07. Finally on conclusion of inquiry the Learned
Tribunal below determined the amount of compensation @
Rs.15,73,600/- along with 6% interest from the date of
filing the claim petition to till the date of realization. For the
sake of convenience the operative portion of the judgment
urns 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.
It is ordered that the OP No.1, the Oriental Insurance
Company Limited, Rajbari, Dharmanagar, North Tripura
being the insurer of the vehicle bearing No.TR-05A-8691
will pay the compensation of Rs.15,73,600/- (Rupees
fifteen lakh seventy three thousand six hundred) 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 6% per annum from the date of
presentation of the claim petition before this Tribunal i.e.
06-04-2018 till the realization. Both the claimant-
petitioners will get equal share of the total compensation
together with accrued interest.
18. Keeping in mind the guidelines of Hon'ble Apex Court
in General Manager, Kerala State Road Transport
Corporation, Trivandam Vs. Ms. Sushama Thomas and
others (AIR 1994 SC 1631) and the guidelines as laid
down in Union Carbide Corporations case (1991) 4 SCC
584 and subsequent decision of the Hon'ble High Court of
Tripura in case no.MAC Application 36 of 2006 Joydeep
Chakraborty Vs. Pintu Sharma and another, since the
claimant petitioner no.2 namely Mamata Begam is a
minor, it is ordered that the share of the minor claimant-
petitioners together with interest shall be fixed in a long
term fixed deposit scheme till she attain her majority in
her name in any Nationalized Bank making the claimant-
petitioner no.1 as her nominee. No loan or other advance
in any form shall be allowed on such fixed certificate
without the express permission of this tribunal.
Since claimant petitioner no.2 namely Khudeja Bibi is an
aged woman, it is ordered that 50% of the share of the
claimant-petitioner no.1 together with interest shall be
fixed in a long term fixed deposit scheme at least for a
period of six years in her name in any Nationalized Bank
giving a scope to her to draw the monthly interest
accrued on it. No loan or other advances in any form shall
be allowed on such fixed certificate without the express
permission of this tribunal.
Rest 50% of the share of the claimant-petitioner no.1
together with interest shall be released in her favour by
transmitting it directly to her savings bank account to
allow her to meet the expenditure of their livelihood
which they might have incurred for the death of the
deceased.
19. Supply a copy of the judgment to the claimant-
petitioners for their ready reference and a copy of the
judgment shall also be communicated to the Opposite
Party No.1, The Oriental Insurance Company Limited,
Rajbari, Dharmanagar, North Tripura to facilitate the
payment of the awarded compensation in time.
Thus, the instant claim petition is disposed off on contest.
Make entry in the TR and in CIS."
Challenging the award the appellant insurance
company has preferred this appeal.
08. I have heard argument of Learned Counsel for
the appellant. As already stated none has appeared on
behalf of the respondent-claimant petitioners and the
respondent-owner inspite of service of notice. In course of
hearing Learned Counsel for the appellant as already stated
relied upon two citations of the Hon'ble Apex Court. In
United India Insurance Company Limited vs. Satinder
Kaur alias Satwinder Kaur and Others reported in
(2021) 11 SCC 780 Hon'ble the Apex Court in para Nos.34
and 35 observed as under:
"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 High Courts
have been awarding compensation for both loss of
consortium and loss of love and affection. The Constitution
Bench in Pranay Sethi (2017) 16 SCC 680 has recognized
only three conventional heads under which compensation
can be awarded viz. loss of estate, loss of consortium and
funeral expenses. In Magma General(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 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."
From the aforesaid paragraphs of the Hon'ble
Apex Court it appears that Hon'ble the Apex Court in
disposal of the appeal observed that there is no justification
to award compensation "towards love and affection as a
separate head". Here from the judgment and award of the
Learned Tribunal below it appears that towards love and
affection a sum of Rs.1,00,000/- was awarded by the
Tribunal. But in this regard in the judgment no explanation
was given as to why the said amount was fixed towards love
and affection. Situated thus, it appears that Learned
Tribunal below ignoring the principle of law laid down by the
Hon'ble Apex Court, awarded the amount which needs to be
deleted and accordingly the said amount is deleted from the
amount which was determined by the Learned Tribunal
below. Furthermore, Hon'ble the Apex Court in National
Insurance Company Limited vs. Pranay Sethi and
Others reported in (2017) 16 SCC 680 in para No.52
observed as under:
"52. As far as the conventional heads are concerned, we
find it difficult to agree with the view expressed in Rajesh.
It has granted Rs. 25,000/- towards funeral expenses, Rs.
1,00,000/- 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. 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."
From the aforesaid paragraph it appears that Hon'ble
the Apex Court at the time of delivery of the judgment
observed that Rs.15,000/- be awarded towards loss of
estate and Rs.15,000/- would be decided towards funeral
expenses which should be increased @10% in a span of
three years, but there was no specific head towards love
and affection. But the Learned Tribunal below at the time of
determination of the award awarded Rs.20,000/- towards
loss of estate and also Rs.20,000/- towards funeral
expenses. In this regard Learned Tribunal also did not give
any specific observation as to why the said amount was
given in place of Rs.15,000/- under each component. The
alleged accident took place on 08.05.2017 and the Learned
Tribunal below delivered the award on 18.10.2023. By this
time six years have been elapsed and as such the claimant-
petitioners are entitled to get more 20% for loss of estate
and more 20% of Rs.15,000/- for loss of funeral expenses
and thus after calculation towards loss of estate the amount
would comes to Rs.15,000/-+20% of 15,000/- i.e. 18,000/-
and further Rs.15,000/-+ 20% of Rs.15,000/- i.e. 18,000/-.
In total towards loss of estate the petitioners would get
Rs.18,000/- and towards loss of funeral expenses
Rs.18,000/- in place of Rs.20,000/- which is awarded under
each components. As already stated, towards love and
affection there is no scope to award any amount in view of
the aforesaid principle of law laid down by the Hon'ble Apex
Court. In the aforenoted case of United India Insurance
Company Limited (supra) further in para Nos.29 to 33
Hon'ble the Apex Court observed as under:
"29. Loss of Consortium Loss of Consortium, in legal
parlance, was historically given a narrow meaning to be
awarded only to the spouse i.e. the right of the spouse to
the company, care, help, comfort, guidance, society, solace,
affection and sexual relations with his or her mate. The loss
of companionship, love, care and protection, etc., the
spouse is entitled to get, has to be compensated
appropriately. The concept of non- pecuniary damage for
loss of consortium is one of the major heads for awarding
compensation in various jurisdictions such as the United
States of America, Australia, etc. English courts have
recognised the right of a spouse to get compensation even
during the period of temporary disablement.
30. In Magma General Insurance Co. Ltd. v. Nanu Ram &
Ors.,12 this Court interpreted "consortium" to be a
compendious term, which encompasses spousal consortium,
parental consortium, as well as 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.
31. 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. 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 12 (2018)
18 SCC 130.child during their lifetime. Children are valued
for their love and affection, and their role in the family unit.
32. Modern jurisdictions world-over have recognized 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 permit parents to be awarded
compensation under loss of consortium on the death of a
child. The amount awarded to the parents is the
compensation for loss of love and affection, care and
companionship of the deceased child.
33. The Motor Vehicles Act, 1988 is a beneficial legislation
which has been framed with the object of 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 the children who lose the care
and protection of their parents in motor vehicle accidents.
The amount to be awarded for loss consortium will be as
per the amount fixed in Pranay Sethi (supra)."
From the aforesaid principle it appears that since the
claimant-petitioner No.2 was a minor at the time of accident
of her mother and was aged about 12 years who was
represented by her grand-mother i.e the claimant petitioner
No.1 herein. So in view of the aforesaid observation of the
Hon'ble Apex Court the claimant-petitioner No.2 would be
entitled to parental consortium as per the rate decided by
the judgment of Hon'ble Supreme Court of India in
National Insurance Company Limited (supra). So under
that head the claimant-petitioner No.2 would also get
Rs.40,000/- towards loss of parental consortium and since
this amount is to be increased @10% in every span of three
years. So after calculation this amount would comes to
Rs.48,000/- i.e (400000+10% increase in three years) i.e
for six years in two span, the amount would comes to more
Rs.8,000/- i.e in total Rs.48,000/-. So after calculation the
total amount of compensation would comes to
Rs.14,33,600/-+18,000/-+48,000/-+18,000/-=15,17,600/-
which the respondent-claimant petitioners would be entitled
to get from the appellant insurance company. The appellant
insurance company at the time of hearing of argument did
not raise their voice towards any other point regarding
determination of compensation awarded by Learned
Tribunal below. As such, the appellant insurance company
the insurer of the offending motor bike would be liable to
pay the said amount to the respondent-claimant petitioners
of this case.
09. In view of the above, the appeal is partly allowed
with modification that the appellant Oriental Insurance
Company Limited, Rajbari, Dharmanagar being the insurer
of the vehicle being TR-05A-8691 shall pay total amount of
Rs.15,17,600/- to the respondent-claimant petitioners in
place of Rs.15,73,600/- within a period of six weeks from
the date of delivery of the judgment with 6% interest p.a.
as already been awarded by the Learned Tribunal from the
date of filing the claim petition w.e.f. 06.04.2018 to till the
date of realization. From the record of the case it appears
that 50% of the award is already been deposited by the
appellant insurance company to the Registry of this High
Court as per order dated 27.06.2024 passed by this Court in
IA No.02 of 2024 arising from the MAC APP No.53 of 2024.
So the balance amount as per this award also be deposited
to the Registry of the High Court within a period of six
weeks from the date of delivery of the judgment/award. It
is made clear that by the judgment and award of the
Learned Tribunal it was ordered that the amount of
compensation would be distributed equally to both the
claimant-petitioners. But since the parental consortium is
only awarded to the minor daughter namely Mamata Begam
of the deceased Anuara Begam, so she would get more
Rs.48,000/- towards parental consortium with up-to-date
interest than the amount of award be released in favour of
the claimant-petitioner No.1, Khudeja Bibi. The distribution
of the money would be made to the respondent-claimant
petitioners in pursuance of the judgment and award
delivered by the Learned Tribunal on 18.10.2023.
Send down the LCR along with a copy of this
judgment/order.
Supply a copy of this order to the Learned
Counsel appearing for the appellant free of cost for
information and compliance. Also a copy of this
order/judgment be furnished to the Learned Counsel for the
claimant-respondents.
With this observation, this appeal stands
disposed of.
Pending application, if any, stands disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2025.05.08
04:31:32 +05'30'
Moumita
