Delhi District Court
Sh. Ajay Singh vs Sh. Sunil Kumar on 30 September, 2014
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
IN THE COURT OF SH. MUKESH KUMAR : PRESIDING OFFICER:MOTOR
ACCIDENT CLAIMS TRIBUNAL02 : (WEST):DELHI.
Case No. 101/2014
Sh. Ajay Singh
S/o Sh. Kanhiya Lal
R/o ward No. 16,
Brijghat, Garhganga,
Uttar Pradesh.
.......Petitioner in the First Petition
Case No. 99/2014
1. Smt. Vimla @ Pholwati
W/o Late Sh. Lalji
2. Master Rinku
S/o Late Sh. Lalji
3. Baby Seema
D/o Late Sh. Lalji
4. Baby Jyoti
D/o Late Sh. Lalji
All R/o Village Budawal Bazar,
P.O. Mundarwa Bazar,
Tehsil & District Basti, Uttar Pradesh.
(Petitioner No. 2 to 4 being minors, are represented through
their mother & Natural Gurdian Smt. Vimla petitioner No. 1)
Page No. 1/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
.......Petitioners in the Second Petition
Case No. 102/2014
Ms. Sheetal
D/o Sh. Rajpal
R/o Ward No. 19, Brijghat,
Uttar Pradesh.
(Petitioner being minor is represented through
her father & Natural Gurdian Sh. Rajpal)
.......Petitioner in the third Petition
Case No. 91/2014
Sh. Ashok Kumar
S/o Sh. Jawahari Lal
R/o Ward No. 19, Brijghat,
Uttar Pradesh.
.......Petitioner in the fourth Petition
Case No. 92/2014
Smt. Shashi
W/o Sh. Rajpal
R/o Ward No. 19,
Brijghat, Garhganga
Uttar Pradesh.
Page No. 2/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
.......Petitioner in the fifth Petition
Case No. 93/2014
1. Smt. Shashi (Wife)
W/o Late Sh. Raj Pal
2. Sh. Deepak (Son)
S/o Late Sh. Raj Pal
3. Ms. Anuradha (Daughter)
D/o Late Sh. Raj Pal
4. Ms. Shital (Daughter)
D/o Late Sh. Raj Pal
5. Master Suraj (Son)
S/o Late Sh. Raj Pal
6. Smt. Sonu @ Madhvi (Daughter)
W/o Sh. Lehraj
R/o C63Y, DDA Flats,
Jhangir Puri, Delhi.
7. Smt. Guddo (Daughter)
W/o Sh. Raju
R/o G42, Gali No. 3, DDA Park,
Raj Nagar, Palam, New Delhi.
Also at R/o Ward No. 19, Brijghat,
Uttar Pradesh.
(Petitioner No. 4 and 5 being minors, are represented through
their mother & Natural Gurdian Smt. Shashi petitioner No.1)
.......Petitioner in the sixth Petition
Case No. 95/2014
Page No. 3/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
1. Smt. Geeta
W/o Late Sh. Hem Singh
2. Master Aman
S/o Late Sh. Hem Singh
3. Master Paras
S/o Late Sh. Hem Singh
4. Smt. Ramwati
W/o Late Sh. Net Ram
All R/o Ward No. 19,
Brijghat, Garhganga, Uttar Pradesh.
(Petitioner No. 2 and 3 being minors, are represented through
their mother & Natural Gurdian Smt. Geeta petitioner No.1)
.......Petitioner in the Seventh Petition
Case No. 94/2014
1. Smt. Parmila Devi
W/o Late Sh. Jai Kumar @ James
2. Smt. Shashi
W/o Sh. Raj Pal
3. Baby Nandni
D/o Late Sh. Jai Kumar @ James
All R/o Ward No. 19,
Brijghat, Garhganga, Uttar Pradesh.
(Petitioner No. 3 being minor, is represented through
Page No. 4/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
their mother & Natural Gurdian Smt. Parmila Devi petitioner No.1)
.......Petitioner in the Eigth Petition
Case No. 100/2014
1. Sh. Sushil Kumar
S/o Sh. Shanti Swaroop Sharma
2. Smt. Kusum
W/o Sh. Sushil Kumar
All R/o Ward No. 19,
Brijghat, Garhganga, Uttar Pradesh.
.......Petitioner in the Ninth Petition
VERSUS
1. Sh. Sunil Kumar
S/o Sh. Mahinder Singh
R/o Ward No. 25, Village Bhadra,
Tehsil Bhadra, District hanumangarh,
Rajasthan. (driver & owner)
2. The National Insurance Company Limited
Jeevan Bharti Building, Connought Place,
New Delhil. (insurer)
3. Sh. Ganesh Kumar
S/o Sh. Jagdish Prasad
R/o Village Bhadra, District Hanumangarh,
Rajasthan.
Page No. 5/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
.............Respondents in all the petitions
4. Smt. Saroj W/o Sh. Suraj Pal R/o Village Sikara, P.O & P.S Mundarwa Bazar, Tehsil & District, U.P. .............Respondents in second the petitions Date of institution of first petition : 14.09.2006 Date of institution for second petition : 19.10.2006 Date of institution for third petition : 19.10.2006 Date of institution of fourth petition : 14.09.2006 Date of institution of fifth petition : 14.09.2006 Date of institution of sixth petition : 14.09.2006 Date of institution of seventh petition : 14.09.2006 Date of institution of eighth petition : 14.09.2006 Date of institution of ninth petition : 14.09.2006 Date of pronouncement : 30.09.2014 CONSOLIDATED JUDGMENTCUMAWARD:
1. By this consolidated judgment cum award, I shall dispose of nine petitions bearing suit no. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 (hereinafter called the first petition, second petition, third petition, fourth petition, fifth petition, sixth petition, seventy petition, eighth petition and ninth petition) filed by the petitioners u/s 166 and 140 Motor Vehicle Act 1988 amended upto date (hereinafter referred as Act). Since all these petitions Page No. 6/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 arising out of the same motor vehicle accident, the same can be conveniently disposed of together.
2. All the petitions were consolidated vide order dated 20.11.2007 and the petition bearing No. 101/2014 (Old Suit No. 825/2006) was ordered to be treated as leading case.
3. The case of the petitioners are that on 12.08.2006 at about 12:15 AM when the injured/petitioners along with their goods were traveling in Tempo (Make Eicher) bearing No. RJ 31 GA 0683. The driver of the said Tempo was driving at a very high speed, rash, negligently and without caring for the rules of the traffic. The injured/petitioners and other occupants of the tempo repeatedly asked the driver to drive at a moderate speed but the driver did not pay any heed and when they reached at opposite Azad Hind Gram, Main Rohtak Road, Tikri Kalan, Delhi the driver lost control over the wheels and the said tempo turned turtle. As a result of which Sh. Ajay Kumar, Ms. Sheetal, Sh. Ashok Kumar, Smt. Shashi, Sh. Rajpal sustained injuries and Sh. Lalji Sh. Hem Singh, Sh. Jai Kumar and Sh. Vikas Kumar @ Vicky sustained fatal injuries.
4. The Written statement was filed by respondents wherein they categorically denied the rash and negligent aspect and also termed the contents of the petition to be false one.
5. The written statement was filed by respondent/insurance company wherein it was admitted that the offending vehicle was insured on the date and time Page No. 7/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 of accident but categorically denied the contents of the same.
6. From the pleadings of the parties, the following issues were framed by my Ld. Predecessor :
First Petition
1. Whether the petitioner had sustained injuries on 12.08.2006 at about 12:15 AM at Azad Hind Gram, Main Rohtak Road, Delhi due to rash and negligent driving of respondent no. 1 while driving vehicle no. RJ 31 GA 0683?
Second Petition
1. Whether the deceased Sh. Lalji had expired in an accident on 12.08.2006 at about 12:15 AM at Azad Hind Gram, Main Rohtak Road, Delhi due to rash and negligent driving of respondent no. 1 while driving vehicle no. RJ 31 GA 0683?
Third Petition
1. Whether the petitioner had sustained injuries on 12.08.2006 at about 12:15 AM at Azad Hind Gram, Main Rohtak Road, Delhi due to rash and negligent driving of respondent no. 1 while driving vehicle no. RJ 31 GA 0683?
Fourth Petition
1. Whether the petitioner had sustained injuries on 12.08.2006 at about 12:15 AM at Azad Hind Gram, Main Rohtak Road, Delhi due to rash and negligent driving of Page No. 8/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 respondent no. 1 while driving vehicle no. RJ 31 GA 0683?
Fifth Petition
1. Whether the petitioner had sustained injuries on 12.08.2006 at about 12:15 AM at Azad Hind Gram, Main Rohtak Road, Delhi due to rash and negligent driving of respondent no. 1 while driving vehicle no. RJ 31 GA 0683?
Sixth Petition
1. Whether the petitioner had sustained injuries on 12.08.2006 at about 12:15 AM at Azad Hind Gram, Main Rohtak Road, Delhi due to rash and negligent driving of respondent no. 1 while driving vehicle no. RJ 31 GA 0683?
Seventh Petition
1. Whether the deceased Sh. Hem Singh expired in an accident on 12.08.2006 at about 12:15 AM at Azad Hind Gram, Main Rohtak Road, Delhi due to rash and negligent driving of respondent no. 1 while driving vehicle no. RJ 31 GA 0683?
Eighth Petiton
1. Whether the deceased Sh. Jai Kumar @ James had expired in an accident on 12.08.2006 at about 12:15 AM at Azad Hind Gram, Main Rohtak Road, Delhi due to rash and negligent driving of respondent no. 1 while driving Page No. 9/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 vehicle no. RJ 31 GA 0683?
Ninth Petiton
1. Whether the deceased Sh. Vikas Kumar @ Vicky had expired in an accident on 12.08.2006 at about 12:15 AM at Azad Hind Gram, Main Rohtak Road, Delhi due to rash and negligent driving of respondent no. 1 while driving vehicle no. RJ 31 GA 0683?
2.Whether petitioner's are entitled for compensation? If so to what amount and from whom?
3. Relief
7. In order to establish its claim in first petition, the petitioner examined himself as PW 7.
8. In the second petition the petitioner no. 1 examined herself as PW 4.
9. In the third petition the mother of the petitioner examined herself as PW
10. In the fourth petition petitioner did not examine any witness in his defence.
11. In the fifth petition the petitioner examined herself as PW 6.
12. In the sixth petition the wife of the petitioner examined herself as PW 6.
13. In the seventh petition the petitioner no. 1 examined herself as PW 2.
14. In the eighth petition the petitioner no. 1 examined herself as PW 5.
15. In the ninth petition the father of the deceased examined himself as PW 3.
16. The respondents/driver and owner examined themselves as R1W1 and R3W1 in their defence.
Page No. 10/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
17. The insurer/respondent examined its officer Sh. Rakesh Sonkar as R2W1.
18. I have thoroughly gone through the testimony of the witnesses and perused the record. I have also given thoughtful consideration to the arguments addressed by learned counsel for the insurance company.
19. My findings on various issues are as under : ISSUE NO.1 IN ALL THE NINE THE PETITIONS :
20. Since the present petitions are under Section 166 of M V Act, it was the bounden duty of the petitioners to prove that the respondent/driver was rash and negligent in driving the vehicle at the time of accident.
21. All the petitioner deposed all on the same line, as deposed by PW 7 in the first petition. The petitioners/injureds explained the mode and manner of the accident in their affidavits to the effect that on 12.08.2006 at about 12:15 AM when the injured/petitioners along with their goods were traveling in Tempo bearing No. RJ 31 GA 0683. The driver of the said Tempo was driving at a very high speed, rash, negligently and without caring for the rules of the traffic. The injured/petitioners and other occupants of the tempo repeatedly asked the driver to drive at a moderate speed but the driver did not pay any heed and when they reached at opposite Azad Hind Gram, Main Rohtak Road, Tikri Kalan, Delhi the driver lost control over the wheels and the said tempo turned turtle. As a result of which Sh. Ajay Kumar, Ms. Sheetal, Sh. Ashok Kumar, Smt. Shashi, Sh. Rajpal sustained injuries and Sh. Lalji Sh. Hem Singh, Sh. Jai Kumar and Sh. Vikas Page No. 11/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 Kumar @ Vicky sustained fatal injuries. The crossexamination carried on by the respondents is not suggestive of anything which may discard the claim of the petitioners that the driver of the offending vehicle was not rash and negligent at the time of accident.
22. The petitioners has also filed documents of criminal case in respect of case FIR No. 807/2006, PS Nangloi under Section 279/337/304A IPC.
23. To determine the negligence, I am being guided by the judgment of Hon'ble High Court of Delhi in 2009 ACJ 287, National Insurance Company Limited Vs. Pushpa Rana wherein the Hon'ble High Court held that in case the petitioner files the certified copy of the criminal record or the criminal record showing the completion of the investigation by the police or the issuance of charge sheet under section 279/304 A IPC or the certified copy of the FIR or in addition the recovery memo on the mechanical inspection report of the offending vehicle, these documents are sufficient proof to reach to the conclusion that the driver was negligent. It was further held that the proceedings under the Motor Vehicles Act are not akin to the proceedings in a civil suit and hence strict rules of evidence are not required to be followed in this regard. Further, in Kaushnumma Begum and others v/s New India Assurance Company Limited, 2001 ACJ 421 SC the issue of wrongful act or omission on the part of driver of the motor vehicle involved in the accident has been left to a secondary importance and mere use or involvement of motor vehicle in causing bodily injuries Page No. 12/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 or death to a human being or damage to property would made the petition maintainable under section 166 and 140 of the Act. It is also settled law that the term rashness and negligence has to be construed lightly while making a decision on a petition for claim for the same as compared to the word rashness and negligence as finds mention in the Indian Penal Code. This is because the chapter in the Motor Vehicle Act dealing with compensation is a benevolent legislation and not a penal one.
24. Further recently the Hon'ble High of Delhi in MAC App. No.200/2012 in case titled as United India Insurance Co. Ltd. Vd. Smt. Rinki @ Rinku & Ors decided on 23/07/2012 by Hon'ble Mr. Justice G. P. Mittal, held as under: "The Claims Tribunal was conscious of the fact that negligence is a sine qua non to a Petition under Section 166 of the Motor Vehicles Act, 1988(the Act). It is also true that the proceedings for grant of compensation under the Act are neither governed by the criminal procedures nor are a civil suit. A reference may be made to a judgment of the Supreme Court Bimla Devi and Ors. V Himachal Road Transport Corporation and Ors, (2009) 13 SC 530 where it was held as under:
"15. In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of any accident caused by a particular bus in a particular manner may not be possible to be done by the claimant. The claimants were merely to establish their case on the touchstone of preponderance of Page No. 13/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 probability. The standard of proof beyond reasonable doubt could not have been applied."
25. Therefore, reading all the documents filed by the petitioners as a whole it is clear that respondent No. 1 was driving the vehicle in a rash and negligent manner.
26. The issue no. 1 is therefore decided in favour of the petitioners and against the respondents.
Compensation in First Petition REIMBURSEMENT OF MEDICAL BILLS :
27. The discharge summary Ex PW 7/1 issued by Dr. Rakesh Taneja's Nursing Home, Patel Nagar, Gaziabad, U.P. the petitioner admitted in the said Hospital and had got grievous injuries. On 12.09.2006 an operation was also conducted and steel rods were inserted in his right leg. The petitioner has filed the medical bills to the tune of Rs. 20,126/. I hereby award a sum of Rs. 20,126/ towards medical bills keeping in view the nature of injuries and medical bills placed on record.
PAIN AND SUFFERINGS :
28. It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have Page No. 14/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 also consumed heavy dose of antibiotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court it was held that: "On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives corelation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
29. The post accident physical condition of the petitioner, therefore is such that besides leading to frequent absence from work, it is bound to generate in him a fear of future incapacity as to health or uncertainty of life and a feeling of remorse and embarrassment. The pain and suffering by the injury have not ended. The petitioner will be subjected to physical pain and discomfort and suffering from time to time for the rest of his life. It can not be overlooked also that if for reasons beyond his control. Regarding loss of amenities in life, the petitioner would suffer on account of accident throughout his life and cannot enjoy the amenities of life as another normal person can. While fixing compensation for pain and sufferings and as also for loss of amenities of life, features like his age, marital status and unsual Page No. 15/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 deprivation, he has undertaken in his life have to be reckoned.
30. Keeping in view the said guidelines and keeping in view the aforesaid observation made by this court, since the petitioner got fracture in his right leg and an operation was also conducted and steel rods were inserted, I hereby allow Rs. 50,000/ towards pain and sufferings. Besides this, I hereby award a sum of Rs. 15,000/ towards special diet and conveyance.
LOSS OF LEAVE DURING TREATMENT PERIOD
31. The petitioner is stated to be self employed and was stated to be earning Rs. 4,500/ per month but no income proof has been filed or proved on record. Considering all circumstances, it appears to me that petitioner could not have worked for about 6 months. The petitioner is stated to be unskilled. The date of accident is 11.08.2006 in this case. The Minimum Wages for the relevant period for a unskilled person is Rs. 3,312/ p.m. Accordingly, I award Rs. 19,872/ ( Rs. 3,312/ x 6) towards loss of income.
The total compensation is assessed as under:
Treatment expenses: Rs. 20,126/
Pain and sufferings: Rs. 50,000/
Conveyance & special diet: Rs. 15,000/
Loss of income during
treatment period Rs. 19,872/
Total: Rs. 1,04,998/
RELIEF:
Page No. 16/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
32. I award Rs. 1,04,998/ (Rupees One Lac Four Thousand Nine Hundred Ninety Eight Only) as compensation with interest at the rate of 8% per annum including interim award, if any from the date of filing the petition i.e. 14.09.2006 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several. Amount be released to the petitioner.
COMPENSATION IN SECOND PETITION :
33. As per the postmortem report, the deceased was 40 years of age as on the date of accident.
34. The deceased was stated to be shopkeeper and was stated to be earning Rs. 4,500/ per month but no income or profession proof filed on record.
In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 12.08.2006 on which the minimum wages for relevant period for un skilled person was Rs. 3,312/.
35. Ld. Counsel for petitioners requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563, but per contra Ld. counsel for the insurer objected to same.
36. I have taken care of the submissions of the Ld. Counsel for petitioner and Page No. 17/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 have perused the record.
37. Initially, the Hon'ble Supreme Court of India in 'Santosh Devi Vs National Insurance Company Ltd. & Ors' in Civil Appeal No. 3723 of 2012 decided on 23/04/2012case had held as under: "14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was selfemployed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is selfemployed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV Page No. 18/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
38. However, in a recent case decided by Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" wherein three Hon'ble Judges bench held that Page No. 19/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
11. Since, the court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (Supra) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 % always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50 % to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 % in case the deceased was in age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self employed or on the fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15 % in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
20.The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and Page No. 20/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/ to Rs.10,000/. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
39. After discussing the law of precedents, regarding future prospects, the Page No. 21/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 Hon'ble High Court of Delhi in a recent judgment in 'ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors'in MACA 846/2011 decided on 30/09/13 held as under:
"26. While considering the case of Santosh Devi, the Apex Court did not feel to refer the matter to a Larger Bench. Therefore, it can be concluded that there is no contradictions in the finding of Sarla Verma and Santosh Devi, in turn the Apex Court extended the scope and ambit of Sarla Verma through Santosh Devi."
27. In view of above, this court is guided by the legal principles as set out in Reshma Kumari and Rajesh in order to assess the just compensation as it is envisaged in Section 168 of Motor Vehicles Act, 1988. In Reshma Kumari, the Apex Court affirmed the findings of Sarla Verma; and in Rajesh, the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi. Specifically, for the assessment of future prospects in respect of the persons falling under the category of self employment / fixed wages this court is guided by the dictum laid down in Rajesh. In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Kumari and Rajesh."
40. The Hon'ble High Court of Delhi in recent judgment have taken care of all the judgments relied upon in the earlier judgment of MAC APP 138/2011 decided on 06/09/2013 in New India Assurance Co. Ltd. Vs. Harpal Singh relied upon by the insurer.
41. Therefore, in view of the aforesaid latest judgment in 'ICICI Lombard Vs. Angrej Singh (supra), the income of the deceased is required to be Page No. 22/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 appreciated for future prospects.
42. Since the deceased was 40 years of age as on the date of accident, 50% of income towards the future prospects is required to be added in terms of aforesaid judgment in Angrej Singh (supra). Hence after averaging out, the income of deceased comes out to be Rs. 4,968/ (Rs 3,312/ + 50%).
43. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 that the deceased might have been spending onefourth of Rs. 4,968/ on his personal expenses as he had left behind four dependents. Therefore, after deducting onefourth towards personal expenses, the loss of dependency per annum comes out to be Rs. 4,968/ less Rs. 1,242/ = Rs. 3,726/. The appropriate multiplier applicable is 15, as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to Rs. 6,70,680/ = (Rs. 3,726/ x 12 x 15).
44. In terms of the aforesaid judgment in Rajesh's case(supra), the Hon'ble Supreme Court of India has granted Rs. 25000/ towards funeral charges, Rs. 1,00,000/ towards loss of consortium and Rs. 1,00,000/ towards loss of care and guidance for minor children, accordingly, I award Rs. 1,00,000/ towards loss of consortium; Rs. 25,000/ towards funeral charges; Rs. 1,00,000/ towards loss of care and guidance for minor children. I also award of Rs. 10,000/ towards loss of estate.
Page No. 23/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 The total compensation is assessed as under: Loss of dependency : Rs. 6,70,680/ Loss of consortium : Rs. 1,00,000/ Loss of care and guidance of minor child : Rs 1,00,000/ Funeral charges : Rs. 25,000/ Loss of estate : Rs. 10,000/ _ Total: Rs 9,05,680/ RELIEF:
45. I award Rs. 9,05,680/ (Rs. Nine Lacs Five Thousand Six Hundred Eighty Only) in favour of the petitioners and against the respondents as compensation with interest at the rate of 8% per annum including interim award, if any from the date of filing the petition i.e. 19.10.2006 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioners no. 1 shall have the share of 40% in the award amount and the petitioners No. 2 to 4 and respondent no. 4/Smt. Saroj shall have share of 15% each in the award amount. Income tax, if any, as applicable be deducted as per rules.
46. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S. Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent (50%) of Page No. 24/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 the amount awarded to petitioner No. 1 and respondent no. 4 shall be kept in 5 FDRs of almost equal amount in a Nationalized Bank for a period of 1, 2, 3, 4 and 5 years. The amount so awarded to the petitioner no. 2 to 4, the same shall be kept in the FDRs for a period of 5 years. In case any petitioner/petitioners is/ are minor/minors, the entire amount awarded to petitioner/ petitioners shall be kept in FDRs in a nationalized bank till he/she attain/ attains the age of majority or for a period of five years whichever is later. No loan or advance shall be allowed against the said fixed deposit. Petitioners can withdraw the interest quarterly from the said FDRs. The minor petitioners, if any can withdraw the interest quarterly through their mother/ petitioner No. 1 respectively. 50% of the amount awarded to petitioner no. 1 and respondent no. 4 be released.
COMPENSATION IN THIRD PETITION REIMBURSEMENT OF MEDICAL BILLS :
47. As per the treatment document issued from Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi the petitioner had got abrasion on right side of face and abrasion over B/L hand. No bills have been filed by the petitioner. Therefore, the petitioner is not entitled for any compensation towards reimbursement of medical bills.
PAIN AND SUFFERINGS :
48. It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken Page No. 25/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of antibiotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court it was held that: "On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value.
However, compensation which has to be paid must bear some objectives corelation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
49. Keeping in view the said guidelines and keeping in view the aforesaid observation made by this court, since the petitioner got abrasion on right side of face and abrasion over B/L hand, I hereby allow Rs. 15,000/ towards pain and sufferings. Besides this, I hereby award a sum of Rs. 5,000/ towards special diet and conveyance.
The total compensation is assessed as under:
Treatment expenses: Nil.
Pain and sufferings: Rs. 15,000/
Conveyance & special diet: Rs. 5,000/
Page No. 26/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 Total: Rs. 20,000/ RELIEF:
50. I award Rs. 20,000/ (Rupees Twenty Thousand Only) as compensation with interest at the rate of 8% per annum including interim award, if any from the date of filing the petition i.e. 14.09.2006 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several. Amount be released to the petitioner.
Compensation in fourth petition. :
51. The petitioner who had claimed compensation from this court have failed to adduce any evidence despite ample opportunities being granted to him. Since the DAR/report of the criminal case is sufficient and admissible under Rule 7 of the Motor Vehicle Rules. Accordingly considering all circumstances and since the petitioner got abrasion on right side of face, tenderness & swelling on left wrist and also got multiple injuries, I hereby grant lump sum of Rs. 25,000/ to the petitioner towards pain and sufferings, special diet and conveyance. Compensation in Fifth Petition REIMBURSEMENT OF MEDICAL BILLS :
52. As per the treatment document issued from Sanjay Gandhi Memorial Hospital, Mangolpuri, Delhi the petitioner had got pain/tenderness on the right side of the chest. No bills have been filed by the petitioner. Therefore, the petitioner is not entitled for any compensation towards reimbursement of medical bills. Page No. 27/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 PAIN AND SUFFERINGS :
53. It is settled law that a particular amount can not be fixed on pain and sufferings for all cases as is varies from case to case. Judicial notice can be taken on the fact that since the petitioner had got injuries/fracture as aforesaid, he might have suffered acute pain and sufferings owing to the said injuries. He might have also consumed heavy dose of antibiotic etc. and also might have remained without movements of his body for a considerable period of time. In order to ascertain the pain and sufferings compensation, I am guided by the judgment of Hon'ble High Court of Delhi in case Satya Narain v/s Jai Kishan , FAO No: 709/02, date of decision: 2.2.2007, Delhi High Court it was held that: "On account of pain and suffering, suffice would it be to note that it is difficult to measure pain and suffering in terms of a money value. However, compensation which has to be paid must bear some objectives corelation with the pain and suffering. The objective facts relatable to pain and suffering would be:
(a) Nature of injury.
(b) Body part affected.
© Duration of the treatment."
54. Keeping in view the said guidelines and keeping in view the aforesaid observation made by this court, since the petitioner got pain/tenderness on the right side of the chest, I hereby allow Rs. 15,000/ towards pain and sufferings. Besides this,I hereby grant Rs. 5,000/ towards special diet. LOSS OF LEAVE DURING TREATMENT PERIOD Page No. 28/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
55. The petitioner is stated to be working as shopkeeper and was stated to be earning Rs. 4,500/ per month but no income proof has been filed or proved on record. Considering all circumstances, it appears to me that petitioner could not have worked for about 2 months. The petitioner is stated to be unskilled. The date of accident is 12.08.2006 in this case. The Minimum Wages for the relevant period for a unskilled person is Rs. 3,312/ p.m. Accordingly, I award Rs. 6,624/ ( Rs. 3,312/ x 2) towards loss of income.
The total compensation is assessed as under:
Treatment expenses: .....Nil.....
Pain and sufferings: Rs. 15,000/
Conveyance & special diet: Rs. 5,000/
Loss of income during
treatment period Rs. 6,624/
Total: Rs. 26,624/
RELIEF:
56. I award Rs. 26,624/ (Rupees Twenty Six Thousand Six Hundred Twenty Four Only) as compensation with interest at the rate of 8% per annum including interim award, if any from the date of filing the petition i.e. 14.09.2006 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioner and against the respondents on account of their liability being joint and several. Amount be released to the petitioner. Compensation in Sixth Petition :
Page No. 29/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
57. Petitioner no. 1 submits that deceased remained admitted in the hospital for about one month and sustained serious head injuries and also got multiple injuries. It is further stated that condition of Sh. Raj Pal never improved and after the accident his health continuously deteriorated and expired on 09.01.2007 due to injuries sustained in the accident.
58. On the other hand counsel for insurance company argued that no medical certification was proved on record to show that the death was caused by the injuries sustained in the accident.
59. I have taken care of the submissions of the Ld. Counsel for parties and have perused the record.
60. PW 6 in her cross examination has stated that deceased had remained admitted in the hospital for about one month and she has no document to prove such admission in the Hospital. She further admitted in her cross examination that no post mortem was conducted after the death. It was never stated that he was on the deathbed or any such likelihood of his dying because of the injuries and not filed any certificate from a medical officer of his imminent death. No medical certificate was produced or proved that the injured had died because of the accident only and he had died after five months after the accident. Accordingly there was no basis to believe that the death was a result of the accident. I hereby grant lump sum of Rs. 1,00,000/ (Rs. One Lac Only) for loss of income for five months and for medical and other expenses in favour of the petitioners and against Page No. 30/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 the respondents as compensation with interest at the rate of 8% per annum including interim award, if any from the date of filing the petition i.e. 14.09.2006 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioners no. 1 shall have the share of 40% in the award amount and the petitioners No. 2 to 7 shall have share of 10% each in the award amount. The amount so awarded to the petitioner no. 2 to 5, the same shall be kept in the FDRs for a period of 5 years. In case any petitioner/petitioners is/ are minor/minors, the entire amount awarded to petitioner/ petitioners shall be kept in FDRs in a nationalized bank till he/she attain/ attains the age of majority or for a period of five years whichever is later. No loan or advance shall be allowed against the said fixed deposit. Petitioners can withdraw the interest quarterly from the said FDRs. The minor petitioners, if any can withdraw the interest quarterly through their mother/ petitioner No. 1 respectively. Amount awarded to petitioner no. 1, 6 and 7 be released.
COMPENSATION IN SEVENTH PETITION :
61. As per the postmortem report, the deceased was 27 years of age as on the date of accident.
62. The deceased was stated to be shopkeeper and was stated to be earning Rs. 4,500/ per month but no income or profession proof filed on record. Page No. 31/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 12.08.2006 on which the minimum wages for relevant period for un skilled person was Rs. 3,312/.
63. Ld. Counsel for petitioners requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563, but per contra Ld. counsel for the insurer objected to same.
64. I have taken care of the submissions of the Ld. Counsel for petitioner and have perused the record.
65. Initially, the Hon'ble Supreme Court of India in 'Santosh Devi Vs National Insurance Company Ltd. & Ors' in Civil Appeal No. 3723 of 2012 decided on 23/04/2012case had held as under: "14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was selfemployed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is selfemployed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The Page No. 32/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and Page No. 33/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
66. However, in a recent case decided by Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" wherein three Hon'ble Judges bench held that
11. Since, the court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (Supra) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 % always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50 % to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 % in case the deceased was in age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self Page No. 34/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 employed or on the fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15 % in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
20.The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/ to Rs.10,000/. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other Page No. 35/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
67. After discussing the law of precedents, regarding future prospects, the Hon'ble High Court of Delhi in a recent judgment in 'ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors'in MACA 846/2011 decided on 30/09/13 held as under:
"26. While considering the case of Santosh Devi, the Apex Court did not feel to refer the matter to a Larger Bench. Therefore, it can be concluded that there is no contradictions in the finding of Sarla Verma and Santosh Devi, in turn the Apex Court extended the scope and ambit of Sarla Verma through Santosh Devi."
27. In view of above, this court is guided by the legal principles as set out in Reshma Kumari and Rajesh in order to assess the just compensation as it is envisaged in Section 168 of Motor Vehicles Act, 1988. In Reshma Kumari, the Apex Court affirmed the findings of Sarla Verma; and in Rajesh, the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi. Page No. 36/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 Specifically, for the assessment of future prospects in respect of the persons falling under the category of self employment / fixed wages this court is guided by the dictum laid down in Rajesh. In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Kumari and Rajesh."
68. The Hon'ble High Court of Delhi in recent judgment have taken care of all the judgments relied upon in the earlier judgment of MAC APP 138/2011 decided on 06/09/2013 in New India Assurance Co. Ltd. Vs. Harpal Singh relied upon by the insurer.
69. Therefore, in view of the aforesaid latest judgment in 'ICICI Lombard Vs. Angrej Singh (supra), the income of the deceased is required to be appreciated for future prospects.
70. Since the deceased was 26 years of age as on the date of accident, 50% of income towards the future prospects is required to be added in terms of aforesaid judgment in Angrej Singh (supra). Hence after averaging out, the income of deceased comes out to be Rs. 4,968/ (Rs 3,312/ + 50%).
71. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 that the deceased might have been spending onefourth of Rs. 4,968/ on his personal expenses as he had left behind four dependents. Therefore, after deducting onefourth towards personal expenses, the loss of dependency per annum comes out to be Rs. 4,968/ less Rs. 1,242/ = Rs. Page No. 37/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 3,726/. The appropriate multiplier applicable is 17, as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to Rs. 7,60,104/ = (Rs. 3,726/ x 12 x 17).
72. In terms of the aforesaid judgment in Rajesh's case(supra), the Hon'ble Supreme Court of India has granted Rs. 25000/ towards funeral charges, Rs. 1,00,000/ towards loss of consortium and Rs. 1,00,000/ towards loss of care and guidance for minor children, accordingly, I award Rs. 1,00,000/ towards loss of consortium; Rs. 25,000/ towards funeral charges; Rs. 1,00,000/ towards loss of care and guidance for minor children. I also award of Rs. 10,000/ towards loss of estate.
The total compensation is assessed as under:
Loss of dependency : Rs. 7,60,104/
Loss of consortium : Rs. 1,00,000/
Loss of care and guidance
of minor child : Rs 1,00,000/
Funeral charges : Rs. 25,000/
Loss of estate : Rs. 10,000/
_
Total: Rs 9,95,104/
RELIEF:
73. I award Rs. 9,95,104/ (Rs. Nine Lacs Ninety Five Thousand One Hundred Four Only) in favour of the petitioners and against the respondents as compensation with interest at the rate of 8% per annum including interim award, Page No. 38/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 if any from the date of filing the petition i.e. 14.09.2006 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioners no. 1 shall have the share of 40% in the award amount and the petitioners No. 2 to 4 shall have share of 20% each in the award amount. Income tax, if any, as applicable be deducted as per rules.
74. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S. Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent (50%) of the amount awarded to petitioner No. 1 shall be kept in 5 FDRs of almost equal amount in a Nationalized Bank for a period of 1, 2, 3, 4 and 5 years. Fifty percent (50%) of the amount awarded to petitioner No. 4 shall be kept in 3 FDRs of almost equal amount in a Nationalized Bank for a period of 1, 3 and 5 years. The amount so awarded to the petitioner no. 2 and 3, the same shall be kept in the FDRs for a period of 5 years. In case any petitioner/petitioners is/ are minor/minors, the entire amount awarded to petitioner/ petitioners shall be kept in FDRs in a nationalized bank till he/she attain/ attains the age of majority or for a period of five years whichever is later. No loan or advance shall be allowed against the said fixed deposit. Petitioners can withdraw the interest quarterly from the said FDRs. The minor petitioners, if any can withdraw the interest quarterly through their Page No. 39/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 mother/ petitioner No. 1 respectively. 50% of the amount awarded to petitioner no. 1 and 4 be released.
COMPENSATION IN EIGHTH PETITION :
75. As per the postmortem report, the deceased Late Jai Kumar was 22 years of age as on the date of accident.
76. The deceased was stated to be shopkeeper and was stated to be earning Rs. 4,500/ per month but no income or profession proof filed on record. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 12.08.2006 on which the minimum wages for relevant period for un skilled person was Rs. 3,312/.
77. Ld. Counsel for petitioners requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563, but per contra Ld. counsel for the insurer objected to same.
78. I have taken care of the submissions of the Ld. Counsel for petitioner and have perused the record.
79. Initially, the Hon'ble Supreme Court of India in 'Santosh Devi Vs National Insurance Company Ltd. & Ors' in Civil Appeal No. 3723 of 2012 decided on 23/04/2012case had held as under: Page No. 40/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 "14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was selfemployed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is selfemployed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed employed under the Central and State Governments and their agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those Page No. 41/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim of accident then the same formula deserved to be applied for calculating the amount of compensation".
80. However, in a recent case decided by Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" wherein three Hon'ble Judges bench held that
11. Since, the court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (Supra) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is Page No. 42/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 not 30 % always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50 % to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 % in case the deceased was in age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self employed or on the fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15 % in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
20.The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held Page No. 43/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 that compensation for loss of consortium should be in the range of Rs. 5,000/ to Rs.10,000/. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
81. After discussing the law of precedents, regarding future prospects, the Hon'ble High Court of Delhi in a recent judgment in 'ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors'in MACA 846/2011 decided on 30/09/13 held as under:
Page No. 44/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 "26. While considering the case of Santosh Devi, the Apex Court did not feel to refer the matter to a Larger Bench. Therefore, it can be concluded that there is no contradictions in the finding of Sarla Verma and Santosh Devi, in turn the Apex Court extended the scope and ambit of Sarla Verma through Santosh Devi."
27. In view of above, this court is guided by the legal principles as set out in Reshma Kumari and Rajesh in order to assess the just compensation as it is envisaged in Section 168 of Motor Vehicles Act, 1988. In Reshma Kumari, the Apex Court affirmed the findings of Sarla Verma; and in Rajesh, the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi.
Specifically, for the assessment of future prospects in respect of the persons falling under the category of self employment / fixed wages this court is guided by the dictum laid down in Rajesh. In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Kumari and Rajesh."
82. The Hon'ble High Court of Delhi in recent judgment have taken care of all the judgments relied upon in the earlier judgment of MAC APP 138/2011 decided on 06/09/2013 in New India Assurance Co. Ltd. Vs. Harpal Singh relied upon by the insurer.
83. Therefore, in view of the aforesaid latest judgment in 'ICICI Lombard Vs. Angrej Singh (supra), the income of the deceased is required to be appreciated for future prospects.
84. Since the deceased was 22 years of age as on the date of accident, 50% of income towards the future prospects is required to be added in terms of Page No. 45/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 aforesaid judgment in Angrej Singh (supra). Hence after averaging out, the income of deceased comes out to be Rs. 4,968/ (Rs 3,312/ + 50%).
85. It can very well be presumed in terms of the judgment of the Hon'ble Supreme Court of India in Sarla Verma Vs. DTC decided on 15.4.2009 in C.A. No. 3483/08 that the deceased might have been spending onethird of Rs. 4,968/ on his personal expenses as he had left behind four dependents. Therefore, after deducting onethird towards personal expenses, the loss of dependency per annum comes out to be Rs. 4,968/ less Rs. 1,656/ = Rs. 3,312/. The appropriate multiplier applicable is 18, as mentioned in Sarla Verma's judgment (Supra). The total loss of dependency comes out to Rs. 7,15,392/ = (Rs. 3,312/ x 12 x 18).
86. In terms of the aforesaid judgment in Rajesh's case(supra), the Hon'ble Supreme Court of India has granted Rs. 25000/ towards funeral charges, Rs. 1,00,000/ towards loss of consortium and Rs. 1,00,000/ towards loss of care and guidance for minor children, accordingly, I award Rs. 1,00,000/ towards loss of consortium; Rs. 25,000/ towards funeral charges; Rs. 1,00,000/ towards loss of care and guidance for minor children. I also award of Rs. 10,000/ towards loss of estate.
The total compensation is assessed as under:
Loss of dependency : Rs. 7,15,392//
Loss of consortium : Rs. 1,00,000/
Loss of care and guidance
Page No. 46/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 of minor child : Rs 1,00,000/ Funeral charges : Rs. 25,000/ Loss of estate : Rs. 10,000/ _ Total: Rs 9,50,392/ RELIEF:
87. I award Rs. 9,50,392/ (Rs. Nine Lacs Fifty Thousand Three Hundred Ninety Two Only) in favour of the petitioners and against the respondents as compensation with interest at the rate of 8% per annum including interim award, if any from the date of filing the petition i.e. 14.09.2006 till the notice under Order 21 Rule 1 is given by the insurance company, in favour of the petitioners and against the respondents on account of their liability being joint and several. The petitioners no. 1 shall have the share of 60% in the award amount and the petitioners No. 2/Smt. Shashi and 3/Baby Nandini shall have share of 20% each in the award amount. Income tax, if any, as applicable be deducted as per rules.
88. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S. Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent (50%) of the amount awarded to petitioner No. 1 shall be kept in 5 FDRs of almost equal amount in a Nationalized Bank for a period of 1, 2, 3, 4 and 5 years. Fifty percent (50%) of the amount awarded to petitioner No. 3 shall be kept in 3 FDRs of almost equal amount in a Nationalized Bank for a period of 1, 3 and 5 years. The amount Page No. 47/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 so awarded to the petitioner no. 4, the same shall be kept in the FDRs for a period of 5 years. In case any petitioner/petitioners is/ are minor/minors, the entire amount awarded to petitioner/ petitioners shall be kept in FDRs in a nationalized bank till he/she attain/ attains the age of majority or for a period of five years whichever is later. No loan or advance shall be allowed against the said fixed deposit. Petitioners can withdraw the interest quarterly from the said FDRs. The minor petitioners, if any can withdraw the interest quarterly through their mother/ petitioner No. 1 respectively. 50% of the amount awarded to petitioner no. 1 and 4 be released.
COMPENSATION IN NINTH PETITION :
COMPENSATION :
89. As per the postmortem report and ration card Ex PW 3/B, the deceased Sh. Vikas Kumar @ Vicky was 21 years of age as on the date of accident.
90. The deceased was stated to be shopkeeper and was stated to be earning Rs. 4,500/ per month but no income or profession proof filed on record. In these circumstances, the income of the deceased can very well be assessed on the basis of the chart available in the Minimum Wages Act. The date of accident was 12.08.2006 on which the minimum wages for relevant period for un skilled person was Rs. 3,312/.
91. Ld. Counsel for petitioner requested for balancing the income of the victim on the basis of inflation trends and requested that 50% increase be made in Page No. 48/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 the income of the victim on the basis of judgment of Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563, but per contra Ld. counsel for the insurer objected to same.
92. I have taken care of the submissions of the Ld. Counsel for petitioner and have perused the record.
93. Initially, the Hon'ble Supreme Court of India in 'Santosh Devi Vs National Insurance Company Ltd. & Ors' in Civil Appeal No. 3723 of 2012 decided on 23/04/2012 case had held as under: "14. We find it extremely difficult to fathom any rationale for the observation made in paragraph 24 of the judgment in Sarla Verma's case that where the deceased was selfemployed or was on a fixed salary without provision for annual increment, etc., the Courts will usually take only the actual income at the time of death a departure from this rule should be made only in rare and exceptional cases involving special circumstance. In our view, it will be nave to say that the wages or total emoluments/income of a person who is selfemployed or who is employed on a fixed salary without provision for annual increment, etc., would remain the same throughout his life. The rise in the cost of living affects everyone across the board. It does not make any distinction between rich and poor. As a matter of fact, the effect of rise in prices which directly impacts the cost of living is minimal on the rich and maximum on those who are selfemployed or who get fixed income/emoluments. They are the worst affected people. Therefore, they put extra efforts to generate additional income necessary for sustaining their families. The salaries of those employed employed under the Central and State Governments and their Page No. 49/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 agencies/instrumentalities have been revised from time to time to provide a cushion against the rising prices and provisions have been made for providing security to the families of the deceased employees. The salaries of those employed in private sectors have also increased manifold. Till about two decades ago, nobody could have imagined that salary of Class IV employee of the Government would be in five figures and total emoluments of those in higher echelons of service will cross the figure of rupees one lac. Although, the wages/income of those employed in unorganized sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors but it cannot be denied that there has been incremental enhancement in the income of those who are selfemployed and even those engaged on daily basis, monthly basis or even seasonal basis. We can take judicial notice of this fact that with a view to meet the challenges posed by high cost of living, the persons falling on the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching cloths. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like barber, blacksmith, cobbler, mason etc. Therefore, we do not think that while making the observations in the last three lines of paragraph 24 of Sarla Verma's judgment, the Court had intended to lay down an absolute rule that there will be no addition in the income of a person who is self employed or who is paid fixed wages. Rather, it would be reasonable to say that a person who is selfemployed or is engaged on fixed wages will also get 30 per cent increase in his total income over a period of time and if he/she becomes victim Page No. 50/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 of accident then the same formula deserved to be applied for calculating the amount of compensation".
94. However,in a recent case decided by Hon'ble Supreme Court of India in "Rajesh & Ors. Vs. Rajbir Singh & Ors 2013(6) Scale 563" wherein three Hon'ble Judges bench held that:
11. Since, the court in Santosh Devi's case (Supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (Supra) and to make it applicable also to selfemployed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30 % always; it will also have a reference to the age. In other words, in the case of selfemployed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50 % to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30 % in case the deceased was in age group of 40 to 50 years.
12. In Sarla Verma's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self employed or on the fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15 % in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter. Page No. 51/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi (Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 25,00/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs. 5,000/ to Rs. 10,000/. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That nonpecuniary head of damages has not been properly understood by our Courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of nonpecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English Courts have also compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately Page No. 52/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least Rupees One Lakh for loss of consortium.
95. Further, Ld. Counsel for respondent vehemently argued that petitioner is not entitled for any appreciation of income for the purpose of compensation towards future prospects in view of the judgment of Hon'ble High Court of Delhi in MAC. APP. 138/2011 decided on 06/09/2013 in New India Assurance Co.
96. Per contra, Ld. Counsel for petitioners has relied upon the judgment of Hon'ble High Court of Delhi while disposing of petition has held as under:
97. The Hon'ble High Court of Delhi in recent judgment in MAC APP. 405/2013 decided on 17/09/2013 in Raj Pal & Ors Vs. New India Assurance Co. Ltd while disposing of petition has held as under:
"2. Learned counsel appearing on behalf of the appellants/ claimants has submitted that at the time of the accident, the deceased was 29 years of age and in view of the recent judgment of the Full Bench of the Supreme Court in the case of Rajesh and Ors. Vs. Rajbir Singh and Ors. 2013(6) SCALE 563, the appellants / claimants are entitled for 50% towards future prospects.
3. On the other hand, learned counsel appearing on behalf of the respondent/ Insurance Company while relying upon the case of Union of India & ors. Vs. S. K. 2011 4SCC 589, and Reshma Kumari & Ors. Vs. Madan Mohan & Anr delivered in Page No. 53/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 Civil Appeal No. 4646 of 2009 on 02.4.2013 has submitted that in view of the above judgments since the deceased was not in permanent job, therefore, the appellants/ claimants are not entitled for any compensation on account of future prospects.
"4. The admitted fact is that every salary / income gets increase due to the inflation. Every person after sometime earns more than what he was earning earlier, therefore, in my considered opinion, in every case whether a person is in a Government job or in private job, his income keeps on escalating. It is immaterial whether he/ she is in permanent job or temporary. Earlier majority of the employment was in public sector but in the changed scenario majority of the people finds employment in private sector. Nowadays, people are very frequently changing their employment. That does not mean they do not have permanent employment."
5. Therefore, for granting future prospects, if it is taken into consideration that person working in the private organizations are not entitled for the same, being not in permanent job, then claimants in such cases are not entitled for the increase towards his salary/ income. Hence, recently keeping all these facts into view, the Full Bench of the Hon'ble Supreme Court has decided the case of Rajesh and others(supra) as under:
98. After discussing the law of precedents, regarding future prospects, the Hon'ble High Court of Delhi in a recent judgment in 'ICICI Lombard General Insurance Co. Ltd. Vs. Angrej Singh & Ors'in MACA 846/2011 decided on 30/09/13 held as under:
"26. While considering the case of Santosh Devi, the Apex Court Page No. 54/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 did not feel to refer the matter to a Larger Bench. Therefore, it can be concluded that there is no contradictions in the finding of Sarla Verma and Santosh Devi, in turn the Apex Court extended the scope and ambit of Sarla Verma through Santosh Devi."
27. In view of above, this court is guided by the legal principles as set out in Reshma Kumari and Rajesh in order to assess the just compensation as it is envisaged in Section 168 of Motor Vehicles Act, 1988. In Reshma Kumari, the Apex Court affirmed the findings of Sarla Verma; and in Rajesh, the Hon'ble Supreme Court has agreed with the dictum of Santosh Devi. Specifically, for the assessment of future prospects in respect of the persons falling under the category of self employment / fixed wages this court is guided by the dictum laid down in Rajesh. In my considered opinion, there is no contradiction in the dictum laid down by the Apex Court in the cases of Reshma Kumari and Rajesh."
99. The Hon'ble High Court of Delhi in recent judgment have taken care of all the judgments relied upon in the earlier judgment of Harpal Singh (supra) relied upon by the insurer.
100. Therefore, in view of the aforesaid latest judgment in ICICI Lombard Vs. Angrej Singh (supra), the income of the deceased is required to be appreciated for future prospects.
101. Since the deceased was 21 years of age as on the date of accident, 50% of income towards the future prospects is required to be added in terms of aforesaid judgment in Angrej Singh (supra). Hence after averaging out, the income of deceased comes out to be Rs. 4,968/ ( Rs. 3,312/+ 50% ). Page No. 55/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
102. As per the judgment of Hon'ble Supreme Court of India in Sarla Verma (supra) , 50% of the income of the deceased is directed to be deducted towards personal and living expenses as the deceased was bachelor and has left behind his parents. After deducting one half towards personal expenses, the monthly loss of dependency comes out to be Rs. 4,968 () Rs. 2,484/ = Rs. 2,484/.
103. The Hon'ble High Court in recent judgment titled as The Oriental Insurance Company Ltd. Vs. Sh. A.K. Puri & Ors, reported in 2012 VI AD(S.C.) 399 decided on 24.03.2014 which was duly circulated to the Judicial Officers for the applying the ratio of this judgment for the purpose of multiplier wherein the Hon'ble High Court as referred Reshma Kumari and relevant para is para no. 23 which read as under :
"23. Significantly, the Apex Court in the case of Reshma Kumari and M. Nag Pal has followed the age of the victim as a factor for selecting the multiplier. Specifically, in the selection of multiplier for the age group up to '15' the Apex Court never considered the age of the claimants as a relevant factor. Therefore this court finds no reason to adopt a different formula for the victim who is above '15' years of age, whereas the relevant factors have been adopted by the Apex Court such as (i) age of the deceased (ii) income of the deceased and (iii) number of dependents. The Apex Court, while formulating the relevant factors for the assessment of loss of dependency, the age of the claimants never considered as a factor.Page No. 56/65
Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 Finally, in the assessment of dependency, the courts/tribunals are computing the purchasing capacity of the deceased; not the claimants.
Therefore, I am of the considered opinion that the age of the victim is the proper factor for selecting the correct multiplier."
104. Accordingly the appropriate multiplier applicable is 18, as mentioned in Sarla Verma's judgment (Supra). Hence, the total loss of dependency comes out to (Rs. 2,484/ x 12 x 18)= Rs. 5,36,544/.
105. In terms of the aforesaid judgment in Rajesh's case(supra), the Hon'ble Supreme Court of India has granted Rs. 25000/ towards funeral charges and Rs. 1,00,000/ towards Loss of Love and Affection. Accordingly, I award Rs. 25,000/ towards funeral charges, Rs.1,00,000/ towards Loss of Love & Affection & Rs. 10,000/ towards Loss of Estate.
The total compensation is assessed as under:
Loss of dependency : Rs. 5,36,544/
Loss of Estate : Rs 10,000/
Funeral charges : Rs. 25,000/
Loss of Love and Affection Rs. 1,00,000/
Total: Rs. 6,71,544/
RELIEF:
106. I award Rs. 6,71,544/ (Rupees Six Lacs Seventy One Thousand Five Hundred Forty Four Only) in favour of the petitioners and against the Page No. 57/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 respondents as compensation with interest at the rate of 8% per annum including interim award, if any, from the date of filing the petition i.e. 14.09.2006, in favour of the petitioners and against the respondents on account of their liability being joint and several. Petitioner Nos. 1 & 2 shall have the share of 50% each in the award amount.
107. Acting on the guidelines issued by Hon'ble Supreme Court of India G.M Kerala State Road Transport Corporation v/s S.Susamma Thomas (1994) 2 SCC 176 in order to avoid the money being frittered away, fifty percent (50%) of the amount awarded to each petitioners shall be kept in the form of one FDR for a period of five years. No loan or advance shall be allowed against the said fixed deposits. All the petitioners can withdraw the interest quarterly from their FDRs. APPORTIONMENT OF LIABILITY:
108. Ld. Counsel for insurance company stated that the insurance company is not liable to pay any compensation. Counsel for insurance company submitted that since the injureds/deceased were the gratuitous passengers, the owner of the offending vehicle has breached the terms of the insurance policy. Further the offending tempo was being used for carriage of gratuitous passengers. In addition to the same it was contended that the offending vehicle being a goods vehicle was illegally carrying passengers violating the terms and conditions of the policy.
Therefore the insurance company is not liable to pay any amount in favour of the claimants.
Page No. 58/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
109. I have heard Ld. counsel for parties and have perused the record.
110. Facts of the case are that on 12.08.2006 at about 12:15 AM when the injured/petitioners along with their goods were traveling in Tempo bearing No. RJ 31 GA 0683, the driver of the said Tempo was driving at a very high spped, rash, negligently and without caring for the rules of the traffic. The injured/petitioners and other occupants of the tempo repeatedly asked the driver to drive at a moderate speed bit the diriver did not pay any heed and when they reached at opposite Azad Hind Gram, Main Rohtak Road, Tikri Kalan, Delhi the driver lost control over the wheels and the said tempo turned turtly. As a result of which Sh. Ajay Kumar, Ms. Sheetal, Sh. Ashok Kumar, Smt. Shashi, Sh. Rajpal sustained injuries and Sh. Lalji Sh. Hem Singh, Sh. Jai Kumar and Sh. Vikas Kumar @ Vicky sustained fatal injuries. Therefore vide FIR No. 807/2006, Ex PW 1/A, a case was registered against the respondent no. 1 at Police Station Nangloi for the offences under Section 279/337/338/304A IPC on the statement of Sh. Raj Pal . PW 6 Smt. Shashi and PW 7 Sh. Ajay Kumar who claimed to be the eye witnesses of the accident have deposed that in the evening of 11.08.2006 they loaded their sweets/goods (Prasad) on the offending truck for being transported from Brij Ghat to Ghooga Heri, Rajasthan. All these persons boarded the offending truck so that the goods could be unloaded at Ghooga Heri and when they reached at opposite Azad Hind Gram, Main Rohtak Road, Tikri Kalan, Delhi the driver lost control over the wheels and the said tempo turned overturned and caused injuries to all of its Page No. 59/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 occupants.
111. There is no evidence on record to show that the injureds/deceased were travelling on offending tempo as a gratuitous passengers at the time of accident. Not even a suggestion to this effect was extended to any of the witness of the claimants. Rather there is unchallenged testimony of PW 6 and PW 7 on record that they and the other injureds/deceased had boarded the offending tempo in order to accompany their goods being transported to Ghooga Heri, Rajasthan.
112. The question arises for consideration is whether the deceased was travelling in the offending vehicle as the owner of the goods? It would be appropriate to quote Section 147 of the Motor Vehicle Act, 1988 which prescribes the legal requirement of the insurance policy and the person included in coverage of the policy for the convenience Section 147 of Motor Vehicles Act is reproduced as under :
"147. Requirement of policies and limits of liability - (1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which
(a) is issued by a person who is an authorised insurer; and
(b) insures the person or classes of persons specified in the policy to the extent specified in Subsection (2),
(i) against any liability which may be incurred by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorised representative carried in the vehicle or damage any property of a third party caused by or arising out of the use of the vehicle in a public place;
(ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the Page No. 60/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 vehicle in a public place:"
113. As per Section 147 (1) (b) (i) of Motor Vehicle Act, 1988, the policy of insurance company covers and includes, either the owner of the goods or the authorised representative carried in the vehicle. Therefore, the irresistible conclusion would be either the owner of the goods or his authorised representatives are entitled for the compensation not both.
114. It is established that injureds/deceased had loaded their goods for being unloaded to Ghoga Heri. The said tempo was driven at high speed and in a rash and negligent manner due to which the driver of the offending vehicle lost control and the truck overturned. Undisputedly on the date of accident the offending tempo was duly insured with the insurance company.
115. In the present case, the owners of the goods were travelling with the goods in the offending vehicle and the charges were paid only after the goods reaches at Ghooga Heri, Rajasthan. The evidence of PW 6 and PW 7 clearly reveals that they were travelling in the goods vehicle to secure their goods (Prasad). In other words hiring of the vehicle by the petitioners/deceased for transportation of goods only and that the petitioners/deceased were travelling in the goods vehicle, in order to transport their goods and that they were not travelling as a gratuitous passenger or a farepaid passenger. Insurance policy, Ex. R2W1A, covers the risk of a person who was travelling either as a owner of the goods or an authorised representaitve of the owner of the goods. Admittedly Page No. 61/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 injureds/deceased were not travelling in the vehicle as a farepaid passengers or a gratuitous passengers. In these circumstances, I am of the considered opinion that the insurance company is liable to pay compensation.
116. The respondent No. 2/insurance company being the insurer, its liability is joint and several with other respondents. Accordingly, the respondent No. 2 is directed to deposit the award amount within a period of 30 days. In case of any delay, respondent no. 2 shall be liable to pay interest at a rate of 12% per annum for the period of delay.
117. The Hon'ble High Court of Delhi in its latest judgment in Union of India and Another Vs. Nanisari and Others MACA 682/2005 decided on 13.1.2010 have given certain guidelines and directions to the Motor Accident Tribunals to the effect that henceforth the Tribunals shall direct the insurance companies to deposit the award amount in the bank within 30 days with further direction as to the disbursement of the same in terms of the award and case be kept pending till the compliance is placed on record. The directions given by Hon'ble High Court of Delhi as mentioned and endorsed in the said order has already been reaffirmed by Hon'ble Supreme Court of India in order dated 17.12.2009 in SLP (C) No. 1180111804/2005 which contains certain schemes initiated for the benefit of the victims of the road accidents after the award amount is passed. The para no.19 of the judgment of the Hon'ble High court of Delhi runs as under: "19. To protect and preserve the compensation amount awarded to the families of the deceased victim special Page No. 62/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014 schemes may be considered by the insurance companies in consultation with the Life Insurance Corporation of India, State Bank of India or any other Nationalized Banks under which the compensation is kept in fixed deposit for an appropriate period and interest is paid by the Bank monthly to the claimants without any need for claimants having to approach either the Court or their counsel or the Bank for that purpose. The scheme should ensure that the amount of compensation is utilized only for the benefit of the injured claimants or in case of death, for the benefit of the dependent family. We extract below the particulars of a special Scheme offered by a nationalized Bank at the instance of the Delhi High Court:
(i) The fixed deposit shall be automatically renewed till the period prescribed by the Court.
(ii) The interest on the fixed deposit shall be paid monthly.
(iii) The monthly interest shall be credited automatically in the saving account of the claimant.
(iv) Original fixed deposit receipt shall be retained by the Bank in safe custody.
However, the original pass book shall be given to the claimant along with the photocopy of the FDR.
(v) The original fixed deposit receipt shall be handed over to the claimant at the end of the fixed deposit period.
(vi) Photo identity card shall be issued to the claimant and the withdrawal shall be permitted only after due verification by the Bank of the identity card of the claimant.
(vii) No cheque book shall be issued to the claimant without permission of the Court.
(viii) No loan, advance or withdrawal shall be allowed on the fixed deposit without permission of the Court.
(ix) The claimant can operated the saving bank account from the nearest branch of UCO Bank on the request of the claimant, the bank shall provide the said facility."
Page No. 63/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
118. It was further held in the judgment passed by Hon'ble High Court of Delhi in Nanisiri case (Supra) that "The State Bank of India and UCO Bank have formulated special schemes for the victims of the road accident on the above terms and, therefore, the order for the deposit should be made presently to State Bank of India through its nodal officer Mr. K.K. Malhotra, Relationship Manager, Tis Hazari Branch, Tis Hazari (Mb: 09810433676) or to UCO Bank through Mr. M M Tandon, MemberRetail Team, UCO Bank Zonal, Parliament Street, New Delhi (Mobile No.09310356400) as per the convenience of the victim /legal representatives of the victim. However, if any other bank agrees to provide the special scheme for victims of the road accident on the above terms, the deposit be permitted to be made in that Bank subject to the convenience of the victim/legal representative of the victim of the road accident".
119. In terms of the order of the Hon'ble High Court of Delhi the insurance company shall deposit the award amount in the State Bank of India, Tis Hazari Court Complex Branch, Delhi in the name of the petitioner/ petitioners in terms of the award and shall file the compliance report. It is made clear that at the time of the deposit of the award amount with the bank, the insurance company shall specifically mention the suit no. of the case, title of the case as well as date of decision with the name of court on the back side of the cheque. The insurance company shall also file the attested copy of the award attested by its own officer to the bank at the time of deposit of the amount with the bank. Page No. 64/65 Consolidated Award in Suit No. 101/2014, 99/2014, 102/2014, 91/2014, 92/2014, 93/2014, 95/2014, 94/2014 and 10/2014
120. The copy of this award be given to the insurance company as well as to the petitioner free of cost. The petitioner shall approach the State Bank of India, Tis Hazari Court Complex Branch, Delhi for opening the account.
121. The Manager of the Bank is directed to comply the award. The Bank Manager is directed to release the award amount to the petitioners. However, in case the amount is ordered to be kept in the FDR, the said amount should not be released unless the FDR is matured.
File be consigned to Record Room.
122. A separate file be prepared for compliance report and put up the same on 29.11.2014 to be filed by insurance company.
Announced in the open court
th
on 30 September, 2014 (MUKESH KUMAR)
PO: MACT (WEST02): DELHI
Page No. 65/65