Punjab-Haryana High Court
New India Assurance Company Limited vs Nirmala Devi And Others on 30 August, 2013
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.409 of 2012 (O&M)
New India Assurance Company Limited
.....Appellant
Versus
Nirmala Devi and others
.....Respondents
AND
FAO No.1421 of 2012 (O&M)
Smt.Nirmala Devi and others
.....Appellant
Versus
Sukhdev Singh and others
.....Respondents
Date of Decision : August 30, 2013
CORAM : HON'BLE MR. JUSTICE NAWAB SINGH
Present: Mr.Ashwani Talwar, Advocate for
the Insurance Company.
Mr.Ashwani Arora, Advocate for
the claimants.
NAWAB SINGH J.(ORAL)
This judgment shall dispose of afore-mentioned two appeals, arising out of Award dated October 05, 2011 passed by Motor Accident Claims Tribunal, Jind (for short "the Tribunal"). FAO No.409 of 2012 has been filed by New India Assurance Company and FAO No.1421 of 2012 has been filed by widow, daughter and parents of Vijay Pal, who lost his life in a vehicular accident.
FAO No.409 of 2012 (O&M) [2]2. Case of the claimants is that on January 04, 2010, Vijay Pal (deceased) along with Ram Niwas was going on his motorcycle from Hansi to Fatehabad. Vijay Pal was driving the motorcycle, whereas, Ram Niwas was riding pillion. The motorcycle was being driven by Vijay Pal on the correct left hand-side of the road at a moderate speed. When they reached near Aasa Ram Ashram, a truck bearing No.RJ-07-GA- 2111 was parked on the road in violation of the traffic rules without any indication or placing on road any stones or bricks, to warn the other vehicles. There was fog also. Vijay Pal tried to control his motorcycle, but it hit the truck due to the wrong parking of the truck. Vijay Pal suffered multiple injuries and was brought to General Hospital, Hisar, from where, he was referred to PGIMS, Rohtak, but considering his serious condition, he was shifted to Sapra Hospital, Hisar, for better and early treatment, where, he succumbed to his injuries on January 12, 2010.
3. FIR No.13 dated January 05, 2010 under Sections 279, etc. IPC (Exhibit P-5) was registered in Police Station Sadar Hisar.
4. The legal representatives of the deceased filed claim application under Section 166 of the Motor Vehicles Act, 1988 pleading that per the Matriculation Certificate (Exhibit P12), issued by Board of School Education, Haryana, Vijay Pal was born on August 10, 1982, that is, he was aged about 28 years and 4 months at the time of his death. He was doing the course of stenography and also running an acupressure therapy clinic in the name and style "Ramanand Homeo & Magneto Therapy Centre" at Jind and was earning Rs.30,000/- per month. It was also pleaded that during hospitalisation, an amount of Rs.94,800/- was spent for his medical treatment.
5. Sukhdev Singh being driver, Suraj Mal Joshi being owner and New India Assurance being insurer of the offending vehicle were arrayed as respondent Nos.1 to 3, respectively.
6. In separate written statements filed by the driver and owner of the truck, they denied the allegations and pleaded that the accident did not take place in the manner, stated by the claimants. Vijay Pal FAO No.409 of 2012 (O&M) [3] (deceased) was himself driving the motorcycle himself in a rash and negligent manner and was responsible for causing the accident. The other allegations were also denied.
7. The New India Assurance Company Limited - respondent No.3 denied the allegations regarding the age and income of the deceased.
8. On contest, following issues were framed:-
"1. Whether the accident in question has occurred due to rash and negligent driving of respondent No.1 Sukhdev Singh while driving truck bearing registration No.RJ-07Ga-2111 ON 4.1.2010 AT ABOUT 9.00 pm near Chotha Mill near Bapu Aasa Ram Ashram Road, P.S.Sadar Hisar, resulting into causing death of Vijay Pal s/o Jora Singh as alleged? OPP
2. Whether the petitioners are entitled for compensation and, if yes, from whom and to what amount they entitled to receive? OPP
3. Whether the respondent No.1 was not holding a valid and effective driving licence on the date of alleged accident.? OPR-3
4. Relief."
9. Issue No.1 was decided by the Tribunal holding that the accident took place due to negligent parking of the truck by Sukhdev Singh. Under issue No.2, that is, on the quantum of compensation, the Tribunal assessed the income of the deceased at Rs.8000/-, that is, Rs.96,000/- per annum. 1/3rd of it was deducted towards his personal and living expenses and dependency was assessed at Rs.64,000/- (96000-32000) per annum. The deceased being 29 years of age, multiplier of 16 was applied after referring to Smt. Sarla Verma and others vs. Delhi Transport Corporation and another, 2009(6) SCC
121. Loss of dependency was determined as Rs.10,24,000/- (64000x16). Besides, an amount of Rs.90,000/- was FAO No.409 of 2012 (O&M) [4] awarded towards medical expenses. In all, a sum of Rs.11,14,000/- along with interest at the rate of 7.5% per annum was awarded as compensation.
10. In appeal (FAO-409-2012) before this Court, learned counsel for the insurer has challenged the Award on two grounds; (i) that the Tribunal held the driver of the truck negligent for causing the accident, rather the deceased should also have been held equally responsible for causing the accident and (ii) that the assessment of the income of the deceased at Rs.8000/- was on higher side.
11. On the other hand, learned counsel for the claimants (FAO1421-2012) has contended; (i) that the Tribunal did not add any amount towards future prospects; (ii) per the guide-lines laid down in Sarla Verma's case supra, multiplier of 17 should have been applied, because the age of the deceased was about 28 years and 4 months, (iii) the Tribunal did not award any amount of compensation under the heads of loss of consortium, funeral expenses and transportation, and (iv) that the claimants placed on record medical bills worth Rs.94,800/-, but the Tribunal awarded only Rs.90,000/- under this head.
12. Ram Niwas (PW6), author of the FIR deposed that on the fateful night, he was going with the deceased from Hansi to Fatehabad. The Truck was parked in the middle of the road. Its back-light and reflector were not blinking. No twigs or pieces of stone were put around the truck as a mark or indication for the other vehicles coming and going on the road. Raj Kumar, Ahlmad (Criminal) (PW1) has testified that Sukhdev Singh was challaned for causing the accident and he was facing trial in the Court of Additional Chief Judicial Magistrate, Hisar. Ram Niwas was cross-examined by the learned counsel for the insurer, but nothing substantial could be elicited.
13. The driver of the truck ought to have parked the vehicle on the side of the road. If that was not possible, then some signal by way of parking lights, etc. should have been put by him. Sukhdev Singh did nothing like that. He even did not appear before the Tribunal and such a conduct would lead to an inference that he wrongly parked the truck on FAO No.409 of 2012 (O&M) [5] the road and that too without parking lights or indication. In this view of the matter, the plea that the driver of the motorcycle was equally liable for causing the accident, is wholly untenable. Thus, the finding of the Tribunal that the accident occurred due to the negligence of the driver of the truck, is affirmed.
14. Coming now to the quantum of compensation awarded by the Tribunal. Vijay Pal (deceased) was having meritorious record. Per certificate (Exhibit P17) issued by the Kurukshetra University, he completed his degree of Bachelor of Arts in the year 2003. He attended the Combined Annual Training Camp of National Cadet Corps, for which he was issued certificate (Exhibit P14) and was also awarded Certificate `C' (Exhibit P21) by the Deputy Director General, NCC Directorate Punjab. He also attended a course on Windows, MS-Office, Internet of Networking Concepts and for that he was awarded Certificate of Proficiency (Exhibit P16). He was also awarded `Award of Crest' by Government Post Graduate College, Jind. In the field of acupressure, he was awarded D.A.T(Acu.) Certificate in the year 2005 and M.D.(Acu.) Certificate in the year 2006 (Exhibit P-22) by Indian Academy of Acupressure Science, Jodhpur.
15. From the aforesaid evidence on record, it is proved that the deceased was a meritorious and multi-talented personality. He was a Acupressure Therapist. So, the assessment of his income at Rs.8000/- per month was perfectly justified.
16. In Rajesh and others vs. Rajbir Singh and others, 2013 ACJ 1403, a Full Bench of Hon'ble Supreme Court held that in case of self-employed or persons with fixed wages, below 40 years, there must be an addition of 50% to the actual income of the deceased. Similar view was taken by a Hon'ble Division Bench of this Court in Poonam etc. vs. Rajbir Rawat, etc. 2013(1) RCR(Civil) 988, a judgment authored by Hon'ble Mr.Justice A.K.Sikri, the then Chief Justice of this Court.
17. Following the aforesaid decisions and in considered opinion of this Court, there must be an addition of 50% in the income of FAO No.409 of 2012 (O&M) [6] the deceased on account of future prospects. Hence, his income is assessed at Rs.12,000/- (8000+4000) per month.
18. So far as the contention regarding multiplier is concerned, the deceased was 28 years 4 months old at the time of his death. So, multiplier of 17 is to be applied in view of the judgment Smt. Sarla Verma case supra, reiterated in Reshma Kumari and others vs. Madan Mohan and another 2013(2) RCR(Civil) 660. Though, the Tribunal has referred to the case of Sarla Verma, but it lost sight of that part of the judgment, wherein, it has been authoritatively held that where deceased was aged between 25-30 years, multiplier of 17 is to be applied.
19. While dealing with the contention regarding compensation under the head of `loss of consortium', in Rajesh and others (supra) the full Bench of the Hon'ble Supreme Court commented upon the meaning of consortium and awarded Rs.1 lac to the wife on account of death of her husband who was 33 years of age. For ready reference, paragraph No.20 of the judgment is reproduced as under:-
"The ratio of a decision of this Court on a legal issue is a predecent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be, periodically revisited, as observed in Santosh Devi, 2012 ACJ 1428 (SC). We may, therefore, revisit the practice of awarding compensation under conventional heads:
(i) loss of consortium to the spouse;
(ii) loss of love, care and guidance to children; and
(iii) funeral expenses.
It may be noted that the sum of Rs.2500/- to Rs.10000/- under those heads was fixed several FAO No.409 of 2012 (O&M) [7] decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case, 2009 ACJ 1298 (SC), it was held that compensation for loss of consortium should be in the range of Rs.5000 to Rs.10000/-. In legal parlance, `consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., which the spouse is entitled to get, has to be compensated appropriately. The concept of non- pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world, more particularly in the United States of America, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would be only be just and reasonable that the courts award at least Rs.1,00,000/- towards loss of consortium."
20. In the present case, since the deceased was about 28 years old and keeping in view the concept of consortium referred to FAO No.409 of 2012 (O&M) [8] above, the amount for loss of consortium is enhanced to Rs.1,00,000/-, payable to the widow of the deceased. The claimants are also held entitled to Rs.10,000/- each, under the heads of `funeral expenses' and `transportation charges'. The claimants proved on record medical bills worth Rs.94800/-, but the Tribunal fell in error in awarding only Rs.90,000/- towards medical expenses. So, the claimants are held entitled to Rs.94,800/- on account of medical expenses.
21. Accordingly, this Court holds that the claimants are entitled to the compensation as under:-
Sr.No. Heads Calculation (In Rs.)
(i) Income 12,000/- per month
rd
(ii) 1/3 of (i) deducted as personal and 12000-4000 = 8,000/-
living expenses of deceased
(iii) Compensation after multiplier of 17 8000x12x17 =
16,32,000/-
(iv) Loss of consortium 1,00,000/-
(v) Funeral Expenses 10,000/-
(vi) Transportation Charges 10,000/-
(vii) Medical Expenses 94,800/-
Total Compensation awarded 18,46,800/-
22. Accordingly, the Award of the Tribunal is modified to the extent that the appellants are held entitled to compensation of Rs.18,46,800/-, that is, Rs.7,32,800/- (1846800-1114000) over and above the amount awarded by the Tribunal. The interest on the enhanced amount of Rs.7,32,800/- shall be paid from the date of filing claim application till the amount was deposited by the Insurance Company under the impugned Award at the same rate of interest as was awarded by the Tribunal.
FAO No.409 of 2012 (O&M) [9]23. Hence, FAO No.409 of 2012 is dismissed and FAO No.1421 of 2012 is accepted in the manner indicated above.
August 30, 2013 ( NAWAB SINGH ) `gian' JUDGE REFER TO REPORTER : YES