Punjab-Haryana High Court
Sunita Devi And Ors vs Kamal Kumar And Ors on 5 November, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
Neutral Citation No:=2024:PHHC:146725
FAO-3776-2006(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(209) FAO-3776-2006(O&M)
DATE OF DECISION:05.11.2024
SUNITA DEVI AND ORS. ............Appellants
VERSUS
KAMAL KUMAR AND ORS. ..............Respondents
CORAM HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present Mr.Pankaj Bali, Advocate,
for the appellants.
Mr.Suvir Dewan, Advocate
for respondent no.3.
***
SUDEEPTI SHARMA J, (ORAL)
None has put in appearance on behalf of the Insurance Company.
This is an old matter pertaining to the year 2006 but no one has put
in appearance on behalf of Insurance Company.
Previously vide order dated 18.07.2024 in FAO No.1682 of 2007,
this Court had already issued directions to the Insurance Companies that in the
event, any of their empanelled counsel fails to appear, the Court would request
the counsel empanelled with the Insurance Companies, who is present in the
Court to assist in the matters. Further, the concerned Insurance Companies were
directed to disburse the current scheduled fees to the counsel engaged by this
Court for assisting in the matters.
On the asking of the Court, Mr. Suvir Dewan, Advocate accepts
notice on behalf of respondent No.3-Insurance Company.
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Learned counsel for the appellants has handed over copy of the
paper-book alongwith relevant record to the learned counsel for respondent
No.3- Insurance Company.
In view of the order dated 18.07.2024 passed in FAO No.1682 of
2007, the Insurance Company is directed to disburse the current scheduled fees
to Mr. Suvir Dewan, Advocate, the counsel engaged by this Court in the present
case.
FAO-3776-2006
1. The present appeal has been preferred against the award dated
19.04.2006 passed in the claim petition filed under Section 166 of the Motor
Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Ambala (for
short, 'the Tribunal') for enhancement of compensation, granted to the
claimants/appellants.
FACTS NOT IN DISPUTE
2. The brief facts of the case are that on 8.7.2004 Jarnail Singh
(deceased) was travelling on motorcycle bearing No.HR-07C-9706 being driven
by Ram Kishan by observing all the traffic rules and at a normal speed. When
they reached near tomb of 'Peer' near Manav Chowk, Ambala City, a Mohindera
jeep bearing registration PV-11-9464,which was being driven by Kamal Kumar
respondent no.1 in a very rash and negligent manner, came from the opposite
direction and hit against the motorcycle as a result of which both riders of the
motorcycle fell down. Ram Kishan sustained minor injuries, however, Jarnail
Singh sustained serious injuries including injury in his head. Driver of the jeep
after causing the accident ran away with the jeep. In the meantime Roshan
Singh son of Sardool Singh also reached there and Jarnail Singh was taken to
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Civil Hospital, Ambala City. However, on way to the hospital, he succumbed to
the injuries. F.I.R was registered against respondent No. 1.
3. Upon notice of the claim petition, respondents appeared and
contested the claim petition and denied the factum of the accident.
4. From the pleadings of the parties, the Tribunal framed the
following issues:-
1) Whether the death of Jarnail Singh took place due to rash
and negligent driving of jeep No. PV-11U-9464 by respondent
no. 1 ? OPP.
2) Whether the claimants are the only legal representatives of
the deceased and entitled to compensation. If so how much and
from whom? OPP.
3) Whether respondent No.1 was not holding a valid driving
licence at the time of accident. If so, its effect? OPR-3.
4) Relief.
5. After taking into consideration the pleadings and the evidence on
record, the learned Tribunal awarded compensation to the tune of
Rs.10,17,500/- alongwith interest @ 7.5% 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
compensation assessed by the learned Tribunal is on the lower side. He further
contends that the Tribunal has wrongly assessed the income of deceased as
Rs.8,400/- per month. He further contends that no amount was granted for
future prospects. Moreover, he contends that the amount granted for loss of
estate, funeral expenses and loss of consortium is also on lower side. Therefore,
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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 on the lines of the award and contends that 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 the Tribunal has rightly
assessed the monthly income of deceased as Rs.8,400/-, after taking into
consideration the Salary Certificate Ex.PB. Further, the Ld. Trial Court has
erred while applying multiplier of 15 instead of 14. Further, amount granted
for loss of estate, loss of consortium and for funeral expenses is on lower side.
Moreover, no amount was granted for future prospects. Therefore, it requires
interference of 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
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2 to 3, one-fourth (1/4th) where the number of dependent family
members is 4 to 6, and one-fifth (1/5th) where the number of
dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants are
the parents, the deduction follows a different principle. In
regard to bachelors, normally, 50% is deducted as personal and
living expenses, because it is assumed that a bachelor would
tend to spend more on himself. Even otherwise, there is also the
possibility of his getting married in a short time, in which event
the contribution to the parent(s) and siblings is likely to be cut
drastically. 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.
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* * * * *
*
42. We therefore hold that the multiplier to be used should be as
mentioned in Column (4) of the table above (prepared by
applying Susamma Thomas³, Trilok Chandra and Charlie),
which starts with an operative multiplier of 18 (for the age
groups of 15 to 20 and 21 to 25 years), reduced by one unit for
every five years, that is M-17 for 26 to 30 years, M-16 for 31 to
35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and
M-13 for 46 to 50 years, then reduced by two units for every
five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60
years, M-7 for 61 to 65 years and M-5 for 66 to 70 years.
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
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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
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
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
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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".
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
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relationships. Modern jurisdictions world-over have
recognised that the value of a child's consortium far
exceeds the economic value of the compensation
awarded in the case of the death of a child. Most
jurisdictions therefore permit parents to be awarded
compensation under loss of consortium on the death of
a child. The amount awarded to the parents is a
compensation for loss of the love, affection, care and
companionship of the deceased child.
23. The Motor Vehicles Act is a beneficial legislation
aimed at providing relief to the victims or their
families, in cases of genuine claims. In case where a
parent has lost their minor child, or unmarried son or
daughter, the parents are entitled to be awarded loss of
consortium under the head of filial consortium.
Parental consortium is awarded to children who lose
their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on
this count. However, there was no clarity with respect
to the principles on which compensation could be
awarded on loss of filial consortium.
24. The amount of compensation to be awarded as
consortium will be governed by the principles of
awarding compensation under "loss of consortium" as
laid down in Pranay Sethi. 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
19.04.2006 is modified accordingly. The appellants-claimants are entitled to
enhanced compensation as per the calculations made here-under:-
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Sr. Heads Compensation Awarded
No.
1 Monthly Income Rs.8,400/-
2 Future prospects @ 30% Rs.2520/- (30% of 8400)
3 Deduction towards personal Rs.2730/- (10,920/- X 1/4)
expenditure 1/4th
4. Total Income Rs.8190/- (10920-2730)
5 Annual Dependency Rs.13,75,920/- (8190 X 12 X 14)
6 Loss of Estate Rs.18,000/-
7 Funeral Expenses Rs.18,000/-
8 Loss of consortium Rs.1,92,000/-
Parental:48,000 x 3
Spouse : 48,000 x 1
Total Compensation Rs.16,03,920/-
Amount Awarded by the Rs.10,17,500/-
Tribunal
Enhanced amount Rs.5,86,420/-
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 the ratio settled by the Tribunal in its award dated
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19.04.2006. The claimants/appellants are directed to furnish their bank account
details to the Tribunal.
16. Before parting with the judgment, this Court extends its
appreciation to Mr. Suvir Dewan, Advocate, for his able assistance to the Court
in the present matter.
17. Disposed off accordingly.
18. Pending applications, if any, also stand disposed of.
05.11.2024 (SUDEEPTI SHARMA)
mamta JUDGE
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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