[Cites 13, Cited by 0]
Punjab-Haryana High Court
The New India Assurance Company Ltd vs Bimla And Others on 12 March, 2026
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
FAO-8244-2017 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
FAO-8244-2017 (O&M)
THE NEW INDIA ASSURANCE COMPANY LTD
..Appellant
Versus
BIMLA AND OTHERS
..Respondents
Reserved on: 13.02.2026
Pronounced on: 12.03.2026
Uploaded on: 18.03.2026
Whether only the operative part of the judgment is pronounced? NO
Whether full judgment is pronounced? YES
CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. K.P.S. Virk, Advocate for the appellant.
Mr. S.K. Yadav, Advocate
Mr. C.S. Saini, Advocate
for respondent No.1 and 2.
Mr. Ram Karan Sharma, DAG, Haryana.
SUDEEPTI SHARMA, J. (Oral)
1. The present appeal has been filed by the appellant-Insurance
company against the award dated 18.08.2017 passed in a claim petition filed
under Section 166 and 140 of the Motor Vehicles Act, 1988 by the Motor
Accident Claims Tribunal, Narnaul (for short, 'the Tribunal'), wherein the
appellant-Insurance company was fastened with the liability to pay the
compensation of Rs.40,35,898/- to the claimants along with interest @ 9 %
per annum from the date of filing of claim petition till recovery.
BRIEF FACTS OF THE CASE
2. Brief facts of the case are that on 17.11.2015 at about 1:00
p.m., Dinesh Kumar, since deceased, was heading from Village Payaga to
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Mahendergarh on the motorcycle No. HR34G/7433 being ridden by him on
extreme left side of road at moderate speed as per traffic rules. Petitioner
Sher Singh was travelling as pillion rider on the said motorcycle. After a
short riding towards Mahendergarh - Narnaul road then a Haryana Roadways
Bus, Depot Charkhi Dadri bearing Temporary no. HR-99VC(T)/7936 now
bearing Regd. No. HR-61C/0566 (in short offending vehicle), being driven
by respondent no. 1 at a high speed in rash and negligent and in zig-zag
manner, flouting all traffic rules came from Mahendergarh side and hit
against the motorcycle in their lane. Consequently, they alongwith the
motorcycle fell down on the road causing them multiple and grievous
injuries besides damages to the motorcycle. The rider Dinesh Kumar
succumbed to the injuries on the spot whereas pillion rider Sher Singh
(Petitioner in II petition) was seriously injured and one bystander namely
Rakesh (Petitioner in III petition) also received injuries in the accident. After
the accident, the respondent no.1 fled from the spot leaving behind the
offending bus. The aforesaid accident had taken place due to sole rash and
negligent driving of offending vehicle by respondent no. 1. Thereafter, the
dead body of Dinesh Kumar was shifted to mortuary and petitioners/injured
Sher Singh and Rakesh were shifted in General Hospital, Mohindergarh..
3. Upon notice of the claim petition, respondents therein appeared
and contested the claim petition by filing separate written statement denying
the factum of accident/compensation.
4. From the pleadings of the parties, the Tribunal framed the
following issues:-
"1. Whether petitioners Rakesh and Sher Singh received
injuries while Dinesh Kumar died in a motor vehicular
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accident which took place on 17.11.2015 at about 1:00
PM in the area of village Payaga under P.S.
Mohindergarh due to rash and negligent driving of Bus
no. HR-61-C/0566 by respondent no.1? OPP
2. If issue no. 1 is proved, whether the petitioner is
entitled to get compensation, if so to what amount and
from whom? OPP
3. Whether the vehicle in question was being driven by
respondent no. 1 in violation of terms and conditions of
insurance policy? OPR3
4. Relief."
5. Thereafter, both the parties led their evidence in support of their
respective pleadings.
6. After taking into consideration the pleadings and the evidence
on record, the learned Tribunal awarded compensation to the claimants.
However, the liability to pay compensation was fastened upon the appellant-
Insurance Company. Hence, the present appeal.
SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES:
7. Learned counsel for the appellant-Insurance Company contends
that the driver-respondent No. 3 (arrayed as respondent No. 1 before the
Tribunal), was not holding a valid and effective driving licence to drive the
bus at the time of the accident. It is submitted that the driving licence of the
said driver did not bear the requisite endorsement for driving a Public
Service Vehicle (PSV). Consequently, the offending bus was allegedly being
plied in violation of the terms and conditions of the insurance policy. On this
premise, it is argued that the learned Tribunal has erroneously fastened the
liability upon the Insurance Company. He further contends that
compensation awarded by the learned Tribunal is on the higher side. He
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further contends that learned Tribunal has erred in not deducting income tax
and HRA from income of the deceased. He further contends that learned
Tribunal has erred in awarding 30% towards future prospects instead of 15%.
Moreover, he contends that learned Tribunal has erred in awarding
compensation under the heads of loss of love and affection and loss of
consortium, which is contrary to the settled proposition of law, therefore he
prays that the present appeal be allowed and the award passed by the learned
Tribunal be set aside and the present appeal be allowed.
8. Learned counsel for respondents/claimants contends that the
learned Tribunal has rightly passed the award. However, they contend that
compensation awarded by the learned Tribunal is on the lower side,
therefore, they pray for dismissal of the present appeal.
9. I have heard learned counsel for the parties and perused the
whole record of the case with their able assistance.
10. The relevant portion of the award is reproduced as under:-
"19. Dinesh Kumar died in this accident and petitioners
Bimla Devi and Anju Devi claimed compensation on
account of his death being his widow and daughter
respectively. At the time of assessing compensation, the
Tribunal has to see income and the age of deceased. It has
been pleaded that Dinesh Kumar was 54 years of age at
the time of his death and he was drawing ₹ 55,000/- per
month salary from Forest Department of Govt. of
Haryana. In this regard, the evidence of PW-7 Ravinder
Pal Yadav, Assistant, DFO, Mahendergarh is relevant. He
proved that deceased Dinesh Kumar had worked as
forester in his department and getting ₹ 45052/- salary
per month at the time of his death. He proved the Service
Certificate Ex. PW7/A and Salary Certificate Ex. PW7/B
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pertaining to deceased Dinesh Kumar. In his
crossexamination, this witness testified that date of birth
of Dinesh Kumar in their record was 02.03.1961 and was
to be retired at the completion of his age 58 years. The
widow of the deceased is receiving ₹ 42,238/- per month
from the department in lieu of salary of deceased likely to
get until retirement age of the deceased. He further
admitted that 29,822/- has ₹ been received after
deduction by the widow in the month of October, 2015.
Thus, it stands proved that petitioner Bimla Devi being
widow of deceased Dinesh Kumar is receiving an
equivalent amount from the Govt. department in lieu of
salary of the deceased. Therefore, the amount which the
widow would get has to be deducted in view of the latest
judgment of Reliance General Insurance Company vs.
Shashi Sharma 2016 (4) RCR (Civil) 569.
20. The deceased's gross salary was 45052/- which can be
₹ rounded off to ₹ 45000/- and addition of 30% has to be
made towards future prospects as the deceased was in a
permanent job and his GPF was being deducted and he
was receiving HRA and DA. Thus, the income would come
to ₹ 58,500/- per month. The deceased was married and
died leaving the petitioners, who are widow and daughter
respectively. The petitioners are two in number, hence
1/3rd of the earning of the deceased is to be deducted
towards personal expenses and remaining 2/3rd share
shall be considered as loss of dependency to the
petitioners. So, after deducting 1/3rd as his personal
expenses, his contribution towards his family comes to ₹
39,000/- per month. The annual contribution comes to ₹
4,68,000/-The date of birth of Dinesh Kumar in
matriculation Certificate Ex. P22 and Ex. PW7/A was
02.03.1961 and the accident occurred on 17.11.2015,
therefore, the deceased was 54 years of age at the time of
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his death. So, just and reasonable multiplier in this case is
'11' and amount of compensation comes to be ₹ 4,68,000
x 11 = ₹ 51,48,000/-. The petitioner No.1 Bimla Devi
would also be entitled to additional sum of 1,00,000/- for
loss of consortium & estate. Both petitioners would ₹
further be entitled to 1,00,000/- for love and affection
besides 14,000/- ₹ ₹ towards performance of last rites as
so ruled by Hon'ble Supreme Court of India in case titled
as Rajesh and others vs. Rajbir Singh and others 2013(3)
RCR (Civil) 16. In this manner, petitioners would be
entitled to total compensation of (₹ 51,48,000 + 1,00,000
+ 1,00,000 + 14,000) = ₹ 53,62,000/-. The widow will get
( 45000 x 12 x 4) = ₹ ₹ 21,60,000/- as salary for 4 years
under 2006 Rules. Therefore, net amount of compensation
payable would be 53,62,000 - 21,60,000 = 32,02,000/-. ₹
₹ So, the petitioners are entitled to ₹ 32,02,000/- as
compensation on account of the death of Dinesh Kumar.
29. As the offending vehicle was being driven by
respondent no.1 therefore, primary liability to compensate
the petitioners is that of respondent no. 1. As the
offending vehicle was also owned by respondents no. 2 &
3 so, they becomes vicariously liable to compensate the
petitioners. It is an admitted position on record in view of
Ex. R5 that the offending vehicle was insured with
respondent no. 4. Therefore, respondent no. 4 becomes
contractually liable to compensate the petitioners for the
above mentioned amount. The respondent no.1 was
having valid driving licence Ex. R2 at the time of accident
which was valid upto 09.06.2017 whereas accident
occurred on 17.11.2015. valid permit of offending bus is
also available on record as Ex. RW1/D. No evidence led
to prove violation of terms of insurance policy. Thus,
Issue No. 2 & 3 is accordingly decided in favour of the
petitioners and against the respondents."
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11. A perusal of the award reveals that the learned Tribunal, after
appreciating the material available on record, concluded that the driver of the
offending vehicle was holding a valid and effective driving licence at the
time of the accident. The driving licence (Ex. R2) was valid up to
09.06.2017, whereas the accident occurred on 17.11.2015. The Tribunal also
noticed that the valid permit of the offending bus was placed on record as
Ex. RW1/D.
12. In view of the said evidence, the learned Tribunal rightly held
that there was no violation of the terms and conditions of the insurance
policy. No cogent evidence was led by the Insurance Company to establish
that the offending vehicle was being driven in contravention of the policy
conditions or that the driver was not duly authorized to drive the vehicle in
question.
13. It is well settled that the burden to prove breach or violation of
the terms and conditions of the insurance policy lies upon the Insurance
Company. Such burden must be discharged by leading convincing and
reliable evidence. In the present case, the appellant-Insurance Company has
failed to discharge the said burden. Consequently, the finding recorded by
the learned Tribunal fastening liability upon the Insurance Company cannot
be faulted.
14. Accordingly, this Court finds no illegality or perversity in the
findings returned by the learned Tribunal on this aspect, and the same
deserve to be upheld.
15. Adverting now to the contention of learned counsel for the
appellant-Insurance Company that deduction ought to have been made from
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salary of the deceased on the account of payment received for HRA is
concerned, the same is bereft of merit. The Hon'ble Supreme Court in
Meenakshi Vs. Oriental Insurance Company, 2024 INSC 573 has
categorically held that allowances under heads of transport, HRS, PF loans
and not to be deducted while assessing the dependency factor.
16. So far as the contention raised by learned counsel for the
appellant-Insurance Company that the learned Tribunal committed an error
in law by awarding compensation separately under the heads of "loss of
consortium" as well as "loss of love and affection" is concerned, the said
submission merits acceptance.
17. The Hon'ble Supreme Court in V. Pathmavathi and Others v.
Bharti AXA General Insurance Co. Ltd. and Another, 2026 INSC 131, has
recently clarified the legal position with regard to compensation under
conventional heads. The Apex Court has categorically held that "loss of love
and affection" is not an independent or distinct head of compensation, and
the same stands subsumed within the broader concept of consortium, which
includes spousal, parental and filial consortium. Consequently, separate
compensation under the head of loss of love and affection is impermissible.
The relevant extract of the same is reproduced as under:-
"22. In Rajesh (supra), this Court recognised "loss of love and
affection" as a distinct head of compensation, reflecting the
non-pecuniary deprivation suffered by family members upon
the untimely death of a loved one. However, the Constitution
Bench in Pranay Sethi (supra) expressly disapproved this
approach holding that Rajesh (supra) was rendered per
incuriam and that compensation should be confined to three
conventional heads, i.e., loss of estate, loss of consortium and
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funeral expenses in order to preserve consistency and certainty
in awards. Observing disagreement, Pranay Sethi (supra) held
thus:
52. As far as the conventional heads are concerned, we find
it difficult to agree with the view expressed in Rajesh [Rajesh v.
Rajbir Singh, (2013) 9 SCC 54]. 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 [Rajesh v. Rajbir Singh, (2013) 9 SCC
54] refers to Santosh Devi [Santosh Devi v. National Insurance
Co. Ltd., (2012) 6 SCC 421], 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
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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.
23. There can be no quarrel with the binding nature of Pranay
Sethi (supra). Judicial discipline demands that a Constitution
Bench decision must prevail over a judgment of a Bench of
lesser strength. Accordingly, this Court is constrained to
follow the law declared therein.
24. That said, it is difficult to ignore the conceptual tension
that underlies this exclusion. The head of "future prospects"
itself is a creation of judicial interpretation, evolved to respond
to socio- economic realities and the legitimate expectations of
dependents. If the law is capable of recognising anticipated
economic progression as a valid loss, it is not too clear why
emotional deprivation manifested in loss of love and affection
must be viewed as an impermissible head, especially when
Chapter XII of the Act is a beneficial piece of legislation meant
to help people in distress arising out of road accidents.
25. The concern expressed in Pranay Sethi (supra) was
primarily one of consistency and avoidance of unguided
discretion. However, consistency, though desirable, cannot be
elevated to a point where it eclipses the core objective of
awarding "just compensation". The law must remain
responsive to lived human realities, especially in cases
involving the sudden rupture of familial bonds.
26. It is in this context that the subsequent decision of this
Court in Magma General Insurance Co. Ltd. v. Nanu Ram17
assumes significance. This Court expanded the ambit of
"consortium" to include parental and filial consortium,
implicitly acknowledging the emotional and relational loss
suffered by children and parents alike. (2018) 18 SCC 130 This
doctrinal expansion suggests that the distinction between
"consortium" and "loss of love and affection" may be one of
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form rather than substance. The coordinate Bench ruled as
follows:
21. A Constitution Bench of this Court in Pranay Sethi
[National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC
680] 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: [Rajesh v.
Rajbir Singh, (2013) 9 SCC 54].
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". [Black's Law Dictionary (5th Edn., 1979).]
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 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
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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
[Rajasthan High Court in Jagmala Ram v. Sohi Ram, 2017
SCC OnLine Raj 3848; Uttarakhand High Court in Rita Rana
v. Pradeep Kumar, 2013 SCC OnLine Utt 2435; Karnataka
High Court in Lakshman v. Susheela Chand Choudhary, 1996
SCC OnLine Kar 74]. 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.
27. Interestingly, we find from paragraph 25 of Magma
General Insurance (supra) that apart from Rs. 80,000/-
awarded on account of filial consortium, this Court awarded
Rs. 1,00,000/- on account of loss and affection in addition.
28. More recently, in the case of United India Insurance Co.
Ltd. v.
Satinder Kaur18, a three-Judge Bench of this Court
harmonised the principles laid down in Pranay Sethi (supra)
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and Magma General Insurance (supra) to ensure uniformity in
the award of compensation under conventional heads.
Reaffirming the binding nature of Pranay Sethi (supra), this
Court held that compensation in death cases is confined to
three conventional heads, i.e., loss of estate, loss of consortium
and funeral expenses. At the same time, drawing upon Magma
General Insurance (supra), this Court clarified that
consortium is a compendious concept encompassing spousal,
parental and filial consortium. It was further held that loss of
love and affection is subsumed within loss of consortium and
cannot be awarded as a separate head. This Court held as
follows:
(2021) 11 SC 780
34. At this stage, we consider it necessary to provide
uniformity with respect to the grant of consortium, and loss of
love and affection.
Several Tribunals and the High Courts have been awarding
compensation for both loss of consortium and loss of love and
affection. The Constitution Bench in Pranay Sethi [National
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680], has
recognised only three conventional heads under which
compensation can be awarded viz. loss of estate, loss of
consortium and funeral expenses. In Magma General [Magma
General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130],
this Court gave a comprehensive interpretation to consortium
to include spousal consortium, parental consortium, as well as
filial consortium. Loss of love and affection is comprehended
in loss of consortium.
35. The Tribunals and the High Courts are directed to award
compensation for loss of consortium, which is a legitimate
conventional head. There is no justification to award
compensation towards loss of love and affection as a separate
head.
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29. Consistent with the aforesaid position but notwithstanding
the reservations noted earlier, this Court is bound by the law
declared by the Constitution Bench in Pranay Sethi (supra),
which does not countenance "loss of love and affection" as a
distinct head of compensation. As subsequently clarified in
Satinder Kaur (supra), referring to both Pranay Sethi (supra)
and Magma General Insurance (supra), the non-pecuniary loss
arising from deprivation of love and affection is comprehended
within the broader head of "consortium". Consequently, no
separate award under the head of loss of love and affection is
warranted.."
18. In view of the aforesaid authoritative pronouncement of the
Hon'ble Supreme Court, the award of compensation granted by the learned
Tribunal under the separate head of "loss of love and affection" cannot be
sustained in law. Accordingly, the amount awarded by the Tribunal under the
said head is liable to be deducted from the total compensation.
19. A perusal of the award further reveals that learned Tribunal has
erred in awarding 30% towards future prospects instead of 15%.
Consequently, the compensation is liable to be recalculated as under:-
Sr. No. Heads Compensation Awarded
1 Monthly Income Rs.45,052/-
2 Future prospects @ 15% Rs.6,758/- (15% of 45052)
3 Deduction towards personal Rs.17,270/- (51810 X 1/3)
expenditure 1/3rd
4 Total Income Rs.34,540/- (51810-17,270)
6 Annual Dependency Rs.45,59,280/- (34,540 X 12 X 11)
7 Loss of Estate Rs.15,000/-
8 Funeral Expenses Rs.15,000 /-
9 Loss of Consortium Rs.80,000/-
Spousal : 1 x 40,000
Filial : 1 x 40,000
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10 Total Rs.46,69,280/-
11 Deduction Rs.21,60,000/-
Haryana Compassionate
Assistance to the Dependants of
Deceased Government
Employees Rules, 2006
12 Total compensation Rs.25,09,280/- (46,69,280-21,60,000)
20. 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 Nadu State Transport
Corporation (2022) 5 Supreme Court Cases 107, the respondents-claimants
are granted the interest @ 9% per annum on the amount of total
compensation from the date of filing of claim petition till the date of its
realization.
21. Vide order dated 16.12.2017, Coordinate Bench of this Court
had stayed the recovery of amount beyond Rs.25,00,000/-. Consequently, the
appellant-Insurance Company is directed to deposit the remaining amount
along with interest @ 9% per annum with the Tribunal within a period of two
months from the date of receipt of copy of this judgment. The Tribunal is
directed to disburse the same to the respondents-claimants in their bank
accounts. The respondents-claimants are directed to furnish their bank
account details to the Tribunal.
22. In view of the above, the present appeal is partly allowed to the
above extent.
23. Pending miscellaneous applications, if any, are also disposed of.
12.03.2026 (SUDEEPTI SHARMA)
Ayub/Saahil JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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