Orissa High Court
Baratam Satya Raju vs Gian Kaur Chahal on 27 May, 2025
Author: V. Narasingh
Bench: V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
MACA No.1229 of 2016
In the matter of an application under Section 173 of the
Motor Vehicles Act, 1988.
1. Baratam Satya Raju
(since dead)
2. Baratam Nabin Kumar
3. Baratam Rajesh Kumar .... Appellants
-versus-
1. Gian Kaur Chahal
2. National Insurance
Co. Ltd. .... Respondents
For Appellants : Mr. D. Mund, Advocate
For Respondent No.2 : Ms. R. Pati, Advocate
CORAM: JUSTICE V. NARASINGH
Date of hearing : 04.02.2025
Date of Judgment : 27.05.2025
V. Narasingh, J.
1. Being aggrieved by the quantification of compensation to the tune of Rs.4,48,000/- by award dated 30.06.2016 passed by the learned 1st M.A.C.T., Koraput-Jeypore in MAC Case No.13 of 2012 the Appellants-Claimants seeking enhancement have preferred this MACA.
Page 1 of 15The present Appeal was preferred by one Baratam Satya Raju along with other Appellants. During pendency of the appeal, Appellant No.1 passed away. His L.Rs Appellant Nos.2 and 3, Baratam Nabin Kumar and Baratam Rajesh Kumar respectively are already on record. Taking into account that no substitution is necessary, this appeal abates qua Appellant No.1 and thus confined to Appellant Nos.2 and 3.
2. Appellants as Claimants filed Motor Accident Claim Case No.13 of 2012 in the court of learned District Judge-cum-First Motor Accident Claims Tribunal, Koraput at Jeypore claiming compensation of Rs.15,00,000/- on account of the death of one Baratam Vanajakshi who was the wife of Appellant No.1 (since dead) and mother of Appellant Nos.2 and 3 to whom the appeal is confined as noted above.
It was stated that while Baratam Vanajakshi was travelling in OSRTC Bus bearing registration number OR-10-F-3850 on 25.5.2011 on N.H.26 near Tharapuram village, she met with an accident on account of rash and negligent driving of the driver of the offending truck bearing registration number CG- 04-DF-4126.
2-A. It is stated that in the said accident Baratam Vanajakshi, mother of Appellant Nos.2 and 3, Page 2 of 15 sustained fracture injuries on both legs and other grievous bleeding injuries on her right thigh. She underwent treatment at different hospitals i.e. Government Hospital, Salur, Government Hospital, Vijayanagaram and then to K.G.H., Visakhapatnam and thereafter, she was shifted to NRI Hospital, Sangivalasa and unfortunately during treatment, she succumbed to the injuries on 23.09.2015.
Claiming that she was aged about 45 years and was a home maker, compensation of Rs.15 lakhs was claimed from the Respondents.
2-B. Respondent No.2 herein Insurance Company was arrayed as Opposite Party No.2 being the insurer of the offending truck and the owner of the offending truck as Opposite Party No.1 before the learned Tribunal.
2-C. In spite of due service of notice, the owner Opposite Party No.1-Respondent No.1 herein did not participate in the proceeding and she was set ex parte.
Respondent No.2-Opposite Party No.2 before the learned Tribunal filed its written statement opposing the claim for compensation and a stand was taken that even if it is held that the Insurance Company is liable to pay the compensation then liberty should be granted to recover the same from Page 3 of 15 the owner of the offending truck since the accident occurred due to laches on account of the owner and the driver.
3. On the pleadings of the parties, the following issues were framed:
"1. Whether the accident occurred due to the rash and negligent driving of the driver of the offending truck causing injury leading to the death of the deceased?
2. Whether the Petitioners are entitled to get any compensation and if so, from whom and what is its quantum?
3. To what other reliefs the Petitioners are entitled to?"
3-A. To fortify their stand, the Claimant-Appellant No.3 herein examined himself as P.W.1 and several documents were admitted into evidence at the behest of the Appellant and marked as Exts.1 to 5, 5/b, 6, 6/b, 7 and 7/b.
Neither oral nor documentary evidence was adduced either on behalf of the Insurance Company or the owner (Respondent Nos.1 and 2 herein respectively).
4. Learned Tribunal on assessment of the evidence on record came to the finding that the accident took place on account of rash and negligent driving of the driver of the offending vehicle (truck) and on going through the evidence on record came to Page 4 of 15 a finding that the driver of the offending vehicle had a valid driving licence and the vehicle in question was covered by the valid insurance coverage and referring to the judgment of the Apex Court in the case of Arun Kumar Agrawal and another vrs. National Insurance Company and others, 2010 (3) TAC 769 (SC) and taking into account the monthly income of the deceased-homemaker as Rs.3000/- after deducting 1/3rd towards personal and living expenses, the annual dependency was assessed as Rs.24,000/- and applying multiplier 9 quantified compensation on account of loss of income at Rs.2,16,000/- and under non-pecuniary heads such as funeral expenses at Rs.20,000/-, Rs.40,000/- towards loss of estate and Rs.40,000/- towards consortium were awarded. And, in total compensation was quantified at Rs.3,16,000/-.
To such amount the medical bills of Rs.1,32,000/- was added and thereby the total compensation of Rs.4,48,000/- (Rs.3,16,000/- + Rs.1,32,000/-) was awarded along with interest at the rate of 7.5% per annum from the date of filing of the claim application i.e. 13.02.2012.
Being aggrieved by such quantification, the present appeal has been preferred for enhancement of the compensation by the Claimants - Appellants Page 5 of 15 now confined to Appellant Nos.2 and 3 sons who are now as on date aged about 50 years and 46 years respectively. Relevance of their age will be dealt with at the appropriate stage of this judgment.
5. It is submitted by the learned counsel for the Appellants that the compensation is liable to be enhanced on the ground of loss of income during the period the deceased was admitted in the hospital. And, on account of future prospect which has not at all been granted, on account of the expenses towards attendance charges, special diet and extra nourishment. And, since the deceased was admitted in the hospital for 52 months an amount of Rs.40,000/- towards transportation, conveyances and other pecuniary damages from the date of accident till her death and a further sum of Rs.1,25,000/- towards loss of consortium, loss of estate and towards funeral expenses and further Rs.70,000/- towards medical expenses were claimed.
Referring to the judgment of the Apex Court in the case of Rajesh vrs. Rajbir Singh, 2013 (3) TAC 697 and Anjani Singh vrs. Salauddin, 2014 (58) OCR 923 and also the judgment of the Apex Court in the case of Rojalini Nayak and others vrs. Ajit Sahoo and others, (2024) 8 SCC 239, it is stated that Appellant Nos.2 and 3 are entitled to get Page 6 of 15 Rs.36,300/- towards loss of estate and funeral expenses and Rs.2,00,000/- towards medical expenses. Hence, total compensation on account of all heads cumulatively came to Rs.16,21,528/-.
It is asserted that the learned Tribunal has awarded Rs.4,48,000/- which is abysmally low. Hence, the Appellant Nos.2 and 3 are entitled to get further sum of Rs.11,73,528/- with interest at the rate of 7.5% as awarded.
6. Such submission was resisted by the learned counsel for the Insurance Company, Ms. Pati, inter alia, on the ground that the amount of compensation does not warrant interference on the touchstone of "just compensation". Enhancement as claimed would amount to "windfall" or "bonanza".
7. In the case of National Insurance Company Ltd. vrs. Pranay Sethi and others, (2017) 16 SCC 680, the amount of compensation on "conventional heads" i.e. loss of estate, loss of consortium and funeral expenses was quantified at Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively, so summation of it makes it Rs.70,000/-. And, the same was awarded as per the impugned judgment.
Page 7 of 15In Paragraph-52 of the judgment in the case of Pranay Sethi (supra), it was stated that the amount quantified as above should be enhanced on percentage basis every three years and enhancement should be at the rate of 10% in a span of three years.
The Apex Court held that such enhancement will "bring in consistency in respect of those heads". Treating the filing of the appeal as continuation of the proceeding in tune with the judgment of the Apex Court in the case of Pranay Sethi (supra) on account of "conventional heads" the amount has to be enhanced by 10% twice. As such it comes to Rs.84,000/-.
8. During the course of submission, leaned counsel for the Appellants, Mr. Mund has claimed compensation on two counts i.e. loss of income during treatment and compensation towards life.
Keeping in view the dictum of the Apex Court in the case of Pranay Sethi (supra), this Court is not persuaded to hold that in the case of death, as in the case at hand, the bifurcation of compensation on account of loss of income during treatment and compensation towards loss of life can be entertained. Such compensation can be awarded under the composite head "loss of income" taking note that Page 8 of 15 ultimately the injured in the accident succumbed to her injuries during treatment.
9. So far as quantifying the income of the homemaker is concerned, reference can be respectfully made to the judgment of the Apex Court in the case of Kirti and another vrs. Oriental Insurance Company Limited, (2021) 2 SCC 166 wherein while supplementing the majority judgment Hon'ble Mr. Justice N.V. Ramana, as his Lordship then was,, held thus:
"41.2. Taking into account the gendered nature of housework, with an overwhelming percentage of women being engaged in the same as compared to men, the fixing of notional income of a homemaker attains special significance. It becomes a recognition of the work, labour and sacrifices of homemakers and a reflection of changing attitudes. It is also in furtherance of our nation's international law obligations and our constitutional vision of social equality and ensuring dignity to all."
10. Applying the doctrine of enhancement of 10% in terms of Pranay Sethi (supra) and keeping in view that Rs.3000/- per month was quantified by the Apex Court in the case of Arun Kumar Agarwal (supra) this Court is of the considered view that an amount of Rs.6000/- per month as loss of income Page 9 of 15 would subserve the ends of justice. Accordingly, the amount per year comes to Rs.72,000/-.
10-A. Hence compensation towards loss of income is assessed as Rs.72,000/- X 2/3rd X 9 = Rs.4,32,000/- and adding future prospect of 10% (Rs.43,200/-) since deceased was aged about 57 years (as per the finding of the learned Tribunal), the amount is quantified as Rs.4,75,200/- (Rs.4,32,000/- + Rs.43,200/-).
11. So far as enhancement as sought for on account of attendance charges is concerned, learned counsel for the Appellants heavily relied on the judgment of the Apex Court in the case of Kajal vrs. Jagdish Chand and others, (2020) 4 SCC 413. Such reliance is bereft of its context.
It is on record that the accident in the case at hand took place on 25.5.2011 and she unfortunately succumbed to the injuries on 23.09.2015 while undergoing treatment. As such she underwent treatment for 3 years 3 months and 28 days which, for the purpose of calculation is rounded off to 3 years 4 months.
11-A. It is claimed that the same should be at par with the loss of income. But in making such submission, learned counsel for the Appellants failed Page 10 of 15 to take note of the distinguishable factual matrix of Kajal (supra).
Hence, this Court is not persuaded to hold that attendance charges should be at par with the loss of income during treatment as claimed.
11-B. The deceased was hospitalized for a period of 3 years 4 months and considering the nature of duty performed by the attendants in the given facts of the case at hand the service as rendered can be treated as "Unskilled" worker and taking the liberal view considering the benevolent nature of legislation though the deceased was hospitalized and underwent treatment for a period of 3 years 4 months and passed away while undergoing treatment in 2015, the wages of "Unskilled" worker of 2015 is taken into account for the purpose of quantification. As per the Notification No.636 dated 30th April, 2015 of the Government of Odisha in the Labour & E.S.I Department minimum wages for "Unskilled" worker was Rs.200/-. Thus, taking into account the period of treatment 3 years 4 months the quantification on account of attendance charges comes to Rs.2,40,000/-.
12. It cannot be lost sight that when one is admitted as an indoor patient diet and nourishment as per the instructions of the dietician attached to the Page 11 of 15 hospital is provided by the hospital. But one cannot be oblivious to the fact that the relatives of the patient also spend additional amount towards diet and extra nourishment over and above what is provided by the hospital(s). Hence, amount as claimed at Rs.30/- per day for 52 months in the considered view of this Court would be just and equitable. Accordingly, the said amount is quantified at Rs.46,800/-.
13. So far as loss of consortium is concerned, the consortium has been divided into three parts, spousal, filial and parental.
In this context it is worthwhile to refer to Paragraph-21 of the judgment of the Apex Court in the case of Magma General Insurance Company Ltd. Vrs. Nanu Ram alias Chuhru Ram & others, (2018) 18 SCC 130 which was quoted with approval in the case of New India Assurance Company Limited vrs. Somwati and others, SCC OnLine 2020 SC 717.
"21. 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 Page 12 of 15 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."
14. In the case at hand Appellant No.1 husband of the deceased has passed away. Thus, point for consideration is parental consortium.
Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, discipline, guidance and training.
Page 13 of 15But while awarding such compensation keeping in view the nature thereof as enunciated by the Apex Court taking into account the age of the Claimants-Appellants; the two sons, this Court is persuaded to hold that in the facts of the present case a lump sum amount of Rs.1,00,000/-, would meet the ends of justice.
15. So far as the medical expenses, the learned Tribunal has granted Rs.1,32,000/- towards two bills which are placed on record. Keeping in view the judgment of the Apex Court in the case of Kajal (supra) a further sum of Rs.70,000/- is awarded. As such the compensation on this count comes to Rs.2,02,000/- (Rs.1,32,000/- + Rs.70,000/-).
The total compensation on all counts runs thus:
Conventional Heads Rs. 84,000/-
Loss of income Rs.4,75,200/-
Attendance charges Rs.2,40,000/-
Diet Rs. 46,800/-
Loss of consortium Rs.1,00,000/-
Medical Expenses Rs.2,02,000/-
Total Rs.11,48,000/- round
off to Rs.11,50,000/-
Page 14 of 15
16. The Insurance Company is directed to deposit the modified amount of compensation of Rs.11,50,000/- (rupees eleven lakhs fifty thousand) along with interest @ 7.5% per annum in terms of the award passed by the learned Tribunal and disburse the same amongst the surviving Claimants in equal proportion within a period of eight weeks from the date of receipt/production of a copy of this order minus the amount, if any, paid as per the impugned judgment.
17. Court fees shall be payable by the Claimants as per Rules.
18. Accordingly, the MACA stands disposed of. No costs.
(V. NARASINGH) Judge Orissa High Court, Cuttack Signature Not Verified Dated the 27th May, 2025/Pradeep Digitally Signed Signed by: PRADEEP KUMAR SWAIN Designation: Assistant Registrar-cum-Senior Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 28-May-2025 14:00:06 Page 15 of 15