Rajasthan High Court - Jaipur
Jal Singh S/O Shri Prabhati vs United India Insurance Company Ltd. ... on 2 June, 2023
Author: Praveer Bhatnagar
Bench: Praveer Bhatnagar
[2023/RJJP/010261] (1 of 11) [CMA-4167/2019]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Miscellaneous Appeal No. 4167/2019
1. Jal Singh S/o Shri Prabhati, Aged About 64 Years, B/c Jat,
R/o Gubarua Tehsil Nadbai, Distt. Bharatpur (Raj)
2. Mst. Balveeri W/o Jal Singh, Aged About 61 Years, B/c
Jat, R/o Gubarua Tehsil Nadbai, Distt. Bharatpur (Raj)
----Appellants
Versus
1. United India Insurance Company Ltd., Through Branch
Manager, Bharatpur (Rajasthan) Cover Note 398205
Badau
2. Khursheed S/o Bahar Husain, B/c Musalman, Village And
Post Deegarpur, Thana Mainaker, Distt. Muradabad,
(Owner Of Truck No. Up-21/9491)
3. Urbesh Ali S/o Julfikar Husain, B/c Musalman, R/o
Diwarpur, Police Station Mainakair, District Muradabad,
Through Owner Shri Khursheed S/o Bahar Husain, B/c
Musalman, R/o Deegarpur, Distt. Muradabad, (Driver Of
Truck No. Up-21/9491)
4. Ishwar Singh S/o Ratan Singh, B/c Jat, R/o Punjabi
Mohalla, Nadbai Police Station And Tehsil Nadbai, District
Bharatpur
5. United India Insurance Company Ltd., Branch Bharatpur
Cover Note No. Jr-96 No. 340955
----Respondents
For Appellant(s) : Mr. Navankur Dubey
For Respondent(s) : Mr. Lokesh Parihar
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Judgment
02/06/2023
1. The instant appeal under Section 173 of the Motor Vehicles
Act, 1988 (afterwards referred as 'Act of 1988') has been filed by
(Downloaded on 11/11/2023 at 05:46:09 PM)
[2023/RJJP/010261] (2 of 11) [CMA-4167/2019]
the appellants-claimants against the judgment and award dated
26.02.2019 passed by the Motor Accident Claims Tribunal,
Bharatpur (afterwards referred as 'Tribunal') in MAC Case
No.81/2000, whereby, the learned Tribunal has awarded a sum of
Rs. 2,36,000/- as compensation alongwith interest @ 6% per
annum from the date of filing claim petition i.e. 09.08.2000.
2. Brief facts of the case are that during the intermediate night
of 09.08.1997 & 10.08.1997 at about 02:00 AM on National
Highway No.11 near Chokarwara a Truck bearing registration
No.UP21-9491, being driven rashly and negligently, was suddenly
stopped by respondent No. 2 - driver without giving any
indication, due to which, a Jeep, bearing registration No. RJ05-C-
1079, running behind the Truck collided with it, as a result of
which, Gajendra Singh (driver of the Jeep) sustained grievous
injuries and succumbed to death on 12.08.1997.
3. A claim petition to this effect was filed by the appellants for
award of compensation.
4. The claim petition was contested by the respondents by filing
reply denying the averments made in the petition.
5. On behalf of the appellants four witnesses i.e. Smt. Usha
(AW-1), Ishwar Singh (AW-2), Jal Singh (AW-3) and Radhey
Shyam (AW-4) were examined and certain documentary evidence
were exhibited. On behalf of respondents two witnesses i.e. Shri
Uvesh Ali (NAW-1) and Sukhendra Singh (NAW-2) were examined.
6. On the basis of pleadings of the parties, learned Tribunal
framed as many as five issues and while deciding all the five
issues in favour of the appellants-claimants, holding that the
accident occurred due to sole negligence on the part of Truck
(Downloaded on 11/11/2023 at 05:46:09 PM)
[2023/RJJP/010261] (3 of 11) [CMA-4167/2019]
driver, passed a judgment dated 18.04.2006 awarding
compensation to the tune of Rs. 4,24,320/- with the direction that
60% of the awarded amount shall be paid to the parents of the
deceased, who are appellants and remaining 40% to the widow of
deceased.
7. Being aggrieved by the judgment & award dated 18.04.2006,
the widow of deceased has preferred an appeal being S.B.C.M.A.
No.2210/2006 - Usha vs. Khursheed and the Insurance Company
has also preferred two appeals being S.B.C.M.A. No. 2447/2006 -
United India Insurance Company vs. Jal Singh & Ors. and
S.B.C.M.A. No.2507/2006 - United India Insurance Company Ltd.
vs. Usha & Ors. before the High Court.
8. The High Court by passing a common judgment dated
23.02.2017 has remanded the matter back to learned Tribunal for
deciding issue Nos.1, 2 and 4 afresh after re-hearing the parties.
9. Pursuant to the remand order, learned Tribunal vide
impugned judgment has decided issue Nos.1, 2 and 4 afresh and
awarded a compensation of Rs. 2,36,000/- alongwith interest @
6% per annum from the date of filing claim petition i.e.
09.08.2000, against which, the present appeal has been filed.
10. Arguments advanced by the appellants:
(I) Learned counsel for the appellants submitted that the
learned Tribunal has wrongly assessed the deceased's income as
Rs.3,000/- per month, whereas, from the evidence it was proved
that the deceased was earning Rs.4,500/- per month as a Driver.
(II) It is further submitted that the finding of the learned Tribunal
about not awarding the future prospects is also perverse and in
that head, the appellants are entitled to get the enhanced amount
(Downloaded on 11/11/2023 at 05:46:09 PM)
[2023/RJJP/010261] (4 of 11) [CMA-4167/2019]
as per the dictum of the Hon'ble Apex Court in the matter of
National Insurance Company Limited v. Pranay Sethi & Ors. :
Special Leave Petition (Civil) No. 25590/2014, decided on
31.10.2017.
(III) It is submitted that the non-pecuniary compensation granted
by the learned Tribunal is contrary to the dicta of Hon'ble Supreme
Court in the case of Pranay Sethi (supra). It is contended that as
per the Hon'ble Supreme Court, Rs.15,000/-, Rs.40,000/- and
Rs.15,000/- should be granted towards the conventional heads
namely loss of estate, loss of consortium and funeral expenses.
(IV) Learned counsel further submitted that the learned Tribunal
has erred in apportioning 50% of the award amount in favour of
deceased wife Smt Usha even though after the deceased's death,
she got remarried and that fact was duly proved by the appellants.
It is submitted that the widow of deceased was not dependent on
the income of the deceased and on this account also the finding of
the learned Tribunal is erroneous. Hence award deserves to be
modified accordingly.
11. Arguments advanced by the counsel for respondent
Insurance Company:-
(i) Per contra, learned counsel for the respondent Insurance Company contended that the learned Tribunal has rightly evaluated the income of the deceased Driver as Rs.3,000/- per month and the finding is well reasoned.
(ii) It is contended that the learned Tribunal has rightly not granted future prospects as the deceased remained employed only for one and a half months and was unemployed.(Downloaded on 11/11/2023 at 05:46:09 PM)
[2023/RJJP/010261] (5 of 11) [CMA-4167/2019]
(iii) The award under the non-pecuniary head has also been rightly assessed and needs no modification.
(iv) Further it is contended that the apportionment of 50% of the award money in favour of the deceased wife is also rightly been awarded.
12. I have heard the counsels appearing on behalf of the appellants and respondent Insurance Company.
13. On the issue of apportionment of the award amount in favour of deceased's wife Usha:
At the outset, it is pertinent to mention that the appellants have not impleaded the wife of the deceased as respondent and, in the absence of she is not being impleaded as a party to this appeal, it is not lawful to upset the findings arrived about the apportionment of the award money in her favour. Further, from the evidence led by the appellants, apparently, they failed to prove the facts regarding the remarriage of the deceased wife by any cogent evidence. The mere oral assertion without proof itself is not enough to prove the facts of remarriage and more so wife of the deceased has refuted the said fact in her cross-examination.
Therefore, for the reasons cited above, this Court does not find any perversity in the findings arrived at by the learned Tribunal.
14. On the issue of assessment of the income of deceased:
Learned Tribunal assessed the income of the deceased to the tune of Rs.3,000/- per month and on arriving at the aforesaid conclusion learned Tribunal has partly relied upon the statement of Ishwar Singh (AW-2), who in his deposition stated that the deceased was paid Rs.3,000/- per month as salary and apart from (Downloaded on 11/11/2023 at 05:46:09 PM) [2023/RJJP/010261] (6 of 11) [CMA-4167/2019] that he was paying Rs.40 to 50 per day as a sustenance amount.
The appellants pleaded the monthly salary of the deceased as Rs.4,000/- per month in the claim.
15. Hon'ble Supreme Court in its recent judgment in Chandra @ Chanda @ Chandraram vs. Mukesh Kumar Yadav & Ors. : Civil Appeal No. 6152/2021 had an occasion to examine an identical issue. The relevant portion of the said judgment reads as below:
"10. It is the specific case of the claimants that the deceased was possessing heavy vehicle driving license and was earning Rs.15,000/- per month. Possessing such license and driving of heavy vehicle on the date of accident is proved from the evidence on record. Though the wife of the deceased has categorically deposed as AW1 that her husband Shivpal was earning Rs.15,000/- per month, same was not considered only on the ground that a salary certificate was not filed. The Tribunal has fixed the monthly income of the deceased by adopting a minimum wage notification for skilled labour in the year 2016. In the absence of a salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one to fix the income of the deceased. In the absence of documentary evidence on record, some amount of guesswork is required to be done. But at the same time, the guesswork for assessing the income of the deceased should not be totally detached from reality. Merely because claimants were unable to produce documentary evidence to show the monthly income of Shivpal, the same does not justify adoption of lowest tier of minimum wage while computing the income. There is no reason to discard the oral evidence of the wife of the deceased who has deposed that late Shivpal was earning around Rs.15,000/- per month."
(emphasis supplied)
16. In this case, the accident occurred on intermediate night of 09.08.1997 & 10.08.1997 and it is clearly proved that the deceased was a driver. It is also proved that the deceased was earning Rs.3,000/- per month as salary and getting the sustenance amount to the tune of Rs.40 to 50 per day. Learned Tribunal admittedly did not consider the sustenance amount paid (Downloaded on 11/11/2023 at 05:46:09 PM) [2023/RJJP/010261] (7 of 11) [CMA-4167/2019] to the deceased while deciding the issue regarding income of the deceased.
17. In my considered opinion, learned Tribunal ought to have taken into consideration the sustenance amount paid per day to the deceased while assessing the monthly income. The approach of the learned Tribunal to deduct the said amount seems to be without rationale. If the said amount is added to the salary component then the monthly salary of the deceased comes around to Rs.4,000/-.
18. Accordingly keeping in mind the enormous growth of vehicle population and demand for good drivers and by considering oral evidence on record, I deem it appropriate to assess the income of the deceased at Rs.4,000/- per month for the purpose of loss of dependency.
19. Thus, applying the multiplier of 18 as per the judgment of Sarla Verma v. Delhi Transport Corporation : (2009) 6 SCC 121 and after considering the deceased's age as 24 years in the head of loss of dependency the assessed compensation amount comes to Rs.4000 x 12 x 18 x 2/3 = Rs.5,76,000/-.
20. On the issue of future prospects:-
Learned Tribunal upon the issue of adding the future prospects of the deceased while computing the award denied the appellants' plea on the ground of the deceased unemployment.
21. The above finding of the learned Tribunal is based upon the utterance of witness Ishwar Singh (AW-2), who deposed that deceased remained a driver under his employment for one and half months only. The said deposition of the witness was only to prove the salary of the deceased during the employment before (Downloaded on 11/11/2023 at 05:46:09 PM) [2023/RJJP/010261] (8 of 11) [CMA-4167/2019] him. From that statement, it cannot be inferred that the deceased as an employee under Ishwar Singh (AW-2) never stuck around in the employment as a driver either before the above period or after leaving the job. Therefore, denying the future prospects while awarding the compensation learned Tribunal has erred and the finding needs to be modified.
22. Hon'ble Supreme Court in Pranay Sethi (supra) held that in case the deceased was self-employed or on a fixed salary and below the age of 40 years, an addition of 40% of the established income should be granted.
23. In the instant case, the age of the deceased was 24 years and his monthly assessed income was Rs.4,000/- per month. Hence, in the present case, the same should be Rs.5,76,000x40/100 = Rs.2,30,400/-. After adding it with the loss of dependency head the total amount comes to Rs.5,76,000+2,30,400 = Rs.8,06,400/-.
24. On the issue of compensation towards three conventional heads:-
(a) in the present case the learned Tribunal granted Rs.10,000/-
towards funeral charges and Rs.10,000/- towards loss of estate.
(b) regarding the compensation under the head 'Loss of consortium', the learned Tribunal granted Rs.20,000/-.
25. In the case of Pranay Sethi (supra), the Constitutional Bench of Hon'ble Supreme Court held as under:-
"in death cases, compensation would be awarded only under three conventional heads viz. loss of estate, loss of consortium and funeral expenses. The Court held that the conventional and traditional heads, cannot be determined on a percentage basis, because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified, which has to be based on (Downloaded on 11/11/2023 at 05:46:09 PM) [2023/RJJP/010261] (9 of 11) [CMA-4167/2019] a reasonable foundation. It was observed that factors such as price index, fall in bank interest, escalation of rates, are aspects which have to be taken into consideration. The Court held that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/-, respectively. The Court was of the view that the amounts to be awarded under these conventional heads should be enhanced by 10% every three years, which will bring consistency in respect of these heads."
26. Hence, because of the above dicta of the Hon'ble Supreme Court, in the present case, this Court deems it appropriate to enhance the award in the following heads accordingly:-
Funeral Expenses : Rs.15,000/- Loss of Estate : Rs.15,000/-
27. Further, in Magma General Insurance Co. Ltd. vs. Nanu Ram Hon'ble Apex Court interpreted "consortium" to be a compendious term, which encompasses spousal consortium, parental consortium, as well as filial consortium and observed as under:-
"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 and affection, and their role in the family unit.
Modern jurisdictions worldover have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of death of a child. Most jurisdictions permit parents to be awarded compensation under the loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation which has been framed with the object of 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 (Downloaded on 11/11/2023 at 05:46:09 PM) [2023/RJJP/010261] (10 of 11) [CMA-4167/2019] consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents. The amount to be awarded for loss of consortium will be as per the amount fixed in the case of Pranay Sethi (supra).
At this stage, I consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and the High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in the case of Pranay Sethi (supra) has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses."
28. In the case of Magma General (supra), Hon'ble Apex Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.
29. The Tribunals and the High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head.
30. In the present case, the appellants-claimants have lost their son. Hence, given the dicta of the Hon'ble Supreme Court in the case of United India Insurance Company Limited (supra), this Court deems it appropriate to award loss of consortium to both the appellants to the tune of Rs.40,000/- each. Therefore, the finding of the learned Tribunal with respect to issue No.4 is partially not sustainable. Resultantly appellants are liable to get the modified enhanced compensation in the head of loss of dependency after computing the future prospects and other conventional heads as indicated above. The finding of apportionment of the awarded amount between the appellants and co-claimant in proportion to 50 % is affirmed. (Downloaded on 11/11/2023 at 05:46:09 PM)
[2023/RJJP/010261] (11 of 11) [CMA-4167/2019]
31. On the basis of the above mentioned facts and analysis, this Court is of the opinion that the just compensation to be awarded to the claimants appellants under different heads ought to be as under:-
Loss of dependency Rs. 5,76,000/-
Future Prospects Rs. 2,30,400/-
Funeral Expenses Rs. 15,000/-
Loss of Estate Rs. 15,000/-
Parental and Spousal Rs. 80,000/- (Rs.40,000/- to
consortium each appellants)
Total Rs. 9,16,400/-
32. In view of the aforesaid facts and circumstances, the impugned judgment is liable to be modified as above and the claimants-appellants are entitled to get compensation of Rs.9,16,400/- instead of Rs. 2,36,000/- awarded by the learned Tribunal. On the enhanced amount of compensation i.e. Rs.6,80,400/- the appellants would be entitled to get interest @ 6% per annum from the date of application as per the terms of the award passed by the learned Tribunal.
33. The respondent Insurance Company is directed to deposit the enhanced amount of compensation after computing the amount already deposited (in terms of the impugned award dated 26.02.2019) along with the above interest in the saving bank account of the appellants through learned Tribunal within a period of one month from the date of the order.
34. Consequently, the appeal stands allowed.
(PRAVEER BHATNAGAR),J ASHWINI KUMAR CHOUHAN /680 (Downloaded on 11/11/2023 at 05:46:09 PM) Powered by TCPDF (www.tcpdf.org)