Punjab-Haryana High Court
Nirmla Devi Etc vs Gayyoor Alam Etc on 6 September, 2024
Author: Vikas Bahl
Bench: Vikas Bahl
Neutral Citation No:=2024:PHHC:117141
CM-15077-CII-2024 in/and
FAO-1694-2015 (O&M) [1]
113
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CM-15077-CII-2024 in/and
FAO-1694-2015 (O&M)
Date of decision: 06.09.2024
Nirmla Devi and others
...Appellants
Versus
Gayyoor Alam and others
...Respondents
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. R.C. Gupta, Advocate for the appellants.
Mr. Punit Jain, Advocate for respondent No.3.
****
VIKAS BAHL, J. (ORAL)
CM-15077-CII-2024
1. This is an application filed under Order 41 Rule 19 read with Section 151 CPC for restoration of the main appeal and recalling of order dated 22.07.2024.
2. For the reasons stated in the application which is duly supported by an affidavit, the present application is allowed and order dated 22.07.2024 is recalled and the main appeal is restored to its original number and is taken up on Board today itself for final disposal. Main case
1. The widowed mother, unmarried sister and minor brother of the deceased have filed the present appeal seeking modification of the award 1 of 14 ::: Downloaded on - 21-09-2024 11:41:13 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [2] dated 17.11.2014 passed by the Motor Accident Claims Tribunal, SAS Nagar (Mohali) (hereinafter to be referred as "the Tribunal") with respect to the death of Purushotam @ Pappu son of late Ram Gopal which had taken place in a motor vehicle accident that took place on 18.07.2012.
2. The only question which arises for consideration in the present case is with respect to the compensation to which the claimants are entitiled. The other aspects are not disputed..
3. Learned counsel for the appellants has submitted that in the present case, the Tribunal had not granted the benefit of the amount on account of loss of consortium to the extent of Rs.1,44,000/- (Rs.48,000/- x
3) and had also not granted any amount on account of loss of estate and as per the settled law, in this regard an amount of Rs.18,000/- was required to be added in the amount to be awarded to the claimants. It is further submitted that the Tribunal had deducted 50% of the income of the deceased on account of personal expenses. It is submitted that in the facts and circumstances of the present case, the said deduction is highly excessive and at best, 1/3rd of the income could have been deducted for personal expenses as in the present case, the deceased had left behind his widowed mother, unmarried sister and minor brother, who were all dependent upon the income of the deceased. It is further submitted that father of the deceased had suffered a heart attack 2-3 years prior to 2009 and was not in a condition to work and earn for the family and had stopped going to the shop also and it was the deceased, who after leaving his regular studies, had started running the fruit shop which was being run by his father earlier and was also appearing in BA examinations privately. It is further submitted that 2 of 14 ::: Downloaded on - 21-09-2024 11:41:14 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [3] all the three claimants were solely dependent upon the income which the deceased was earning and that the father of the deceased, who was suffering from heart problem, had died on account of heart attack after the death of the deceased. In support of his arguments, learned counsel for the appellants has relied upon the law laid down by the Hon'ble Supreme Court in case titled as Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another reported as (2009) 6 SCC 121, National Insurance Company Limited Vs. Pranay Sethi and others reported as (2017) 16 SCC 680, and Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram and others reported as (2018) 18 SCC 130. It is also submitted that in the said peculiar facts and circumstances and even as per the law laid down in Sarla Verma's case (Supra), 1/3rd deduction only should be made on account of personal expenses.
4. On the other hand, learned counsel for respondent No.3- Insurance Company has submitted that in the present case, benefit of future prospects to the extent of 50% had been granted by the Tribunal whereas the said benefit is to be reduced to 40% and that funeral expenses to the extent of Rs.25,000/- had been granted by the Tribunal whereas as per the settled law, the said amount is to be reduced to Rs.18,000/-. It is further submitted that deduction of 50% as awarded by the Tribunal is in accordance with law as the deceased was a bachelor and learned counsel for Insurance Company has also relied upon the law laid down in Sarla Verma's case (Supra) on the said aspect.
5. Learned counsel for the appellants, after taking into consideration the objections raised by learned counsel for respondent No.3-
3 of 14 ::: Downloaded on - 21-09-2024 11:41:14 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [4] Insurance Company has prepared a revised chart but has insisted on the issue of deduction being 1/3rd and not 50%. The said revised chart is reproduced hereinbelow:-
"FAO-1644-2015 Nirmla etc. Vs. Gayyoor etc. Date of Accident:- 18.07.2012 Death:- Purshottam Status:- Bachelor Age:- 25 years (DOB 17.11.1987) Occupation:- 10+2 (sitting on fruit shop of his father, who was a heart patient and also died after death of his son) 3 claimants:- Widowed mother, Unmarried sister, unmarried brother PARTICULARS MACT AWARD HIGH COURT Monthly Income Rs.6000/- Rs.6000/-
50% future Rs.3000/- 40% = Rs.2400/-
income
Rs.9000/- Rs.8400/-
50% deduction Rs.4500/- 1/3rd = Rs.2800/-
Multiplier 18 18
Rs.4500/- x 12 x 18 = Rs.5600/- x 12 x 18 =
Rs.9,72,000/- Rs.12,09,600/-
Funeral expenses Rs.25,000/- Consortium = Rs.1,44,000/-
Funeral expenses=
Rs.18,000/-
Estate = Rs.18,000/-
Rs.9,97,000/- + 6% Rs.13,89,600/- -
interest Rs.9,97,000/-
Enhanced balance Rs.3,92,600/- + interest @
7.5% per annum
6. This Court has heard learned counsel for the parties and has perused the paper book and has also considered the said revised chart and the same has been found to be in accordance with law.
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7. Hon'ble the Supreme Court in para 42 of Sarla Verma's case (Supra) had observed as under:-
"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, 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."
8. A perusal of the above would show that for the age of 25 years, multiplier of 18 is to be applied.
9. The Hon'ble Supreme Court in Pranay Sethi's case (Supra), has held as under:-
"59.In view of the aforesaid analysis, we proceed to record our conclusions:-
59.1 The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. 59.2 As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. 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 5 of 14 ::: Downloaded on - 21-09-2024 11:41:14 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [6] 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. 59.5 For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
59.6 The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 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.
60. The reference is answered accordingly. Matters be placed before the appropriate Bench."
10. A perusal of the above judgment would show that it was observed by the Hon'ble Supreme Court that addition of some percentage of the actual salary to the income of the deceased towards future prospects was 6 of 14 ::: Downloaded on - 21-09-2024 11:41:14 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [7] also required to be taken into consideration and the said percentage was specifically defined with respect to persons who were having a permanent job or/were self-employed or on a fixed salary. The chart as reproduced in para 42 of the judgment of Sarla Verma's case (Supra) was approved and a total amount of Rs.70,000/- on conventional heads namely loss of estate, loss of consortium or funeral expenses was also mentioned which required to be enhanced at the rate of 10% in every three years.
11. The Hon'ble Supreme Court in Magma General Insurance Company Limited's case (Supra) had further observed that in death case, under the head of loss of consortium, the parents of the deceased are entitled to be awarded loss of consortium under the head of filial consortium, children are entitled to parental consortium. To the widow, spousal consortium is to be given. Relevant portion of the said judgment is reproduced hereinbelow:-
"21. A Constitution Bench of this Court in Pranay Sethi 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. 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,co-operation, affection, and aid of the other in every 7 of 14 ::: Downloaded on - 21-09-2024 11:41:14 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [8] 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.
22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. 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 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 5. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
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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 (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."
12. In the abovesaid judgment, an amount of Rs.40,000/- each was awarded to the father and sister of the deceased and thus, the amount of consortium awarded was made dependent upon the number of claimants/legal representatives.
13. The only issue that remains to be determined is with regard to the deduction on account of personal expenses. As to whether 50% or 1/3rd amount of the total income of the deceased is to be deducted on the said count, from the income of the deceased is to be adjudicated by this Court. The amount on account of loss of consortium i.e. Rs.1,44,000/- (Rs.48,000/- x 3) as well as the amount of Rs.18,000/- on account of loss of estate has been correctly added in the revised chart in view of the law laid down in the abovesaid judgments. The funeral expenses have been rightly reduced from Rs.25,000/- to Rs.18,000/- and on the aspect of future prospects, deduction from 50% to 40% has also rightly been done in view of the settled law and in view of the objections raised by learned counsel for the Insurance Company. With respect to the rate of interest, this Court is consistently awarding the rate of interest at the rate of 7.5% per annum, which rate of interest is also reasonable in the present case.
14. With respect to the aspect of deduction, both the counsels have relied upon para 15 of the judgment in the case of Sarla Verma (Supra).
9 of 14 ::: Downloaded on - 21-09-2024 11:41:14 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [10] The said para is reproduced hereinbelow:-
"15. 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. 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 dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only 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 family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of 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."
15. A perusal of the abovesaid judgment would show that in case where the deceased was a bachelor and claimants were the parents then deduction in the said regard would normally be 50%. However, it had further been stated that where the family of the bachelor was large and in case where there was a widowed mother and a large number of younger, 10 of 14 ::: Downloaded on - 21-09-2024 11:41:14 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [11] non-earning sisters or brothers then personal and living expenses would be restricted to 1/3rd and contribution to the family would be taken to be 2/3rd. The claimants in the present case are the widowed mother, unmarried sister and minor brother of the deceased and there is nothing on record to show that the three of them were earning anything. In the evidence of Nirmla Devi who had been examined as PW1, it has further come on record that even the father of the deceased had a serious heart problem 2-3 years prior to 2009 and on account of the said condition, he had stopped going to the shop and was not able to earn anything and it was the deceased who was taking care of everybody. It has further come in the evidence that the said father of the deceased had after the death of the deceased died on account of a heart attack. In the cross-examination of said witness namely Nirmla Devi, no suggestion has been put to the said witness with respect to father of the deceased suffering from a heart attack 2-3 years prior to 2009 and having died on account of a heart attack and on the aspect of him not keeping good health. Thus, the evidence on the said aspect has gone unrebutted. The evidence in chief as well as cross-examination of the said witness is reproduced hereinbelow:-
"I, Nirmla Devi w/o Sh. Ram Gopal, aged 40 years, resident of Vill. Chamrog P.O. Tara Devi, Teh. & Distt. Shimla. (HP), do hereby solemnly affirm and declare as under: -
That my son Purshottam @ Pappu died in a roadside accident during the intervening night of 17.7.2012 and 18.7.2012 at the age of 25 years, leaving behind me as his mother, his ailing father Sh. Ram Gopal, his younger sister claimant No.2 Vishnu Maya aged 20 years and his younger brother claimant No.3 Jitender Kumar aged 17 years, as his
11 of 14 ::: Downloaded on - 21-09-2024 11:41:14 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [12] only legal representatives and dependents.
Date of birth of my son was 17.7.1987 and he had passed 10+2 examination in April 2009. My deceased son was very intelligent in his studies and very hardworking person. My husband was a serious heart patient and was running a fruit shop in his own premises situated on Chandigarh to Shimla National Highway near Tara Devi Mandir Shimla. But for the last 2-3 years prior to 2009 my husband had become a serious heart patient, therefore he was not in a condition to work and earn for the family and my husband had stopped going to shop. Under these compelled circumstances to earn livelihood for the family, my son Purshottam @ Pappu after leaving his regular studies started running fruit shop which was being run by his father and also started appearing in B.A. examination privately. At the time of his death he was a private student of B.A. Part III and was also running a fruit shop. My deceased son was earning Rs.15,000/- per month. His income was increasing day by day and if he remained alive his income was likely to cross Rs.30,000/- per month within few years. He used to hand over his entire earnings to me to meet out the house hold expenses. We all the claimants were solely dependent on the income of my deceased son Purshottam @ Pappu and after his death there is no one in the family to maintain, earn and support the claimants. Therefore, fruit shop has been closed. I have spent an amount of Rs.50,000/- on transportation of dead body, funeral and last rites of my deceased son.
My husband has already expired due to heart attack after death of Purshottam @ Pappu. My deceased son was unmarried. I was having very high hopes from my deceased son for my old age. If he remained alive, he was to maintain and support me till my death. Claimants No.2 & 3 have also suffered a great loss on account of death of their brother who 12 of 14 ::: Downloaded on - 21-09-2024 11:41:14 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [13] was supporting them in their studies, career and was to support in the marriage of claimant No.2. The studies and career of claimant No.2 & 3 has been adversely affected due to untimely death of their brother Purshottam @ Pappu. We all the claimants have suffered a great loss of love, affection, care, guidance and protection on account of death of Purshottam @ Pappu in this roadside accident.
(XXXXX examination by sh. D.S. Ponnia, Adv. counsel for respondent no. 1 & 2.
I have not seen the accident. It is wrong to suggest that I am deposing falsely.
Xxxxxx examination by Sh. Simrandeep Singh. Adv. counsel for respondent no. 3.
The date of birth of son is 17.11.1987. my daughter is not married yet and is studying. The claimant no. 3 is also studying. The business of fruit shop is not being handled by any one now a days. It is wrong to suggest that we do not have any fruit business. It is correct that my son Purshottam @ Pappu was unmarried. It is wrong to suggest that I am deposing falsely."
16. A further perusal of the cross-examination would show that it had specifically been stated by the said witness that her daughter was unmarried and was studying and that her younger son was also studying and that the business of fruit was not being handled by anyone after the death of the deceased.
17. Keeping in view the abovesaid facts and circumstances of the present case and also the law laid down by the Hon'ble Supreme Court in the abovesaid judgments, this Court is of the opinion that although, the deceased was a bachelor but owing to the fact that her mother, unmarried 13 of 14 ::: Downloaded on - 21-09-2024 11:41:14 ::: Neutral Citation No:=2024:PHHC:117141 CM-15077-CII-2024 in/and FAO-1694-2015 (O&M) [14] sister and minor brother were all dependent upon him due to the medical condition of the deceased's father and evidence on which aspect of father of the deceased having suffered a heart attack 2-3 years prior to 2009 and having died on account of heart attack, having gone unrebutted, deduction of 1/3rd amount of the total income of the deceased only, on account of personal expenses is to be ordered in the present case and thus, the said entry in the revised chart is also in accordance with law.
18. Keeping in view the abovesaid facts and circumstances, the present appeal bearing FAO No.1694 of 2015 is partly allowed and respondent No.3 is directed to pay an additional amount of compensation to the tune of Rs.3,92,600/- to the appellants along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realisation within a period of six weeks from today.
19. All the pending miscellaneous applications, if any, shall stand disposed of in view of the abovesaid order.
06.09.2024 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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