Punjab-Haryana High Court

Sarita vs Mahabir And Ors on 19 November, 2024

Author: Sudeepti Sharma

Bench: Sudeepti Sharma

                                          Neutral Citation No:=2024:PHHC:153593


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FAO-3088-2006 (O&M)



            IN THE HIGH COURT OF PUNJAB & HARYANA
                         AT CHANDIGARH

                                   FAO-3088-2006 (O&M)
                                   Date of Decision: November 19, 2024

Sarita                                                        ......Appellant

                                   Vs.

Mahabir Singh and others                                            ......Respondents


CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present:    Mr. Sunil Kumar Pandey, Advocate
            for the appellant.

            Ms. Farheen Bajwa , Advocate for
            Mr. Harsh Aggarwal, Advocate
            for respondent No. 3-Insurance Co.

            ****

SUDEEPTI SHARMA J.

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

18.01.2006 passed in the claim petition filed under Section 166 of the Motor

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

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

claimant/appellant.

FACTS NOT IN DISPUTE

2. The brief facts of the case are that on 09.01.2001 at about 1:15 P.M, in

the area of the pelpa Road near Dharamshala Pau, Tajinder Singh (since deceased)

along with Sandeep was travelling in a TATA Sumo (new, applied for), being

driven by Kuldeep Singh. When they crossed village Pelpa Pau, then from front

side, a tractor bearing registration No. HR-43-1487, came from Pelpa side being

driven by respondent No. 1 in a rash and negligent manner and struck against the

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above TATA Sumo. As a result, Tajinder Singh and Sandeep fell down and

sustained multiple grievous injuries. They were shifted to Rao Tula Ram Hospital,

Jaffarpur from where they were referred to Safdarjung Hospital, Delhi. However,

Tajinder Singh (since deceased) succumbed to his injuries. The matter was reported

to the police and FIR No. 11 dated 10.01.2001, under Sections 279/337/304-A of

IPC was registered at P.S. Bahadurgarh against respondent No. 1-Mahabir Singh.

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

the claim petition and denied the factum of the accident/compensation.

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

issues:-

1) Whether deceased Tajinder Singh had expired after

sustaining injuries in a motor vehicle accident on 10.01.2001 in

the area of P.S. Sadar, Bahadurgarh due to rash and negligent

driving of respondent No. 1 Mahabir Singh by driving vehicle

No. HR-43-1487, due to his rash and negligent driving or due to

rash and negligent driving of TATA Sumo bearing engine and

chasis number, mentioned in the petitions, by respondent No. 4?

OPP

2) If issue no. 1 is proved, to what amount of compensation, the

petitioners are entitled to? OPP

3) Whether respondent No. 1 and 4 had not possessed a legal

and valid driving licence on the date of the accident? OPR

4) Relief.

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

record, the learned Tribunal awarded compensation to the tune of Rs.2,69,300.

However, the claimant was awarded 1,69,300/- alongwith interest @ 6% per

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annum and the remaining amount of Rs.1 lacs was awarded to the mother of the

deceased. Hence the claimant/appellant filed the present appeal for enhancement of

compensation awarded by the Tribunal on account of death of Tajinder Singh.

However, recovery rights were granted to the Insurance Company. Respondents

No.1 and 2 were held jointly and severely liable to pay the compensation.

Respondent No.3-Insurance Company was directed to pay the compensation in the

first instance and liberty was granted to respondent No.3 to recover the same from

respondent Nos.1 and 2.

SUBMISSIONS OF LEARNED COUNSELS FOR THE PARTIES

6. The learned counsel for the claimant-appellant contends that the

compensation assessed by the learned Tribunal is on the lower side, as Tejinder

Singh (since deceased) was about 23 years of age and was an agriculturist. The

learned Tribunal failed to include future prospects in its calculation. He further

contends that the amount awarded for loss of consortium, for funeral expenses, for

loss of estate and medical bills is on the lower side. Therefore, he prays that the

present appeal be allowed and compensation should be enhanced as per latest law.

7. Per contra, learned counsel for respondent No.3-Insurance Company,

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. He

thus prays for dismissal of the appeal.

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

record of this case.

9. A perusal of the record indicates that the Tribunal has wrongly

assessed the income of the deceased- Tajinder Singh at Rs. 1800/- per month and

the same needs to be taken as Rs.2000/- as a skilled labourer. However, no amount

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was granted towards pain and sufferings, special diet, transportation charges etc.

Therefore, the award requires indulgence 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 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

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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 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.

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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

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

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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

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

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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.

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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

under "loss of consortium" as laid down in Pranay Sethi². In the

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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

18.01.2006 is modified accordingly. The appellant-claimant is entitled to enhanced

compensation as per the calculations made here-under:-

      Sr.                      Heads                          Compensation Awarded
      No.
        1     Monthly Income                           2000
        2     Future prospects @ 40%                   800 (2000X40%)
        3     Deduction        towards         personal 933 (2800X1/3rd)
              expenditure
        4.    Total Income                             1867 (2800-933)


        6     Annual Dependency                        Rs.4,03,272/- (1867X12X18)
        7     Loss of Estate                           18,000
        8     Funeral Expenses                         18,000
        9.    Loss of Consortium                       Rs.96,000/-
              Filail   : Rs. 48,000/-x1
              Spousal : Rs. 48,000/-x1

              Total Compensation                       Rs.5,35,272/-
              Amount Awarded by the                    Rs.2,69,300/-
              Tribunal
              Enhanced amount                          Rs.2,65,972/-

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

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Supreme Court Cases 107, the appellant-claimant is 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