Allahabad High Court
Smt. Bhagauta Devi vs Uttar Pradesh State Road Transport ... on 14 June, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH RESERVED A.F.R. Court No. - 24 Case :- FIRST APPEAL FROM ORDER No. - 840 of 2011 Appellant :- Smt. Bhagauta Devi and others Respondent :- Uttar Pradesh State Road Transport Corporation Ltd. through its Regional Manager, Hardoi. Counsel for Appellant :- Vivek Manishi Shukla,Ashish Kumar Pandey Counsel for Respondent :- Akhter Abbas,Prabhakar Tiwari,Sachindra Dwivedi Hon'ble J.J. Munir,J.
1. This is a claimants' appeal, seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal.
2. On 18th of September, 2007, Ramasrey, a resident of Village Jamhoura, Post Sikandrabad, Police Station Neemgaon, District Lakhimpur Kheri, had gone to the north of his village in the fields, to answer the call of nature. While returning home at 7:30 p.m. on the Sitapur-Lakhimpur Road, as he reached the culvert near Village Jamhoura, a U.P. Roadways bus bearing Registration No. UP-25G-9999, that was driven at a high speed and negligently, hit him head-on. He was grievously injured and conveyed by the members of his family to the District Hospital, Lakhimpur Kheri, where during treatment, he breathed his last. At the time of his demise, Ramasrey was aged about 48 years. He was engaged in agriculture as well as supply of milk. He had a monthly income of Rs.7,000/-. In future, this income was expected to go double as per his dependents' claim. He left behind his widow, Smt. Bhagauta Devi, besides three sons as his dependents.
3. The claimants petitioned the Motor Accident Claims Tribunal, Lakhimpur Kheri seeking compensation in the sum of Rs. 20 lakhs. The claim petition was numbered as Motor Accident Claim Petition No. 207 of 2007 on the file of the Motor Accident Claims Tribunal/ District Judge, Lakhimpur Kheri.
4. A written statement was filed on behalf of the Uttar Pradesh State Road Transport Corporation (for short, 'the Corporation), who denied the accident. They said that the bus in question, on the date of accident, was plying on the Sitapur-Gola Road. The bus was operated according to rules. It had all the necessary papers, such as the Registration Certificate, Road Tax Payment Certificate and Fitness Certificate. The driver had a valid and effective driving licence.
5. On the issue relating to the factum of accident involving the Corporation's bus, the Tribunal held that it was the Corporation's bus that was responsible for causing the accident, as it was driven negligently and at a high speed in the manner alleged by the claimants. The driving licence of the driver operating the bus was found valid and effective as also the other papers. There is just one remark by the Tribunal in its finding on the second issue that the route permit was not produced.
6. Before this Court, the issue is about the compensation, that is payable to the claimants, who are in appeal. The Tribunal, by the judgment impugned, has awarded the claimants compensation in the sum of Rs.1,48,670/- together with interest at the rate of 6% per annum from the date of order until realization. Out of the compensation payable, a two-thirds has been directed to be paid to the widow and one-third, in equal share, to the three sons of the deceased.
7. Dissatisfied by the quantum of compensation awarded by the Tribunal, the claimants have preferred the instant appeal.
8. Heard Mr. Ashish Kumar Pandey, learned Counsel for the appellant-claimants and Mr. Prabhakar Tiwari, learned Counsel for the Corporation.
9. The Tribunal has proceeded to work out the compensation on the basis that there was no proof that the deceased had a monthly income of Rs. 7000/-, and, therefore, his income would be reckoned on the daily-wage payable to an unskilled casual labourer, contemporaneous in time. The daily-wage of a casual labourer has been determined by the Tribunal at a figure of Rs. 60/- per day, which would lead to an annual income of Rs. 21,600/-. The Tribunal has made a deduction of Rs. 600/- for the fact that a daily-wager/casual labourer would not earn throughout the year. Thus, annual income of the deceased has been determined at a sum of Rs. 21,000/-.
10. There is no written certification of the deceased's age and, therefore, parole evidence, medical estimation and other circumstances have been taken into consideration by the Tribunal to arrive at a conclusion that the deceased was aged about 50 years. He has been placed in the age bracket of 50-55 years for the purpose of adopting a multiplier. A multiplier of '11' has been adopted. Thus, to the annual income of Rs. 20,000/-, a multiplier of ''11' was applied to arrive at a total income of Rs. 2,20,000/-. A deduction of one-third towards personal expenses has been made in order to workout the dependency. The dependency has been calculated at a figure of Rs.1,46,670/-. To this, a sum of Rs.2000/- has been added on account of money spent on the funeral. It is, thus, that a compensation of Rs.1,48,670/- has been awarded by the Tribunal.
11. The learned Counsel for the claimants has argued that the daily-wages of a casual labourer fixed at a figure of Rs. 60/- is abysmally low. At the relevant time, the minimum wages fixed by the Government were Rs. 100/- per day. The applicable multiplier and the deduction made towards personal expenses too have been criticized as unlawfully disadvantageous to the claimants. It is also argued that nothing has been awarded towards future prospects or loss of estate and loss of consortium.
12. On the other hand, the learned Counsel for the Corporation has supported the award, saying that it is just.
13. In the opinion of this Court, the edifice on which the compensation has been assessed, that is a daily-wage of Rs. 60/-, is unrealistic and abysmally low. At the relevant time, there is no dispute that the minimum wages payable to an unskilled casual labourer was Rs. 100/-. This Court, therefore, thinks that the award has to be determined based on a daily-wage of Rs. 100/-. Also, no deduction can be made for the intermittent employment that a casual labourer gets. Therefore, the daily income of the deceased has to be revised to the figure of Rs. 100/-. The monthly income would be Rs. 3000/- and the annual income Rs.36,000/-, instead of Rs.20,000/- determined by the Tribunal.
14. The age of the deceased, accepting that it was in the age bracket of 50-55, would not deprive the claimants of the accretion towards future prospects, going by the rule in National Insurance Company vs. Pranay Sethi and others, (2017) 16 SCC 680. The deceased being self-employed, there would be an addition to his income of 10%. However, in the State of Uttar Pradesh, determination of future prospects has to be done in accordance with Rule 220-A(3) of the Uttar Pradesh Motor Vehicles Rules, 1998 (for short, ''the Rules of 1998') framed under the Motor Vehicles Act, 1988 (for short, 'the Act of 1988'). These rules are to be applied in preference to the Rule in Pranay Sethi (supra) in view of the decision of the Supreme Court in New India Assurance Co. Ltd v. Urmila Shukla and others, 2021 SCC OnLine SC 822. Thus, going by Rule 220-A(3)(iii), the claimants would be entitled to add 20% to the deceased's monthly emoluments by way of future prospects.
15. So far as the multiplier is concerned, it has to be applied according to the table in Paragraph 42 of the judgment of the Supreme Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121. This has been approved by the Constitution Bench decision in Pranay Sethi and followed in United India Insurance Company Ltd. v. Satinder Kaur alias Satwinder Kaur and others, 2020 SCC OnLine SC 410. In Sarla Verma (supra), about the applicable multiplier, going by different age brackets for the deceased, it has been held:
"40. The multipliers indicated in Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Trilok Chandra [(1996) 4 SCC 362] and Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] (for claims under Section 166 of the MV Act) is given below in juxtaposition with the multiplier mentioned in the Second Schedule for claims under Section 163-A of the MV Act (with appropriate deceleration after 50 years):
Age of the deceased Multiplier scale as envisaged in Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] Multiplier scale as adopted by Trilok Chandra [(1996) 4 SCC 362] Multiplier scale in Trilok Chandra [(1996) 4 SCC 362] as clarified in Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] Multiplier specified in Second Column in the Table in Second Schedule to the MV Act Multiplier actually used in Second Schedule to the MV Act (as seen from the quantum of compensation) '(1) '(2) '(3) '(4) '(5) '(6) Up to 15 yrs
-
-
-15 20
15 to 20 yrs 16 18 18 16 19 21 to 25 yrs 15 17 18 17 18 26 to 30 yrs 14 16 17 18 17 31 to 35 yrs 13 15 16 17 16 36 to 40 yrs 12 14 15 16 15 41 to 45 yrs 11 13 14 15 14 46 to 50 yrs 10 12 13 13 12 51 to 55 yrs 9 11 11 11 10 56 to 60 yrs 8 10 09 8 8 61 to 65 yrs 6 08 07 5 6 Above 65 yrs 5 05 05 5 5
41. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] [set out in Column (2) of the table above]; some follow the multiplier with reference to Trilok Chandra [(1996) 4 SCC 362] , [set out in Column (3) of the table above]; some follow the multiplier with reference to Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] [set out in Column (4) of the table above]; many follow the multiplier given in the second column of the table in the Second Schedule of the MV Act [extracted in Column (5) of the table above]; and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation [set out in Column (6) of the table above]. For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] , 14 as per Trilok Chandra [(1996) 4 SCC 362] , 15 as per Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] , or 16 as per the multiplier given in Column (2) of the Second Schedule to the MV Act or 15 as per the multiplier actually adopted in the Second Schedule to the MV Act. Some tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163-A of the MV Act. In cases falling under Section 166 of the MV Act, Davies method [Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601 : (1942) 1 All ER 657 (HL)] is applicable.
42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Trilok Chandra [(1996) 4 SCC 362] and Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] ), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
16. Here, the Tribunal has placed the deceased in the age bracket of 50-55 years. There are two age brackets in Paragraph 42 of the decision in Sarla Verma, under which the deceased could, therefore, be placed. One is 46-50 years and the other, 51-55 years. There is no age bracket of 50-55 years in Sarla Verma. Considering that the Act of 1988 is a beneficial legislation, any doubt about an applicable principle that governs compensation must be construed in favour of the claimants. Here, what is all the more relevant is that according to medical opinion, in the absence of any written certification of age, the deceased has been estimated to be aged 50 years. This is indicated in the autopsy report. Therefore, in the opinion of this Court, the deceased ought to be placed in the age group of 46-50 years for the purpose of adopting the applicable multiplier. For the age bracket of 46-50, the applicable multiplier is '13'. Therefore, the claimants are entitled to determination of compensation by an application of the multiplier of '13'; not '11'.
17. Going by the number of dependents that the deceased left behind, that is to say, the claimants, deduction of one-third towards personal and living expenses ordered by the Tribunal is unexceptionable. This accords with Rule 220-A(2) of the Rules of 1998 as well as the principle laid down in Sarla Verma. However, the Tribunal has certainly gone wrong in not awarding anything by way of compensation for the loss of estate and the loss of consortium. The principle regarding compensation under the conventional heads has been authoritatively considered and laid down by the Constitution Bench of the Supreme Court in Pranay Sethi thus :
"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 by Court)
18. The award of compensation under the conventional heads, particularly for the loss of consortium, subsequently received the consideration of 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."
19. The award under the conventional heads being provided on a dynamic scale and more to the advantage of the claimants in Pranay Sethi, as compared to Rule 220-A(4) of the 1998 Rules, the principle in the former would govern the award of compensation under the conventional heads.
20. There is one facet of the matter, which requires some further consideration, and that is about the award of compensation for the loss of consortium to the children. Here, all the three children are adults, with Mohan Lal being an all of 26 years, Shri Chandra 24 years and Prem Prakash 22 years, when the cause of action arose. In case of children, who are adults, compensation for the loss of parental consortium would not be their entitlement. The adult children would not be entitled to parental consortium, as held by me in Jiuti Devi and others vs. Manoj Kumar Rai and others, 2022 SCC OnLine All 46.
21. Thus, in the opinion of this Court, under the conventional head of compensation for the loss of consortium, the claimant, Smt. Bhagauta Devi would alone be entitled. She would be entitled to spousal consortium in the sum of Rs. 40,000/-. However, for the loss of estate, the claimants would be entitled to Rs. 15,000/- and likewise, for the funeral expenses, a sum of Rs. 15,000/-. The impugned award passed by the Tribunal has, therefore, to be modified and compensation re-determined as follows :
(i) Monthly Income (of the deceased) = 3000/-
(ii) Monthly Income + Future Prospects (monthly income x 20%) = 3000+600 = 3600/-
(iii) Annual Income (of the deceased) = 3600 x 12 = 43,200/-
(iv) Annual Dependency = Annual Income - one-third deduction towards personal expenses of the deceased = 43,200 - 14,400 = 28,800/-
(iv) Total Dependency = Annual Dependency x Applied Multiplier = 28,800 x 13 = 3,74,400/-
(v) Claimants' entitlement towards conventional heads = Loss of Estate + Funeral Expenses + dependent's Consortium = 15,000 + 15,000 + 40,000 = 70,000/-
The total claim of compensation would, therefore, work out to a figure of Rs.3,74,400 + Rs.70,000 = 4,44,400/-
22. The aforesaid sum of money would carry simple interest @ 7% per annum in accordance with Rule 220-A of the Rules of 1998 from the date of institution of claim petition until realization. However, the sum of money already deposited (paid or invested in terms of the impugned award or interim order of this Court) shall be adjusted.
23. In the result, this appeal succeeds and is allowed with costs throughout. The impugned award is modified and the compensation stands enhanced to a sum of Rs. 4,44,400/- (Rupees Four Lac Forty Four Thousand Four Hundred only). The said sum of money shall be payable by the Corporation. The claimants shall be entitled to simple interest @ 7% on the sum of compensation awarded from the date of institution of the claim petition until realization. The inter se apportionment of compensation and the other directions made by the Tribunal shall remain intact.
Order Date :- 14.6.2022 Anoop (J.J. Munir, J.)