Punjab-Haryana High Court

Gayanty Devi And Ors vs Bhagwant Singh And Others on 5 September, 2024

Author: Sudeepti Sharma

Bench: Sudeepti Sharma

                                     Neutral Citation No:=2024:PHHC:127646


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FAO-625-2007 (O&M)



            IN THE HIGH COURT OF PUNJAB & HARYANA
                         AT CHANDIGARH

207                            FAO-625-2007 (O&M)
                               Date of Decision: 05/09/2024

Gayanti Devi and ors.                                         ......Appellant(s)

                               Vs.

Bhagwant Singh and others                                     ......Respondent(s)


CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present:    Mr. Sanjeev Sharma, Advocates
            for the appellants.

            Mr. Neeraj Khanna, Advocate
            for respondent No. 3-Insurance Company.

            ****

SUDEEPTI SHARMA J. (ORAL)

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

13.03.2006 passed in the claim petition filed under Section 166 of the Motor

Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Fatehgarh

Sahib (for short, 'the Tribunal'), vide which the claim petition filed by the

appellants/claimants was dismissed.

FACTS NOT IN DISPUTE

2. The brief facts of the case are that on 09.08.2002, Jit Singh and

Paras Nath were going from village Khoje Majra to Sirhind on Scooter bearing

No. PB-11-S-2208. The scooter was being driven by Paras Nath. Ram Singh and

Shingara Singh were following them on motorcycle No. PB-23-B-9443. When

they reached on Khoje Majra Sangatpura road at about 3:30 p.m. a bus bearing

No. PAB-9897 being driven by respondent No.1 in a rash and negligent manner

came from Sirhind side and struck against the scooter of Jit Singh and Paras

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Nath. Due to this accident, both of them died at the spot. Accordingly, the claim

petition was filed claiming compensation on account of death of Paras Nath.

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 Paras Nath died in motor vehicular accident on 9-8-2002 at about 3:30 P.M in the revenue limits of village Khoje Majra due to rash and negligent driving of Bus No. PAB-9897 by respondent No. 1? OPP.

2. If issue no.1 is proved, to what amount of compensation, the claimants are entitled for and from whom? OPP

3. Whether this Tribunal has no territorial jurisdiction to entertain and try the present claim petition? OPR-3

4. Whether the petition is bad for non-joinder of owner, driver and Insurance Company of scooter No. PB-11S-2208? OPR3

3. Whether the driver of the bus No. PAB-9897 was not having effective driving licence at the time of alleged accident? OPR

5. Relief.

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

record, the learned Tribunal dismissed the claim-petition. The relevant portion of

the award reads as under:-

"8. PW2 Ram Singh deposed that on 9-8-2002 Jit Singh

and Paras Nath were going from village Khoje Majra to Sirhind on

Scooter no. PB-11S-2208. Scooter was being driven by Paras Nath.

He was following them on Motorcycle No. PB-23-B-9443 alongwith

Shingara Singh. When they reached Khoje Majra Sangatpura road at 2 of 16

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about 3-30 P.M., a bus no. PAB-9897 came from Sangatpura side at a

fast speed driven by respondent no.1 and struck against the scooter of

Jit Singh and Paras Nath. As a result of this both of them died at the

spot and they were brought to Civil Hospital, Fatehgarh Sahib. Said

witness in his cross-examination deposed that he had stopped his

motorcycle before reaching the main road as the bus was going at a

fast speed. The deceased had emerged on the road while going ahead

of them. The front portion of the bus struck against the scooter. The

right side of the scooter was damaged.

9. Thus, the eye witness was driving the motorcycle. He was

following the scooter driven by Paras Nath. Jit Singh was the pillion

rider on the said scooter. From the cross examination of eye witness

PW2, it transpires that Paras Nath had entered the main road from the

link road without bothering for the traffic going on the main road.

PW2 had taken precaution and had stopped the motorcycle before

reaching the main road as the bus was going at a fast speed. However,

Paras Nath did not bother to check the traffic on the main road and

entered the same. The traffic on the main road was expected to move

at a fast speed. As per driving regulation given in Tenth Schedule of

Motor Vehicle Act, the Driver of a motor vehicle shall slow down

when approaching a road intersection, a road junction or a road

corner and shall not enter any such intersection or junction until he

has become aware that he may do so without endangering the safety of

persons thereon. The driver of the Motor vehicle shall on entering a

road intersection, if the road entered is a main road designated as

such, give way to the vehicle proceeding along that road and in any

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other case give way to all traffic approaching the intersection on his

right hand.

10. Thus, the driver of a vehicle who enters the main road is

required to take care that he should enter the main road without

endangering the safety of the persons on the main road and on

entering the main road, he shall give a way to the traffic proceeding

along with road and give way to all traffic approaching the

intersection on his right hand. Paras Nath, had, however entered the

main road without bothering for the bus going on the main road and

as a result it cannot be said that the accident had taken place due to

rash and negligent driving of bus driver respondent no.1. Rather the

accident had occurred due to rash and negligent driving of scooter

driver. Paras Nath who had entered the main road without observing

the traffic rules and caring for the traffic on the main road, as such,

the claimants have failed to prove this issue. This issue is decided

against the claimants and in favour of respondents."

Hence the claimants/appellants filed the present appeal for grant of

compensation.

SUBMISSIONS OF THE COUNSELS

6. The learned counsel for the appellants-claimants contends that

Tribunal has wrongly dismissed the claim petition.

7. He further contends that the learned Tribunal totally ignored the

factum of registration of F.I.R No. 198 under Section 297/304-A of the Indian

Penal Code, 1860.

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8. He further contends that the learned Tribunal further ignored the

Post Mortem Report of the deceased-Paras Nath wherein the cause of death was

mentioned as 'Head Injury'.

9. Per contra, learned counsel for the respondents argues on the lines

of the award and contends that the claim petition has rightly been dismissed.

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

record of this case.

11. A perusal of the record shows that Ex P.2 is the statement of Ram

Singh, wherein he deposed that Jit Singh along with deceased-Paras Nath were

going on LML Vespa Scooter No. PB-11-S-2208 from village Khoje Majra to

Sirhind for shopping. At that time, the scooter was being driven by Paras Nath

and Jit Singh was sitting behind him on the said scooter. He and Shingara Singh

were going on Motor Cycle No. PB-23-B-9443. Jit Singh and Paras Nath after

crossing the Kachi Pehi reached on the road and they were going on the left side

of the road and a bus No. PAB-9897 came from Basantpura side and the driver of

the bus No. PAB-9897 driving the bus rashly, negligently with very high speed

and without blowing horn, ran over the scooter and crushed Paras Nath and Jit

Singh with the result of death of Jit Singh and Paras Nath on the spot and the

driver of the bus ran away leaving the bus there. Respondent No. 1-Bhagwant

Singh S/o Kundan Singh r/o Patiala was driving the bus at that time. The

accident took place/caused due to rash and negligent driving of Bhagwant Singh

bus driver. The word Sohi was written on the front glass of the bus. Thereafter

the bodies of Jit Singh and Paras Nath brought to the Civil Hospital, Fatehgarh

Sahib and the Medical Officer of Civil Hospital, Fatehgarh Sahib conducted the

Post Mortem of the deceased and submitted reports. FIR was got registered by

the department.

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12. In cross examination, his evidence could not be shaken wherein he

stated that Jit Singh was his uncle. The munshi of the brick kiln was driving the

scooter and his uncle was pillion rider. The scooter was going ahead of them

about a distance of one killa. He stopped his motorcycle before reaching the

main road, as the bus was coming at a fast speed. The deceased emerged on the

road while going ahead of them. The front portion of the bus struck against the

scooter. The right side of the scooter was damaged. His statement was recorded

by the police on the same day. He further stated that it is incorrect to suggest that

the accident was caused due to the negligence of the driver of the scooter who

suddenly emerged on the main road from the lane without noticing the bus. The

bus was coming from Village Sangatpura side and was to go to Sirhind. The bus

was coming on their left side. He noticed the bus coming from a distance of 1 ½

kilometer.

13. A perusal of the Post Mortem Report shows that against the column

of Information furnished by Police, it has been written as "Death allegedly in

road side accident". Further against the column of "Remarks by Medical

Officer", it has been written as " The injuries have been caused in road side

accident as per police papers".

14. In the present case, the accident took place on 09.08.2002 and on the

same day, F.I.R was lodged. The death certificate is also of dated 09.08.2002.

Further a perusal of the photographs of the accident proves the factum of the

accident. The learned Tribunal dismissed the claim petition by justifying that the

deceased entered the main road from the link road without bothering for the

traffic going on the main road. PW2 had taken precaution and stopped the

motorcycle before reaching the main road as the bus was going at a fast speed

However, Paras Nath (since deceased) did not bother to check the traffic on the

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main road and entered the same. Further the learned Tribunal justified its

decision by observing that the traffic on the main road was expected to move at a

fast speed. As per driving regulation given in Tenth Schedule of Motor Vehicles

Act, the driver of a motor vehicle shall slow down when approaching a road

intersection, a road junction or a road corner and shall not enter any such

intersection or junction until he has become aware that he may do so without

endangering the safety of persons thereon. Further the driver of the Motor

vehicle shall on entering a road intersection, if the road entered is a main road

designated, as such, give way to the vehicle proceeding along that road and in

any other case give way to all traffic approaching the intersection on his right

hand.

15. However, in the present case, as per statement of PW2, it has been

specifically stated that the offending bus was coming from Sirhind side at a very

fast speed. Therefore, this Court is not satisfied by the reasoning given by the Ld.

Tribunal in dismissing the present claim petition filed by the appellants-

claimants.

16. On the touchstone of hereinabove discussed findings and judicial

precedent, the award dated 13.03.2006 passed by learned Tribunal, Fatehgarh

Sahibh, stands vitiated by a complete absence of judicial application of mind.

17. Since Issue No. 2 i.e "If issue no.1 is proved, to what amount of

compensation, the claimants are entitled for and from whom?" was not decided

by the learned Tribunal, therefore, this Court decides as follows:-

(a) A perusal of the record shows that the deceased-Paras Nath was working

as a Munshi at Brick Kiln. His income was ascertained to be Rs.4000/- per

month. However, under the prevailing sets of the present case, his income is to

be assessed as Rs.2100/- per month, in accordance with minimum wages,

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prescribed for unskilled worker.

SETTLED LAW ON COMPENSATION

18. 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 and will not be considered as a dependant and the

mother alone will be considered as a dependant. In the absence of

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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.

19. Hon'ble Supreme Court in the case of National Insurance

Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the

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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 many a field have to be noticed.

The court cannot remain oblivious to the same. There has

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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 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."

20. 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:-

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"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.

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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 present case, we deem it appropriate to award the father

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and the sister of the deceased, an amount of Rs 40,000 each

for loss of filial consortium.

CONCLUSION

21. 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

19.05.2006 is hereby set aside. The appellant-claimant is entitled to

compensation as per the calculations made here-under:-

       Sr.                    Heads                         Compensation Awarded
       No.
          1    Monthly Income                         Rs.2100/-
          2    Future prospects @ 25%                 Rs.2100+525=Rs.2625/-
          3    Deduction towards            personal Rs.2625X1/4th= 2625-656=Rs.1969
               expenditure

          5    Annual Dependency                      Rs.1969X12X15=Rs.3,54,420/-
          6    Loss of Estate                         Rs.18,000/-
          7    Funeral Expenses                       Rs.18,000/-
          8    Loss of Consortium                     Rs.2,40,000/-
               Parental : Rs.48,000/- x 4
               Spousal : Rs. 48,000/-x1

               Total Compensation                     Rs.6,30,420/-

22. 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 appellant-claimant is granted the

interest @ 9% per annum on the compensation amount from the date of filing of

claim petition till the date of its realization.

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23. The Insurance Company is directed to deposit the amount of

compensation alongwith interest with the Tribunal within a period of two months

from today. The Tribunal is further directed to disburse the amount of