Sikkim High Court
The Branch Manager, United India ... vs Dhan Bdr. Chhetri And Ors on 6 March, 2020
Equivalent citations: AIRONLINE 2020 SK 18
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED : 6th March, 2020
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SINGLE BENCH : THE HON'BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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M.A.C. App. No.02 of 2019
Appellant : Branch Manager,
United India Insurance Company
Limited
versus
Respondent : Dhan Bdr. Chhetri and Others
Appeal under Section 173 of the Motor Vehicles Act, 1988
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Appearance
Mr. Pema Ongchu Bhutia, Advocate for the Appellant.
Mr. Ajay Rathi, Mr. Rahul Rathi, Ms. Tashi Doma Bhutia, Ms.
Pritima Sunam and Ms. Phurba Diki Sherpa, Advocates for the
Respondents No.1 to 4.
None present for Respondents No.5 and 6.
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C.O. No.01 of 2019
Petitioners : Dhan Bdr. Chhetri and Others
versus
Respondents : Branch Manager,
United India Insurance Company
Limited and Others
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Appearance
Ms. Tashi Doma Bhutia and Ms. Pritima Sunam, Advocates for
the Petitioners.
Mr. Pema Ongchu Bhutia, Advocate for the Respondent No.1.
None present for Respondents No.2 and 3.
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J U D G M E N T (ORAL)
Meenakshi Madan Rai, J.
1. The grievances expressed in this Appeal pertain to computation of the income of the deceased by the learned Motor Accident Claims Tribunal (for short "Tribunal), West Sikkim at MAC App.No.02 of 2019 and C.O. No.01 of 2019 2 Branch Manager, United India Insurance Co. Ltd. vs. Dhan Bdr. Chhetri & Ors and Dhan Bdr. Chhetri & Ors. v. Branch Manager, United India Insurance Co. Ltd. & Ors.
Gyalshing and the choice of Multiplier adopted. The Cross- Objection also questions the income of the deceased computed by the learned Tribunal however on a different ground viz. that the monthly income of the deceased ought to have been higher than computed by the learned Tribunal. The Future Prospects granted by the learned Tribunal stands impugned as being lower than what ought to have been computed.
2. The learned Tribunal in MACT Case No.07 of 2018 (Shri Dhan Bdr. Chhetri and Others v. Shri Bikram Tamang and Others), dated 29.09.2018, awarded a compensation of Rs.17,67,000/- (Rupees seventeen lakhs and sixty seven thousand) only, on the death of the deceased, to the Respondents No.1 and 2 his parents and Respondents No.3 and 4, his siblings. The deceased was travelling in the vehicle bearing Registration No.SK-02J/0095 (Mahindra Maxx), which met with an accident at "Tafel Bhir," Rinchenpong, West Sikkim on 20.04.2016, where he succumbed to his injuries at the place of accident.
3. The Appellant questions the income of the deceased placed at Rs.10,000/- (Rupee ten thousand) only, per month by the learned Tribunal, on grounds of absence of documentary evidence to establish the monthly income of the deceased. That the income assessed by the learned Tribunal has no rational basis as evident from the impugned Judgment and was a random figure arrived at for such assessment. That the income could have been based on the rates of skilled labourers as Rs.275/- (Rupees two hundred and seventy five) only, per day, in terms of the Notification of the Department of Labour, Government of Sikkim bearing No.4/DL, dated 01.11.2014. Learned Counsel for the Appellant also submitted that the Multiplier of "18" adopted by the learned Tribunal to calculate the quantum of compensation was erroneous as the deceased was 26 years of age and hence the correct Multiplier is "17."
4. Per contra, repudiating the arguments of the Appellant, learned Counsel for the Respondents No.1 to 4 submitted that in fact the income of the deceased was MAC App.No.02 of 2019 and C.O. No.01 of 2019 3 Branch Manager, United India Insurance Co. Ltd. vs. Dhan Bdr. Chhetri & Ors and Dhan Bdr. Chhetri & Ors. v. Branch Manager, United India Insurance Co. Ltd. & Ors.
Rs.30,000/- (Rupee thirty thousand) only, per month, and not Rs.10,000/- (Rupee ten thousand) only, as arrived at by the learned Tribunal owning as he did two taxi vehicles and not one from which he derived his income. That, the Future Prospects placed at Rs.4,000/- (Rupees four thousand) only, ought to have been Rs.16,32,000/- (Rupees sixteen lakhs and thirty two thousand) only.
5. I have heard and considered the rival submissions of learned Counsel for the parties. I have also perused all documents and evidence on record and the impugned Judgment.
6. Evidently the Respondents No.1 to 4 did not furnish any Certificate of Income of the deceased or any reliable document before the learned Tribunal to indicate his income. The learned Tribunal while assuming that Rs.10,000/- (Rupee ten thousand) only, was the monthly income of the deceased has not given any ground for such assessment except the fact that the deceased was a Driver by profession and used to drive his own taxi vehicle. The arguments of the Respondents No.1 to 4 that the income ought to be Rs.30,000/- (Rupee thirty thousand) only, cannot be countenanced without supporting documentary evidence. Besides the fact that even if he owned two vehicles it was not possible, as rightly pointed out by the learned Tribunal, for him to drive two vehicles at the same time. Hence considering this circumstance, in the absence of any documentary evidence substantiating the monthly income of the deceased, it is but rational to compute the income of the deceased at the rate of Rs.275/- (Rupees two hundred and seventy five) only, per day, being the income notified by the Department of Labour, Government of Sikkim for "Skilled Workers," vide Notification No.4/DL, dated 01.11.2014.
7. In terms of the decision in Sarla Verma (Smt.) and 1 Others vs. Delhi Transport Corporation and Another the Multiplier of "17" is adopted instead of "18" as the victim was approximately 26 years of age on the date of accident.
1(2009) 6 SCC 121 MAC App.No.02 of 2019 and C.O. No.01 of 2019 4 Branch Manager, United India Insurance Co. Ltd. vs. Dhan Bdr. Chhetri & Ors and Dhan Bdr. Chhetri & Ors. v. Branch Manager, United India Insurance Co. Ltd. & Ors.
8. In National Insurance Company Limited vs. Pranay Sethi and Others2 while discussing Future Prospects, the Hon'ble Supreme Court held as under;
"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 method of computation. The established income means the income minus the tax component."
(Emphasis supplied) Hence, the learned Tribunal has correctly placed the Future Prospects of the deceased at 40% as he was 26 years of age and self-employed. However, in view of the change in Multiplier and monthly income of the deceased a fresh calculation of "40%" is required to be made.
9. It is evident from the compensation computed by the learned Tribunal that although Rs.2,00,000/- (Rupees two lakhs) only, was given for loss of love and affection however no calculation was made for loss of Filial Consortium. In Magma General Insurance Co. Ltd. vs. Nanu Ram and Ors.3 while allowing consortium not only to the spouse but also to the children and 2 (2017) 16 SCC 680 3 MANU/SC/1012/2018 MAC App.No.02 of 2019 and C.O. No.01 of 2019 5 Branch Manager, United India Insurance Co. Ltd. vs. Dhan Bdr. Chhetri & Ors and Dhan Bdr. Chhetri & Ors. v. Branch Manager, United India Insurance Co. Ltd. & Ors.
parents of the deceased the Hon'ble Supreme Court held as follows;
"8.7 A Constitution Bench of this Court in Pranay Sethi (supra) 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.
..............................................................................
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."
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.
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.
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 (supra).
In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs.40,000 each for loss of Filial Consortium."
(Emphasis supplied) MAC App.No.02 of 2019 and C.O. No.01 of 2019 6 Branch Manager, United India Insurance Co. Ltd. vs. Dhan Bdr. Chhetri & Ors and Dhan Bdr. Chhetri & Ors. v. Branch Manager, United India Insurance Co. Ltd. & Ors.
10. In Rajesh and Ors. vs. Rajbir Singh and Ors.4 the Hon'ble Supreme Court held as follows;
"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, 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, on the anvil of the aforestated ratio in Magma General Insurance Co. Ltd. (supra) and Rajesh and Ors. (supra) the Respondents No.1 to 4 are entitled to Filial compensation. In my considered opinion, there is no requirement for computing loss of love and affection in the Award in view of compensation granted by way of Filial Consortium.
11. The Litigation Costs awarded by the learned Tribunal being undisputed are allowed.
4(2013) 9 SCC 54 MAC App.No.02 of 2019 and C.O. No.01 of 2019 7 Branch Manager, United India Insurance Co. Ltd. vs. Dhan Bdr. Chhetri & Ors and Dhan Bdr. Chhetri & Ors. v. Branch Manager, United India Insurance Co. Ltd. & Ors.
12. Consequently, in light of the aforesaid facts and circumstances, the Judgment of the learned trial Court stands modified to the extent below;
Annual Income of the deceased Rs.99,000.00 (Rs.275/-x30x12) Add 40% of Rs.99,000/- as future prospects Rs.39,600.00 Yearly income of the deceased Rs.1,38,600.00 Less 1/2 of Rs.1,38,600.00 Rs.69,300.00 [deducted from the said amount as expenses that the victim would have incurred towards maintenance had he been alive.] Net yearly income Rs.69,300.00 Multiplier of '17' adopted in terms of Sarla Verma's case (Rs.69,300 x 17) Rs.11,78,100.00 Add Loss of Filial Consortium [Rs.40,000/- Rs.1,60,000.00 each, payable to Respondents No. 1 to 4, respectively] Add Funeral expenses Rs.15,000.00 Add Loss of estate Rs.15,000.00 Add Litigation costs Rs.25,000.00 Total Rs.13,93,100.00 (Rupees thirteen lakhs, ninety three thousand and one hundred) only.
13. The Respondents No.1 to 4 shall be entitled to simple interest @ 9% per annum on the above amount instead of 10% granted by the learned Tribunal, with effect from the date of filing of the Claim Petition before the learned Tribunal till full realisation.
14. The awarded amount shall be paid by the Appellant to the Respondents No.1 to 4 within one month from today, failing which, the Appellant shall pay simple interest @ 12% from the date of filing of the Claim Petition till realisation, duly deducting the amounts, if any, already paid by it to the Respondents No.1 to 4.
15. Considering the age of the Respondent No.1 and Respondent No. 2, the parents of the deceased being 64 years and 55 years respectively while the Respondent No.3 and Respondent No. 4 his siblings being 26 years and 32 years MAC App.No.02 of 2019 and C.O. No.01 of 2019 8 Branch Manager, United India Insurance Co. Ltd. vs. Dhan Bdr. Chhetri & Ors and Dhan Bdr. Chhetri & Ors. v. Branch Manager, United India Insurance Co. Ltd. & Ors.
respectively and are thereby in a position to fend for themselves, the awarded amount of compensation shall be divided as follows;
(i) 70% to Respondents No.1 and 2 (35% each), the parents of the deceased.
(ii) 30% to Respondents No.3 and 4 (15% each), the siblings of the deceased.
16. Appeal allowed to the extent above.
17. MAC App. No.02 of 2019 stands disposed of accordingly.
18. Cross-objection stands rejected and disposed of.
19. No order as to costs.
20. A copy of this Judgment be placed in the file of C.O. No.01 of 2019, for record.
21. Copy of this Judgment be sent to the learned Tribunal for information.
( Meenakshi Madan Rai ) Judge 06.03.2020 Approved for reporting : Yes ml