Allahabad High Court
United India Insurance Co. Ltd. vs Smt. Mamta Rani And Others on 19 July, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 6 Case :- FIRST APPEAL FROM ORDER No. - 1699 of 2013 Appellant :- United India Insurance Company Respondent :- Smt. Mamta Rani and others Counsel for Appellant :- Mr. Anubhav Sinha, Advocate Counsel for Respondent :- Mr. Yogendra Pal Singh, Advocate Connected with Case :- CROSS OBJECTION No. - 48 of 2021 Objector :- Smt. Mamta Rani and others Respondent :- United India Insurance Company Limited Counsel for Objector :- Mr. Yogendra Pal Singh, Advocate Counsel for Respondent :- Mr. Anubhav Sinha, Advocate Hon'ble J.J. Munir,J.
This First Appeal From Order by the Insurance Company is directed against a judgment and award of the Motor Accidents Claims Tribunal/Special Judge (S.C./S.T. Act), Bulandshahr dated 21.03.2013, ordering the appellant-Insurance Company to pay compensation to the claimant-respondents in the sum of ₹36,80,222/- together with interest.
2. A cross-objection, being Cross Objection No. 48 of 2021, has been preferred by the claimants, seeking enhancement of the compensation. The cross-objection was presented beyond time by five years and fifty-one days. It was accompanied by a delay condonation application. The delay was condoned vide order dated 20.01.2022 and the cross-objection admitted to hearing.
3. The facts giving rise to this appeal are that on the 23rd of February, 2011, Shyamveer was proceeding on his motorcycle bearing Registration No. UP-14L-2487 from Sikandrabad to Town Gulawathi, both situate in the district of Bulandshahr. As he reached a certain Dholi Pyau near village Sanauta at about 02:00 p.m., a Bolero SUV bearing Registration No. HR-66/1186, proceeding from the opposite direction, that is to say, from Gulawathi to Sikandrabad, driven at a high speed and negligently in a wayward fashion, hit Shyamveer's motorcycle head on. Shyamveer was moving on the left hand side of the road, more on to its pavement. The impact caused Shyamveer to sustain a number of grievous injuries, in consequence whereof, he died on the spot, without opportunity for the extension of medical aid.
4. The deceased is survived by five dependents, who are the claimant-respondents to this appeal. They are Smt. Mamta Rani, widow of the deceased Shyamveer. She was aged 47 years at the time of the accident. Atul Kumar and Km. Nisha Rani are the deceased's son and the daughter. They were aged 24 and 23 years, respectively at the time of the accident. Smt. Mahaviri Devi and Naipal Singh are the mother and the father of the deceased. The mother was aged 70 years and the father 72 years at the time the cause of action arose.
5. The deceased was employed as an Assistant Development Officer in Harijan Samaj Kalyan Department of the State Government and posted as the Block Development Officer, Sikandrabad, District Bulandshahr. He was drawing a monthly salary of ₹38,400/-. The claimant-respondents prayed that they may be awarded compensation in the sum of ₹40,45,000/-.
6. Respondent nos. 1 and 2 to the claim petition, who are respondent nos. 6 and 7 to this appeal, are the driver and the owner of the offending vehicle. The driver is Rahul, son of Rajat Singh, whereas the owner is Randhir Singh, son of Indraveer Singh. They shall hereinafter be referred to as 'the driver' and 'the owner' respectively.
7. The driver and the owner filed a written statement, denying the involvement of the offending vehicle. It has been pleaded in Paragraph No. 15 of their written statement that the driver was working as such (of the offending vehicle) and had a valid and effective driving licence issued in his favour by the competent Authority at Bulandshahr.
8. It was further stated that at the time of the accident, the offending vehicle was insured with respondent no. 3 to the claim petition, who are an Insurance Company. The particulars of the Insurance Policy with its number was pleaded and a copy of the cover note was enclosed with the written statement. It is the case of the owner and the driver that if at all liable, it is the Insurance Company, who are obliged to satisfy the award.
9. A separate written statement was put in on behalf of the third respondent to the claim petition, who are the United India Insurance Company Limited, Branch Office near Meerut Private Bus Stand, State Bank of India Lane, Bulandshahr, represented by its Branch Manager. The Insurance Company aforesaid shall hereinafter be referred to as 'the insurers'. The insurers are the appellant here. They in their written statement said that the driver of the offending vehicle did not hold a valid and effective driving license. The claim petition is bad for non-joinder of necessary parties. The insurers have also denied the fact that the deceased was an Assistant Development Officer with the Harijan Samaj Kalyan Department, and that he was posted as a Block Development Officer at the time of the accident. It was, however, admitted in Paragraph No. 8 of the insurers' written statement that the offending vehicle was insured with them vide Policy No. 22200231090100011601 from the midnight hour of 25.02.2010 to the midnight hour of 24.02.2011, the policy being issued in the name of the owner.
10. On the pleadings of parties, the following issues were framed (translated into English from Hindi) :
(1) Whether on 23.02.2011, the accident happened when the deceased, Shyamveer Singh, proceeding from Town Sikandrabad to Gulawathi, riding his motorcycle bearing Registration No. UP-14L-2487 at 02:00 p.m., had reached Dholi Pyau, where a Bolero bearing Registration No. HR-66-1186, proceeding in the opposite direction, driven at a high speed and negligently, hit the motorcycle, leading to fatal injuries and consequent death?
(2) Whether on the date of accident, the Bolero in question was insured validly with the Insurance Company?
(3) Whether on the date of accident, the driver of the vehicle (offending) had a valid and effective driving licence?
(4) The amount of compensation, that the claimants are entitled to receive?"
11. The claimant-respondents, who shall hereinafter be referred to as 'the claimants', examined three witnesses in support of their case. PW-1, Mamta Rani is the widow of the deceased Shyamveer, Narendra Singh, who is an eye-witness of the accident, was examined as PW-2 and Ashok Kumar Gupta, who is an Accountant in the Office of the Additional District Development Officer (Samaj Kalyan), Bulandshahr, was examined as PW-3, to prove the deceased's salary. The driver, Rahul examined himself as DW-1 whereas on behalf of the insurers, their Investigator, Laxmi Narain was examined as DW-2.
12. The claimants in their documentary evidence filed, through a list of documents dated 05.12.2011, a certified copy of the First Information Report1 relating to the crime arising out of the accident, a copy of the charge-sheet filed by the Police, a copy of the site-plan (part of the police papers), a copy of the postmortem report relating to the deceased and the deceased's pay certificate in original for the month of January, 2011. In addition, through a list of documents dated 19.01.2012, a photostat copy of the first page of the service-book relating to the deceased was filed on behalf of the claimants.
13. On behalf of the owner and the driver, three documents were filed through a list, Paper No. 17 C1. These are a photostat copy of the Registration Certificate of the Bolero SUV bearing Registration No. HR-66-1186, a photostat copy of Rahul's driving licence and a photostat copy of the cover note issued by the insurers for the Bolero bearing Registration No. HR-66-1186. Again on behalf of the owner and the driver, a certified copy of the certificate of insurance was filed through list of documents, Paper No. 25C-1. The insurers, through a list of documents, Paper No. 56C-1, filed their Investigator's investigation report (in original) dated 07.05.2012.
14. Heard Mr. Anubhav Sinha, learned Counsel on behalf of the insurers in support of the appeal and Mr. Yogendra Pal Singh, learned Counsel appearing for the claimants in opposition. Mr. Yogendra Pal Singh has been heard on behalf of the claimants in support of cross-objection and Mr. Anubhav Sinha in answer on behalf of the insurers.
15. Mr. Anubhav Sinha, learned Counsel for the insurers has assailed the findings of the Tribunal on Issue No.1 vociferously and says that the Tribunal has ignored from consideration telltale features in the claimants' evidence, that go to show that the offending vehicle was never involved in the accident. He submits that the FIR was lodged against an unknown vehicle, with no particulars thereof mentioned. Later on, the Bolero SUV bearing Registration No. HR-66-1186 has been framed as the offending vehicle in connivance with the Police and the planted eye-witness, Narendra Singh, PW-2. It is argued that PW-2 had seen nothing about the accident. The witness is not mentioned in the FIR. It is argued that if Narendra Singh was present at the time of accident, there is no reason why his name did not figure in the FIR and further that the fact that Narendra Singh did not report the matter to the Police or did anything to help the deceased, then a victim of the accident, falsifies his presence.
16. The learned Counsel for the insurers has drawn attention of the Court to the fact that PW-1 has said in answer to a suggestion in his cross-examination that it is incorrect to say that the deceased's face was crushed beyond recognition, whereas the deceased's wife, Smt. Mamta Rani, PW-1 in her cross-examination, has said that the deceased's face was so badly crushed that it was difficult to recognize. He submits, therefore, that the testimony of PW-2 about the identification of the deceased on the basis of an information shared by the witness's brother-in-law about the time and place of the accident is hard to believe. Learned Counsel for the insurers particularly criticizes that part of the testimony of PW-2, where he says that on reaching the deceased's home and seeing his photograph, he immediately recognized the deceased. Learned Counsel submits that this testimony is not worthy of acceptance, because the deceased's wife, in her cross-examination, has acknowledged the fact that the deceased's face was crushed beyond recognition. It is, particularly, emphasized by the learned Counsel for the insurers that PW-2 is a got up witness, who has seen nothing, but later on came up with the registration number of the offending vehicle that he shared with the Police and also feigned identifying the deceased and witnessing the accident.
17. Mr. Yogendra Pal Singh, learned Counsel for the claimants has supported the findings of the Tribunal on the foot of the reasoning that the Tribunal has accepted the testimony of PW-2 together with other circumstances, taking a plausible view of the evidence holistically. He submits that there is ample evidence to accept the factum of the accident being caused by the offending vehicle and the accident being witnessed by PW-2, who remembered the registration number of the offending vehicle, but did not take any step to report the matter to the Police for the obvious reason that he did not know the deceased. Later on, when he learnt about the deceased's identity and particularly the fact that he was a friend of his brother-in-law, he connected the event, the identity of the victim and the offending vehicle, which he volunteered to share with the Police.
18. This Court has considered the submissions of the learned Counsel for parties on the first issue and perused the record.
19. It is true that the FIR lodged by the deceased's son, Atul Kumar, does not mention the name of PW-2 as a witness of the accident, but in our opinion, the non-mention of the witness's name does not discredit the factum of his presence in the circumstances obtaining. The witness was a passer-by, who saw the accident, stopped over for a few minutes and went away, because he had a sick aunt to take care of. The first informant is the son of the deceased, who was not present at the site of the accident. Admittedly, the first informant is not an eyewitness. In the circumstances, the fact that PW-2 was not mentioned by the informant in his written information to the Police is a logical and natural part of the unfolding of events, the way they did. There is also nothing unnatural about the conduct of Narendra Singh, PW-2 in not, reporting the accident to the Police after witnessing it as a passer-by.
20. We cannot shut our eyes to the harsh reality that reporting even an accident to the Police is not a pleasant experience for a man not endowed with some extraordinary resource or authority. The legal proceedings that follow after a man turns a first informant are equally unpleasant and taxing. The natural conduct of a witness, who sees an accident, is to eschew and avoid reporting it. It is circumstances compelling or very motivating, such as affinity or acquaintance with the victim, that may impel a witness to come forward and say what he has seen, even about an accident. The premise, therefore, on which Mr. Sinha wants us to disbelieve the presence of PW-2 are too mechanical and bookish to accept. The fact that this witness came forward a little later, in our opinion, is not the result of design to produce a planted witness by the claimants. Rather, it was apparently an accident of a different kind, where the witness's brother-in-law happened to be a friend of the deceased and narrated to him the ill-fate of the deceased. It was the location and the time of the accident that very logically reminded the witness of seeing it all. Since this episode happened on the fourth day after the accident, the witness's memory was still fresh. He chose to volunteer. Therefore, to castigate Narendra Singh as a planted witness, who had not seen anything of the accident, as the insurers seek to do, is not acceptable.
21. A Division Bench of this Court, when confronted with an almost identical stance of the Insurance Company about the presence of the eyewitness in Dr. Anoop Kumar Bhattacharya and another v. National Insurance Company Limited2 held :
37. Let us first deal with the absence of the name of PW-2 from the hospital records and the FIR. Does it render the testimony of PW-2 suspected and liable to be disbelieved?
38. In Anita Sharma (supra), the Rajasthan High Court set aside the judgment of the Tribunal awarding compensation to the claimant, inter alia, on the ground that the eyewitness, the testimony of whom the Tribunal had relied on, could not have been believed because he had failed to report the accident to the police and because even though he asserted that he had brought the injured to the hospital the same was not borne out from the hospital records. The hospital records instead indicated that the injured was brought in by the police. The judgment of the High Court was assailed before the Supreme Court. Contradicting the reasoning of the High Court, the Supreme Court observed thus:--
"12. It is commonplace for most people to be hesitant about being involved in legal proceedings and they therefore do not volunteer to become witnesses. Hence, it is highly likely that the name of Ritesh Pandey or other persons who accompanied the injured to the hospital did not find mention in the medical record. There is nothing on record to suggest that the police reached the site of the accident or carried the injured to the hospital. The statement of AW3, therefore, acquires significance as, according to him, he brought the injured in his car to the hospital. Ritesh Pandey (AW3) acted as a good samaritan and a responsible citizen, and the High Court ought not to have disbelieved his testimony based merely on a conjecture. It is necessary to reiterate the independence and benevolence of AW3. Without any personal interest or motive, he assisted both the deceased by taking him to the hospital and later his family by expending time and effort to depose before the Tribunal.
13. It is quite natural that such a person who had accompanied the injured to the hospital for immediate medical aid, could not have simultaneously gone to the police station to lodge the FIR. The High Court ought not to have drawn any adverse inference against the witness for his failure to report the matter to Police. Further, as the police had themselves reached the hospital upon having received information about the accident, there was perhaps no occasion for AW3 to lodge a report once again to the police at a later stage either.
14. Unfortunately, the approach of the High Court was not sensitive enough to appreciate the turn of events at the spot, or the appellant claimants' hardship in tracing witnesses and collecting information for an accident which took place many hundreds of kilometers away in an altogether different State. Close to the facts of the case in hand, this Court in Parmeshwari v. Amir Chand1, viewed that:
"12. The other ground on which the High Court dismissed the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.
x x x
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
39. It is clear that the Supreme Court did not concur with the approach adopted by the Rajasthan High Court in discarding the testimony of an eyewitness on the ground that he did not report the incident to the police and that his name did not appear in the hospital records even though he claimed to have brought the injured to the hospital.
40. In a telling and insightful commentary on the general tendencies of everyday actors, the Supreme Court observed that it is very common-place that people are hesitant to give their details to the hospitals in cases of accidents for the fear of getting embroiled in tedious and cumbersome legal proceedings. The testimony of a witness, who claims to have brought the victim of an accident to the hospital, therefore, does not automatically become doubtful and suspicious simply on account of the fact that the concerned individual's name was missing from the hospital records. In fact, such a circumstance is highly likely. The Hon'ble Supreme Court also opined that it is unrealistic to expect that a person who decides to stop and help the injured by taking the injured to the hospital should also simultaneously go to the police station and lodge the FIR. Placing reliance on its judgment in the case of Parmeshwari v. Amir Chand, reported in (2011) 11 SCC 635, the Supreme Court opined that an eye-witness, who helps the victim of an accident get to the hospital, acts as a good Samaritan and cannot be disbelieved simply because he did not file a complaint with the police. The decision to discard the testimony of such a witness cannot be based solely on conjecture. A holistic view of the matter must be taken without losing sight of the distress caused to the victim. It must be borne in mind that strict proof of accident is not required and the case of the victim has to be tested only according to the standard of preponderance of probabilities.
22. This Court, in believing that Narendra Singh PW-2 was present at the site and the time of the accident, which he witnessed, is fortified about the approach to be adopted in such matters by the remarks of their Lordships of the Division Bench in Dr. Anoop Kumar Bhattacharya (supra), which, in turn, has drawn on the guidance of the Supreme Court in Anita Sharma v. The New India Assurance Company Limited3.
23. The Police, on the other hand, after a full-fledged investigation in Case Crime No. 88 of 2011, have filed a charge-sheet, citing Narendra Singh as the first witness of fact. In the cross-examination of Narendra Singh by the insurers, there is nothing that figures to discredit the witness's presence. PW-2 has stuck to his stand why he moved away after seeing the accident, but later on came forward upon coming to know that the deceased was a friend of his brother-in-law. To a suggestion by the insurers that he was testifying at the instance of the claimants, or that he wanted to secure undue benefit to them, the witness has resolutely denied the fact and maintained his position that he had seen the accident. He has also dispelled the suggestion that he had never seen it happen. Presence of the witness could be impeached by the insurers through cross-examination, which they extensively undertook. The insurers' endeavour to discredit the presence of PW-2 at the site of the accident, when the witness took stand in the dock, has been utterly unsuccessful. Therefore, this Court has no hesitation to hold that the presence of PW-2 cannot be doubted.
24. The other limb of the submission, that the insurers have canvassed before this Court, is about the inherent unworthiness of the testimony of Narendra Singh. The basis of the submission seems to be the fact that Narendra Singh could identify the deceased by a look at his photograph put up at the mourning site, which is not believable. This submission is founded on the testimony of the deceased's wife Smt. Mamta Rani, PW-1, who has stated in her cross-examination that the deceased's face was so badly crushed that it was difficult to recognise. No doubt the deceased's wife has said words to the effect that Mr. Sinha has emphasized, but, the identification of an individual, who has met with a fatal accident, by a witness, is based on broader things, and not confined only to the facial features. The date and time of the accident, the identity of the victim otherwise well established by his or her gait, broadly seen by the witness, can and do ensemble to facilitate the witness accurately identify. Narendra Singh's presence at the site of the accident is not in doubt. He had seen the accident and the victim while he stayed there for a few minutes, before proceeding to attend to his ailing aunt. The witness was cognizant of the broad features of the victim, but did not know him. Later on, through his brother-in-law, when he came to know about the victim's identity with reference to the date, time and place of the accident, he could and did correctly identify. There is nothing so startling or absurd about the testimony of Narendra Singh, PW-2 that may impel the Court to disbelieve the witness in a matter as inquisitorial in nature as a motor accident claim and test it by the gruelling standard that a criminal prosecution must meet. There is no warrant for the Court to assess the testimony of the witness even by standards of an ordinary adversarial civil cause. The purpose of trial in a motor accident claim is to ascertain whether an accident has happened, and where it is a fatal accident, to ensure that the dependents of the victim are compensated by the offending vehicle or its insurers. This is to be done in a broadly inquisitorial exercise, where the identity of the offending vehicle is established with reasonable assurance. The approach in a motor accident claim has to be holistic and facilitative, rather than hair-splitting and critical.
25. In this connection, reference may be made with profit to the guidance of the Supreme Court in Sunita and others v. Rajasthan State Road Transport Corporation and others4, where, their Lordships were concerned about the approach that the Court has to adopt in evaluating evidence, while determining the liability for the accident. In the context of facts, where the High Court had set aside the Tribunal's award granting compensation by holding the witnesses to be unreliable and insisting on adherence to the best evidence rule, it was observed :
20. The thrust of the reasoning given by the High Court rests on the unreliability of the witnesses presented by the appellants: first, that the evidence given by Bhagchand (AD 2) was unreliable because he was not shown as a witness in the list of witnesses mentioned in the charge-sheet filed by the police and that the said witness could not identify the age of the pillion rider, Rajulal Khateek. Second, the said pillion rider himself, Rajulal Khateek, who was the "best" witness in the matter, was not presented for examination by the appellants. The High Court also relies on the site map (Ext. 3) to record the finding on the factum of negligence of the deceased Sitaram in causing the accident which resulted in his death.
21. We have no hesitation in observing that such a hypertechnical and trivial approach of the High Court cannot be sustained in a case for compensation under the Act, in connection with a motor vehicle accident resulting in the death of a family member. Recently, in Mangla Ram v. Oriental Insurance Co. Ltd. [Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 : (2018) 3 SCC (Civ) 335 : (2018) 2 SCC (Cri) 819] (to which one of us, Khanwilkar, J. was a party), this Court has restated the position as to the approach to be adopted in accident claim cases. In that case, the Court was dealing with a case of an accident between a motorcycle and a jeep, where the Tribunal had relied upon the FIR and charge-sheet, as well as the accompanying statements of the complainant and witnesses, to opine that the police records confirmed the occurrence of an accident and also the identity of the offending jeep but the High Court had overturned [Pratap Singh v. Mangla Ram, 2017 SCC OnLine Raj 3765] that finding inter alia on the ground that the oral evidence supporting such a finding had been discarded by the Tribunal itself and that reliance solely on the document forming part of the police record was insufficient to arrive at such a finding. Disapproving that approach, this Court, after adverting to multitude of cases under the Act, noted as follows: (Mangla Ram case [Mangla Ram v. Oriental Insurance Co. Ltd., (2018) 5 SCC 656 : (2018) 3 SCC (Civ) 335 : (2018) 2 SCC (Cri) 819] , SCC pp. 667-71, paras 22-25) "22. The question is: Whether this approach of the High Court can be sustained in law? While dealing with a similar situation, this Court in Bimla Devi [Bimla Devi v. Himachal RTC, (2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] noted the defence of the driver and conductor of the bus which inter alia was to cast a doubt on the police record indicating that the person standing at the rear side of the bus, suffered head injury when the bus was being reversed without blowing any horn. This Court observed that while dealing with the claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, the Tribunal stricto sensu is not bound by the pleadings of the parties, its function is to determine the amount of fair compensation. In paras 11-15, the Court observed thus: (SCC pp. 533-34) ''11. While dealing with a claim petition in terms of Section 166 of the Motor Vehicles Act, 1988, a Tribunal stricto sensu is not bound by the pleadings of the parties; its function being to determine the amount of fair compensation in the event an accident has taken place by reason of negligence of that driver of a motor vehicle. It is true that occurrence of an accident having regard to the provisions contained in Section 166 of the Act is a sine qua non for entertaining a claim petition but that would not mean that despite evidence to the effect that death of the claimant's predecessor had taken place by reason of an accident caused by a motor vehicle, the same would be ignored only on the basis of a post-mortem report vis-à-vis the averments made in a claim petition.
12. The deceased was a constable. Death took place near a police station. The post-mortem report clearly suggests that the deceased died of a brain injury. The place of accident is not far from the police station. It is, therefore, difficult to believe the story of the driver of the bus that he slept in the bus and in the morning found a dead body wrapped in a blanket. If the death of the constable had taken place earlier, it is wholly unlikely that his dead body in a small town like Dharampur would remain undetected throughout the night particularly when it was lying at a bus-stand and near a police station. In such an event, the court can presume that the police officers themselves should have taken possession of the dead body.
13. The learned Tribunal, in our opinion, has rightly proceeded on the basis that apparently there was absolutely no reason to falsely implicate Respondents 2 and 3. The claimant was not at the place of occurrence. She, therefore, might not be aware of the details as to how the accident took place but the fact that the first information report had been lodged in relation to an accident could not have been ignored.
14. Some discrepancies in the evidence of the claimant's witnesses might have occurred but the core question before the Tribunal and consequently before the High Court was as to whether the bus in question was involved in the accident or not. For the purpose of determining the said issue, the Court was required to apply the principle underlying the burden of proof in terms of the provisions of Section 106 of the Evidence Act, 1872 as to whether a dead body wrapped in a blanket had been found at the spot at such an early hour, which was required to be proved by Respondents 2 and 3.
15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties.' (emphasis supplied) The Court restated the legal position that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal while dealing with the motor accident cases. Even in that case, the view taken by the High Court to reverse similar findings, recorded by the Tribunal was set aside.
23. Following the enunciation in Bimla Devi case [Bimla Devi v. Himachal RTC, (2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] , this Court in Parmeshwari v. Amir Chand [Parmeshwari v. Amir Chand, (2011) 11 SCC 635 : (2011) 4 SCC (Civ) 828 : (2011) 3 SCC (Cri) 605] noted that when filing of the complaint was not disputed, the decision of the Tribunal ought not to have been reversed by the High Court [Amir Chand v. Parmeshwari, 2009 SCC OnLine P&H 9302] on the ground that nobody came from the office of the SSP to prove the complaint. The Court appreciated the testimony of the eyewitnesses in paras 12 & 13 and observed thus: (Parmeshwari case [Parmeshwari v. Amir Chand, (2011) 11 SCC 635 : (2011) 4 SCC (Civ) 828 : (2011) 3 SCC (Cri) 605] , SCC p. 638) ''12. The other ground on which the High Court dismissed [Amir Chand v. Parmeshwari, 2009 SCC OnLine P&H 9302] the case was by way of disbelieving the testimony of Umed Singh, PW 1. Such disbelief of the High Court is totally conjectural. Umed Singh is not related to the appellant but as a good citizen, Umed Singh extended his help to the appellant by helping her to reach the doctor's chamber in order to ensure that an injured woman gets medical treatment. The evidence of Umed Singh cannot be disbelieved just because he did not file a complaint himself. We are constrained to repeat our observation that the total approach of the High Court, unfortunately, was not sensitised enough to appreciate the plight of the victim.
13. The other so-called reason in the High Court's order was that as the claim petition was filed after four months of the accident, the same is ''a device to grab money from the insurance company'. This finding in the absence of any material is certainly perverse. The High Court appears to be not cognizant of the principle that in a road accident claim, the strict principles of proof in a criminal case are not attracted. ...'
24. It will be useful to advert to the dictum in N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal[N.K.V. Bros. (P) Ltd. v. M. Karumai Ammal, (1980) 3 SCC 457 : 1980 SCC (Cri) 774] , wherein it was contended by the vehicle owner that the criminal case in relation to the accident had ended in acquittal and for which reason the claim under the Motor Vehicles Act ought to be rejected. This Court negatived the said argument by observing that the nature of proof required to establish culpable rashness, punishable under IPC, is more stringent than negligence sufficient under the law of tort to create liability. The observation made in para 3 of the judgment would throw some light as to what should be the approach of the Tribunal in motor accident cases. The same reads thus: (SCC pp. 458-59) ''3. Road accidents are one of the top killers in our country, specially when truck and bus drivers operate nocturnally. This proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases based on the doctrine of res ipsa loquitur. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving. The heavy economic impact of culpable driving of public transport must bring owner and driver to their responsibility to their neighbour. Indeed, the State must seriously consider no-fault liability by legislation. A second aspect which pains us is the inadequacy of the compensation or undue parsimony practised by tribunals. We must remember that judicial tribunals are State organs and Article 41 of the Constitution lays the jurisprudential foundation for State relief against accidental disablement of citizens. There is no justification for niggardliness in compensation. A third factor which is harrowing is the enormous delay in disposal of accident cases resulting in compensation, even if awarded, being postponed by several years. The States must appoint sufficient number of tribunals and the High Courts should insist upon quick disposals so that the trauma and tragedy already sustained may not be magnified by the injustice of delayed justice. Many States are unjustly indifferent in this regard.'
25. In Dulcina Fernandes [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13] , this Court examined similar situation where the evidence of claimant's eyewitness was discarded by the Tribunal and that the respondent in that case was acquitted in the criminal case concerning the accident. This Court, however, opined that it cannot be overlooked that upon investigation of the case registered against the respondent, prima facie, materials showing negligence were found to put him on trial. The Court restated the settled principle that the evidence of the claimants ought to be examined by the Tribunal on the touchstone of preponderance of probability and certainly the standard of proof beyond reasonable doubt could not have been applied as noted in Bimla Devi [Bimla Devi v. Himachal RTC, (2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] . In paras 8 & 9 of the reported decision, the dictum in United India Insurance Co. Ltd. v. Shila Datta [United India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509 : (2012) 3 SCC (Civ) 798 : (2012) 1 SCC (Cri) 328] , has been adverted to as under: (Dulcina Fernandes case [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13] , SCC p. 650) ''8. In United India Insurance Co. Ltd. v. Shila Datta [United India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509 : (2012) 3 SCC (Civ) 798 : (2012) 1 SCC (Cri) 328] while considering the nature of a claim petition under the Motor Vehicles Act, 1988 a three-Judge Bench of this Court has culled out certain propositions of which Propositions (ii), (v) and (vi) would be relevant to the facts of the present case and, therefore, may be extracted hereinbelow: (SCC p. 518, para 10) "10. ... (ii) The rules of pleadings do not strictly apply as the claimant is required to make an application in a form prescribed under the Act. In fact, there is no pleading where the proceedings are suo motu initiated by the Tribunal.
***
(v) Though the Tribunal adjudicates on a claim and determines the compensation, it does not do so as in an adversarial litigation. ...
(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry."
9. The following further observation available in para 10 of the Report would require specific note: (Shila Datta case [United India Insurance Co. Ltd. v. Shila Datta, (2011) 10 SCC 509 : (2012) 3 SCC (Civ) 798 : (2012) 1 SCC (Cri) 328] , SCC p. 519) "10. ... We have referred to the aforesaid provisions to show that an award by the Tribunal cannot be seen as an adversarial adjudication between the litigating parties to a dispute, but a statutory determination of compensation on the occurrence of an accident, after due enquiry, in accordance with the statute."' In para 10 of Dulcina Fernandes [Dulcina Fernandes v. Joaquim Xavier Cruz, (2013) 10 SCC 646 : (2014) 1 SCC (Civ) 73 : (2014) 1 SCC (Cri) 13] , the Court opined that non-examination of witness per se cannot be treated as fatal to the claim set up before the Tribunal. In other words, the approach of the Tribunal should be holistic analysis of the entire pleadings and evidence by applying the principles of preponderance of probability."
22. It is thus well settled that in motor accident claim cases, once the foundational fact, namely, the actual occurrence of the accident, has been established, then the Tribunal's role would be to calculate the quantum of just compensation if the accident had taken place by reason of negligence of the driver of a motor vehicle and, while doing so, the Tribunal would not be strictly bound by the pleadings of the parties. Notably, while deciding cases arising out of motor vehicle accidents, the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases.
26. Given the approach that the Tribunal must adopt in the case of a motor accident claim, this Court has no hesitation in holding that the Tribunal was absolutely right in accepting the testimony of PW-2, including his identification of the deceased and connecting the deceased to the accident, that the witness had seen. The Tribunal has relied on the conclusions of investigation by the Police in identifying the offending vehicle. The criticism of this part of the reasoning by the learned Counsel for the insurers on ground that the Police investigation is absolutely irrelevant, is not one which accords with the law. The Police investigation cannot be conclusive about the complicity of the offending vehicle or the negligence of the driver, but is certainly a relevant piece of evidence and weighty, that must be taken into consideration. The Tribunal has only done that and considered the conclusions of the Police investigation in togetherness with all other relevant evidence.
27. In the opinion of this Court, the Tribunal has rightly not paid much heed to the testimony of the driver DW-1 Rahul, who has spoken to disown his liability, notwithstanding the involvement of the offending vehicle. This witness has been charge-sheeted by the Police and there is every reason why he would testify the way he has done. He has said that he had left the owner's employ and was not the driver of the offending vehicle on the date of the accident. His testimony has not inspired much confidence with the Tribunal and there is no reason for this Court to take a different view. Likewise, the testimony of DW-2, Lakshmi Narayan Tyagi, has been disbelieved by the Tribunal, because this witness is an investigator hired by the insurers, whose commitment to his employer makes his testimony inherently unreliable. In any case, DW-2 is not an eyewitness. There is a remark by the Tribunal to the effect that the testimony of PW-2 Narendra Singh, who is cited as a witness in the charge-sheet submitted by the Police, also gives a very natural account of the accident. This Court cannot but unhesitatingly agree with the Tribunal's opinion on this score. To the credit of this remark by the Tribunal, it must be said that a holistic view of the testimony of Narendra Singh, PW-2 together with the other evidence, such as the Police charge-sheet, the circumstances of disclosing the deceased's identity by Narendra Singh's brother-in-law to him impromptu, leading PW-2 to testify, all put together, preponderantly establish the involvement of the offending vehicle in the accident. The negligence of the driver of the offending is more than obvious.
28. It has figured in the evidence of PW-2 and also in the site-plan drawn by the Police during investigation that the deceased's motorcycle was struck and knocked down on the dusty pavement. There is no question of any contributory negligence of the deceased being involved. Apparently, it is the negligence of the driver of the offending vehicle, that was responsible for the accident. The finding returned by the Tribunal on Issue No. 1, in the opinion of this Court, is unexceptionable.
29. The other issue, on which the learned Counsel for the parties have elaborately addressed the Court, is Issue No. 4. It is about the quantum of compensation. There is a cross objection on behalf of the claimants, seeking enhancement of the compensation awarded. So far as the insurers are concerned, the sole objection about the quantum of compensation is that out of the five claimants, the adult son of the deceased, Atul Kumar, who has been favoured with a compassionate appointment, cannot count amongst the deceased's dependents. The submission of Mr. Anubhav Sinha is that in working out the dependency of the claimants, Atul Kumar is not to be counted, as he has been appointed on compassionate grounds. The compensation, therefore, is to be proportionately reduced.
30. Mr. Yogendra Pal Singh, learned Counsel for the claimants in support of the cross objections, has argued that the Tribunal has wrongly applied the multiplier of ''11' going by the age of the deceased. According to him, the appropriate multiplier is ''12'. It is argued that the Tribunal has not awarded any sum of compensation towards loss of love and affection, that the deceased's parents and children have suffered. He moots that under this head, a compensation in the sum of ₹ 2,00,000/- ought to have been awarded. It is also urged that the claimants are entitled to add to the deceased's income, 20% by way of future prospects under the Uttar Pradesh Motor Vehicles Rules, 19985. It is particularly argued that under the non-pecuniary heads, that is to say, compensation for loss of estate, loss of consortium and funeral expenses, appropriate compensation has not been awarded in the terms laid down by the Supreme Court in the Constitution Bench decision in National Insurance Company v. Pranay Sethi and others6.
31. The submission of learned Counsel for the insurers that the adult son of the deceased, who has been given compassionate appointment, must not be counted amongst his dependents, is not worthy of acceptance. This submission has been urged in the past to claim deduction from the dependency put forth by the claimants. This was the issue before the Supreme Court, put in a different manner on behalf of the insurers, in National Insurance Company Limited v. Rekhaben and others7. There the issue was raised in terms that can best be understood by reference to the words of their Lordships in the report. These read :
11. The main contention of the appellant in these appeals is that the amount of salary received by the claimants being appointed by the employers of the deceased on compassionate grounds must be reduced from the award of compensation made in favour of the claimants. Thus, the only issue before us in these appeals is whether the income of the claimants from compassionate employment is liable to be deducted from the compensation amount awarded by the Tribunal under the statute.
32. The issue was differently posed in Rekhaben (supra), but ultimately at the bottom of it, it is identical to the contention that Mr. Sinha raises before this Court. The contention, perhaps, has been differently put on behalf of the insurers in order to escape the principle that is laid down in Rekhaben and a number of other decisions of various High Courts that have not favoured any deductions from the compensation on account of compassionate appointment, granted to one of the dependents of the deceased.
33. Mr. Sinha has sought to argue that the deceased's adult son was no longer a dependent of the deceased, being favoured with compassionate appointment in consequence of his demise. The issue, in substance, is answered against the insurers in Rekhaben by the Supreme Court, but, to dispose of a novel rendition of the same contention urged on behalf of the insurers by Mr. Sinha, it must be remarked that until time that the deceased passed away in consequence of the accident, the adult son was one of the deceased's dependents. Right to compensation stood crystallized on the date of the victim's death. The day the deceased passed away, the claimants sustained the loss, which was the dependency. The deceased's adult son was 24 years old. If the deceased had survived, the adult son might have improved his educational qualifications or looked for better prospects. There is no logic or principle by which on the grant of compassionate appointment, the adult son of the deceased is to be counted out of the dependents.
34. To revert to the issue that their Lordships of the Supreme Court considered in Rekhaben, it was most elaborately dealt with thus :
13. In these cases, compensation is claimed against the tortfeasor who may be the driver or owner of the vehicle or the insurer. In respect of an accident in which the tortfeasor is found to be liable, the owner or the driver of the vehicle or the insurer, as the case may be, may alone be held responsible for the payment of such compensation since the accident has resulted in the injury or death which gives rise to the claim of the claimants. No other party is involved in it. And certainly not the employer who may offer compassionate appointment to the dependants of the injured/deceased.
14. While awarding compensation, amongst other things, the Tribunal takes into account the income of the deceased and calculates the loss of such income after making permissible deductions to compensate the injured claimant for the loss of earning capacity in case of an injury, and to compensate the claimants dependent on him in case of death. Thus, the income of the deceased or the injured, which the claimants have lost due to the inability of the deceased or the injured to earn or to provide for them is a relevant factor which is always taken into consideration. The salary or the income of the claimant in case of death is generally not a relevant factor in determining compensation primarily because the law takes no cognizance of the claimant's situation. Though in case of an injury, the income of the claimant who is injured is relevant. In other words, compensation is awarded on the basis of the entire loss of income of the deceased or in a case of injury, for the loss of income due to the injury. What needs to be considered is whether compassionate appointment offered to the dependants of the deceased or the injured, by the employer of the deceased/injured, who is not the tortfeasor, can be deducted from the compensation receivable by him on account of the accident from the tortfeasor. Certainly, it cannot be that the one liable to compensate the claimants for the loss of income due to the accident, can have his liability reduced by the amount which the claimants earn as a result of compassionate appointment offered by another viz. the employer.
15. The submission on behalf of the appellant in these cases is that the salary of the claimants receivable on account of compassionate appointment must be deducted from the compensation awarded to them. Reliance is placed in this regard on the judgment of this Court in Bhakra Beas Management Board v. Kanta Aggarwal [Bhakra Beas Management Board v. Kanta Aggarwal, (2008) 11 SCC 366 : (2009) 1 SCC (Cri) 154] in which compensation was claimed against the employer of the deceased who was also the owner of the offending vehicle i.e. the tortfeasor. The tortfeasor offered employment on compassionate grounds to the widow of the deceased i.e. the claimant. In the facts and circumstances of the case, this Court took the view that the salary which flowed from the compassionate appointment offered by the tortfeasor, was liable to be deducted from the compensation which was payable by the same employer in his capacity as the owner of the offending vehicle. We find this decision as being of no assistance to the appellant in the cases before us. In the present cases, the owner of the offending vehicle is not the employer who offered the compassionate appointment. As observed earlier, it is difficult to see how the owner can contend that the compensation which he is liable to pay for causing the death or disability should be reduced because of compassionate employment offered by another. In any case, it is difficult to determine how much the person offered compassionate appointment would earn over the period of employment which is not certain, and deduct that amount from the compensation.
16. At this juncture, it would be apposite to refer to some of the decisions rendered by this Court. In Helen C. Rebello v. Maharashtra SRTC [Helen C. Rebello v. Maharashtra SRTC, (1999) 1 SCC 90 : 1999 SCC (Cri) 197] , the insurance company had claimed that the amount which was received by the claimant on account of life insurance was liable to be deducted from the compensation which is payable to the claimants. This contention was rejected by this Court in the following words : (SCC pp. 112-13, paras 36-37) "36. As we have observed, the whole scheme of the Act, in relation to the payment of compensation to the claimant, is a beneficial legislation. The intention of the legislature is made more clear by the change of language from what was in the Fatal Accidents Act, 1855 and what is brought under Section 110-B of the 1939 Act. This is also visible through the provision of Section 168(1) under the Motor Vehicles Act, 1988 and Section 92-A of the 1939 Act which fixes the liability on the owner of the vehicle even on no fault. It provides that where the death or permanent disablement of any person has resulted from an accident in spite of no fault of the owner of the vehicle, an amount of compensation fixed therein is payable to the claimant by such owner of the vehicle. Section 92-B ensures that the claim for compensation under Section 92-A is in addition to any other right to claim compensation in respect whereof (sic thereof) under any other provision of this Act or of any other law for the time being in force. This clearly indicates the intention of the legislature which is conferring larger benefit on the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute, then the one which subserves the object of legislation viz. benefit to the subject should be accepted. In the present case, two interpretations have been given of this statute, evidenced by two distinct sets of decisions of the various High Courts. We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount, should be accepted and the other set, which interpreted to deduct, is to be rejected. For all these considerations, we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving a restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intents of the legislature under various provisions of the Motor Vehicles Act, 1939.
37. Accordingly, we set aside the impugned judgment dated 9-9-1985 and restore the judgment of the Tribunal dated 29-9-1980 and hold that the amount received by the claimant on the life insurance of the deceased is not deductible from the compensation computed under the Motor Vehicles Act. The respondent concerned shall make the payment accordingly, if not already paid in terms thereof."
17. Similarly, in United India Insurance Co. Ltd. v. Patricia Jean Mahajan [United India Insurance Co. Ltd. v. Patricia Jean Mahajan, (2002) 6 SCC 281 : 2002 SCC (Cri) 1294] , this Court held that the amount received by the claimants on account of social security from an employer must have a nexus or relation with the accidental injury or death, in order to be deductible from the amount of compensation. Hence, this Court refused to deduct the said amount from the amount of compensation receivable on account of the motor accident.
18. The facts of the case in Vimal Kanwar v. Kishore Dan [Vimal Kanwar v. Kishore Dan, (2013) 7 SCC 476 : (2013) 3 SCC (Civ) 564 : (2013) 3 SCC (Cri) 583 : (2013) 2 SCC (L&S) 759] are similar to the facts of the cases in hand. The contention in the said case was that the amount of salary receivable by the claimant appointed on compassionate ground was deductible from the amount of compensation which the claimant was entitled to receive under Section 168 of the Motor Vehicles Act, 1988. This Court rejected the said contention and observed as follows : (SCC p. 485, para 21) "21."Compassionate appointment" can be one of the conditions of service of an employee, if a scheme to that effect is framed by the employer. In case, the employee dies in harness i.e. while in service leaving behind the dependants, one of the dependants may request for compassionate appointment to maintain the family of the deceased employee who dies in harness. This cannot be stated to be an advantage receivable by the heirs on account of one's death and has no correlation with the amount receivable under a statute occasioned on account of accidental death. Compassionate appointment may have nexus with the death of an employee while in service but it is not necessary that it should have a correlation with the accidental death. An employee dies in harness even in normal course, due to illness and to maintain the family of the deceased one of the dependants may be entitled for compassionate appointment but that cannot be termed as "pecuniary advantage" that comes under the periphery of the Motor Vehicles Act and any amount received on such appointment is not liable for deduction for determination of compensation under the Motor Vehicles Act."
19. In Reliance General Insurance Co. Ltd. v. Shashi Sharma [Reliance General Insurance Co. Ltd. v. Shashi Sharma, (2016) 9 SCC 627 : (2016) 3 SCC (Cri) 713 : (2017) 1 SCC (L&S) 90] , this Court permitted the deduction of the amount receivable by the claimant under the scheme of the 2006 Rules framed by the State of Haryana which provided a grant of compassionate assistance by way of ex gratia financial assistance on compassionate grounds to the members of the family of a deceased government employee who died while in service/missing government employee.
20. The financial assistance was a sum equal to the pay and other allowances that were last drawn by the deceased employee in the normal course without raising a specific claim for periods up to 15 years from the date of the death of the employee if the employee had not attained the age of 35 years, and lesser periods of 12 years and 7 years depending on the age of the employee at the time of death. The family was eligible to receive family pension only after the period of financial assistance was completed. The Court held that ex gratia financial assistance was liable to be deducted on the ground that the claimant was eligible to it on account of the same event in which the compensation was claimed under the Motor Vehicles Act, 1988 i.e. the death of the employee.
21. This case seems to superficially support the case of the appellant Insurance Company before us. However, on a deeper consideration, it does not. In Reliance General Insurance[Reliance General Insurance Co. Ltd. v. Shashi Sharma, (2016) 9 SCC 627 : (2016) 3 SCC (Cri) 713 : (2017) 1 SCC (L&S) 90] , the family of the deceased employee became entitled to financial assistance of a sum equal to the pay and other allowances that were last drawn by the deceased for a certain period after his death, even without raising a specific claim. In other words the family became entitled to the pay and allowances that the deceased would have received if he would have not died, for a certain period of time. This financial scheme resulted in paying the family the same pay and allowances for a certain period and thus in effect clearly offsetting the loss of income on account of the death of the deceased. Thus, the amount of financial assistance had to be excluded from the loss of income, as to that extent there was no loss of income, and the compensation receivable by the family had to be reduced from the amount receivable under the Motor Vehicles Act.
22. In the present cases, the claimants were offered compassionate employment. The claimants were not offered any sum of money equal to the income of the deceased. In fact, they were not offered any sum of money at all. They were offered employment and the money they receive in the form of their salary, would be earned from such employment. The loss of income in such cases cannot be said to be set off because the claimants would be earning their living. Therefore, we are of the view that the amount earned by the claimants from compassionate appointments cannot be deducted from the quantum of compensation receivable by them under the Act.
23. In the cases before us, compensation is claimed from the owner of the offending vehicle who is different from the employer who has offered employment on compassionate grounds to the dependants of the deceased/injured. The source from which compensation on account of the accident is claimed and the source from which the compassionate employment is offered, are completely separate and there is no co-relation between these two sources. Since the tortfeasor has not offered the compassionate appointment, we are of the view that an amount which a claimant earns by his labour or by offering his services, whether by reason of compassionate appointment or otherwise is not liable to be deducted from the compensation which the claimant is entitled to receive from a tortfeasor under the Act. In such a situation, we are of the view that the financial benefit of the compassionate employment is not liable to be deducted at all from the compensation amount which is liable to be paid either by the owner/the driver of the offending vehicle or the insurer.
35. As remarked earlier, the insurers have put forward the same contention that stands answered against them in Rekhaben in a very different way. If the adult son of the deceased is to be counted out of his dependents while determining the dependency on the basis of which compensation is worked out, merely because the adult son has been given compassionate appointment, it is nothing more or nothing less than a deduction made from the compensation payable to the claimants on account of compassionate appointment given to one of the dependents. The contention under reference urged on behalf of the insurers cannot be accepted.
36. Now, considering the quantum of compensation payable, it is well settled that a just award has to be made, based on broadly settled principles. The fundamental edifice on which compensation is to be calculated is the monthly income of the deceased, which then has to be worked out in terms of the annual income. The annual income is to be multiplied by adopting a suitable multiplier. The figure so arrived at has to be subjected to a deduction on the account of personal expenses of the deceased, about which too, there are settled principles. Here, the income of the deceased is not in the slightest doubt. He was a government servant. The income was properly and punctiliously established by producing the deceased's salary certificate, which was proved by an officer from the department of the State, where the deceased was employed. The monthly income is a figure of ₹38,417/- based on the salary certificate for the month of January, 2011. The Tribunal has proceeded to determine the compensation payable on the monthly income of the deceased, evident from his salary certificate.
37. The dependency of the claimants has been worked out by the Tribunal in the following manner : the salary of the deceased, which is his monthly income, has been multiplied by ''12' to arrive at the deceased's annual income. This has been worked out as ₹38,417 x 12 = ₹ 4,61,000/- (rounded-off). Out of the aforesaid sum of money, a sum of ₹ 16,068/- has been deducted towards income tax for a year. The deceased has five dependents and therefore, relying upon the decision of the Supreme Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another8 deduction towards personal expenses of the deceased has been worked out in the bracket of 4-6 dependents, to wit, one-fourth the deduction, therefore, towards personal expenses was worked out to a figure of ₹ 1,11,234/- per annum. In consequence, the annual dependency of the claimants has been determined as ₹4,44,936 - 1,11,234 = ₹3,33,702/-. It is on the foot of this dependency that compensation payable has been finally determined. To the understanding of this Court, the deduction towards personal expenses of the deceased and the multiplier of ''11' have been rightly determined by the Tribunal, as it accords with the principles in regard to both these parameters of computation approved in Sarla Verma (supra).
38. However, the Tribunal's decision to deduct ₹16,068/- per annum from the annual emoluments of the deceased towards income tax cannot be endorsed by this Court. The principle about the dependency of a deceased government servant is that the monthly emoluments shown in the deceased's salary certificate or the last-pay certificate should proceed on the presumption that the employer has deducted the tax at source. If the insurer or the owner dispute the fact that the salary certificate does not show tax deduction at source, it is for such objector to come forward and produce evidence. The principle in this regard was laid down by the Supreme Court in Vimal Kanwar and others v. Kishore Dan9 where it was held :
23. In Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] this Court held: (SCC p. 133, para 20) "20. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation."
This Court further observed that: (SCC p. 134, para 24) "24. ... Where the annual income is in taxable range, the words ''actual salary' should be read as ''actual salary less tax'."
Therefore, it is clear that if the annual income comes within the taxable range, income tax is required to be deducted for determination of the actual salary. But while deducting income tax from the salary, it is necessary to notice the nature of the income of the victim. If the victim is receiving income chargeable under the head "salaries" one should keep in mind that under Section 192(1) of the Income Tax Act, 1961 any person responsible for paying any income chargeable under the head "salaries" shall at the time of payment, deduct income tax on estimated income of the employee from "salaries" for that financial year. Such deduction is commonly known as tax deducted at source ("TDS", for short). When the employer fails in default to deduct the TDS from the employee's salary, as it is his duty to deduct the TDS, then the penalty for non-deduction of TDS is prescribed under Section 201(1-A) of the Income Tax Act, 1961. Therefore, in case the income of the victim is only from "salary", the presumption would be that the employer under Section 192(1) of the Income Tax Act, 1961 has deducted the tax at source from the employee's salary. In case if an objection is raised by any party, the objector is required to prove by producing evidence such as LPC to suggest that the employer failed to deduct the TDS from the salary of the employee. However, there can be cases where the victim is not a salaried person i.e. his income is from sources other than salary, and the annual income falls within taxable range, in such cases, if any objection as to deduction of tax is made by a party then the claimant is required to prove that the victim has already paid income tax and no further tax has to be deducted from the income.
39. The aforesaid principle was also applied by the Guwahati High Court in Ranjita Seal and others v. Lal Chandra Sharma and others10. In Ranjita Seal (supra) after a reference to the decision of their Lordships of the Supreme Court in Vimal Kanwar (supra), it was observed by the Division Bench :
19. Reverting back to the present case, it appears that none of the respondents brought to the notice of the Court that the income-tax payable by the deceased was not deducted at source by the employer-State Government. No such statement was made by PW-3 Ganeswam Dev Sarma, Principal in-charge of Birjhora H.S. School, Bongaigaon, who exhibited the last pay certificate vide exhibit-17 and salary certificate vide exhibit-9 respectively. The Tribunal failed to notice that the Income tax on the estimated income of the employee was not deducted from the salary of the employee during the said month or financial year.
20. Learned Tribunal ought to have asked the person who exhibited the last pay certificate to bring Form-16, which is definitely available in the office of the employer of any Government employee but no such initiative was taken by the Tribunal for production of such documents to prove the actual salary of the deceased. In absence of such evidence, it is presumed that the salary paid to the deceased as per Last Pay Certificate was paid in accordance with law i.e. by deducting the income tax on the estimated income of the deceased for that month or the financial year.
40. The application of the principle is eloquently reflected in the decision of the Division Bench of the Karnataka High Court in Karnataka State Road Transport Corporation Bengaluru v. Pankaja H.S.11, where, their Lordships, after a reference to the principle in Vimal Kanwar, held :
18. In so far as the award of compensation by the Tribunal without deducting income tax from the salary of the deceased is concerned, it is pertinent to refer to the Judgment of the Hon'ble Supreme Court answering an identical question, in the case of VIMAL KANWAR cited supra, wherein it is held as follows:
xxxxxxxxxx(QUOTED PORTION OMITTED)xxxxxxxxxx In terms of the afore-extracted declaration of law by the Hon'ble Supreme Court, it is clear that if the employer has not deducted the tax at source as prescribed under Section 192(1) of the Income Tax Act, 1961. The presumption of such deduction will be in favour of the employee. In those circumstances, the entire salary will have to be taken into consideration as income for the purpose of determination of compensation. Thus, the contention of the learned counsel for the Corporation that the income tax ought to have been deducted from the salary of the deceased as he was a government servant cannot be accepted and the salary considered as per the salary certificate - Ex.P.11 by the Tribunal is in accordance with law.
41. In the present case, this Court finds that the claimants have proved the deceased's income by producing his salary certificate for the month of January, 2011. The said certificate is a document dated November 19, 2011 bearing Paper No. 36A1. It is signed by the District Development Officer (Social Wefare), Bulandshahr. No doubt, amongst the column of deductions, it does not indicate any deduction towards income tax, but PW-3, Ashok Kumar Gupta, Accountant in the Office of the District Development Officer (Social Welfare), Bulandshahr has stated in his cross-examination at the instance of the owner and driver as follows :
श्री श्यामवीर सिंह का वेतन माह जनवरी 2011 को Rs. 38,417/- था, जिसमें से Rs. 4000/- GPF में व Rs. 200/- G.I.S. में कट रहे थे । शुद्ध भुगतान धनराशि Rs. 34,217/- उनके खाते में वेतन के रूप में जा रहे थे।
42. This witness was extensively cross-examined at the instance of the insurers also. A perusal of his cross-examination by the insurers shows that the questions regarding the structure of the deceased's salary under various heads, including the sum of his basic pay and the dearness allowance payable were asked, to which the witness responded. The witness also disclosed the deceased's grade pay. Across the length and breadth of the cross-examination of PW-3, who could offer the best evidence about the fact of deduction or non-deduction of income tax from the deceased's salary indicated in the certificate, no question was put about the issue. There is no objection at any stage raised on behalf of the insurers about the fact that the salary of ₹38,417/- evidenced by the deceased's salary certificate produced by the claimants did not show the income tax deducted.
43. Apparently, considering the fact that there is no objection about the deceased's monthly emoluments vis-à-vis deduction made therefrom on account of income tax, the presumption that the salary certificate issued by an Authority of the State would include deduction of due income tax under the law is not at all rebutted.
44. It must also be remarked that the Tribunal, in directing deduction of a sum of ₹16,068/- from the deceased's annual income, has acted impromptu and without any objection either by the owner or the driver or the insurer in this regard. The deduction of the sum of ₹16,068/- from annual income of the deceased is apparently without any reason or basis. The Tribunal ought not to have made any deduction towards income tax, the deceased being an employee of the State, where the employer is presumed to have deducted the due income tax from the emoluments while issuing and certifying his monthly salary. Of course, it was open to the insurers as well as the owner and the driver to produce evidence to the contrary and show that the emoluments of the deceased did not include deductions to be made towards income tax, but that evidence is not at all forthcoming. This Court, therefore, finds that the deceased's annual emoluments have to be determined without the deduction of ₹16,068/- directed by the Tribunal.
45. This Court, accordingly, proceeds to determine the compensation payable to the deceased. The monthly emoluments of the deceased were admittedly a sum ₹38,417. The annual income would, therefore, be ₹38,417 x 12 = ₹4,61,000/- (rounded-off). The Tribunal has not added anything to the deceased's income towards future prospects. Learned Counsel for the claimants, during his submission, had canvassed the point that the Tribunal went utterly wrong in not adding anything to the deceased's income on account of future prospects. The law regarding future prospects has been laid down by the Supreme Court in Pranay Sethi (supra). The relevant part of the holding in Pranay Sethi reads :
16. Considering the submissions advanced by the learned counsel for the parties, there are three points on which the awarded compensation requires scrutiny and a just award made. It is to be seen whether the Tribunal was right in denying any compensation towards future prospects and that if the Tribunal was right in directing a deduction of 1/3rd of the deceased's income, given the number of his family members. It is also to be seen whether the award of compensation under the conventional heads is in accordance with law. The law regarding future prospects was summarized by the Supreme Court in Pranay Sethi (supra), where it is held:
"56. The seminal issue is the fixation of future prospects in cases of deceased who are self-employed or on a fixed salary. Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has not, per se, allowed any future prospects in respect of the said category.
57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary. But not to apply the principle of standardisation on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
58. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] thinks it appropriate not to add any amount and the same has been approved inReshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] . Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self-employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts."
46. The question whether future prospects are to be worked out in accordance with the principle laid down in Pranay Sethi or Rule 220-A(3) of the Rules of 1998 came up for consideration before the Supreme Court in New India Assurance Company Limited v. Urmila Shukla12. The said appeal arose out of a decision of this Court and, therefore, it is squarely applicable to the determination of future prospects in the State of Uttar Pradesh. In Urmila Shukla (supra) the question that was considered by their Lordships is set forth in Paragraph No. 4 of the report. It reads :
4. The basic ground of challenge by the appellant is that sub-rule 3(iii) of Rule 220A is contrary to the conclusions arrived at by the Constitution Bench of this Court in National Insurance Company Ltd v. Pranay Sethi reported in (2017) 16 SCC 680.
47. The issue was answered in Urmila Shukla thus :
9. It is to be noted that the validity of the Rules was not, in any way, questioned in the instant matter and thus the only question that we are called upon to consider is whether in its application, sub-Rule 3(iii) of Rule 220A of the Rules must be given restricted scope or it must be allowed to operate fully.
10. The discussion on the point in Pranay Sethiwas from the standpoint of arriving at "just compensation" in terms of Section 168 of the Motor Vehicles Act, 1988.
11. If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision in Pranay Sethi cannot be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15% in cases where the deceased was in the age bracket of 50-60 years as stated in Pranay Sethi cannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid.
12. We, therefore, reject the submission advanced on behalf of the appellant and affirm the view taken by the Tribunal as well as the High Court and dismiss this appeal without any order as to costs."
48. There is, therefore, little doubt that so long as Rule 220-A(3) is on the statute, future prospects have to be worked out according to the Rules of 1998 and not by the figures for determination thereof as laid down in Pranay Sethi.
49. The question is whether Rule 220-A(3) would apply to the present case because the accident happened here on 23.02.2011, whereas Rule 220-A(3) was introduced vide Notification No. 777/XXX-4-2011-4(3)-2010 dated September 26, 2011 (Eleventh Amendment Rules, 2011). The said rules have been held by me to apply retrospectively in Smt. Shanti and others v. Anil Awasthi alias Anil Kumar Awasthi and another13, following the decision of a Division Bench of this Court in Sushil Kumar and others v. M/s. Sampark Lojastic Private Limited and others14. There is, therefore, no doubt that Rule 220-A(3) of the Rules of 1998 would govern future prospects payable to the claimants here. Rule 220-A(3) of the Rules of 1998 reads :
220-A. Determination of Compensation-
(1) X X X
(2) X X X
(3) The future prospects of a deceased, shall be added in the actual salary or minimum wages of the deceased as under-
(i) Below 40 years of age :
50% of the salary
(ii) Between 40-50 years of age :
30% of the salary
(iii) More than 50 years :
20% of the salary
(iv) When wages not sufficiently proved :
50% towards inflation and price index
50. In view of the provisions of Rule 220-A(3)(iii), it is evident that the deceased being a salaried man above the age of 50 years would entitle the claimants to add 20% to his income by way of future prospects.
51. So far as the entitlement of compensation under the conventional heads is concerned, I had occasion to dwell upon it in Smt. Shanti (supra) where it was held :
28. Again, so far as the conventional heads are concerned, this Court is of opinion that far less than what is to be awarded for the loss of estate, loss of consortium and funeral expenses has been directed by the Tribunal. Moreover, loss of consortium is not confined to the widow alone, but the parents too are entitled to be compensated for the loss of filial consortium. The two minor children are entitled to compensation on account of loss of parental consortium. In this regard, the holding of the Constitution Bench in Pranay Sethi is again of much relevance, where it is observed:
"48. This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by the Court in Trilok Chandra [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362] . Recently, in Puttamma v. K.L. Narayana Reddy [Puttamma v.K.L. Narayana Reddy, (2013) 15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3 SCC (Cri) 574] it has been reiterated by stating : (SCC p. 80, para 54) "54. ... we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy."
49. As far as multiplier or multiplicand is concerned, the same has been put to rest by the judgments of this Court. Para 3 of the Second Schedule also provides for general damages in case of death. It is as follows:
"3. General damages (in case of death):
The following general damages shall be payable in addition to compensation outlined above:
(i) Funeral expenses Rs 2000
(ii) Loss of consortium, if beneficiary is the spouse Rs 5000
(iii) Loss of estate Rs 2500
(iv) Medical expenses - actual expenses incurred before death supported by bills/vouchers but not exceeding Rs 15,000
50. On a perusal of various decisions of this Court, it is manifest that the Second Schedule has not been followed starting from the decision in Trilok Chandra [UP SRTC v.Trilok Chandra, (1996) 4 SCC 362] and there has been no amendment to the same. The conventional damage amount needs to be appositely determined. As we notice, in different cases different amounts have been granted. A sum of Rs 1,00,000 was granted towards consortium inRajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . The justification for grant of consortium, as we find fromRajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] , is founded on the observation as we have reproduced hereinbefore.
51. On the aforesaid basis, the Court has revisited the practice of awarding compensation under conventional heads.
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 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . 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. ThoughRajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] refers to Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] , 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."
(emphasis supplied)
29. The principles governing award of compensation under conventional heads, particularly with regard to award for loss of consortium, have been laid down by the Supreme Court in Magma General Insurance Company Ltd. v. Nanu Ram alias Chuhru Ram and others, (2018) 18 SCC 130. In Magma General Insurance Company Ltd. (supra), it has been held:
"21. A Constitution Bench of this Court in Pranay Sethi[National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] 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 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] 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 [ Rajasthan High Court in Jagmala Ram v. Sohi Ram, 2017 SCC OnLine Raj 3848 : (2017) 4 RLW 3368; Uttarakhand High Court in Rita Rana v. Pradeep Kumar, 2013 SCC OnLine Utt 2435 : (2014) 3 UC 1687; Karnataka High Court in Lakshman v. Susheela Chand Choudhary, 1996 SCC OnLine Kar 74 : (1996) 3 Kant LJ 570] . 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 inPranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . 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."
(emphasis supplied)
30. It must be noted that under Rule 220-A(4) of the Rules of 1998, compensation or damages under the non pecuniary heads or the conventional heads have been stipulated. But, these are disadvantageous to the claimants and do not confer better or greater benefit upon them in comparison to liquidated figures laid down in Pranay Sethi. The figures under the conventional heads have been arrived at, bearing in mind the price index, falling bank interest, escalation of rates in different cases. There is a provision for 10% upward revision to be done in a span of three years. By contrast, the Rules of 1998, that have been amended to bring in Rule 220-A more than ten years ago, in the year 2011, cannot serve as a realistic index to award compensation under the conventional heads. The determination of compensation in Pranay Sethi would, therefore, be applicable. The revised and dynamic determination of compensation payable under the conventional heads stipulated in Pranay Sethi would prevail over that under the Rules of 1998. It is held, accordingly.
52. In this case, the deceased left behind five dependents, that is to say, the widow, two adult children and two aged parents. The adult children were aged 24 years and 23 years respectively at the time the cause of action arose. Going by the principles in Shanti Devi, the widow and the two aged parents would be entitled to compensation in accordance with the law in Pranay Sethi, but the two children, who are adults, would not be entitled to parental consortium, in view of what was held by me in Jiuti Devi and others v. Manoj Kumar and others15. In Jiuti Devi (supra), it was observed :
39. Loss of consortium, that includes parental consortium, unlike dependency, is not some tangible economic loss. It is an emotional loss to the next of kin of the deceased-victim of a motor accident. In case of parental loss, it causes a particular deprivation to minors and young children, about whom it is said by the Supreme Court in United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur, to borrow the words of their Lordships, "Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents".
40. To the understanding of this Court, the impact of loss of parental consortium upon the deceased's children, in the very nature of that loss, is dependent upon the children's age. The loss of parent is a disheartening and emotional event for the child at any age of his maturity, but by the nature of the principle governing award of compensation under the head of parental consortium, the deprivation, that is suffered by a child or a minor, appears to be the determinative and entitling fact. A child, who has advanced into matured adulthood, is married or otherwise in the mainstream of life, would not be entitled to compensation under that head.
53. In view of the principles applicable for determining compensation payable to the claimants, this Court proceeds to determine the same as follows :
(i) Monthly Income of the deceased = ₹38,417/-
(ii) Monthly Income + Future Prospects (monthly income x 20%) = ₹38,417 + 7,683 (rounded-off) = ₹46,100/- (rounded-off)
(iii) Annual Income of the deceased = ₹46,100 x 12 = ₹5,53,200/-
(iv) Annual Dependency = Annual Income - one-fourth deduction towards personal expenses of the deceased = ₹5,53,200 - 1,38,300 = ₹4,14,900/-
(v) Total dependency = Annual Dependency x Applied Multiplier = ₹4,14,900 x 11 = ₹45,63,900/-
(vi) Claimants' entitlement towards conventional heads = Loss of Estate + Funeral Expenses + Dependents' consortium = ₹15,000 + 15,000 + 40,000 x 3 = ₹1,50,000/-
(vii) Total Compensation = ₹45,63,900 + 1,50,000 = ₹47,13,900/-
Total Compensation (in words) = Rupees Forty Seven Lac, Thirteen Thousand and Nine Hundred only.
54. The compensation as determined hereinabove would carry simple interest at the rate of 7% per annum in accordance with Rule 220-A(6) of the Rules of 1998 from the date of institution of the claim petition until realization. However, the sum of money already deposited (paid or invested in terms of the impugned award or interim orders of this Court) shall be adjusted.
55. It must be remarked here that this Court has awarded compensation that is more than that claimed. In a motor-vehicle claim, it is well settled that the Court must award just compensation, which may be more than the claim. This is a well-acknowledged principle, which has been recently endorsed by the Supreme Court in Kajal v. Jagdish Chand and others16.
56. In the result, this appeal fails and is dismissed with costs. The cross-objection preferred by the claimants is allowed in terms of the orders aforesaid.
Order Date :- July 19, 2022 I. Batabyal / Anoop (J.J. Munir, J.) ***************