Tripura High Court
Insurer vs Smti. Juhi Rung Reang on 16 July, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC APP No.01 of 2024
The National Insurance Company Ltd.,
(to be represented by Divisional Manager),
Agartala Divisional Office, 42, Akhaura Road,
P.O. Agartala, District: West Tripura, PIN: 799 001
----Insurer-Appellant (s)
Versus
1. Smti. Juhi Rung Reang,
Wife of Late Charanjoy Reang
2. Sri Koluha Reang,
Son of Late Charanjoy Reang,
-both are residents of village:Kanchancherra,
P.O. 82 Mile, P.S. Manu, District: Dhalai Tripura,
(to be represented by his legal mother
guardian, Smti. Juhi Rung Reang)
presently resident of C/O. Sri Syamakanta Reang,
resident of village & P.O. Huplong, P.S. Dharmanagar,
North Tripura
----Claimants-Respondents (s)
3. Sri Tapu Marak,
Son of Sri Bichindra Marak,
Resident of village: West Masli, Marakpara,
P.S. Manu, District: Dhalai Tripura,
(Owner-cum-Driver of Vehicle no.TR-04-4387 Mahindra
Jeep)
----Owner-Respondent (s)
For Appellant(s) : Mr. A. K. Deb, Adv.
For Respondent(s) : Mr. G. K. Nama, Adv.
Date of Hearing : 11.07.2024
Date of delivery of
Judgment and Order : 16.07.2024
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is preferred under Section 173 of MV Act,
1988 challenging the judgment and award dated
12.05.2023 delivered by Learned Member, Motor Accident
Claims Tribunal, Dharmanagar, North Tripura in connection
with Case No.T.S.(MAC) 01 of 2022.
02. Heard Learned counsel Mr. A. K. Deb
representing the appellant insurance company and also
heard Learned counsel Mr. G. K. Nama for the claimant-
respondents. None appeared on behalf of the owner-
respondent.
03. Before proceeding with the merit of the appeal
let us discuss the subject matter of the claim petition filed
before claims Tribunal. The respondent-claimants filed an
application under Section 166 of MV Act before the Learned
Motor Accident Claims Tribunal, North Tripura,
Dharmanagar alleging inter alia that on 09.11.2021
Charanjoy Reang along with others were proceeding from
Ambassa through Assam-Agartala road (NH-08) for the
purpose of visiting Manu by riding a vehicle bearing No.TR-
04-4387 (Mahindra Suprio) and at about 1430 hours/1500
hours when the said vehicle reached at Piarki Bazar on
Assam-Agartala road under Manu police station that time
suddenly the driver of the said vehicle lost his control over
the vehicle due to rash and negligent driving and as such
the vehicle met with an accident. Resulting which Charanjoy
Reang and others were sustained severe injuries on their
persons and immediately after the accident the deceased
Charanjoy Reang was taken to Manu CHC and on the
following day he was shifted to GBP Hospital, Agartala
wherein he was treated as an indoor patient w.e.f
10.11.2021 to 06.12.2021 and in course of treatment on
06.12.2021 at about 03.05 pm said Chanranjoy Reang was
succumbed to his injuries. It was the further case of the
claimant-petitioners that after the accident the police
personnel of Manu police station visited the place of
occurrence and accordingly they registered Manu PS Case
No.46/2021 dated 13.11.2021 under Section 279/338 with
added Section 304(A) of IPC and proceeded for
investigation. It was also submitted that the deceased
Charanjoy Reang was aged about 30 years at the time of
accident and he was a Mason by profession and was earning
Rs.15,000/- per month and accordingly the claimant-
petitioners filed the claim petition before the Tribunal.
Before the claims Tribunal the opposite parties 1 and 2
appeared and submitted their written statement denying the
entire assertions of the claimant-petitioners. The OP No.1
being the registered owner cum driver of the vehicle bearing
No.TR-04-4387(Mahindra Suprio) appeared and submitted
that he had all the valid documents like driving license,
registration certificate, fitness certificate, insurance
certificate, pollution certificate etc. on the date of accident
and submitted that since the vehicle was duly insured so the
liability, if any, in respect of payment of compensation be
fastened upon the insurance company. The OP No.2 the
Insurance Company denied the assertion of the claimant-
petitioners and submitted that the claim petition is
subjected to strict proof by the claimant-petitioners.
However, upon the pleadings of the parties the Learned
Tribunal below framed the following issues:
i) Is the claim application filed under Section 166 of M.V.
Act by the claimant-petitioners is maintainable in its
present form and nature?
ii) Had Charanjoy Reang, son of Sri Ranadhir Reang of
Hajradhan Para, PS-Manu, District- Dhalai Tripura
sustained bodily injuries out of a road traffic accident
took place on 09-11-2021 AD at about 1430/1500 hours
at Piarki Bazar on National Highway No.08 under Manu
Police Station involving a vehicle bearing registration
No.TR-04-4387 (Mahindra Suprio) by its driver namely Sri
Tapu Marak, the Opposite Party No.1?
iii) Was the accident occurred due to rash and negligent
driving of the vehicle bearing registration No.TR-04-4387
(Mahindra Suprio) by its driver namely Sri Tapu Marak,
the Opposite Party No.1?
iv) Are the claimant-petitioners being the legal heirs and
survivors of late Charanjoy Reang entitled to get
compensation as prayed for and if yes then to what
extent?
v) What other relief/reliefs the parties to this case are
entitled to get?
04. To substantiate the issues one of the claimant
Smt. Juhirung Reang being the wife of the deceased
examined herself as PW-1 and another Sri Bighnajoy Reang
was examined as PW-2 and they relied upon some
documents which were marked as exhibits in this case.
Name of the witnesses of the Claimant-petitioners:
1) PW-1: Smt. Juhirung Reang
2) PW-2 : Sri Bighnajoy Reang
Exhibits of the Claimant-petitioners:
i) Original cash memos total 15 sheets as
Exhibit-1(i) to 1(xv)
ii) Copy of Aadhaar card of the claimant-
petition bearing No.6721 3301 4065 as
Exhibit-2.
iii) Copy of birth certificate of Master Kaluha
Reang bearing registration No.B-2021 16-
90026-000648 dated 05-08-2021 as
Exhibit-3.
iv) Certified copies of the ejahar, FIR, Charge
sheet in connection with Manu PS case
No.2021 MNU 046 dated 13-11-2021 under
Sections 279/338 of IPC and added Section
304A of IPC and certified copy of post-
mortem examination report of late
Charanjoy Reang in connection with GBOP
GD entry No.07 dated 06-12-2021 as
Exhibit-4(i) to 4(xxii).
On the other hand, the OP No.1 Sri Tapu Marak
was examined himself as OPW 1 and he also relied upon
some documentary evidence like copy of driving license,
registration certificate, tax receipt, fitness certificate,
insurance certificate and pollution certificate of the
offending vehicle bearing No.TR-04-4387 which were
respectively marked as Exhibit-A to F.
05. Finally after hearing Learned Tribunal below,
Learned Tribunal gave the following judgment/award. The
operative portion of the judgment dated 12.05.2023 runs as
under:
"17. In view of the above discussion and findings, the
application under Section 166 of the Motor Vehicles Act,
1988 filed by the claimant-petitioners is allowed on
contest.
The Opposite Party No.2, The Branch Manager,
National Insurance Company Ltd. Dharmanagar Branch,
East Thana Road (Babur Bazar), PS-Dharmanagar,
District- North Tripura shall pay the compensation of
Rs.29,90,000/- (Rupees twenty nine lakh ninety
thousand) only to the claimant-petitioners within a
period of 30 days from this day of award. This award of
compensation shall carry interest at the rate of 5% per
annum from the date of presentation of the claim petition
before this Tribunal i.e. 10.01.2022 till the realization.
The share of the claimant-petitioner no.1, Smt.
Juhirung Reang being the wife of the deceased will be
(Rs.14,75,000/-+Rs.40,000/-)=Rs.15,15,000/- (Rupees
fifteen lakh fifteen thousand) only with accrued interest.
The share of the claimant-petitioner no.2 namely
Sri Koluha Reang will be Rs.14,75,000/- (Rupees
fourteen lakh seventy five thousand) only with accrued
interest."
06. Challenging that award the insurance company
being the OP No.2 of the original claim petition preferred
this appeal before this court. At the time of hearing of
argument Learned counsel for the appellant Mr. A. K. Deb
submitted that Learned Tribunal below at the time of
determination of compensation assessed the monthly
income of the deceased @Rs.15,000/- per month. Learned
counsel further submitted that even if for argument sake, it
is presumed that the deceased used to earn Rs.500/- per
day still it was not possible on his part to render job for all
the days in a month which could be at least 24/25 days. But
the Learned Tribunal below did not ignoring that aspect
flatly calculated monthly income @Rs.15,000/- per month
i.e. Rs.500/- per day for 30 days which needs to be
interfered with.
07. Learned counsel for the insurance company
further submitted that in para No.14 of the award Learned
Tribunal below determined 50% of income as future
prospects which was contrary to the principle laid down by
the Hon'ble Supreme Court in National Insurance
Company Limited vs. Pranay Sethi and Others reported
in (2017) 16 SCC 680. Referring the said judgment
Learned counsel submitted that in para No.59.4 Hon'ble the
Apex Court observed that in case the deceased was self-
employed or on a fixed salary, an addition of 40% be added
as future prospects with the income of the deceased
towards future prospects and here in the given case since
the deceased was aged about 30 years and he was self-
employed person so in view of the principle laid down by the
Hon'ble Apex Court Learned Tribunal below committed error
in determining the percentage of future prospects which
should be reduced to 40% from 50% as awarded by the
Tribunal. Learned counsel further drawn the attention of the
court that in the given case no route permit of the offending
vehicle was produced and proved by the owner of the
vehicle before the Tribunal at the time of hearing. In this
regard Learned counsel referred one judgment of the
Hon'ble Apex Court in Amrit Paul Singh and Another vs.
Tata AIG General Insurance Company Limited and
Others reported in (2018) 7 SCC 558. Here in the para
No.24 Hon'ble the Apex Court observed that in absence of
route permit it was not possible on the part of the Tribunal
to award any compensation in favour of the claimants.
Further Learned counsel for the insurance company also
drawn the attention of the court referring a copy of the
route permit annexed with the memo of appeal as
Annexure-5 and submitted that the alleged accident took
place on 09.11.2021. But on perusal of Annexure-5 it is
clear that the validity of the permit was w.e.f. 17.03.2021
to 16.07.2021 meaning thereby on the day of alleged
accident the offending vehicle had no valid route permit.
Even the OP owner cum driver before the Tribunal did not
produce any valid route permit in support of plying the
vehicle on the day of accident. But the Learned Tribunal
below did not consider that facts and fastened the liability
upon the insurance company for which the interference of
the court is also required.
08. Learned counsel for the appellant further
submitted that at the time of determination of
compensation the Learned Tribunal below also awarded
interest on future income/future prospects which was not
permissible in the eye of law. In this regard he has also
referred one citation of the Hon'ble Gauhati High Court in
The Oriental Insurance Co. Ltd. vs. Smti Champabati
Ray and 5 Ors. decided on 01.10.2019 wherein in para
No.21 Hon'ble the Gauhati High court observed that there
was no scope on the part of the Tribunal to impose any
interest on future prospects as the same relates to an
income to be given in future. So legally there was no scope
on the part of the Tribunal to impose any interest in respect
of future income which the Learned Tribunal below did not
consider and as such the Learned counsel for the appellant
urged for allowing this appeal by setting aside the judgment
and award of the Learned Tribunal below.
09. On the other hand, Learned counsel for the
claimant-respondents in course of hearing of argument
fairly drawn the attention of the court that admittedly the
claimant-petitioners before the Learned Tribunal below
could not produce any income certificate in support of
income of the deceased as a Mason which was also not
possible on the part of the claimant-petitioners since the
deceased was a self-employed person. Learned counsel for
the claimant-respondents further drawn the attention of this
court that the accident occurred in the year 2021 and during
that period in our state the daily wages of a Mason was not
less than Rs.500/- and furthermore since the deceased was
a self-employed person and by daily earning he used to run
his family and furthermore being a self-employed person
there was also no restriction on his part that he was
prevented to do his job not more than 24/25 days per
month. So according to Learned counsel Learned Tribunal
below rightly determined the amount of monthly income of
the deceased at the time of delivery of judgment. Learned
counsel for the claimant-respondents further submitted that
the Learned court below at the time of delivery of judgment
also rightly determined the percentage of future income as
50% and there was no perversity to that. In addition to
that, Learned counsel also submitted that the submission
made by the Learned counsel for the appellant that in
absence of route permit there was no scope on the part of
the Learned Tribunal below to fasten the liability of payment
of compensation upon the insurance company was not
correct in view of the principle laid down by the Hon'ble
Apex court in National Insurance Co. Ltd. vs. Challa
Bharathamma and Others reported in (2004) 8 SCC
517. Learned counsel in this regard stressed upon the para
Nos.12 and 13 of the said judgment.
10. Learned counsel for the claimant-respondents
further submitted that as the submission made by the
Learned counsel for the appellant that in course of hearing
of argument that the vehicle had no valid permit, but the
said plea as taken by the appellant at this stage cannot be
accepted because such plea was not taken by the appellant
before the Learned Tribunal below at the time of hearing of
argument of that case. In this regard Learned counsel also
relied upon another judgment of the Hon'ble Apex court in
Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd.
reported in (2000) 2 SCC 734. Finally Learned counsel
submitted that the submission made by the Learned counsel
for the appellant that there is no scope for the Tribunal to
impose any interest on the income of future prospect was
also not correct and according to him in view of the principle
of law laid down by the Hon'ble Supreme Court in Mohd.
Sabeer alias Shabir Hussain vs. Regional Manager,
U.P. State Road Transport reported in 2022 SCC OnLine
SC 1701 there was scope for imposing interest by the
Tribunal upon the income of future prospect which the
Learned Tribunal below rightly did and lastly Learned
counsel for the respondents submitted that the amount of
consortium imposed by the Tribunal below was not proper
and prayed for enhancement of the amount of consortium in
view of the principle of law laid down by the Hon'ble Apex
court in Harpreet Kaur and Others vs. Mohinder Yadav
and Others reported in 2022 SCC OnLine SC 1723 in the
relevant para No.13 and urged for enhancement of the
amount of consortium in delivery of the judgment of this
court and finally Learned counsel urged for dismissal of the
appeal with costs.
11. I have heard detailed arguments of both the
sides and gone through the records of Learned Tribunal
below and also gone through the citation as referred by
Learned counsel of the rival parties. Admittedly there is no
dispute on record regarding the fact of date of accident on
the alleged day. There is also no dispute on record
regarding the death of the deceased expired due to road
traffic accident on 09.11.2021 at Piarki Bazar on Assam-
Agartala road under Manu police station. Now here in this
appeal we are to decide as to whether the judgment and
award of the Learned Tribunal below suffers from any
infirmities or not. The Tribunal below at the time of
determination of compensation assessed the monthly
income of the deceased as a Mason @Rs.15,000/- per
month i.e. @Rs.500/- per day for 30 days. But on perusal of
the evidence on record of P.W.1 it appears that the
deceased was a Carpenter. If it is so being a self-employed
person the Carpenter in our state in the year 2021 used to
earn more than Rs.500 per day. So the observation of
Learned Tribunal below that the deceased used to earn
Rs.500 per day was not unjustified rather it appears to be
reasonable. So in my considered view the Learned Tribunal
below rightly determined the monthly income of the
deceased @Rs.15,000/- per month. There is no infirmity to
that. Now regarding determination of percentage of future
prospects it was the submission of Learned counsel for the
appellant that it should be 40% in place of 50% awarded by
the Tribunal. In this regard I would like to refer herein
below judgment of the Hon'ble Apex Court in National
Insurance Company Limited vs. Pranay Sethi and
Others (supra). In para No.59.4 Hon'ble the Apex court has
observed as under:
"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."
Relying upon the said judgment it appears that in
para No.14 Learned Tribunal below added 50% of income to
be added as future prospects which in my considered view
Learned Tribunal committed error in calculating the
percentage of income to be added as future prospects.
Accordingly the calculation be made. Regarding non-
production of valid route permit by the owner of the vehicle
at the time of hearing before the Learned Tribunal below
Learned counsel for the appellant relied upon one citation in
Amrit Paul Singh and Another vs. Tata AIG General
Insurance Company Limited and Others reported in
(2018) 7 SCC 558. In para No.24 of the said judgment
Hon'ble the Supreme Court observed as under:
"24. In the case at hand, it is clearly demonstrable from
the materials brought on record that the vehicle at the
time of the accident did not have a permit. The appellants
had taken the stand that the vehicle was not involved in
the accident. That apart, they had not stated whether the
vehicle had temporary permit or any other kind of permit.
The exceptions that have been carved out under Section
66 of the Act, needless to emphasise, are to be pleaded
and proved. The exceptions cannot be taken aid of in the
course of an argument to seek absolution from liability.
Use of a vehicle in a public place without a permit is a
fundamental statutory infraction. We are disposed to
think so in view of the series of exceptions carved out in
Section 66. The said situations cannot be equated with
absence of licence or fake licence or a licence for
different kind of vehicle, or, for that matter, violation of a
condition of carrying more number of passengers.
Therefore, the principles laid down in Swaran Singh:
(2004) 3 SCC 297 and Lakshimi Chand: (2016) 3 SCC 100
in that regard would not be applicable to the case at
hand. That apart, the insurer had taken the plea that the
vehicle in question had no permit. It does not required
the wisdom of the "Tripitaka", that the existence of a
permit of any nature is a matter of documentary
evidence. Nothing has been brought on record by the
insured to prove that he had a permit of the vehicle. In
such a situation, the onus cannot be cast on the insurer.
Therefore, the Tribunal as well as the High Court had
directed that the insurer was required to pay the
compensation amount to the claimants with interest with
the stipulation that the insurer shall be entitled to
recover the same from the owner and the driver. The said
directions are in consonance with the principles stated
Swaran Singh (supra) and other cases pertaining to pay
and recover principle."
12. On the other hand, Learned counsel for the
claimant-respondents in support of their plea relied upon
two numbers of judgments. In Modern Insulators Ltd. vs.
Oriental Insurance Co. Ltd. reported in (2000) 2 SCC
734. In para No.10 Hon'ble the Apex Court observed as
under:
"10. We may refer to the next ground on which appeal
has to be allowed. It is settled position of law that in an
appeal the parties cannot urge new facts. From the
pleadings of the respondent before the State Commission
it is found that respondent pleaded that the property
damaged was not covered under the insurance policy.
This plea was given a go-by before the National
Commission and a new plea was taken up in the grounds
of appeal that the terms and conditions of the insurance
policy were violated by the appellant by using used kiln
furniture. The National Commission accepted this new
ground and allowed the appeal, which in our opinion is
not sustainable in law."
13. Further Hon'ble the Apex Court in National
Insurance Co. Ltd. vs. Challa Bharathamma and
Others reported in (2004) 8 SCC 517 in para Nos.12 and
13 observed as under:
"12. The High Court was of the view that since there was
no permit, the question of violation of any condition
thereof does not arise. The view is clearly fallacious. A
person without permit to ply a vehicle cannot be placed
at a better pedestal vis-a-vis one who has a permit, but
has violated any condition thereof. Plying of a vehicle
without a permit is an infraction. Therefore, in terms
of Section 149(2) defence is available to the insurer on
that aspect. The acceptability of the stand is a matter of
adjudication. The question of policy being operative had
no relevance for the issue regarding liability of insurer.
High Court was, therefore, not justified in holding the
insurer liable.
13. The residual question is what would be the
appropriate direction. Considering the beneficial object of
the Act, it would be proper for the insurer to satisfy the
award, though in law it has no liability. In some cases the
insurer has been given the option and liberty to recover
the amount from the insured. For the purpose of
recovering the amount paid from the owner, the insurer
shall not be required to file a suit. It may initiate a
proceeding before the concerned Executing Court as if
the dispute between the insurer and the owner was the
subject-matter of determination before the Tribunal and
the issue is decided against the owner and in favour of
the insurer. Before release of the amount to the
claimants, owner of the offending vehicle shall furnish
security for the entire amount which the insurer will pay
to the claimants. The offending vehicle shall be attached,
as a part of the security. If necessity arises the Executing
Court shall take assistance of the concerned Regional
Transport Authority. The Executing Court shall pass
appropriate orders in accordance with law as to the
manner in which the owner of the vehicle shall make
payment to the insurer. In case there is any default it
shall be open to the Executing Court to direct realization
by disposal of the securities to be furnished or from any
other property or properties of the owner of the vehicle
i.e. the insured. In the instant case considering the
quantum involved, we leave it to the discretion of the
insurer to decide whether it would take steps for
recovery of the amount from the insured."
14. After perusing the aforesaid principles of law laid
down by the Hon'ble Apex Court and also after perusing
Annexure-5 annexed with the memo of appeal relied upon
by the appellant in this case it also appears that although
the offending vehicle had route permit of the vehicle but on
the alleged day of accident there was no valid route permit
of the offending vehicle meaning thereby the term of route
permit was expired by this time. Furthermore, as observed
by the Hon'ble Apex Court in Modern Insulators Ltd. vs.
Oriental Insurance Co. Ltd. (supra) in para No.10 it
appears that no such plea was raised by the appellant
before the Tribunal at the time of hearing of argument and
more so, relying upon the principle of law laid down by the
appellant and also by the claimant-respondents it appears
that in absence of valid permit also there was scope on the
part of the Tribunal to impose liability of payment of
compensation upon the insurance company with the
condition that the insurer shall be entitled to recover the
same from the owner and the driver and furthermore in
view of the principle of law laid down by the Hon'ble Apex
court in National Insurance Co. Ltd. vs. Challa
Bharathamma (supra) in para No.13 also Hon'ble the Apex
Court laid down that it would be proper for the insurer to
satisfy the award though in law it has no liability. In some
cases the insurer has been given the option and liberty to
recover the amount from the insured and for the purpose of
recovering the amount paid from the owner, the insurer
shall not be required to file a suit. So in my considered view
the Learned Tribunal below did not commit any error to
fasten the liability of payment of compensation upon the
insurance company in absence of route permit. Although no
specific direction was given by the Tribunal as to whether
the insurer insurance company would be able to recover the
same from the driver and owner or not. So, it appears to
this court that no error was committed by the Learned
Tribunal below in delivering the judgment in absence of
valid route permit on the alleged day of accident. Now in
respect of interest on future prospects Learned counsel for
the insurance company relied upon one judgment of the
Gauhati High Court dated 01.10.2019 in connection with
MAC APP 378 of 2017. In para No.21 Hon'ble the Gauhati
High Court observed as under:
"21. Another ground of challenge to the impugned
judgment is that the learned Tribunal had awarded
interest on future prospects, which could not be done. In
the case of Khusboo Chirania @ Kanta Chirania v. Kamal
Kumar Sovasaria, reported in 2018 0 Supreme(Gau) 966
and in the case of Nasima Begum v. Keramat Ali, reported
in 2019 0 Supreme(Gau) 507, this Court has stated no
interest on future prospects should be given. Though no
reasons have been enunciated in the above judgments,
the reason for the same seems to be due to the fact that
future prospects is relatable to an income to be received
in the future and as such, there could not be any loss to
the claimants for the payment of future prospects, at the
time the deceased met with the accident. The reason for
awarding interest on the compensation amount, minus
the future prospects is due to the fact that though the
loss of dependency starts from the date of the accident
and the compensation amount is computed on the date of
the Award of the Tribunal, interest is awarded to
compensate the loss of money value on account of lapse
of time, such as time taken for the legal proceedings and
for the denial of right to utilize the money when due.
However, future prospects is with regard to the probable
income to be received in the future and as such there is
no requirement to compensate the claimant by way of
future interest, for the loss that is to occur in the future,
as the future is yet to happen. Further, future prospects
is given for the entire future and as such, the claimant is
getting compensation in a lumpsum under future
prospects prior to the occurrence of future event/s. Thus,
with regard to future prospects, this Court is also of the
view that there cannot be any interest on future
prospects, as the same relates to an income to be given
in the future."
15. To the contrary, Learned counsel for the
claimant-respondents at the time of hearing of argument to
counter the submission made by Learned counsel for the
appellant relied upon another citation of Hon'ble Apex Court
in Mohd. Sabeer alias Shabir Hussain vs. Regional
Manager, U.P. State Road Transport reported in 2022
SCC OnLine SC 1701 as already submitted. Hon'ble the
Apex court in the said judgment in para No.30 and 31
observed as under:
[
"30. On the basis of the abovementioned facts and
analysis, this Court is of the opinion that the just
compensation to be awarded to the claimant/appellant
under different heads ought to be as under:-
Cost of Artificial limb and its Rs. 12,80,000/-
Maintenance
Loss of Earning Capacity due to Rs. 11,34,000/-
Functional Disability
Future Prospects Rs. 7,61,668/-
Medical Expenses Rs. 57,650/-
Attendant Charges Rs. 11,802/-
Conveyance Rs. 10,000/-
Special Diet Rs. 15,000/-
Pain and Suffering Rs. 2,00,000/-
Loss of Amenities of Life Rs. 2,00,000/-
Loss due to Disability and Rs. 2,00,000/-
Disfigurement
TOTAL Rs. 38,70,120/-
31. In view of the aforesaid facts and circumstances, the
impugned judgment is liable to be modified as above and
the claimant/appellant is held entitled to be awarded
compensation to the tune of Rs.38,70,120/- along with
9% interest per annum from the date of making the
application."
16. From the aforesaid judgment it appears that
since Hon'ble the Apex Court has also awarded interest
upon the income of future prospects @9% per annum from
the date of making the application. So in my considered
view there was no error on the part of the Tribunal to award
interest on future prospects. Although in the case at hand
Learned Tribunal below awarded interest @ 5% per annum
which in my view was too less and it should be at least 6%
considering the prevailing circumstances. Now regarding
consortium in the given case at hand Learned Tribunal
below in para No.15 awarded loss of consortium for an
amount of Rs.40,000/-. In this regard Learned counsel for
the respondents as already stated relied upon one citation
of the Hon'ble Apex Court in Harpreet Kaur and Others
vs. Mohinder Yadav and Others reported in 2022 SCC
OnLine SC 1723. In para Nos.13 and 14 Hon'ble the Apex
court observed as under:
"13. Applying this principle, in Magma General Insurance
Co. v. Nanu Ram:(2018) 18 SCC 130 this court held as
follows:
20. MACT as well as the High Court have not
awarded any compensation with respect to loss of
consortium and loss of estate, which are the other
conventional heads under which compensation is
awarded in the event of death, as recognised by
the Constitution Bench in Pranay Sethi. The Motor
Vehicles Act is a beneficial and welfare legislation.
The Court is duty-bound and entitled to award
"just compensation", irrespective of whether any
plea in that behalf was raised by the claimant. In
exercise of our power under Article 142, and in the
interests of justice, we deem it appropriate to
award an amount of Rs. 15,000 towards loss of
estate to Respondents 1 and 2.
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 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:2017 SCC OnLine Raj 3848. However, there
was no clarity with respect to the principles on
which compensation could be awarded on loss of
filial consortium.
14. On an application of the principles indicated in
Magma General Insurance Co., this court is of the opinion
that the filial and parental consortium have to be
increased. Each of the children, and the mother of the
deceased, is entitled to Rs.40,000/-. Thus, the total
amount payable towards filial and parental consortium is
Rs.1,20,000/-."
From the principle of law laid down by the
Hon'ble Apex court it appears that Hon'ble the Apex court in
delivering the judgment awarded consortium @Rs.40,000/-
for each of the dependants. But here in the appeal since no
cross-objection was made from the side of the claimant-
respondents so there is no scope on the part of this court to
increase the amount at this stage. So it appears that the
Learned Tribunal below rightly determined the amount of
consortium at the time of delivery of judgment. However,
since it is already observed that the percentage of future
prospects be reduced to 40% from 50% in pursuance of the
judgment of Hon'ble Supreme Court in Pranay Sethi
(supra). So, the calculation would be modified as follows:
1. Monthly income of the deceased : Rs.15,000/- per
month
2. 40% of his income be added as future prospects,
so, his monthly income for the purpose of claim
would be accumulated at as Rs.15,000/-
+Rs.6,000/-(i.e.40% of Rs.15,000/-)=Rs.21,000/-.
To that ratio, the yearly income of the deceased
would be (Rs.21,000/-X12)=Rs.2,52,000/-.
Since the deceased was a married person so after
deducting one third of his yearly income, his yearly
contribution to his family would be assessed to
Rs.1,68,000/- (Rs.2,52,000-(1/3rd of Rs.2,52,000))
which would be contributed to the family had he
been alive. So, that amount should be multiplied by
multiplier 16 and on calculation it comes to
(Rs.1,68,000X16)=Rs.26,88,000/- which would be
the actual loss of the income of the legal heirs of
the deceased due to the death of the deceased. So,
under the head of loss of income, the amount
comes to Rs.26,88,000/-.
In addition to that, Learned Tribunal below
awarded Rs.40,000/- towards medical expenses
since there was no objection from the side of the
appellant so the same is confirmed being awarded
by the Tribunal.
Furthermore, the Learned Tribunal below also
awarded Rs.15,000/- for loss of estate, Rs.40,000/-
for loss of consortium and Rs.15,000/- as funeral
expenses of the deceased in pursuance of the
judgment of the Hon'ble Supreme Court in Pranay
Shethi case(supra). So, after revised calculation,
the total amount would comes to (Rs.26,88,000/-
+Rs.40,000/-+Rs.15,000/-+Rs.40,000/-
+Rs.15,000/-)=Rs.27,98,000/-.
So, the respondent-claimant would get the
aforesaid amount after modification.
So, after hearing both the parties and after
perusal of the citations referred by the parties, the
appeal filed by the appellant be partly allowed with
modification that the claimant-petitioner would get
Rs.27,98,000/- with 6% interest as from the date of
presentation of the claim petition before the
Tribunal i.e. on 10.01.2022 to till realization of the
payments.
In pursuance of the award of the Learned
Tribunal below, the share of the respondent-
claimant-petitioner No.1 would get (Rs.13,99,000/-
+Rs.40,000/-)=Rs.14,39,000/- and the balance
amount would get by the respondent-claimant-
petitioner No.2 being the minor with accrued
interest.
17. In the result, the appeal filed by the appellant is
hereby partly allowed with modification that the respondent-
claimant-petitioners would get Rs.27,98,000/- with 6%
interest from the date of filing the claim petition before the
Tribunal i.e. with effect from 10.01.2022 to till the date of
realization. The appellant-Insurance Company shall deposit
the amount within a period of six weeks from the date of
delivery of the judgment before the Tribunal. With the
modification of the award, there shall be no modification
regarding disbursal of amount as ordered by the Tribunal by
the said award dated 12.05.2023.
Send down the LCR along with the copy of
judgment and award.
A copy of judgment/order also be furnished to
the Learned Counsel for the Insurance Company for
immediate compliance.
JUDGE
MOUMITA Digitally signed by MOUMITA
DATTA
DATTA Date: 2024.07.20 16:33:45
+05'30'
Moumita
