Punjab-Haryana High Court

Renu And Others vs Ishwar And Others on 6 September, 2024

Author: Sudeepti Sharma

Bench: Sudeepti Sharma

                            Neutral Citation No:=2024:PHHC:120195-DB


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FAO-1721-2007 (O&M)



            IN THE HIGH COURT OF PUNJAB & HARYANA
                         AT CHANDIGARH


223                             FAO-1721-2007 (O&M)
                                Date of Decision: September 06, 2024

Renu and others                                     ......Appellants

                                Vs.

Ishwar and others                                   ......Respondents


CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA

Present:    Mr. Vikram Singh, Advocate and
            Mr. Virat Rana, Advocate
            for the appellants.

            Mr. Pardeep Goyal, Advocate and
            Mr. Abhishek Goyal, Advocate
            for respondent No.3-Insurance Com.
                              ----


SUDEEPTI SHARMA J. (ORAL)

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

12.01.2007 passed in the claim petition filed under Sections 166 and 140 of

the Motor Vehicles Act, 1989 by the learned Motor Accident Claims

Tribunal, Karnal (for short, 'the Tribunal') for enhancement of compensation

granted to the claimants/appellants, who are the family members of the

deceased.

FACTS NOT IN DISPUTE

2. The brief facts of the case are that on 12.11.2004, deceased-

Kuldeep Bhardwaj was going on his motorcycle bearing registration No.HR-

21B-5059 from the side of Hansi City. Rishab and Gargi, minor children of

the deceased were pillion riders on the motor cycle. When they reached in

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front of the bus stand, Hansi, then a truck bearing registration No.HR-39 A-

1123, came from the side of Tusham Octroi Post at a very fast speed driven

by Ishwar Singh-respondent No.-1 in a rash and negligent manner and struck

against the motor cycle of the deceased-Kuldeep Bhardwaj. As a result of the

impact, all the occupants of the motorcycle fell down and received injuries.

All the injured were taken to the General Hospital, Hansi, where Kuldeep

Bhardwaj was declared brought dead and his minor children were admitted.

Lateron, they were referred to PGI, Rohtak. A case FIR No.447 dated

12.11.2004 under Sections 279/304-A IPC was registered against respondent

No.1 at Police Station City Hansi on the basis of statement of one Pawan

Kumar.

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

denied the factum of compensation.

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

following issues:-

(1) Whether the accident in question took place due to

rash and negligent driving of truck No. HR-39-A-1123 by

respondent No. 1? OPP

(2) Whether the claimants are entitled to compensation, if

so, how much and from whom? OPP

(3) Whether the truck in question was being driven

against the terms and conditions of insurance policy?

OPR.

(4) Relief

5. After taking into consideration the pleadings and the evidence

on record, the learned Tribunal awarded compensation to the tune of

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Rs.6,33,120/- 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

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

the amount assessed by the learned Tribunal is on the lower side. He further

submits that the learned Tribunal has erroneously taken the income of

deceased as Rs.41,540/- per annum.

Moreover, the learned Tribunal erroneously applied multiplier of

17 instead of 18.

He further contends that no amount was granted for future

prospectus, loss of estate and the amount awarded towards funeral expenses

is also on 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 the respondent-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.

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 annual income of the deceased as Rs.41,540/- and deducted

Rs.600/- per month towards personal expenses. Further, the Tribunal had

rightly applied a multiplier of 17 as per settled law. It is further revealed that

the learned Tribunal has not granted future prospects, loss of estate and

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amount granted for funeral expenses is also on lower side. Therefore, it

requires interference from 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 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

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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.

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;

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(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 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.

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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.

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.

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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

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

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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 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.

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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 12.01.2007 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.3461.66/- rounded of
                                                   Rs.3462/-
   2    Future prospects @ 40%                     Rs.1384.80 rounded of Rs.1385
                                                   (40% of 3462)
   3    Deduction        towards         personal Rs.1615/-
        expenditure                               [1/3 of (1385+3462)]
  4.    Total Income                               Rs.3232/-
                                                   (4847-1615)

   5    Annual Dependency                          Rs.6,59,328/-(3232 x 12 x 17)
   6    Loss of Estate                             Rs.18,000/-
   7    Funeral Expenses                           Rs.18,000/-
   8    Loss of Consortium                         Rs.1,44,000/-
        Parental : Rs.48,000/- x 2
        Spousal : Rs. 48,000/-x 1
        Filial :
        Total Compensation                         Rs.8,39,328/-
        Amount Awarded by the                      Rs.6,33,120/-
        Tribunal
        Enhanced amount                            Rs.2,06,208/-

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.

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15. The respondent No.3 is directed to deposit the enhanced amount

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

months from today. The Tribunal is further directed to disburse the enhanced