Tripura High Court
Insurer vs Smti. Juhi Rung Reang on 16 July, 2024
HIGH COURT OF TRIPURA
AGARTALA
MAC APP No.01 of 2024
The National Insurance Company Ltd.,
(to be represented by Divisional Manager),
Agartala Divisional Office, 42, Akhaura Road,
P.O. Agartala, District: West Tripura, PIN: 799 001
----Insurer-Appellant (s)
Versus
1. Smti. Juhi Rung Reang,
Wife of Late Charanjoy Reang
2. Sri Koluha Reang,
Son of Late Charanjoy Reang,
-both are residents of village:Kanchancherra,
P.O. 82 Mile, P.S. Manu, District: Dhalai Tripura,
(to be represented by his legal mother
guardian, Smti. Juhi Rung Reang)
presently resident of C/O. Sri Syamakanta Reang,
resident of village & P.O. Huplong, P.S. Dharmanagar,
North Tripura
----Claimants-Respondents (s)
3. Sri Tapu Marak, Son of Sri Bichindra Marak, Resident of village: West Masli, Marakpara, P.S. Manu, District: Dhalai Tripura, (Owner-cum-Driver of Vehicle no.TR-04-4387 Mahindra Jeep)
----Owner-Respondent (s) For Appellant(s) : Mr. A. K. Deb, Adv.
For Respondent(s) : Mr. G. K. Nama, Adv.
Date of Hearing : 11.07.2024
Date of delivery of
Judgment and Order : 16.07.2024
Whether fit for
Reporting : YES
Page 2 of 23
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This appeal is preferred under Section 173 of MV Act, 1988 challenging the judgment and award dated 12.05.2023 delivered by Learned Member, Motor Accident Claims Tribunal, Dharmanagar, North Tripura in connection with Case No.T.S.(MAC) 01 of 2022.
02. Heard Learned counsel Mr. A. K. Deb representing the appellant insurance company and also heard Learned counsel Mr. G. K. Nama for the claimant- respondents. None appeared on behalf of the owner- respondent.
03. Before proceeding with the merit of the appeal let us discuss the subject matter of the claim petition filed before claims Tribunal. The respondent-claimants filed an application under Section 166 of MV Act before the Learned Motor Accident Claims Tribunal, North Tripura, Dharmanagar alleging inter alia that on 09.11.2021 Charanjoy Reang along with others were proceeding from Ambassa through Assam-Agartala road (NH-08) for the purpose of visiting Manu by riding a vehicle bearing No.TR- 04-4387 (Mahindra Suprio) and at about 1430 hours/1500 hours when the said vehicle reached at Piarki Bazar on Assam-Agartala road under Manu police station that time suddenly the driver of the said vehicle lost his control over Page 3 of 23 the vehicle due to rash and negligent driving and as such the vehicle met with an accident. Resulting which Charanjoy Reang and others were sustained severe injuries on their persons and immediately after the accident the deceased Charanjoy Reang was taken to Manu CHC and on the following day he was shifted to GBP Hospital, Agartala wherein he was treated as an indoor patient w.e.f 10.11.2021 to 06.12.2021 and in course of treatment on 06.12.2021 at about 03.05 pm said Chanranjoy Reang was succumbed to his injuries. It was the further case of the claimant-petitioners that after the accident the police personnel of Manu police station visited the place of occurrence and accordingly they registered Manu PS Case No.46/2021 dated 13.11.2021 under Section 279/338 with added Section 304(A) of IPC and proceeded for investigation. It was also submitted that the deceased Charanjoy Reang was aged about 30 years at the time of accident and he was a Mason by profession and was earning Rs.15,000/- per month and accordingly the claimant- petitioners filed the claim petition before the Tribunal. Before the claims Tribunal the opposite parties 1 and 2 appeared and submitted their written statement denying the entire assertions of the claimant-petitioners. The OP No.1 being the registered owner cum driver of the vehicle bearing No.TR-04-4387(Mahindra Suprio) appeared and submitted that he had all the valid documents like driving license, Page 4 of 23 registration certificate, fitness certificate, insurance certificate, pollution certificate etc. on the date of accident and submitted that since the vehicle was duly insured so the liability, if any, in respect of payment of compensation be fastened upon the insurance company. The OP No.2 the Insurance Company denied the assertion of the claimant- petitioners and submitted that the claim petition is subjected to strict proof by the claimant-petitioners. However, upon the pleadings of the parties the Learned Tribunal below framed the following issues:
i) Is the claim application filed under Section 166 of M.V. Act by the claimant-petitioners is maintainable in its present form and nature?
ii) Had Charanjoy Reang, son of Sri Ranadhir Reang of Hajradhan Para, PS-Manu, District- Dhalai Tripura sustained bodily injuries out of a road traffic accident took place on 09-11-2021 AD at about 1430/1500 hours at Piarki Bazar on National Highway No.08 under Manu Police Station involving a vehicle bearing registration No.TR-04-4387 (Mahindra Suprio) by its driver namely Sri Tapu Marak, the Opposite Party No.1?
iii) Was the accident occurred due to rash and negligent driving of the vehicle bearing registration No.TR-04-4387 (Mahindra Suprio) by its driver namely Sri Tapu Marak, the Opposite Party No.1?
iv) Are the claimant-petitioners being the legal heirs and survivors of late Charanjoy Reang entitled to get compensation as prayed for and if yes then to what extent?
v) What other relief/reliefs the parties to this case are entitled to get?
04. To substantiate the issues one of the claimant Smt. Juhirung Reang being the wife of the deceased examined herself as PW-1 and another Sri Bighnajoy Reang was examined as PW-2 and they relied upon some documents which were marked as exhibits in this case.
Name of the witnesses of the Claimant-petitioners:
1) PW-1: Smt. Juhirung Reang Page 5 of 23
2) PW-2 : Sri Bighnajoy Reang Exhibits of the Claimant-petitioners:
i) Original cash memos total 15 sheets as Exhibit-1(i) to 1(xv)
ii) Copy of Aadhaar card of the claimant-
petition bearing No.6721 3301 4065 as Exhibit-2.
iii) Copy of birth certificate of Master Kaluha Reang bearing registration No.B-2021 16-
90026-000648 dated 05-08-2021 as
Exhibit-3.
iv) Certified copies of the ejahar, FIR, Charge
sheet in connection with Manu PS case
No.2021 MNU 046 dated 13-11-2021 under
Sections 279/338 of IPC and added Section 304A of IPC and certified copy of post-
mortem examination report of late Charanjoy Reang in connection with GBOP GD entry No.07 dated 06-12-2021 as Exhibit-4(i) to 4(xxii).
On the other hand, the OP No.1 Sri Tapu Marak was examined himself as OPW 1 and he also relied upon some documentary evidence like copy of driving license, registration certificate, tax receipt, fitness certificate, insurance certificate and pollution certificate of the Page 6 of 23 offending vehicle bearing No.TR-04-4387 which were respectively marked as Exhibit-A to F.
05. Finally after hearing Learned Tribunal below, Learned Tribunal gave the following judgment/award. The operative portion of the judgment dated 12.05.2023 runs as under:
"17. In view of the above discussion and findings, the application under Section 166 of the Motor Vehicles Act, 1988 filed by the claimant-petitioners is allowed on contest.
The Opposite Party No.2, The Branch Manager, National Insurance Company Ltd. Dharmanagar Branch, East Thana Road (Babur Bazar), PS-Dharmanagar, District- North Tripura shall pay the compensation of Rs.29,90,000/- (Rupees twenty nine lakh ninety thousand) only to the claimant-petitioners within a period of 30 days from this day of award. This award of compensation shall carry interest at the rate of 5% per annum from the date of presentation of the claim petition before this Tribunal i.e. 10.01.2022 till the realization.
The share of the claimant-petitioner no.1, Smt. Juhirung Reang being the wife of the deceased will be (Rs.14,75,000/-+Rs.40,000/-)=Rs.15,15,000/- (Rupees fifteen lakh fifteen thousand) only with accrued interest.
The share of the claimant-petitioner no.2 namely Sri Koluha Reang will be Rs.14,75,000/- (Rupees fourteen lakh seventy five thousand) only with accrued interest."
06. Challenging that award the insurance company being the OP No.2 of the original claim petition preferred this appeal before this court. At the time of hearing of argument Learned counsel for the appellant Mr. A. K. Deb submitted that Learned Tribunal below at the time of determination of compensation assessed the monthly income of the deceased @Rs.15,000/- per month. Learned counsel further submitted that even if for argument sake, it is presumed that the deceased used to earn Rs.500/- per day still it was not possible on his part to render job for all Page 7 of 23 the days in a month which could be at least 24/25 days. But the Learned Tribunal below did not ignoring that aspect flatly calculated monthly income @Rs.15,000/- per month i.e. Rs.500/- per day for 30 days which needs to be interfered with.
07. Learned counsel for the insurance company further submitted that in para No.14 of the award Learned Tribunal below determined 50% of income as future prospects which was contrary to the principle laid down by the Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi and Others reported in (2017) 16 SCC 680. Referring the said judgment Learned counsel submitted that in para No.59.4 Hon'ble the Apex Court observed that in case the deceased was self- employed or on a fixed salary, an addition of 40% be added as future prospects with the income of the deceased towards future prospects and here in the given case since the deceased was aged about 30 years and he was self- employed person so in view of the principle laid down by the Hon'ble Apex Court Learned Tribunal below committed error in determining the percentage of future prospects which should be reduced to 40% from 50% as awarded by the Tribunal. Learned counsel further drawn the attention of the court that in the given case no route permit of the offending vehicle was produced and proved by the owner of the vehicle before the Tribunal at the time of hearing. In this Page 8 of 23 regard Learned counsel referred one judgment of the Hon'ble Apex Court in Amrit Paul Singh and Another vs. Tata AIG General Insurance Company Limited and Others reported in (2018) 7 SCC 558. Here in the para No.24 Hon'ble the Apex Court observed that in absence of route permit it was not possible on the part of the Tribunal to award any compensation in favour of the claimants. Further Learned counsel for the insurance company also drawn the attention of the court referring a copy of the route permit annexed with the memo of appeal as Annexure-5 and submitted that the alleged accident took place on 09.11.2021. But on perusal of Annexure-5 it is clear that the validity of the permit was w.e.f. 17.03.2021 to 16.07.2021 meaning thereby on the day of alleged accident the offending vehicle had no valid route permit. Even the OP owner cum driver before the Tribunal did not produce any valid route permit in support of plying the vehicle on the day of accident. But the Learned Tribunal below did not consider that facts and fastened the liability upon the insurance company for which the interference of the court is also required.
08. Learned counsel for the appellant further submitted that at the time of determination of compensation the Learned Tribunal below also awarded interest on future income/future prospects which was not permissible in the eye of law. In this regard he has also Page 9 of 23 referred one citation of the Hon'ble Gauhati High Court in The Oriental Insurance Co. Ltd. vs. Smti Champabati Ray and 5 Ors. decided on 01.10.2019 wherein in para No.21 Hon'ble the Gauhati High court observed that there was no scope on the part of the Tribunal to impose any interest on future prospects as the same relates to an income to be given in future. So legally there was no scope on the part of the Tribunal to impose any interest in respect of future income which the Learned Tribunal below did not consider and as such the Learned counsel for the appellant urged for allowing this appeal by setting aside the judgment and award of the Learned Tribunal below.
09. On the other hand, Learned counsel for the claimant-respondents in course of hearing of argument fairly drawn the attention of the court that admittedly the claimant-petitioners before the Learned Tribunal below could not produce any income certificate in support of income of the deceased as a Mason which was also not possible on the part of the claimant-petitioners since the deceased was a self-employed person. Learned counsel for the claimant-respondents further drawn the attention of this court that the accident occurred in the year 2021 and during that period in our state the daily wages of a Mason was not less than Rs.500/- and furthermore since the deceased was a self-employed person and by daily earning he used to run his family and furthermore being a self-employed person Page 10 of 23 there was also no restriction on his part that he was prevented to do his job not more than 24/25 days per month. So according to Learned counsel Learned Tribunal below rightly determined the amount of monthly income of the deceased at the time of delivery of judgment. Learned counsel for the claimant-respondents further submitted that the Learned court below at the time of delivery of judgment also rightly determined the percentage of future income as 50% and there was no perversity to that. In addition to that, Learned counsel also submitted that the submission made by the Learned counsel for the appellant that in absence of route permit there was no scope on the part of the Learned Tribunal below to fasten the liability of payment of compensation upon the insurance company was not correct in view of the principle laid down by the Hon'ble Apex court in National Insurance Co. Ltd. vs. Challa Bharathamma and Others reported in (2004) 8 SCC
517. Learned counsel in this regard stressed upon the para Nos.12 and 13 of the said judgment.
10. Learned counsel for the claimant-respondents further submitted that as the submission made by the Learned counsel for the appellant that in course of hearing of argument that the vehicle had no valid permit, but the said plea as taken by the appellant at this stage cannot be accepted because such plea was not taken by the appellant before the Learned Tribunal below at the time of hearing of Page 11 of 23 argument of that case. In this regard Learned counsel also relied upon another judgment of the Hon'ble Apex court in Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd. reported in (2000) 2 SCC 734. Finally Learned counsel submitted that the submission made by the Learned counsel for the appellant that there is no scope for the Tribunal to impose any interest on the income of future prospect was also not correct and according to him in view of the principle of law laid down by the Hon'ble Supreme Court in Mohd. Sabeer alias Shabir Hussain vs. Regional Manager, U.P. State Road Transport reported in 2022 SCC OnLine SC 1701 there was scope for imposing interest by the Tribunal upon the income of future prospect which the Learned Tribunal below rightly did and lastly Learned counsel for the respondents submitted that the amount of consortium imposed by the Tribunal below was not proper and prayed for enhancement of the amount of consortium in view of the principle of law laid down by the Hon'ble Apex court in Harpreet Kaur and Others vs. Mohinder Yadav and Others reported in 2022 SCC OnLine SC 1723 in the relevant para No.13 and urged for enhancement of the amount of consortium in delivery of the judgment of this court and finally Learned counsel urged for dismissal of the appeal with costs.
11. I have heard detailed arguments of both the sides and gone through the records of Learned Tribunal Page 12 of 23 below and also gone through the citation as referred by Learned counsel of the rival parties. Admittedly there is no dispute on record regarding the fact of date of accident on the alleged day. There is also no dispute on record regarding the death of the deceased expired due to road traffic accident on 09.11.2021 at Piarki Bazar on Assam- Agartala road under Manu police station. Now here in this appeal we are to decide as to whether the judgment and award of the Learned Tribunal below suffers from any infirmities or not. The Tribunal below at the time of determination of compensation assessed the monthly income of the deceased as a Mason @Rs.15,000/- per month i.e. @Rs.500/- per day for 30 days. But on perusal of the evidence on record of P.W.1 it appears that the deceased was a Carpenter. If it is so being a self-employed person the Carpenter in our state in the year 2021 used to earn more than Rs.500 per day. So the observation of Learned Tribunal below that the deceased used to earn Rs.500 per day was not unjustified rather it appears to be reasonable. So in my considered view the Learned Tribunal below rightly determined the monthly income of the deceased @Rs.15,000/- per month. There is no infirmity to that. Now regarding determination of percentage of future prospects it was the submission of Learned counsel for the appellant that it should be 40% in place of 50% awarded by the Tribunal. In this regard I would like to refer herein Page 13 of 23 below judgment of the Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and Others (supra). In para No.59.4 Hon'ble the Apex court has observed as under:
"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."
Relying upon the said judgment it appears that in para No.14 Learned Tribunal below added 50% of income to be added as future prospects which in my considered view Learned Tribunal committed error in calculating the percentage of income to be added as future prospects. Accordingly the calculation be made. Regarding non- production of valid route permit by the owner of the vehicle at the time of hearing before the Learned Tribunal below Learned counsel for the appellant relied upon one citation in Amrit Paul Singh and Another vs. Tata AIG General Insurance Company Limited and Others reported in (2018) 7 SCC 558. In para No.24 of the said judgment Hon'ble the Supreme Court observed as under:
"24. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to Page 14 of 23 think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh:
(2004) 3 SCC 297 and Lakshimi Chand: (2016) 3 SCC 100 in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not required the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer.
Therefore, the Tribunal as well as the High Court had directed that the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated Swaran Singh (supra) and other cases pertaining to pay and recover principle."
12. On the other hand, Learned counsel for the claimant-respondents in support of their plea relied upon two numbers of judgments. In Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd. reported in (2000) 2 SCC
734. In para No.10 Hon'ble the Apex Court observed as under:
"10. We may refer to the next ground on which appeal has to be allowed. It is settled position of law that in an appeal the parties cannot urge new facts. From the pleadings of the respondent before the State Commission it is found that respondent pleaded that the property damaged was not covered under the insurance policy. This plea was given a go-by before the National Commission and a new plea was taken up in the grounds of appeal that the terms and conditions of the insurance policy were violated by the appellant by using used kiln furniture. The National Commission accepted this new ground and allowed the appeal, which in our opinion is not sustainable in law."
13. Further Hon'ble the Apex Court in National Insurance Co. Ltd. vs. Challa Bharathamma and Others reported in (2004) 8 SCC 517 in para Nos.12 and 13 observed as under:
"12. The High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A Page 15 of 23 person without permit to ply a vehicle cannot be placed at a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of insurer. High Court was, therefore, not justified in holding the insurer liable.
13. The residual question is what would be the appropriate direction. Considering the beneficial object of the Act, it would be proper for the insurer to satisfy the award, though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured. For the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject-matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. Before release of the amount to the claimants, owner of the offending vehicle shall furnish security for the entire amount which the insurer will pay to the claimants. The offending vehicle shall be attached, as a part of the security. If necessity arises the Executing Court shall take assistance of the concerned Regional Transport Authority. The Executing Court shall pass appropriate orders in accordance with law as to the manner in which the owner of the vehicle shall make payment to the insurer. In case there is any default it shall be open to the Executing Court to direct realization by disposal of the securities to be furnished or from any other property or properties of the owner of the vehicle i.e. the insured. In the instant case considering the quantum involved, we leave it to the discretion of the insurer to decide whether it would take steps for recovery of the amount from the insured."
14. After perusing the aforesaid principles of law laid down by the Hon'ble Apex Court and also after perusing Annexure-5 annexed with the memo of appeal relied upon by the appellant in this case it also appears that although the offending vehicle had route permit of the vehicle but on the alleged day of accident there was no valid route permit of the offending vehicle meaning thereby the term of route permit was expired by this time. Furthermore, as observed by the Hon'ble Apex Court in Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd. (supra) in para No.10 it Page 16 of 23 appears that no such plea was raised by the appellant before the Tribunal at the time of hearing of argument and more so, relying upon the principle of law laid down by the appellant and also by the claimant-respondents it appears that in absence of valid permit also there was scope on the part of the Tribunal to impose liability of payment of compensation upon the insurance company with the condition that the insurer shall be entitled to recover the same from the owner and the driver and furthermore in view of the principle of law laid down by the Hon'ble Apex court in National Insurance Co. Ltd. vs. Challa Bharathamma (supra) in para No.13 also Hon'ble the Apex Court laid down that it would be proper for the insurer to satisfy the award though in law it has no liability. In some cases the insurer has been given the option and liberty to recover the amount from the insured and for the purpose of recovering the amount paid from the owner, the insurer shall not be required to file a suit. So in my considered view the Learned Tribunal below did not commit any error to fasten the liability of payment of compensation upon the insurance company in absence of route permit. Although no specific direction was given by the Tribunal as to whether the insurer insurance company would be able to recover the same from the driver and owner or not. So, it appears to this court that no error was committed by the Learned Tribunal below in delivering the judgment in absence of Page 17 of 23 valid route permit on the alleged day of accident. Now in respect of interest on future prospects Learned counsel for the insurance company relied upon one judgment of the Gauhati High Court dated 01.10.2019 in connection with MAC APP 378 of 2017. In para No.21 Hon'ble the Gauhati High Court observed as under:
"21. Another ground of challenge to the impugned judgment is that the learned Tribunal had awarded interest on future prospects, which could not be done. In the case of Khusboo Chirania @ Kanta Chirania v. Kamal Kumar Sovasaria, reported in 2018 0 Supreme(Gau) 966 and in the case of Nasima Begum v. Keramat Ali, reported in 2019 0 Supreme(Gau) 507, this Court has stated no interest on future prospects should be given. Though no reasons have been enunciated in the above judgments, the reason for the same seems to be due to the fact that future prospects is relatable to an income to be received in the future and as such, there could not be any loss to the claimants for the payment of future prospects, at the time the deceased met with the accident. The reason for awarding interest on the compensation amount, minus the future prospects is due to the fact that though the loss of dependency starts from the date of the accident and the compensation amount is computed on the date of the Award of the Tribunal, interest is awarded to compensate the loss of money value on account of lapse of time, such as time taken for the legal proceedings and for the denial of right to utilize the money when due. However, future prospects is with regard to the probable income to be received in the future and as such there is no requirement to compensate the claimant by way of future interest, for the loss that is to occur in the future, as the future is yet to happen. Further, future prospects is given for the entire future and as such, the claimant is getting compensation in a lumpsum under future prospects prior to the occurrence of future event/s. Thus, with regard to future prospects, this Court is also of the view that there cannot be any interest on future prospects, as the same relates to an income to be given in the future."
15. To the contrary, Learned counsel for the claimant-respondents at the time of hearing of argument to counter the submission made by Learned counsel for the appellant relied upon another citation of Hon'ble Apex Court in Mohd. Sabeer alias Shabir Hussain vs. Regional Manager, U.P. State Road Transport reported in 2022 Page 18 of 23 SCC OnLine SC 1701 as already submitted. Hon'ble the Apex court in the said judgment in para No.30 and 31 observed as under:
[ "30. On the basis of the abovementioned facts and analysis, this Court is of the opinion that the just compensation to be awarded to the claimant/appellant under different heads ought to be as under:-
Cost of Artificial limb and its Rs. 12,80,000/- Maintenance Loss of Earning Capacity due to Rs. 11,34,000/-
Functional Disability
Future Prospects Rs. 7,61,668/-
Medical Expenses Rs. 57,650/-
Attendant Charges Rs. 11,802/-
Conveyance Rs. 10,000/-
Special Diet Rs. 15,000/-
Pain and Suffering Rs. 2,00,000/-
Loss of Amenities of Life Rs. 2,00,000/-
Loss due to Disability and Rs. 2,00,000/-
Disfigurement
TOTAL Rs. 38,70,120/-
31. In view of the aforesaid facts and circumstances, the impugned judgment is liable to be modified as above and the claimant/appellant is held entitled to be awarded compensation to the tune of Rs.38,70,120/- along with 9% interest per annum from the date of making the application."
16. From the aforesaid judgment it appears that since Hon'ble the Apex Court has also awarded interest upon the income of future prospects @9% per annum from the date of making the application. So in my considered view there was no error on the part of the Tribunal to award interest on future prospects. Although in the case at hand Learned Tribunal below awarded interest @ 5% per annum which in my view was too less and it should be at least 6% considering the prevailing circumstances. Now regarding consortium in the given case at hand Learned Tribunal below in para No.15 awarded loss of consortium for an amount of Rs.40,000/-. In this regard Learned counsel for Page 19 of 23 the respondents as already stated relied upon one citation of the Hon'ble Apex Court in Harpreet Kaur and Others vs. Mohinder Yadav and Others reported in 2022 SCC OnLine SC 1723. In para Nos.13 and 14 Hon'ble the Apex court observed as under:
"13. Applying this principle, in Magma General Insurance Co. v. Nanu Ram:(2018) 18 SCC 130 this court held as follows:
20. MACT as well as the High Court have not awarded any compensation with respect to loss of consortium and loss of estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognised by the Constitution Bench in Pranay Sethi. The Motor Vehicles Act is a beneficial and welfare legislation.
The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the claimant. In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards loss of estate to Respondents 1 and 2.
21. A Constitution Bench of this Court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680] 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 : [Rajesh v. Rajbir Singh, (2013) 9 SCC 54].
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.
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. Page 20 of 23
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.
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:2017 SCC OnLine Raj 3848. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.
14. On an application of the principles indicated in Magma General Insurance Co., this court is of the opinion that the filial and parental consortium have to be increased. Each of the children, and the mother of the deceased, is entitled to Rs.40,000/-. Thus, the total amount payable towards filial and parental consortium is Rs.1,20,000/-."
From the principle of law laid down by the Hon'ble Apex court it appears that Hon'ble the Apex court in delivering the judgment awarded consortium @Rs.40,000/- for each of the dependants. But here in the appeal since no cross-objection was made from the side of the claimant- respondents so there is no scope on the part of this court to increase the amount at this stage. So it appears that the Learned Tribunal below rightly determined the amount of consortium at the time of delivery of judgment. However, since it is already observed that the percentage of future prospects be reduced to 40% from 50% in pursuance of the Page 21 of 23 judgment of Hon'ble Supreme Court in Pranay Sethi (supra). So, the calculation would be modified as follows:
1. Monthly income of the deceased : Rs.15,000/- per month
2. 40% of his income be added as future prospects, so, his monthly income for the purpose of claim would be accumulated at as Rs.15,000/-
+Rs.6,000/-(i.e.40% of Rs.15,000/-)=Rs.21,000/-. To that ratio, the yearly income of the deceased would be (Rs.21,000/-X12)=Rs.2,52,000/-. Since the deceased was a married person so after deducting one third of his yearly income, his yearly contribution to his family would be assessed to Rs.1,68,000/- (Rs.2,52,000-(1/3rd of Rs.2,52,000)) which would be contributed to the family had he been alive. So, that amount should be multiplied by multiplier 16 and on calculation it comes to (Rs.1,68,000X16)=Rs.26,88,000/- which would be the actual loss of the income of the legal heirs of the deceased due to the death of the deceased. So, under the head of loss of income, the amount comes to Rs.26,88,000/-.
In addition to that, Learned Tribunal below awarded Rs.40,000/- towards medical expenses since there was no objection from the side of the Page 22 of 23 appellant so the same is confirmed being awarded by the Tribunal.
Furthermore, the Learned Tribunal below also awarded Rs.15,000/- for loss of estate, Rs.40,000/- for loss of consortium and Rs.15,000/- as funeral expenses of the deceased in pursuance of the judgment of the Hon'ble Supreme Court in Pranay Shethi case(supra). So, after revised calculation, the total amount would comes to (Rs.26,88,000/- +Rs.40,000/-+Rs.15,000/-+Rs.40,000/- +Rs.15,000/-)=Rs.27,98,000/-.
So, the respondent-claimant would get the aforesaid amount after modification.
So, after hearing both the parties and after perusal of the citations referred by the parties, the appeal filed by the appellant be partly allowed with modification that the claimant-petitioner would get Rs.27,98,000/- with 6% interest as from the date of presentation of the claim petition before the Tribunal i.e. on 10.01.2022 to till realization of the payments.
In pursuance of the award of the Learned Tribunal below, the share of the respondent- claimant-petitioner No.1 would get (Rs.13,99,000/- +Rs.40,000/-)=Rs.14,39,000/- and the balance amount would get by the respondent-claimant- Page 23 of 23
petitioner No.2 being the minor with accrued interest.
17. In the result, the appeal filed by the appellant is hereby partly allowed with modification that the respondent- claimant-petitioners would get Rs.27,98,000/- with 6% interest from the date of filing the claim petition before the Tribunal i.e. with effect from 10.01.2022 to till the date of realization. The appellant-Insurance Company shall deposit the amount within a period of six weeks from the date of delivery of the judgment before the Tribunal. With the modification of the award, there shall be no modification regarding disbursal of amount as ordered by the Tribunal by the said award dated 12.05.2023.
Send down the LCR along with the copy of judgment and award.
A copy of judgment/order also be furnished to the Learned Counsel for the Insurance Company for immediate compliance.
JUDGE
MOUMITA Digitally signed by MOUMITA
DATTA
DATTA Date: 2024.07.20 16:33:45
+05'30'
Moumita