Punjab-Haryana High Court
Gurdial Kaur And Others vs Raman Kumar And Others on 20 April, 2024
Author: Sudeepti Sharma
Bench: Sudeepti Sharma
2024:PHHC:063580
FAO-571-2007 (O&M)
-1-
552
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
-.-
FAO-571-2007 (O&M)
Date of Decision : 20.04.2024
Gurdial Kaur & Others ....Appellants
VERSUS
Raman & others ....Respondents
CORAM : HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Ashwani Arora, Advocate for the appellants.
Mr. Varun Sharma, Advocate for respondent - Insurance Co.
-.-
SUDEEPTI SHARMA, J. (Oral)
1. The present appeal has been preferred against the award dated 16.10.2006 passed by the learned Motor Accident Claims Tribunal, Narnaul, whereby the appellants have been awarded compensation to the tune of Rs.7,79,000/-, for enhancement of the same to the tune of Rs.30 lakh along with 12% interest from the date of filing of the claim petition.
2. The brief facts of the case as mentioned in the claim petition are that on 11.06.2001, at about 5.30 pm Bachna Ram was walking in front of the gate of CMC Hospital, Sector 17, Chandigarh when a three wheeler bearing registration No.HR-37-8093 came at a fast speed and struck against him and against the door of the above said Hospital. Due to the impact, Bachna Ram fell down on the road and received serious injuries. He was taken to PGI, Chandigarh immediately where he died on 13.06.2001. The accident took place due to rash and negligent TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -2- driving of the three-wheeler by Ram Kumar (respondent No.1). It was the contention of the claimants that the deceased was about 51 years of age at the time of accident and was employed as Meter Reader in Municipal Corporation, Public Health Department, Sector 9 Chandigarh and his monthly income was Rs.10,000/- per month. Claimant No.1 is the widow and claimant Nos. 2 to 7 are the children of the deceased. Claimants further asked for enhancement of compensation to the tune of Rs.30 lakhs.
3. Upon notice, respondents appeared and denied the factum of claim.
4. From the pleading of the parties, the Tribunal framed the following issues:-
1. Whether deceased Bachan Ram died in Motor Vehicle accident cause by respondent No.1 by driving three wheeler No.HR-37-8093 in a rash and negligent manner? OPP
2. If issue No.1 is proved, whether the claimants are entitled to compensation being the legal representatives of late Bachan Ram?
OPP
3. Whether respondent No.1 was not holding a valid driving licence at the time of accident? OPR-3
4. Relief.
5. The learned counsel for the claimant-appellants submits that the future prospects have not been granted to the claimant. He further submits that deduction should be 1/5th instead of 1/3rd towards personal expenses which is on the lower side. He further submits that no amount has been awarded towards Consortium and the claimants would be entitled to 20% increase on the amount under the TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -3- conventional heads. Further, the contention is that the interest awarded @6% is also on the lower side.
6. Per contra, learned counsel appearing on behalf of the respondent No.3 (insurance company) has stated that admittedly there are seven claimants and majority of them are major. Claimant Nos. 3 and 7 were minor at the time of filing of the claim petition. Therefore, the present appeal deserves to be dismissed.
7. Learned counsel for the appellants-claimants has relied upon judgment of Hon'ble Supreme Court in the case of National Insurance Co. Ltd. Vs. Birender and Others [2020 ACJ 759] to contend that even major married and earning sons of the deceased being legal representatives have right to apply to compensation in case of accidental death. Relevant portion of the judgment is reproduced herein:-
"15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meager income between ₹ 1,00,000/- and ₹1,50,000/- per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years. TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document
2024:PHHC:063580 FAO-571-2007 (O&M) -4-
16. The next issue is about the deduction of the amount receivable by the legal representatives of the deceased under the 2006 Rules from the compensation amount determined by the Tribunal in terms of the decision of three-Judge Bench of this Court in Shashi Sharma (supra). This Court, after analysing the relevant rules, opined as follows:-
23. Reverting back to Rule 5, sub-rule (1) provides for the period during which the dependants of the deceased employee may receive financial assistance equivalent to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim. Sub-rule (2) provides that the family shall be eligible to receive family pension as per the normal Rules only after the period during which they would receive the financial assistance in terms of sub-rule (1). Sub-rule (3) guarantees the family of a deceased government employee of a government residence in occupation for a period of one year from the date of death of the employee, upon payment of normal rent/licence fee. By virtue of sub-rule (4), an ex gratia assistance of 25,000 is provided to the family of the deceased employee to meet the immediate needs on the loss of the bread earner. Sub-rule (5) clarifies that house rent allowance shall not be a part of allowance for the purposes of calculation of assistance.
24. .....As regards the second part, it deals with income from other source which any way is receivable by the dependants of the deceased government employee. That cannot be deducted from the claim amount for determination of a just compensation under the 1988 Act.
25. The claimants are legitimately entitled to claim for the loss of "pay and wages" of the deceased government employee againtitled to claim for the loss of pay and was the case may be, covered by the first part of Rule 5 under the 1988 Act. The TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -5- claimants or dependants of the deceased government employee (employed by the State of Haryana), however, cannot set up a claim for the same subject falling under the first part of Rule 5-
"pay and allowances", which are receivable by them from employer (the State) under Rule 5(1) of the 2006 Rules. In that, if the deceased employee was to survive the motor accident injury, he would have remained in employment and earned his regular pay and allowances. Any other interpretation of the said Rules would inevitably result in double payment towards the same head of loss of "pay and wages" of the deceased government employee entailing in grant of bonanza, largesse or source of profit to the dependants/claimants.....
26. Indeed, similar statutory exclusion of claim receivable under the 2006 Rules is absent. That, however, does not mean that the Claims Tribunal should remain oblivious to the fact that the claim towards loss of pay and wages of the deceased has already been or will be compensated by the employer in the form of ex gratia financial assistance on compassionate grounds under Rule 5(1). The Claims Tribunal has to adjudicate the claim and determine the amount of compensation which appears to it to be just. The amount receivable by the dependants/claimants towards the head of "pay and allowances" in the form of ex gratia financial assistance, therefore, cannot be paid for the second time to the claimants. True it is, that the 2006 Rules would come into play if the government employee dies in harness even due to natural death. At the same time, the 2006 Rules do not expressly enable the dependants of the deceased government employee to claim similar amount from the tortfeasor or insurance company because of the accidental death of the deceased government employee. The harmonious approach for determining a just compensation payable under the 1988 Act, therefore, is to TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -6- exclude the amount received or receivable by the dependants of the deceased government employee under the 2006 Rules towards the head financial assistance equivalent to "pay and other allowances" that was last drawn by the deceased government employee in the normal course. This is not to say that the amount or payment receivable by the dependants of the deceased government employee under Rule 5(1) of the Rules, is the total entitlement under the head of "loss of income". So far as the claim towards loss of future escalation of income and other benefits is concerned, if the deceased government employee had survived the accident can still be pursued by them in their claim under the 1988 Act. For, it is not covered by the 2006 Rules. Similarly, other benefits extended to the dependants of the deceased government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5 including family pension, life insurance, provident fund, etc., that must remain unaffected and cannot be allowed to be deducted, which, any way would be paid to the dependants of the deceased government employee, applying the principle expounded in Helen C. Rebello v. Maharashtra SRTC, 1998(4) RCR (Civil) 177:
(1999) 1 SCC 90 and United India Insurance Co. Ltd. v.
Patricia Jean Mahajan, 2002(3) RCR (Civil) 534 : (2002) 6 SCC 281 cases.
27. A priori, the appellants must succeed only to the extent of amount receivable by the dependants of the deceased government employee in terms of Rule 5(1) of the 2006 Rules, towards financial assistance equivalent to the loss of pay and wages of the deceased employee for the period specified."
(emphasis supplied) The learned Judge of the High Court has, however, after adverting to the decision of the same High Court in Ajmero (supra), went on to TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -7- observe that 50% of the amount receivable by the legal representatives of the deceased towards financial assistance under the 2006 Rules is required to be deducted from the compensation amount. In the relied upon decision, the same learned Judge had occasion to observe as follows:-
"... However, perusal of the judgment would reveal that the Court has not adverted to the issue that had the Rules of 2006 extending assistance to family of a deceased employee been not in existence, family would have been entitled to pension to the extent of 50% of the last drawn pay. As per the settled position in law, the pensionary benefits available to family of a deceased employee are not amenable for deduction for computing loss of dependency. There is nothing on record suggestive of the fact that in addition to compassionate assistance under the Rules, family of the deceased is being paid pension till the age of superannuation. Rather Rule 5(2) of the 2006 Rules specifically denies family pension as per normal rules..."
8. I have heard learned counsel for the parties and thoroughly gone through the record.
9. Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation and Another [(2009) 6 Supreme Court Cases 121], laid down the law on assessment of compensation and the relevant paras of the same are as under:-
"30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardised deductions. Having a considered several subsequent decisions of this Court, we are of the view that where the deceased TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -8- was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. c Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32. Thus even if the deceased is survived by parents and siblings, only d the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -9- younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third.
* * * * * *
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 Thomas³, Trilok Chandra and Charlie), 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.
10. Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified the law under Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following aspects:-
(A) Deduction of personal and living expenses to determine multiplicand;
(B) Selection of multiplier depending on age of deceased; (C) Age of deceased on basis for applying multiplier; (D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses, with escalation; TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document
2024:PHHC:063580 FAO-571-2007 (O&M) -10- (E) Future prospects for all categories of persons and for different ages: with permanent job; self-employed or fixed salary. The relevant portion of the judgment is reproduced as under:-
"52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh². It has granted Rs.25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh² refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -11- 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.
* * * * * 59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4. In case the deceased was self-employed (or) on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -12- method of computation. The established income means the income minus the tax component.
59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma⁴ which we have reproduced hereinbefore.
59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma¹ read with para 42 of that judgment. 59.7. The age of the deceased should be the basis for applying the multiplier.
59.8. 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 aforesaid amounts should be enhanced at the rate of 10% in every three years."
11. Hon'ble Supreme Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Others [2018(18) SCC 130] after considering Sarla Verma (supra) and Pranay Sethi (Supra) has settled the law regarding consortium. Relevant paras of the same are reproduced as under:-
"21. A Constitution Bench of this Court in Pranay Sethi² dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -13- 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.
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".
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.
TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document
2024:PHHC:063580 FAO-571-2007 (O&M) -14-
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. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.
24. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi². In the present case, we deem it appropriate to award the father and TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -15- the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium.
12. In view of the law laid down by the Hon'ble Supreme Court in the above referred to judgments, the present appeal is allowed. The award dated 16.10.2006 is modified accordingly. The appellants-claimants are entitled to enhanced compensation as per the calculations made here-under:-
Sr. Heads Compensation Awarded
No.
1 Monthly Income Rs.8756/-
2 Future prospects @ 15% Rs.1313/- (15% of 8756)
3 Deduction towards personal 2014
expenditure i.e. 1/5th of (8756 + 1313)
4. Total Income 8055
i.e. 4/5th of (8756 +1313)
4 Multiplier 11
5 Annual Dependency Rs.10,63,260/-
(8055 x 12 x 11)
6 Loss of Estate Rs.18,000/-
7 Funeral Expenses Rs.18,000/-
8 Loss of Consortium Rs.3,36,000/-
Parental : Rs.48,000/- x 6
Spousal : Rs. 48,000/-
Total Compensation Rs.14,35,260/-
Amount Awarded by the Tribunal Rs.7,79,000/-
Enhanced amount Rs.6,56,260/-
13. So far as the interest part is concerned, as held by Hon'ble Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176 and R.Valli and Others VS. Tamil Nandu State Transport Corporation (2022) 5 Supreme Court Cases 107, the appellants-claimants are granted the interest @9% TRIPTI SAINI 2024.05.08 15:25 I attest to the accuracy and integrity of this document 2024:PHHC:063580 FAO-571-2007 (O&M) -16- per annum on the enhanced amount from the date of filing of claim petition till the date of its realization.
14. The Insurance Company is directed to deposit the awarded amount along with interest with the Tribunal within a period of two months from today. The appellants-claimants including appellant Nos. 3 and 7 i.e. son and daughter of the deceased respectively, who are stated to have attained majority, are directed to furnish their bank accounts details to the Tribunal. The Tribunal is further directed to disburse the enhanced amount of compensation along with interest as stated above equally in the bank accounts of the appellants-claimants.
15. Pending applications, if any, also stand disposed off.
April 20, 2024 (SUDEEPTI SHARMA)
tripti JUDGE
Whether speaking/non-speaking : Speaking
Whether reportable : Yes/No
TRIPTI SAINI
2024.05.08 15:25
I attest to the accuracy and
integrity of this document