Punjab-Haryana High Court

Raj Rani And Ors vs State Of Haryana And Ors on 7 November, 2024

Author: Sudeepti Sharma

Bench: Sudeepti Sharma

                                       Neutral Citation No:=2024:PHHC:154779


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FAO-1707 of 2007(O&M)


            IN THE HIGH COURT OF PUNJAB & HARYANA
                         AT CHANDIGARH

                                       FAO-1707 of 2007(O&M)
                                       Date of Decision: November 07, 2024

Smt. Raj Rani and ors.                                           ......Appellants
                                Vs.

State of Haryana and ors                                         ......Respondents

CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present:    Mr. Naveen Jhanjholia, Advocate
            for the appellants

            Mr. Ayuvan Singh, AAG, Haryana

            Mr. D.R. Bansal, Advocate with Mr. Rahul Bansal, Advocate
            for respondent No. 3-Insurance Co.

        ***

SUDEEPTI SHARMA J.

1. The present appeal has been preferred against the award dated

19.01.2007 passed in the claim petition filed under Section 166 of the Motor

Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Sirsa (for

short, 'the Tribunal'), for enhancement of compensation granted to the appellants.

FACTS NOT IN DISPUTE

2. The brief facts of the case are that on 06.03.2004, Krishan Chand-

driver and Ved Parkash conductor left Sirsa for Delhi in the bus bearing registration

No. HR-57-0923. There were about 14-15 passengers in the ill fated bus including

Gurdeep Singh and Shingara Singh. When the bus reached near the temple in the

area of village Dhangar, District Fatehabad, in the meantime a bus bearing

registration No. HR-57-0904 came from the opposite side being driven by

Surender Singh rashly and negligently and struck against the ill fated bus.

Consequently, the driver of both the bus died on the spot. Six or seven passengerw

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of both the buses suffered injuries. The injured were shifted to General Hospital,

Fatehabad. F.I.R No. 102 dated 06.03.2004 under Sections 279/337/304-A IPC was

registered at P.S. Fatehabad against the driver of the offending bus.

3. Upon notice of the claim petition, the respondents appeared and

denied the factum of accident/compensation.

4. From the pleading of the parties, the Tribunal framed the following

issues:-

"1. Whether the accident in question took place due to rash

and negligent driving of driver of Bus of Haryana Roadways

Depot, Sirsa bearing registration No.HR-57-0923 thereby

causing death of Krishan Chand, Mahender Jain and injuries to

Radhey Sham, as alleged? OPP

2. Whether the claimants are entitled for compensation, if so,

how much and from whom ? OPP

3. Whether the present petitions are not maintainable in the

present form? OPR

4. Whether the petitioners have got no cause of action to file the

present petition? OPR

5. Whether the driver of bus of Haryana Raodways bearing

registration No. HR-57-0923 was not holding a valid and

effective driving license at the time of the alleged accident if so

to what effect? OPR3

6. Relief."

5. After taking into consideration the pleadings and the evidence on

record, the learned Tribunal awarded compensation to the tune of Rs.3,94,000/-

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along with interest @ 7.5% per annum. However, the claimants were awarded the

compensation to the tune of Rs.1,97,000/-, on account of contributory negligence.

The relevant portion of the award reads as under:-

"17. Out of the passengers of buses in question only

Radhey Sham petitioner has appeared in the witness box as PW-4.

He has filed his affidavit Ex. PW-4/A wherein in para No.3 he has

pleaded that on 6.3.2004 he boarded the offending bus from

Agroha Mor at 4-40 A.M. for coming to Sirsa. The driver of the

offending bus was utmost rash and negligent. At about 5 or 5-15

A.M. the bus reached near Canal Bridge near a temple in the area

of Dhangar. The ill fated bus came from the side of Sirsa. The

driver of the offending bus dashed the offending bus against the ill

fated buys and caused the accident in question. Thus, these

averments of the affidavit of PW-4 go to show that he has deposed

against the driver of the offending bus but his version being not

supported by any other evidence cannot be admitted to be correct

straightway. Therefore, in order to find out the truth in the version

of PW-4 his cross-examination is also to be considered. In his

cross-examination conducted by respondents No.1 and 2 he denied

the correctness of the suggestion that drivers of both the buses

were at fault and that the accident in question took place

ribunadue to the failure of the breaks of both the buses involved in

the accident. Because the witness has denied the correctness of the

version of respondents No.1 and 2, therefore, it can be held that

the respondents have not been able to get admission of eye witness

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on this point. As I have stated that the respondents No.1 and 2

have not adduce any other evidence on this point, therefore, its

stands proved on the file that the accident in question was not the

result of the failure of the breaks of the buses involved in the

accident.

18. In Para no.24 of the petitions mentioned at S.No. I above the

petitioners have pleaded that Surender Kumar driver of the

offending bus was driving the offending bus rashly and negligently

and in violation of the traffic rules. There was a turn at the place of

accident. The driver of the offending bus could not properly gave

turn to the bus. Resultantly, the offending bus struck in the ill fated

bus from the driver side and the accident in question took place

These averments of para no.4 have though not been admitted by the

respondents No.1 and 2 but at the same time these averments in

respect of the curve (turn) in the road at the place of accident are

not specifically denied by the respondents. Therefore, the fact

remains that the respondents No.1 and 2 have admitted the fact that

there is a curve on the road at the place of accident. If this fact is

considered in view of the facts and circumstances of the case then it

would go to show that the drivers of both the buses were rash and

negligent. They knew fully well that there is a curve in the road but

even then they did not maintain their proper side on the road while

crossing the curve and this is why the accident in question took

place.

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19. The driver's side of both the buses struck against each other.

This fact again goes to show that the drivers of both the buses were

rash and negligent and equally responsible for causing this

accident.. They should have maintained proper distance while

crossing the buses. Had thoy been vigilant and careful and had

observed the traffic rules they could avoid the accident but they did

not do so. Therefore, I have no hesitation to hold that the drivers of

both the buses were equally responsible for causing the accident in

question."

6. Hence the appellants filed the present appeal seeking enhancement of

the compensation to them.

SUBMISSIONS OF THE COUNSELS FOR THE PARTIES

7. Learned counsel for the appellants contends that the compensation

granted to the appellants, is on the lower side and deserves to be enhanced. The

Tribunal further wrongly deducted the amount on account of contributory

negligence and failed to include future prospects in its calculation. The amount

awarded for funeral expenses and loss of consortium is on the lower side. He

further contends that no amount was awarded for loss of estate. Therefore, he

prays that the present appeal be allowed and compensation should be enhanced as

per latest law.

8. Per contra, learned counsel for the respondent-Insurance Company

argues on the lines of the award and contends that the compensation granted by the

Tribunal is not on the lower side and the present appeals seeking enhancement of

the compensation, is liable to be dismissed. He further contends that the recovery

rights be granted to the Insurance Company, as one of the passenger who appeared

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as PW4 (Radhey Shyam) has made a statement that the driver of the offending

vehicle was utmost rash and negligent. The driver of the offending bus dashed the

offending bus against the ill fated bus and caused the accident in question.

9. I have heard learned counsel for the parties and perused the whole

record of this case.

10. A perusal of the record indicates that the Tribunal has rightly assessed

the income of the deceased as Rs.3000/- per month. Moreover, the amount awarded

under funeral expenses, transportation and loss of consortium is on the lower side.

Further no amount was awarded towards future prospect and loss of estate.

Therefore, the award requires indulgence of this Court.

11. However, the argument of learned counsel for appellants that Tribunal

further wrongly deducted the amount on account of contributory negligence, is

liable to be rejected, as it was proved on record that there was a curve on the road

at the place of the accident and, thus, the driver of both the buses were rash and

negligent in causing the accident.

12. Further, the argument of learned counsel for the Insurance company

that the recovery rights be granted to the Insurance Company is rejected, as on

perusal of the record, it has been found that the Insurance Company failed to prove

on record with regard to invalidity of the driving licence of both the drivers of the

offending vehicles.

SETTLED LAW ON COMPENSATION

13. 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:-

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"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

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.

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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 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.

14. 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:-

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(A) Deduction of personal and living expenses to determine

multiplicand;

(B) Selection of multiplier depending on age of deceased;

(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

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

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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

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.

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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."

15. 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.

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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

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

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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

16. 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

19.01.2007 is modified accordingly. The appellants-claimants are entitled to

enhanced compensation as per the calculations made here-under:-

      Sr. No.                  Heads                       Compensation Awarded

         1      Monthly Income                       Rs.3000/-
         2      Future prospects @ 50%               Rs.1500/- (50% of 3000)
         3      Deduction towards            personal Rs.1125/- (4500X 1/4th)
                expenditure 1/4th
         4.     Total Income                         Rs.3375/- (4500-1125)


         6      Annual Dependency                    Rs.6,48,000/- (3375X12X16)
         7      Loss of Estate                       Rs.18,000/-
         8      Funeral Expenses                     Rs.18,000/-
                Loss of Consortium                   Rs.2,40,000/-
                Filail : Rs. 48,000/-x2
                Parental:Rs. 48,000/-x2
                Spousal:Rs. 48,000/-x1
                Total Compensation                   Rs.9,24,000/-
                Compensation be awarded to           Rs.4,62,000/-
                the claimants due to
                contributory negligence
                Amount Awarded by the
                Tribunal                             Rs.1,97,000/-
                Enhanced amount of                   Rs.2,65,000/-
                compensation


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FAO-1707 of 2007(O&M)

17. 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.

18. 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 as

per ratio settled in the award dated 19.01.2007. The claimants/appellants are

directed to furnish the bank account details to the Tribunal. Further Insurance