard learned counsel for the parties and perused the whole
record of this case.
12. A bare perusal of the record shows that Dr. Rakesh Kaushik (since
deceased) was veterinary doctor and was highly qualified and competent scientist.
He was working with World Bank and was also employed with Grass Roots Action
for Social Participation Grasp Aurangabad. He was drawing total salary of
Rs.49670/- per month (i.e Rs.20,500/- from World Bank and Rs.29,170/- from
Grasp). Further as per Mark C, the salary from World Bank was tax free. Further,
as per Annexure P-8, Dr. Rakesh Kaushik (since deceased) received a sum of
Rs.2,47,500/- as consultant fee from the International Bank for Reconstruction and
Development New Delhi during the period April 1, 2001 to March, 2002. This
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amount was also tax free. As per Annexure P-9, Dr. Rakesh Kaushik (since
deceased) received a sum of Rs.6,65,500/- as consultant fee for the period
mentioned below:-
October 6, 1999 to June 30, 2000- 82 days @ INR 4000/- day
August 14, 2000 to May 31, 2001- 25 days @ INR 4500/- day
July 11, 2001 to December 31, 2001- 50 days @ INR 4500/- day
In view of the above, the argument raised by learned counsel for the
Insurance Company that the income of the deceased @ Rs.25,000/- per month
taken by the learned Tribunal is on the higher side, is liable to be dismissed.
Therefore, the learned Tribunal has rightly assessed the income of the deceased as
Rs.25,000/-. However, the multiplier of 15 has wrongly been taken by the Tribunal
and the same needs to be corrected, as per settled law. The Tribunal has further
erred in law in awarding the amount of Rs.2000/- and Rs.5000/- for funeral expenses
as well as for loss of consortium, twice.
With respect to argument of learned counsel for the Insurance Company
that the recovery rights be given to respondent Nos. 3 and 4-United India Insurance
Co against respondent No. 2 (Owner of offending truck MH-18-A-7069), the same is
liable to be accepted, as it was a typographical error in the order.
Further the learned Tribunal has failed to include future prospects in
its calculation. Moreover, less amount was awarded for loss of consortium and for
funeral expenses. However, no amount was awarded towards loss of estate.
So far as the contention of learned counsel for the appellant that the
claimants are entitled for pain and suffering is concerned, reference at this stage
can be made to judgment of Hon'ble the Apex Court in a case of Divisional
Manager, Oriental Insurance Co. Ltd vs. Maran Chandra Das and others, 2023
ACJ 864 wherein it has been held as under:-
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Having heard learned counsel for the petitioner at a
considerable length, we do not find any ground to interfere with
the impugned judgment dated 7.1.2021 passed by the High Court
of Tripura.
2. The question of law sought to be raised on behalf of the
petitioner does not arise for consideration for the reason that the
deceased son of the respondent(s) met with an accident on
20.10.2015 and he remained hospitalised at Kolkata where
multiple surgeries were performed on him. However, he could not
survive and succumbed to injuries on 13.9.2016.
3. In the peculiar facts and circumstances of this case, where the
parents witnessed the pain, agony and suffering of their son for
almost one year, the compensation awarded by the High Court,
under the head of pain and suffering, cannot be said to be
without any basis. The parents themselves also suffered
unbearable pain every moment during this entire period"
In view of the above referred to judgment (supra), the claimants are
held entitled under for grant of compensation under the head of pain and suffering.
Further Hon'ble the Supreme Court in Ashish Ravinder Kulkarni's case
(supra), has held that in case of a person who is in regular service, a percentage higher
than the one stated in National Insurance Company Ltd. Vs. Pranay Sethi & Ors.
[(2017) 16 SCC 680], can also be awarded. The relevant extract of the same is
reproduced as under:-
"7. It is also his case that the future prospects as reckoned at
30% is not justified and the same should have been at 25% since
the job of the deceased cannot be onsidered as permanent
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employment. Lastly, it is contended the interest as fixed by the
High Court at 7.5% per annum is excessive and is without
appropriate reason
being assigned.
8. The learned counsel for the respondents/claimants would
however seek to sustain the judgment passed by the High Court.
On all the aspects which have been urged by the learned counsel
for the appellant, it is contended that the MACT as well as the
High Court have looked into the evidence which was available
before it and has thereafter arrived at its conclusion, which does
not call for interference.
9. In the light of the contentions put forth, insofar as the salary,
we take note that by way of clarification, we had required the
learned counsel for the respondents/claimants to point out that
the amount paid was after deduction of the tax or proof for
payment of tax, since the learned counsel for the appellant had
contended that the same has not been done. Along with an
application, in addition to the documents that were relied on
before the MACT, the notice of assessment of the Inland Revenue
Authority of Singapore is produced. From the same, it would
indicate that from the salary paid to the deceased, tax has been
assessed in Singapore. Hence, there is no scope for double
taxation on the same income. Therefore, deducting any amount
towards tax once over again would not arise. Hence, his salary
as reckoned by the High Court is justified and the same does not
call for interference.
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10. On the aspect relating to the future prospects, having noted
the salary that was being drawn by the deceased, we have also
taken into consideration that the deceased was employed in TATA
Precision Industries. Another employee who was working as the
Assistant Manager in Human Resources had been examined as
PW-2 before the MACT to prove the same. In that regard, taking
note of the evidence tendered by PW-2 to indicate the nature of
employment of the deceased as also his prospects, we are of the
opinion that the future prospects as reckoned in the instant case
is also justified. This is for the reason that though the learned
counsel for the appellant seeks to point to the portion of the
cross- examination of the said witness to indicate that he had
earlier been terminated from TATA Holset Private Limited and
had thereafter been appointed in TATA Precision Industries, it
would not lead to a conclusion that the job was not of permanent
nature. In fact, even if the employment letter indicated that the
job could be terminated with 30 days notice as insisted by the
learned counsel, that cannot be the basis in as much as the said
provision for termination notice would be available to both the
parties, namely the employer and the employee and that by itself
cannot indicate that the employment was of a temporary nature.
Right of the employer to terminate does not suggest it is
temporary employment. Such right if exercised has to be in
terms of law. Further, from the cross-examination, the suggestion
put to PW-2, would only indicate that the deceased who was
earlier employed in TATA Holset Private Limited was thereafter
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taken in another sister concern of the same group providing him
better prospects. Therefore even if that aspect of the matter is
kept in view, the future prospects as reckoned by the High Court
is justified."
Consequently, in view of the law laid down by Hon'ble the Supreme
Court in Ashish Ravinder Kulkarni's case (supra), 30% addition is made under the
head of future prospects. Therefore, the award requires indulgence by this Court.
SETTLED LAW ON COMPENSATION
10. 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
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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. 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
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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.
11. 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
conventional and traditional heads, needless to say, cannot be
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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.
* * * * *
59.3. While determining the income, an addition of 50% of
actual salary to the income of the deceased towards future
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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
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
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amounts should be enhanced at the rate of 10% in every three
years."
12. 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,
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".
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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
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
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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
13. 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
28.02.2007 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.25000/-
2 Future prospects @ 30% Rs.7500/- (30% of 25000)
3 Rs.10833/- (32500 X 1/3)
Deduction towards personal
4. Total Income Rs.21,667/- (32500-10833)
6 Annual Dependency Rs.36,40,056/- (21667X12X14)
7. Medical expenses Rs.7,22,599/- (as awarded by the
Tribunal)
8. Pain and sufferings Rs.7,00,000/-
9 Air Tickets Rs.20,899/- (as awarded by the
Tribunal)
10 Loss of Estate Rs.18,000/-
7 Funeral Expenses Rs.18,000/-
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8 Loss of Consortium Rs.1,44,000/-
Parental : Rs. 48,000/-x2
Spousal : Rs.48000X1
Total Compensation Rs.52,63,554/-
Amount Awarded by the Rs.34,51,000/-
Tribunal
Enhanced amount Rs.18,12,554/-
14. 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.
15. The Insurance Company-respondent No. 3 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 the
claimants/appellants, as per ratio settled in the award dated 28.02.2007. The
claimants/appellants are directed to furnish the bank account details to the
Tribunal.
16. However, respondent No.3-Insurance Company is entitled to recover
the enhanced amount of compensation from owner of offending truck bearing
registration No. MH-18-A-7069.
17. Disposed of accordingly.
18. Pending applications, if any, also stand disposed of.
November 05, 2024 (SUDEEPTI SHARMA)
G Arora JUDGE
Whether speaking/non-speaking : Speaking
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Whether reportable : Yes
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