Karnataka High Court
Suvarna W/O Vithal Mallapur vs The Manager, Iffco-Tokio General on 12 August, 2020
Author: M.Nagaprasanna
Bench: M.Nagaprasanna
1
IN THE HIGH COURT OF K ARNAT AKA
R
DHARWAD BENCH
DATED THIS THE 12 T H DAY OF AUGUS T 2020
BEFORE
THE HON'BLE MR. JUSTICE M .NAGA PRASANNA
M.F.A.NO.22339/2012 (MV)
BETWEEN :
1. SMT.SUVARNA
W/O VITHAL MALLAPUR,
AGE : 40 YEARS,
OCC: HOUSEHOLD WORK,
2. KUMARI SUNTA
D/O VITHAL MALLAPUR,
AGE : 19 YEARS,
OCC: STUDENT .
3. KUMAR VIVEK
S/O VITHAL MALLA PUR,
AGE : 18 YEARS,
OCC: STUDENT .
4. KUMAR VINAYAK
S/O VITHAL MALLA PUR,
AGE : 17 YEARS,
OCC: STUDENT .
ALL ARE RESIDEN T OF H.N O.195,
DHUPADA L, TAL: GOKAK,
DIST; BELGAUM.
APPELLANT NO.4 I S MINOR
2
REPRES ENTED BY THE A PPELLANT N O.1
NATURAL GUARDI AN MOTHER.
... APPELLANTS
(BY SRI VITTHAL S.TELI , ADV OCATE)
AND :
1. MANAGER, IFFCO- TOKIO GENERA L
INSURANCE CO.LT D.,
UNITED NO.3, 1477/78,
MANTUNG BUI LDING,
MADHAV NAGAR ROAD,
NEAR DURGA MAT A MANDIR,
SANGLI, MAHARAS TRA STATE.
2. SHRIKANT RAMCHANDRA MASAJI,
AGE : 44 YEARS, OCC: AGRICULT URE,
R/O BHIRADAI , TAL: RAIBAG,
DIST: BELA GAVI.
... RES PONDENTS
(BY SRI RAVINDRA R.MANE, ADV OCA TE FOR R.1)
(NOTICE T O RESPONDENT NO.2 : SERVED)
THIS APPEA L IS FILED UNDER SECT ION 173(1) OF
THE MOTOR VEHI CLE A CT, 1988 AGAINST THE JUD GMENT
AND AWARD DATED 12.03.2012 PASS ED IN
MVC.NO.1080/ 2010 ON THE FILE OF THE PRL. SENIOR
CIVIL JUDGE & MEMBER, ADDITIONA L MACT, BELGAUM AT
BELGA UM PARTLY ALLOWING THE CLAIM PETITION FOR
COMPENSATION AND SEEKING ENHANCEMEN T OF
COMPENSATION .
THIS APPEAL COMING ON F OR A DMISSION,
THIS DAY, T HE COURT DELIVERED THE F OLLOWING:
3
: JUDGMENT :
This appeal, though listed for admission, is taken up for final disposal with the consent of the learned counsel appearing for the parties.
2. This appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred to as 'the Act', for short) has been filed by the claimants being aggrieved by the judgment dated 12.03.2012 passed by the Prl. Senior Civil Judge and Additional Motor Accident Claims Tribunal, in MVC.No.1080/2010.
3. Parties will be referred to as per their ranking before the Claims Tribunal.
4. Facts giving rise to the filing of the appeal briefly stated are that on 05.04.2010 at about 11.30 p.m., the deceased was traveling as a pillion rider on Hero Honda motorcycle bearing registration No.KA.23/X-4271 and was proceeding from 4 Dhupdal-Ghataprabha road at which time, the rider of the motorcycle rode the same in a rash and negligent manner which caused the motorcycle to turn upside down, resulted in fall of the deceased. Due to the impact of the accident, the deceased who was a pillion rider sustained fatal injuries and he was immediately admitted to the Government Hospital Dhupadal and was later shifted to KLE Hospital, Belgaum where the deceased succumbed to the injuries while under treatment at KLE Hospital, Belgaum on 09.04.2010.
5. The claimants filed a petition under Section 166 of the Act before the Tribunal in MVC.No.1080/2010 on the ground that the deceased was aged about 40 years at the time of accident and was employed as Lathe Operator under Rajeshwari Firms, Implements and Equipments, Raibag District Belagavi and was earning 5 Rs.10,000/- per month and claimed compensation to the tune of Rs.20,00,000/- along with interest.
6. Upon service of notice, the 1 s t respondent owner of the motorcycle admitted the accident and denied the rest of the averments and contended that motorcycle was insured with the 2nd respondent and he had valid and effective driving licence as on the date of the accident. The 2 n d respondent-Insurance Company appeared and filed its statement of objections wherein it denied the age, income and occupation of the deceased and the manner in which the accident had occurred. It was also denied that the death of the deceased was due to the injuries sustained in the accident. The respondent-Insurance Company further contended that the 1 s t respondent rider of the motorcycle did not have valid and effective driving licence and also pleaded that both the rider and pillion rider of the 6 motorcycle namely deceased were intoxicated with consumption of alcohol.
7. On the basis of the pleadings of the parties, the Claims Tribunal framed the issues and thereafter recorded the evidence.
8. The claimants, in order to prove their case examined two witnesses. The 1 s t claimant namely wife of the deceased examined herself as P.W.1 and another witness as P.W.2 and got exhibited 12 documents namely Exs.P1 to P.12. On the other hand respondent-Insurance Company examined one witness as R.W.1 and marked 3 documents as Exs.R.1 to R3.
9. The Claims Tribunal, by the impugned judgment, inter alia, held that the accident took place on account of rash and negligent riding of the rider of the motorcycle namely, the 1 s t respondent, as a result of which, the deceased sustained 7 injuries and succumbed to the same. The Tribunal further held that the claimants are entitled to a compensation of Rs.5,73,663/- along with interest at the rate of 6% per annum, attributing contributory negligence on the part of the deceased to the tune of 10% as he was clinging on the rider of the motorcycle who was intoxicated. Being aggrieved by the quantum of compensation awarded by the Tribunal and 10% of contributory negligence attributed to the deceased, the claimants have preferred the present appeal seeking enhancement of compensation and challenging that portion of the order that attributes 10% contributory negligence to the deceased.
10. I have heard Sri Vitthal S.Teli, learned counsel for the appellants and Sri Ravindra R.Mane, learned counsel for respondent No.1-Insurance Company appeared through video conference. 8
11. Learned counsel for the appellants would contend that the Tribunal has grossly erred in determining the compensation at Rs.5,73,663/- ignoring addition of future prospects under the head of loss of dependency which is contrary to law laid down by a Constitution Bench of the Hon'ble Supreme Court in the Case of National Insurance Company Limited Vs. Pranay Sethi and others reported in AIR 2017 SC 5157 and not granting any compensation on loss of consortium which also contrary to law laid down by the Supreme Court in the case of Magma General Insurance Company Limited Vs. Nanu Ram reported in 2018 ACJ 2782, which was again reiterated and followed by a Three Judges Bench of the Hon'ble Supreme Court in the case of United India Insurance Company Limited Vs. Satinder Kaur and others reported in 2020 SCC Online SC 410 and grant of lower compensation under other conventional heads is 9 also contrary to law. The learned counsel would further submit that attributing contributory negligence to the pillion rider namely the deceased to the tune of 10% without there being any reason whatsoever is contrary to the law laid down by this Court in the case of Oriental Insurance Co.Ltd., Chennai Vs. Smt.Dyamavva Yalgurdappa Goudar & others reported in 2013 (1) AKR 401.
12. On the other hand, learned counsel for the respondent-Insurance Company would contend that the compensation awarded by the Tribunal is just and proper and does not warrant any enhancement and the attribution of 10% contributory negligence to the deceased is justified in the light of the fact that the rider of the motorcycle namely the 1st respondent was intoxicated with consumption of alcohol and knowing this fact the deceased was clinging on him in the motorcycle.
10
13. Insofar as the award of compensation on the head of loss of consortium is concerned, learned counsel for the insurance company would contend that the Hon'ble Supreme Court in the case of the National Insurance Company Vs. Ramesh Chand & Others in SLP No.11709/2020 by its interim order has stayed the order of the High Court of Delhi, granting consortium at Rs.40,000/- each to the applicants virtually granting stay of the judgment in Magma General Insurance Company's case(Supra) and would contend that this Court should not grant any amount on account of loss of consortium to each of the claimants.
14. I have given my anxious consideration on the submissions made by the learned counsel for the parties and perused the material on record.
15. Admittedly, the claimants have not examined any witness to prove the salary certificate 11 produced at Ex.P.7. Mere production of a document will not amount to its proof unless a competent witness speaks on behalf of the said documents. Therefore, the notional income has to be fixed as per the guidelines issued by the High Court Legal Services Committee. Since the accident has taken place in the year 2010, the notional income has to be taken at Rs.5500/- as against Rs.4,500/- per month taken by the Tribunal. To the aforesaid amount, 25% has to be added on account of future prospects in view of the law laid down by Constitution Bench of the Hon'ble Supreme Court in the case of Pranay Sethi's (Supra). Hence, the total monthly income comes to Rs.6,875/-. Out of which, I deem it appropriate to deduct 1/4 t h towards personal expenses and therefore, the monthly dependency comes to Rs.5,156.25/- rounded off to Rs.5,156/-. Taking into account the age of the deceased which was 40 years at the time 12 of accident, multiplier of "15" has to be adopted. Thus, the claimants would be entitled to Rs.9,28,080/- (Rs.5,156 X 12 X 15) on account of loss of dependency.
16. Now the question that falls for my consideration is to the amount of compensation to be awarded on the three conventional heads as determined in the case of Pranay Sethi (Supra).
17. The Apex Court in the case of Pranay Sethi (Supra) insofar it relates to grant of compensation under the head of loss of consortium has held at paragraph Nos.48 and 54, which read as follows :
"48. Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses. In Santosh Devi (AIR 2012 SC 2185), the two-Judge Bench followed the traditional method and granted Rs.13
5,000/- for transportation of the body, Rs. 10,000/- as funeral expenses and Rs.
10,000/- as regards the loss of consortium. In Sarla Verma, the Court
granted Rs. 5,000/- under the head of loss of estate, Rs. 5,000/- towards funeral expenses and Rs. 10,000/- towards loss of Consortium. In Rajesh, the Court granted Rs. 1,00,000/- towards loss of consortium and Rs. 25,000/- towards funeral expenses. It also granted Rs. 1,00,000/- towards loss of care and guidance for minor children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socio-economic issue has to be contrasted from a legal principle and ought to be periodically revisited as has been held in Santosh Devi (supra). On the principle of revisit, it fixed different amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also been moved by the concept of loss of consortium. We are inclined to 14 think so, for what it states in that regard. We quote:-
"17. ... 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., 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 recognised 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, 15 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 only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."
54. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike 16 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 17 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."
18. In terms of the afore extracted judgment of the Constitution Bench of the Hon'ble Supreme Court, the conventional heads determined was loss of estate, loss of consortium and funeral expenses which was calculated at Rs.70,000/- in all.
19. Later, when the several High Courts granted compensation under the head of loss of consortium to each of the claimants, led to the Hon'ble Supreme Court again considering the concept of loss of consortium in the case of Magma General Insurance Company (Supra). The Specific question that arose for consideration before the Hon'ble Supreme Court reads as follows: 18
"This special leave petition has been filed by the Insurance Company to challenge the compensation awarded on certain counts by the Punjab and Haryana High Court in Nannu Ram v. Mayank Goel [Nannu Ram v. Mayank Goel, 2017 SCC OnLine P&H 4973] , to be contrary to the Constitution Bench judgment in National Insurance Co. Ltd. v. Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 :
(2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] .
20. Answering afore extracted issue that fell for consideration, the Apex Court at paragraph No.21 and 24 has held as follows:
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 19 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".20
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. 21
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 OnLineUtt 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. 22
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 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.
21. On the afore extracted consideration of the concept of consortium, the compensation was determined in the following manner by the Hon'ble Supreme Court.
25. In light of the abovementioned discussion, Respondents 1 and 2 are entitled to the following amounts:
Head Compensation awarded
(i) Income Rs 6000
(ii) Future prospects Rs 2400 ( i.e . 40% of the
income)
(iii) Deduction to wards Rs 2800 i.e . ⅓rd o f (Rs 6000
personal + Rs 2400)
expenditure
23
(iv) Total income Rs 5600 i.e . ⅔rd o f (Rs 6000
+ Rs 2400)
(v) Multiplier 18
(vi) Loss of future Rs 12,09,600 (Rs 5600 × 12
income × 18)
(vii) Loss of love and Rs 1,00,000 (Rs 50,000
affection each)
(viii) Funeral expenses Rs 15,000
(ix) Loss o f estate Rs 15,000
(x) Loss of filial Rs 80,000 (Rs 40,000
consortium pay able to each of
Respondents 1 and 2)
Total compensatio n Rs 14,25,600 alo ng with
awarded inte rest @ 12% p.a. from
the date of filing of the
claim petition till payment.
(Emphasis supplied)
22. Thus, the Hon'ble Supreme Court after considering the judgment in the case of Pranay Sethi (Supra) determined that each of the applicants will be entitled to consortium under spousal, filial and parental at Rs.40,000/- each apart from awarding compensation under the head of loss of love and affection.
23. The judgment rendered in the case of Magma General Insurance Company and issue of consortium and compensation under loss of love 24 and affection again fell for consideration before the Apex Court in the case of United India Insurance Co. Ltd. Vs. Satinder Kaur and others reported in 2020 SCC Online SC 410, wherein the Apex Court, again considering Pranay Sethi's case and reiterating Magma General Insurance Companys' case (Supra) has held as follows :
53. In Pranay Sethi (supra), the Constitution Bench held that in death cases, compensation would be awarded only under three conventional heads viz. loss of estate, loss of consortium and funeral expenses.
54. The Court held that the conventional and traditional heads, 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, which has to be based on a reasonable foundation. It was observed that factors such as price index, fall in bank interest, escalation of rates, are aspects which have to be taken into consideration. The Court held that reasonable figures on 25 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 Court was of the view that the amounts to be awarded under these conventional heads should be enhanced by 10% every three years, which will bring consistency in respect of these heads.
a) Loss of Estate - Rs. 15,000 to be awarded
b) Loss of Consortium
55. Loss of Consortium, in legal parlance, was historically given a narrow meaning to be awarded only to the spouse i.e. the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads for 26 awarding compensation in various jurisdictions such as the United States of America, Australia, etc. English courts have recognised the right of a spouse to get compensation even during the period of temporary disablement.
56. In Magma General Insurance Co.
Ltd. v. Nanu Ram, 1 2 this Court interpreted "consortium" to be a compendious term, which encompasses spousal consortium, parental consortium, as well as filial consortium. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse.
57. 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.
27
58. 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 and affection, and their role in the family unit.
59. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.
60. The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of providing relief 28 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.
61. Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents.
62. The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra).
63. At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can 29 be awarded viz. loss of estate, loss of consortium and funeral expenses.
64. In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.
65. The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.
(Emphasis Supplied)
24. Thus, the afore extracted Three Judge Bench decision in the case of Satinder Kaur and others (Supra) further confirmed the award of Rs.40,000/- under the head of loss of consortium to each of the claimants, as held in the case of 30 Magma (supra) but directed that the award of compensation under the loss of love and affection as a separate head would became unjustified.
25. Learned counsel for the insurance company as stated hereinabove is now contending that the Apex Court in the case of The National Insurance company Limited Vs. Ramesh Chand and others (Supra) by its interim order dated 06.08.2020 has stayed the direction given in Magma General Insurance Company's case (Supra) to award loss of consortium at Rs.40,000/- to each of the claimants. To consider this, it is germane to notice the interim order granted by the Apex Court on 06.08.2020 in the afore stated Special Leave Petition which reads as follows :
"ORDER Application for exemption from filing attested affidavit is allowed.
Delay condoned.31
There are two aspects urged by learned counsel for the petitioner : (a) in terms of National Insurance Co. Ltd. V. Pranay Sethi (2017) 16 SCC 680, the total amount which can be given for loss of consortium is Rs.40,000/- and it cannot be Rs.40,000/- for each of the persons dependent on the deceased. He submits that there is an apparent conflict in this behalf vis-à-vis the judgment in Magma General Insurance Company limited Vs. Nanu Ram & ors. (2018) 18 SCC 130 and also; (b) the loss of love and affection cannot be granted as a separate head and loss of consortium will be granted and thus, the impugned order which grants Rs.50,000/-and Rs.40,000/- respectively is erroneous because the total amount cannot be more than Rs.40,000/- even if each of the siblings was to be paid without prejudice to what is stated hereinabove is the first question. He submits that this aspect stands settled by a recent judgment in united India Insurance Co. Ltd. V. Satinder Kaur @ Satwinder Kaur & Ors.32
[Civil Appeal No.2705 of 2020] decided on 30 t h June, 2020.
Before we consider whether the issue is liable to be referred to a larger Bench since Magma General Insurance Company's case (Supra) is a Two Judges Bench judgment, we would like to first issue notice and hear the other side. We may even consider appointing an amicus curiae to assist the Court in this behalf dependent upon whether representation is there on behalf of the respondents or not.
Issue notice.
In the meantime, the impugned order to the extent it grants separately loss of love and affection apart from loss of consortium to the extent of Rs.5,00,000/- is stayed. The remaining amount will be released forthwith to the respondents.
(Emphasis Supplied)
26. A cursory perusal of the afore extracted interim order granted by the Apex Court would be unequivocally clear that the order impugned before the Apex Court namely the judgment dated 33 31.10.2019 passed in MACA No.265/2018 by the High Court of Delhi and granted Rs.5,00,000/-
towards loss of love and affection apart from loss of consortium. It is germane at this juncture to notice the judgment of the High Court of Delhi which was impugned before the Apex Court, wherein the afore extracted interim order was granted. The order of the High Court of Delhi granting compensation in the case of Ramesh Chand & others Vs. National Insurance Co. Ltd. And others read as follows:
"4. The Court would note that appellant Nos.1 to 9 are all children of the deceased, of whom only six were financially dependent upon him. Nevertheless, each of the claimants including those not financially dependent on the deceased, being his children would be entitled to and are granted non- pecuniary compensation towards "loss of love and affection" and "loss of Consortium" @ Rs.50,000/- and Rs.40,000/- respectively as per the dicta 34 of the Supreme Court in Magma General Insurance Co. Ltd. Vs. Nanu Ram @ Chuhru Ram & Ors., 2018 SCC Online SC 1546. Additionally, compensation towards 'Loss of Estate' and 'Funeral Expenses' Shall also be payable @ Rs.15,000/- under each of the heads as per the decision of the Supreme Court in Pranay Sethi (Supra). Accordingly, the total payable amount would be as under:
S.
Particulars Amount
No.
1. Loss of dependency
[Rs.10,140 (minimum wages) x
(months) x 9 (multiplier) x
Rs.9,03,474/-
75/100 (deduction towards
personal expenses) x 110/100
(loss of future prospects)
2 Loss of love and affection
Rs.5,00,000/-
[Rs.50,000 x 10 (claimants)]
3. Loss of Consortium
Rs.4,00,000/-
[Rs.40,000 x 10 (claimants)]
4. Loss of Estate Rs.15,000/-
5. Funeral Expenses Rs.15,000/-
TOTAL Rs.18,33,474/-
Less (amount already awarded by learned Tribunal) Rs.10,85,914/- [Rs.18,33,474/- less Rs.7,47,560/-
(Emphasis Supplied)
27. As could be seen from the chart extracted in the order passed by the High Court of Delhi, 35 Rs.5,00,000/- is granted on the head of loss of love and affection apart from the grant of loss of consortium. This is what the Apex Court has stayed in the afore extracted interim order which clearly reads that loss of love and affection cannot be a separate head apart from loss of consortium to grant compensation.
28. The judgment in Magma General Insurance Company (Supra) which considered the constitution Bench judgment in the case of Pranay Sethi and the judgment in Satindar Kaur which again considered both the judgments in Pranay Sethi and Magma General Insurance Company are applicable to the facts obtaining in the case on hand for awarding compensation under loss of consortium as held in Magma & Satinder Kaur and not the interim order granted by the Apex Court as contended by learned counsel for the insurance company.36
29. Hence, I am of the considered view that the claimants are entitled to a compensation under the head of loss of spousal and parental consortium to the tune of Rs.40,000/- each. Since claimants are four in number, the compensation under this head is assessed at Rs.1,60,000/-. In addition, the claimants are entitled to Rs.30,000/- on account of loss of estate and funeral expenses. Thus, the claimants are entitled to total compensation of Rs.11,18,080/-. Needless to state that the aforesaid amount of compensation shall carry interest at the rate of 6% p.a. from the date of petition till payment is made.
30. Insofar as attribution of contributory negligence on the deceased is concerned, a cursory perusal at the material on record it would clearly indicate that there is no evidence placed on record by the insurance company to prove that the rider of the motorcycle was in influence of alcohol with the 37 knowledge and consent of the claimant. That being the position there was no reason for the Tribunal to attribute the contributory negligence to the deceased. It is opposite to refer to the judgment of Co-Ordinate Bench of this Court in the case of Oriental Insurance Co.Ltd., Chennai Vs. Smt.Dyamavva Yalgurdappa Goudar & others (Supra), wherein this Court has held at paragraph No.28 as follows:
"28. In the instant case, it is noticed that Ex.R-2 stipulates at Clause (c) of Section 1(3) that the insurance company was not liable to make any payment in respect of any accidental loss or damages suffered while the insured or any person driving with the knowledge and consent of the owner, is under the influence of alcohol or any drugs. No evidence has been let-in by the insurance company to prove that the driver was under influence of the alcohol with the knowledge and consent of the insured. Under the 38 circumstances, placing reliance on Ex.P.2, the Tribunal has, in fact, granted re-life to the insurance company to pay the compensation and recover the same from the insured, whereas in the absence of proof of knowledge and consent of the insured vis-à-vis the driver being under the influence of alcohol or intoxicating drugs, the insurance company would have been liable to pay the compensation in entirety. Under the circumstances, there is no substance in the contention of the learned counsel appearing for the insurance company that the Tribunal could not have ordered the insurance company to pay the compensation and then to recover the same from insured. Therefore, that portion of the judgment and award would also not call for any interference in this appeal. Accordingly, Point Nos.2 and 3 are answered.
31. In terms of the law declared by this Court in the afore extracted judgment, the finding of the Tribunal attributing contributory negligence to the 39 tune of 10% to the deceased is erroneous as there is no evidence in the case on hand to hold that the deceased was aware and had consented to the consumption of alcohol to the rider of the motorcycle. Thus, the order of the Tribunal attributing contributory negligence to the tune of 10% to the deceased is set aside.
32. The respondent-Insurance company is directed to pay the compensation as determined hereinabove in its entirety to the claimants. To the aforesaid extent, the judgment of the Claims Tribunal is modified.
Accordingly, the appeal is disposed of.
Sd/-
JUDGE EM/-