Allahabad High Court
Jagannath Pal And Another vs Rakesh Kumar And Ors. on 14 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 578
Author: Anil Kumar
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved Court No. - 9 Case :- FIRST APPEAL FROM ORDER No. - 805 of 2017 Appellant :- Jagannath Pal And Another Respondent :- Rakesh Kumar And Ors. Counsel for Appellant :- Mata Prasad Yadav Counsel for Respondent :- Amit Tripathi,Vaibhav Raj Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
Heard Sri Mata Prasad Yadav, learned counsel for the appellants and Sri Amit Tripathi and Sri Vaibhav Raj, learned counsels for the respondents.
By means of the present appeal, a challenge has been made to the judgment and order dated 30.05.2017 passed in Claim Petition No.111 of 2016 (Jagannath Pal And Another vs. Rakesh Kumar And Ors.) under Section 166 of the Motor Vehicles Act, 1988 (in short "Act 1988") passed by the MACT Court/District Judge, Gonda ("Tribunal").
Fact, in brief, of the present case are to the effect that on 17.04.2016 Km. Gunjan Pal, the daughter of the appellants appeared in UPTU examination and after appearing in the said examination, when she was returning alongwith Sri Somnath Pal from the examination center i.e. Nandini Nagar Mahavidayalya, Nawabganj, Gonda, on motorcycle bearing No.U.P.-47 D-0750, she met with an accident near the gate of the University at about 02:00 PM and died due to rash and negligent driving of the driver of Mini Bus having No.UP-42, AT-4070, Sri Rakesh Kumar.
In view of the said factual background, the appellants namely Sri Jagannath Pal and Smt. Kaushalya Devi, the father and mother of the deceased filed a Claim Petition under Section 166 read with Section140 of Act 1988 before Tribunal registered as Claim Petition No.111 of 2016 (Jagannath Pal And Another vs. Rakesh Kumar And Ors.) and thereafter on behalf of owner of the Mini Bus-Sri Arun Kumar Singh written statement was filed on 14.12.2016. On behalf of Oriental Insurance Company, impleaded as opposite party no.3 in the Claim Petition also filed the written statement on 04.12.2017 and on behalf of the appellant, the evidence on affidavit of the Deshraj Pal-P.W.-1, Somnath Pal-P.W.2 and Jaganath Pal-P.W.-3 were filed and they were also cross-examined by the respondents.
The Tribunal, in order to decide the controversy, framed the following issues:-
Þ1- D;k fnukad 17-04-2016 dks le; yxHkx 02%00 cts dq0 xaqtu iky lkseukFk iky ds lkFk eksVjlkbfdy ls ;w0ih0Vh0;w0 dh ijh{kk ufUnuh uxj egkfo|ky; esa nsdj okil ykSVrs le; ufUnuh uxj egkfo|ky; ds xsV ls xks.Mk dh rjQ yxHkx 50 ehVj dh nwjh ij ihNs ls ykijokghiwoZd rst jQ~rkj ls vk jgh VkVk cl la[;k ;w0ih0 42, Vh&4070 us eksVjlkbfdy dks ihNs ls Bksdj ekj fn;k ftlls dq0 xqatu iky lM+d ij cl ds ifg, ds uhps fxj x;h vkSj cqjh rjg ls t[eh gks x;h rFkk ftyk vLirky igqaprs&igaqprs mDr vk;h pksVksa ds QyLo:i dq0 xaqtu iky dh ewR;q gks x;h gS\ 2- D;k dfFkr frfFk o le; ij foi{kh la[;k 1 ds ikl mDr okgu pyk;s tkus dk oS/k ,oa izHkkoh ykblsUl izkIr Fkk\ 3- D;k dfFkr la[;k ;w0ih042 , Vh&4070 ¼feuh cl½ foi{kh la[;k 3 chek dEiuh fn vksfj;UVy bU'kksjsUl dEiuh fyfeVsM ls ?kVuk dh frfFk ij chfer Fkh vkSj mDr okgu ls lEcfU/kr leLr dkxtkr oS/k ,oa izHkkoh Fks\ 4- D;k ;kphx.k foi{khx.k ls dfFkr nq?kZVuk ds ,ot esa {kfriwfrZ izkIr djus ds gdnkj gSa\ ;kfn gka rks fdruh vkSj fdl foi{kh ls og {kfriwfrZ izkIr djus gdnkj gSa\ß By means of the judgment and award dated 30.05.2017, Tribunal allowed the claim petition. The operative portion of the same reads as under:-
Þ;kphx.k dh ;kfpdk 02]15]000@& ¼nks yk[k iUnzg gtkj :i;s½ {kfriwfrZ lfgr izfroknhx.k ds fo:) ;kfpdk ds fnukad ls olwyh ds fnukad rd 7 % okf"kZd dh nj ls C;kt lfgr Lohdkj dh tkrh gSA mDr {kfriwfrZ vnk;xh dh ftEesnkjh izfroknh la[;k 2 okgu Lokeh dh gksxh tks mDr /kujkf'k ,d ekg ds vUnj U;k;ky; esa tek djsxk vU;Fkk ;kphx.k mDr /kujkf'k izfroknh la[;k 2 ls U;k;ky; ds ek/;e ls olwy ikus ds gksaxsA mijksDr /kujkf'k o C;kt esa ls ;kphx.k 50&50 % /kujkf'k izkIr djus ds gdnkj gSa ftlesa ls nksuksa ;kphx.k ds fgLls dh 60]000&60]000@& ¼lkB&lkB gtkj :i;s½ dh /kujkf'k rhu&rhu o"kZ ds fy, fdlh jk"Vªh;d`r cSad dh lkof/k tek ;kstuk esa j[kh tk;sxhA 'ks"k /kujkf'k nksuksa ;kphx.k udn ikus ds gdnkj gSaAß Thereafter, the review petition was filed by Sri Arun Kumar Singh, the owner of the vehicle registered as C.M.Application No.354 of 2007 by invoking the provisions provided under Order 47 read with Section 151 of C.P.C.
By an order dated 13.09.2017, the Tribunal allowed the review petition, the same is reads as under:-
ÞizkFkhZ v:.k dqekj flag dh vksj ls ekStwnk iqufoZyksdu izkFkZuk&i= vUrxZr vkns'k 47 o 151 lh0ih0lh0 txUukFk iky vkfn cuke jkds'k dqekj vkfn esa ikfjr ,okMZ fnukafdr 30-05-2017 ds fo:) izLrqr fd;k x;kA mDr iqufoZyksdu izkFkZuk&i= }kjk okgu la[;k ;w0ih0 42 , Vh@4070 feuh cl ds Lokeh }kjk izkFkZuk dh x;h fd mijksDRk ,e0,0lh0 la[;k 111@2016 es U;k;ky; us fu.kZ; fnukafdr 30-05-2017 esa rudhg uEcj 3 dkxt uEcj 33 x@1 o 33 x@2 QkEkZ 54 ds vk/kkj ij r; dh rFkk ik;k fd dkxt la[;k 33 x@2 QkeZ 54 tks vkj0Vh0vks0 QStkckn }kjk fnukad 17-12-2016 dks tkjh fd;k x;k Fkk] mlds vuqlkj izkFkhZ ds mijksDr okgu dh ckor ijfeV lgknxat pkSjkgk] uh;koka pkSjkgk] fjdkcxat] vekuhxat v;ks/;k] dVjk ekXkZ ds fy, tkjh fd;k x;k Fkk rFkk mDr QkeZ 54 ds vk/kkj ij chek dEiuh ds vuos"kd }kjk nh x;h fjiksVZ fnukafdr 17-12-2016 dkxt la[;k 33 x@1 ds vk/kkj ij U;k;ky; us ik;k fd ijfeV nq?kZVuk ds fnukad 17-04-2016 dks oS/k ugha gS ,oa U;k;ky; fVªC;wuy us {kfriwfrZ vnk;xh dh ftEesnkjh izkFkhZ v:.k dqekj flag okgu Lokeh dh ik;h rFkk chek dEiuh dks {kfriwfrZ dh ftEesnkjh ls eqDRk j[kkA tcfd nq?kZVuk dk fnukad ij okgu Lokeh ds ikl oS/k ijfeV uokcxat {ks= ds fy, Fkk tc okgu Lokeh dks mDr ,okMZ dh tkudkjh gqbZ rks mlus vkj0Vh0vks0] QStkckn tkdj ijfeV dh ckor tkudkjh yh ftlls ;g Li"V gS fd fnukad 02-12-1994 dks mDr ijfeV uokcxat rd ds fy, oS/k dj fn;k x;k Fkk rFkk nq?kZVukLFky uokcxat gS vr% fnukad 17-01-2018 rd mDr ifjfeV oS/k ekuk tk;sxkA mDr izkFkZuk&i= ds dFkuksa dks tgka v:.k dqekj izkFkhZ us vius 'kiFk&i= ls lEiq"V fd;k ogha okgu Lokeh us 07-07-2017 fnukafdr vkj0Vh0vks0] QStkckn ls tkjh vius ifjfeV dk fooj.k nl :i;s ds LVkEi isij ij ewy :i ls nkf[ky fd;k ftlesa ;g Li"V vafdr gS fd okgu la[;k ;w0ih0 42@, Vh&4070 feuh cl dk ijfeV la[;k 22 tks iwoZ esa lgknrxat pkSjkgk ls fjdkcxat pkSjkgk&fu;kok pkSjkgk&vekuhxat&v;ks/;k&dVjk ekXkZ ds fy, tkjh fd;k x;k] ckn esa izkf/kdj.k QStkckn dh cSBd fnukad 02-12-1994 }kjk ekxZ dk foLrkj uokcxat rd ds fy, fnukad 06-12-1994 dks dj fn;k x;k vr% bl izdkj mijksDr okgu dk ijfeV lgknrxat pkSjkgk ls fjdkcxat pkSjkg& fu;kok pkSjkgk& vekuhxat&v;ks/;k&dVjk&uokcxat gS ftldh oS/krk ;kf=;ksa dks fdjk, ij mijksDr ijfeV fooj.k ds vk/kkj ij fjO;wdrkZ izkFkhZ }kjk mijksDr ,e0,0lh0 111 lu 2016 esa ikfjr fu.kZ; fnukafdr 30-05-2017 dks la'kksf/kr djus dh izkFkZuk dh x;hA mijksDr iqufoZyksdu izkFkZuk&i= ij okgu Lokeh rFkk chek dEiuh ds vf/koDrk dks lquk rFkk ekStwnk o ryfonk ewy ,e0,0lh0 la[;k 111@2016 txUukFk iky vkfn cuke jkds'k dqekj vkfn dh i=koyh dk voyksdu fd;kA cgl ds LVst ij chek dEiuh dh vksj ls Hkh vius vUkos"kd dh fjiksVZ fnukafdr 26-08-2017 dks is'k fd;k x;k ftlds lkFk 26-08-2011 fnukafdr iz'uxr okgu ds ifjfeV dh ckor QkeZ 54 ewy :i ls layXu fd;k x;k ftlesa okgu la[;k ;w0ih0 42 , Vh 4070 feuh cl ijfeV la[;k 22@fu0ua0cl@QStk0 dk fooj.k vafdr gS ftlesa ijfeV fnukad 22-10-1994 ls 17-01-2018 rd oS/k crkrs gq, bldk ewy ekXkZ lgknrxat pkSjkgk ls fjdkcxat pkSjkgk&fu;koka&pkSjkgk&vekuhxat&v;ks/;k&dVjk ekxZ ds fy, tks tkjh fd;k x;k Fkk mls ckn esa 06-12-1994 fnukad dks dVjk ls uokcxat rd ds fy, c<+k fn;k x;kA bl izdkj fnukad 06-12-1994 ls 17-01-2018 rd ds fy, mDr ijfeV uokcxat rd ds fy, oS/k crk;k x;k rFkk iwoZ esa tkjh ijfeV dh ckor bl QkEkZ uEcj 54 esa ;g Li"V vafdr fd;k x;k fd dk;kZy; =qfV ls iwoZ esa tkjh fooj.k esa dVjk rd ekXkZ vafdr fd;k x;k Fkk mls uokcxat rd ekuk tk,A bl izdkj chek dEiuh ds vf/koDrk }kjk Hkh mijksDRk nLrkost dks nkf[ky djds izkFkhZ okgu Lokeh ds dFkuksa dk leFkZu fd;k x;k fd iwoZ esa iz'uxr okgu dk ijfeV tks ek= dVjk ekxZ rd ds fy, Fkk ckn es fnukad 06-12-1994 dks uokcxat rd c<+k fn;k x;kA bl izdkj nq?kZVuk dks fnukad 17-04-2016 dks okgu la[;k ;w0ih0 42 , Vh 4070 feuh cl pkyd ds ikl uokcxat ifj{ks= nq?kZVukLFky ds fy, ijfeV oS/k o izHkkoh ekuk tk;sxkA mijksDr fooj.k ls Li"V gS fd vkj0Vh0vks0 dk;kZy; dh =qfV ls iwoZ esa tkjh ifjfeV ftlds vk/kkj ij fu.kZ; ikfjr gqvk mlds vuqlkj iz'uxr okgu dk ijfeV ek= dVjk ekxZ rd ds fy, oS/k Fkk fdUrq vc la'kksf/kd ijfeV mHk; i{k }kjk nkf[ky dj nsus ls Li"V gS fd nq?kZVuk ds fnukad ij iz'uxr okgu dk ijfeV nq?kZVukLFky uokcxat rd ds fy, oS/k FkkA bl izdkj iqufoZyksdu izkFkZuk&i= cnyh gqbZ ifjfLFkfr;ksa esa nkf[ky la'kksf/kr ijfeV ds vk/kkj ij Lohdkj gksus ;ksX; gSA vkns'k izkFkhZ v:.k dqekj flag dk iqufoZyksdu izkFkZuk&i= Lohdkj fd;k tkrk gSA ,e0,0lh0 la[;k 111@2016 esa ikfjr ,okMZ fnukafdr 30-05-2017 rn~uqlkj la'kksf/kr fd;k tk, rFkk {kfriwfrZ dh /kujkf'k 02]15]000@& :i;s o c;kt dh vnk;xh dh ftEesnkjh tks fd okgu Lokeh v:.k dqekj flag dh ekuh x;h gS og vc okn la'kks/ku chek dEiuh n vksfj.UVy bU'kksjsUl da0 fyfeVsM 2@1@55 e.Myh;&vkfQl] flfoy ykbu tuin&QStkckn mRrj izns'k dh ekuh tk;sxhAß In view of the said factual background, the present appeal has been filed by the applicant.
Sri M.P.Yadav, learned counsel for the appellants while pressing the present appeal for enhancement of the compensation submitted that Km. Gunjan Pal was a brilliant student and she passed her High School and Intermediate Examination with above 75% marks and also qualified the UPTU examination, in which she appeared just prior to the accident and death and had a future prospect in the sector of engineering. However, the Tribunal ignoring the said facts, on the basis of the Second Schedule provided under Section 163-A of the Act 1988, assessed the income of the deceased on the notional basis, which is wholly incorrect and wrong.
Sri M.P.Yadav, learned counsel for the appellants further submitted that the notional income of Rs.15,000/- per annum assessed by the Tribunal in order to grant the compensation is contrary to law as laid down by the Apex Court in the cases of Arvind Kumar Mishra Vs. New India Assurance Co. Ltd. (2010)10 SCC 254, Kishan Gopal and Others Vs. Lala and Others (2014) 1 SCC 244, Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and Others (2018) 18 SCC 130, and V. Mekala Vs. M.Malathi and Anthr (2014) 11 SCC 178.
Accordingly, it is submitted by Sri M.P.Yadav, learned counsel for the appellants that the compensation awarded by the Tribunal on the basis of notional income of Rs.15,000/- per annum is contrary to law and the judgment and order dated 30.05.2017 passed by the Tribunal to the extent may be set aside and compensation be enhanced upto Rs.53,50,000/- alongwith the interest of 9@ per annum.
Sri Vaibhav Raj, learned counsel for the Insurance Company while supporting the judgment passed by the Tribunal has submitted that in the present case on the basis of the evidence and documents, the Tribunal, after taking into consideration the notional income of deceased as Rs.15,000 per annum calculated the compensation and awarded the same to appellants, the same is perfectly valid and justified. The compensation awarded by the Tribunal is based on the material available on record. The appellants, before the Tribunal have failed to establish and prove the fact that the deceased was a brilliant student. Keeping in view the entire facts of the case, the compensation awarded by the Tribunal is not liable to be enhanced. The appeal is liable to be dismissed.
We have heard the learned counsel for the parties and going through the record.
The Tribunal framed the four issues in order to decide the MAC No.111 of 2016 (Jaganath Pal and oths. Vs. Rakesh Kumar and oths.). While deciding the issue no.4., which is relevant for adjudication of present appeal, the Tribunal has given the following findings:-
ÞmDr okn fcUnq {kfriwfrZ ds ckor cuk gSA mijksDr okn fcUnqvksa ds r; gks tkus ls Li"V gS fd iz'uxr nq?kZVuk izfroknh la[;k 2 ds okgu ls izfroknh la[;k 1 ds rsth o ykijokghiwoZd pyku ds dkj.k ?kfVr gqbZ ftlesa vk;h pksVksa ds QyLo:i ;kphx.k dh iq=h xqatu iky dh e`R;q gks x;hA ;kfpdk esa e`rdk dh tUefrfFk 13-07-1998 vafdr gS rFkk nq?kZVuk fnukad 17-04-2016 dh gSA ftlds vuqlkj ?kVuk ds le; e`rdk dh mez 18 o"kZ ls dqN de gks tkrh gSA mDr tUefrfFk dh ckor e`rdk dh gkbZ Ldwy dh vadrkfydk Hkh ekStwn gS ftlesa mldh mDr tUefrfFk 13-07-1998 gh vafdr gS ftlls Li"V gks tkrk gS fd nq?kZVuk dh fnukad ij e`rdk dh mez 18 o"kZ ls dqN de FkhA vk; dh ckor ;kfpdk esa e`rdk dks fo|kFkhZ n'kkZ;k x;k gS rFkk dgk x;k gS fd gkbZLdwy esa mlds 78-5 % o b.VjehfM,V esa 81 % ekDlZ Fks rFkk ;wihVh;w dh ijh{kk ftls nsus ds ckn nq?kVZuk gqbZ] esa og ikl gqbZA ;gh ckr ;kph i{k ls is'k lHkh xokgksa us viuh&viuh lk{; esa dgh ,oa dgk fd e`rdk cgqr izfrHkkoku Fkh og Hkfo"; esa dksbZ vf/kdkjh curhA i=koyh ij e`rdk dh d{kk nl dh vad rkfydk ls Li"V gS fd mlesa e`rdk dh rhu fo"k;ksa esa ,2 xzsM] ,d fo"k; esa ch2 xzsM rFkk nks fo"k; esa ch1 xzsM vk;h gS rFkk ckjgoha dh ijh{kk esa mDr e`rdk ds 500 esa ls 405 vad vk;s rFkk mlesa og izFke Js.kh esa mRrh.kZ gqbZ gS RkFkk ;wihVh;w esa mls ikl gksuk n'kkZ;k x;k gS ftlls Li"V gS fd e`rdk izfrHkkoku Nk=k FkhAß With regard to aforesaid findings, we have perused the record of the Tribunal, which is available before this Court, which includes pleadings and evidence of the parties and we find therefrom that the appellants pleaded and proved the age as also the fact that the deceased was a brilliant student. Accordingly, we are of the view that the findings given by the Tribunal on issue no.4 are just and proper and can not be said to be perverse.
In the case of Arvind Kumar Mishra (supra), after taking into consideration the earlier judgments, the Hon'ble Apex Court held as under:-
"8.In General Manager Kerala State Road Transport Corporation, Trivandrum v.Susamma Thomas (Mrs.) and Ors1., this Court laid down the following principles:
"13. The multiplier method involves the ascertainment of the loss of dependency or the multiplicand having regard to the circumstances of the case and capitalizing the multiplicand by an appropriate multiplier. The choice of the multiplier is determined by the age of the deceased (or that of the claimants whichever is higher) and by the calculation as to what capital sum, if invested at a rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest. In ascertaining this, regard should also be had to the fact that ultimately the capital sum should also be consumed-up over the period for which the dependency is expected to last."
17. The multiplier represents the number of years' purchase on which the loss of dependency is capitalised. Take for instance a case where annual loss of dependency is Rs 10,000. If a sum of Rs 1,00,000 is invested at 10% annual interest, the interest will take care of the dependency, perpetually. The multiplier in this case works out to 10. If the rate of interest is 5% per annum and not 10% then the multiplier needed to capitalise the loss of the annual dependency at Rs 10,000 would be 20. Then the multiplier, i.e., the number of years' purchase of 20 will yield the annual dependency perpetually. Then allowance to scale down the multiplier would have to be made taking into account the uncertainties of the future, the allowances for immediate lump sum payment, the period over which the dependency is to last being shorter and the capital feed also to be spent away over the period of dependency is to last etc. Usually in English Courts the operative multiplier rarely exceeds 16 as maximum. This will come down accordingly as the age of the deceased person (or that of the dependants, whichever is higher) goes up."
9. The principles laid down in Susamma Thomas1 still hold the field; the only variation has been in respect of maximum multiplier. In the present case the Tribunal as well as the High Court seriously erred in not assessing the compensation for personal injury to the appellant in accord with the recognized mode i.e., by taking an appropriate multiplier of an appropriate multiplicand.
10. The appellant at the time of accident was a final year engineering (Mechanical) student in a reputed college. He was a remarkably brilliant student having passed all his semester examinations in distinction. Due to the said accident he suffered grievous injuries and remained in coma for about two months. His studies got interrupted as he was moved to different hospitals for surgeries and other treatments. For many months his condition remained serious; his right hand was amputated and vision seriously affected. These multiple injuries ultimately led to 70% permanent disablement. He has been rendered incapacitated and a career ahead of him in his chosen line of mechanical engineering got dashed for ever. He is now in a physical condition that he requires domestic help throughout his life. He has been deprived of pecuniary benefits which he could have reasonably acquired had he not suffered permanent disablement to the extent of 70% in the accident.
11. On completion of Bachelor of Engineering (Mechanical) from the prestigious institute like B.I.T., it can be reasonably assumed that he would have got a good job. The appellant has stated in his evidence that in the campus interview he was selected by Tata as well as Reliance Industries and was offered pay package of Rs. 3,50,000/- per annum. Even if that is not accepted for want of any evidence in support thereof, there would not have been any difficulty for him in getting some decent job in the private sector. Had he decided to join government service and got selected, he would have been put in the pay scale for Assistant Engineer and would have at least earned Rs. 60,000/- per annum. Wherever he joined, he had a fair chance of some promotion and remote chance of some high position. But uncertainties of life cannot be ignored taking relevant factors into consideration. In our opinion, it is fair and reasonable to assess his future earnings at Rs. 60,000/- per annum taking the salary and allowances payable to an Assistant Engineer in public employment as the basis. Since he suffered 70% permanent disability, the future earnings may be discounted by 30% and, accordingly, we estimate upon the facts that the multiplicand should be Rs. 42,000/- per annum. The appellant at the time of accident was about 25 years. As per the decision of this Court in Sarla Verma (Smt.) and Ors. v. Delhi Transport Corporation and Anr1. the operative multiplier would be 18. The loss of future earnings by multiplying the multiplicand of Rs. 42,000/- by a multiplier of 18 comes to Rs. 7,56,000/-. The damages to compensate the appellant towards loss of future earnings, in our considered judgment, must be Rs. 7,56,000/-. The Tribunal awarded him Rs. 1,50,000/- towards treatment including the medical expenses. The same is maintained as it is and, accordingly, the total amount of compensation to which the appellant is entitled is Rs. 9,06,000/-.
12. Before we close, we must notice in all fairness to the learned counsel for the insurer his submission that the appellant is entitled to compensation in accordance with the Second Schedule appended to the 1988 Act only. This submission overlooks the fact that the appellant made his claim under Section 166 of the 1988 Act and not under Section 163A. It is true that in Reshma Kumari & Ors. v. Madan Mohan & Anr.,1 a two-Judge Bench of this Court has referred the question whether multiplier specified in the Second Schedule should be taken to be a guide for calculation of the amount of compensation payable in a case falling under Section 166 to the larger bench and the said question is not yet authoritatively decided. However, in a case such as the present case, we find no justification to await decision of the larger bench on the aforenoticed question as there are already few decisions of this Court taking a view that the Second Schedule has no application to the claim petition made under Section 166 of the 1988 Act."
In the case of V. Mekala (supra) the Hon'ble Apex Court, observed as under:-
"6. In support of his contention, the learned counsel has correctly relied upon the principle laid down in R.D. Hattangadi [R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551 : 1995 SCC (Cri) 250] which was reiterated in Govind Yadav v. New India Insurance Co. Ltd. [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683 : (2012) 3 SCC (Civ) 1082 : (2012) 1 SCC (Cri) 82 : (2012) 1 SCC (L&S) 422] , it would be appropriate to extract certain relevant paragraphs of R.D. Hattangadi case [R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551 : 1995 SCC (Cri) 250] , which read as under: (SCC pp. 556-57, paras 10-11) "10. It cannot be disputed that because of the accident the appellant who was an active practising lawyer has become paraplegic on account of the injuries sustained by him. It is really difficult in this background to assess the exact amount of compensation for the pain and agony suffered by the appellant and for having become a lifelong handicapped person. No amount of compensation can restore the physical frame of the appellant. That is why it has been said by courts that whenever any amount is determined as the compensation payable for any injury suffered during an accident, the object is to compensate such injury ''so far as money can compensate' because it is impossible to equate the money with the human sufferings or personal deprivations. Money cannot renew a broken and shattered physical frame.
11. In the case Ward v. James [(1966) 1 QB 273 : (1965) 2 WLR 455 : (1965) 1 All ER 563 (CA)] it was said: (QB p. 298 C-F) ''... Although you cannot give a man so gravely injured much for his "lost years", you can, however, compensate him for his loss during his shortened span, that is, during his expected "years of survival". You can compensate him for his loss of earnings during that time, and for the cost of treatment, nursing and attendance. But how can you compensate him for being rendered a helpless invalid? He may, owing to brain injury, be rendered unconscious for the rest of his days, or, owing to a back injury, be unable to rise from his bed. He has lost everything that makes life worthwhile. Money is no good to him. Yet Judges and juries have to do the best they can and give him what they think is fair. No wonder they find it well-nigh insoluble. They are being asked to calculate the incalculable. The figure is bound to be for the most part a conventional sum. The Judges have worked out a pattern, and they keep it in line with the changes in the value of money.'"
7. The learned counsel for the appellant further submitted that the appellant claimant has been deprived of enjoyment of life as well as her marital prospects. Further, the concurrent finding recorded by the High Court in the impugned judgment [V. Mekala v. M. Malathi, Civil Misc. Appeal No. 2131 of 2008, decided on 31-8-2012 (Mad)] shows that the appellant on account of the knee injuries and permanent disablement and malunited knee bones, she is unable to walk without crutches and she is suffering from severe pain while walking and further the thickness of both the legs are also reduced due to the injuries sustained by her in the accident and multiple surgeries were conducted on her. This relevant aspect should have been taken into consideration both by the Tribunal and the High Court. Further, she has to use crutches throughout her life for mobility which she is required to periodically purchase, the cost of which has not been awarded either by the Tribunal or by the High Court. Therefore, the learned counsel for the appellant has requested this Court to award suitable compensation keeping in view the abovementioned facts.
8. On the other hand, Ms Manjeet Chawla, the learned counsel on behalf of Respondent 2 Insurance Company sought to justify the impugned judgment and award contending that the High Court after re-appreciation of the pleadings and evidence on record has exorbitantly enhanced the compensation under the various heads mentioned in the impugned judgment such as pain and suffering, permanent disablement, medical expenses, transport expenses, extra nourishment, loss of future career and loss of marriage prospects. Therefore, this is not a fit case for this Court to enhance the compensation as prayed for in this case by the appellant claimant.
9. Further, the learned counsel for Respondent 2 submits that the appellant claimant can continue her studies by attending college and get either public employment or alternative private employment on completion of her studies. In such circumstances, seeking for enhancement of compensation either under the head of loss of earning or future prospects as claimed by the appellant claimant, is not justifiable in law. Therefore, the learned counsel for Respondent 2 has prayed for dismissal of the civil appeal.
10. With reference to the above rival factual and legal contentions, this Court is required to examine:
10.1. (i) Whether the appellant claimant is entitled to enhancement of compensation under the following heads, namely, loss of earning, pain and suffering, loss of amenities, loss of enjoyment of marriage prospects and the cost of crutches?
10.2. (ii) What award?
11. The first question is required to be answered in favour of the appellant claimant for the following reasons: having regard to the nature of the following injuries sustained by the appellant in the accident which is an undisputed fact:
"Right lower limb: hypertrophic scar extending from distal thigh to distal 2/3rd of right leg circumferentially. Decreased sensation over the M/3rd of right leg.
Left leg: hypertrophic scar over middle 3rd to distal 3rd of left leg and with patchy areas decreased sensation over the scar.
Muscle wasting of both the legs present.
Right ankle: equinous deformity of right ankle of 1st present. Fixed flexion deformity of II joints of toes about 10th present."
12. The doctor, PW 2, has stated in his evidence that the appellant has sustained fracture in both bones in both the legs, the knee folding is restricted between 25 degree to 85 degree and the legs could not be stretched fully and the knee bones are malunited and the appellant cannot walk without crutches. The doctor also stated that the appellant is suffering from severe pain while walking and further the thickness of both the legs of the appellant was reduced.
13. The aforesaid evidence of the doctor PW 2 is accepted by the Tribunal and concurred by the High Court. The High Court came to the right conclusion that the appellant has sustained permanent disablement, the same is in conformity with the principle laid down by this Court in Raj Kumar v. Ajay Kumar [Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] at para 12, which reads thus: (SCC p. 350) "12. Therefore, the Tribunal has to first decide whether there is any permanent disability and, if so, the extent of such permanent disability. This means that the Tribunal should consider and decide with reference to the evidence:
(i) whether the disablement is permanent or temporary;
(ii) if the disablement is permanent, whether it is permanent total disablement or permanent partial disablement;
(iii) if the disablement percentage is expressed with reference to any specific limb, then the effect of such disablement of the limb on the functioning of the entire body, that is, the permanent disability suffered by the person.
If the Tribunal concludes that there is no permanent disability then there is no question of proceeding further and determining the loss of future earning capacity. But if the Tribunal concludes that there is permanent disability then it will proceed to ascertain its extent. After the Tribunal ascertains the actual extent of permanent disability of the claimant based on the medical evidence, it has to determine whether such permanent disability has affected or will affect his earning capacity."
14. The High Court on the basis of medical evidence on record with reference to the fractures sustained by the appellant to both the legs, rightly arrived at the conclusion that she has suffered 70% of permanent disablement and therefore she was awarded the compensation under the head of loss of earning in the impugned judgment taking into account monthly notional income of Rs 6000 in the absence of any document on record as she was a student. This assumption of the courts below is on the lower side in view of the observations made by this Court in R.D. Hattangadi [R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551 : 1995 SCC (Cri) 250] . The said principle is reiterated in Govind Yadav [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683 : (2012) 3 SCC (Civ) 1082 : (2012) 1 SCC (Cri) 82 : (2012) 1 SCC (L&S) 422] .
15. The relevant para from R.D. Hattangadi [R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551 :1995 SCC (Cri) 250] is extracted below: (SCC p. 557, para 14) "14. In Halsbury's Laws of England, 4th Edn., Vol. 12 regarding non-pecuniary loss at pp. 446-47 it has been said:
''1147. Non-pecuniary loss: the pattern.--Damages awarded for pain and suffering and loss of amenity constitute a conventional sum which is taken to be the sum which society deems fair, fairness being interpreted by the courts in the light of previous decisions. Thus there has been evolved a set of conventional principles providing a provisional guide to the comparative severity of different injuries, and indicating a bracket of damages into which a particular injury will currently fall. The particular circumstances of the plaintiff, including his age and any unusual deprivation he may suffer, is reflected in the actual amount of the award.
The fall in the value of money leads to a continuing reassessment of these awards and to periodic reassessments of damages at certain key points in the pattern where the disability is readily identifiable and not subject to large variations in individual cases.'"
16. In view of the aforesaid judgments of this Court and the fact that the appellant is a brilliant student as she has secured first rank in the 10th standard, she would have had a better future in terms of educational career to acquire basic or master's degrees in the professional courses and she could have got a suitable public or private employment but on account of permanent disablement she suffered due to injuries sustained by her in the accident, that opportunity is lost to her and therefore, she is entitled to compensation as per the law laid down by this Court in Raj Kumar [Raj Kumar v. Ajay Kumar, (2011) 1 SCC 343 : (2011) 1 SCC (Civ) 164 : (2011) 1 SCC (Cri) 1161] , R.D. Hattangadi [R.D. Hattangadi v. Pest Control (India) (P) Ltd., (1995) 1 SCC 551 : 1995 SCC (Cri) 250] and Govind Yadav [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683 : (2012) 3 SCC (Civ) 1082 : (2012) 1 SCC (Cri) 82 : (2012) 1 SCC (L&S) 422] .
17. Further, having regard to the undisputed fact that there has been inflation of money in the country since the occurrence of the accident, the same has to be taken into account by the Tribunal and appellate court while awarding compensation to the appellant claimant as per the principle laid down by this Court in Govind Yadav [Govind Yadav v. New India Insurance Co. Ltd., (2011) 10 SCC 683 : (2012) 3 SCC (Civ) 1082 : (2012) 1 SCC (Cri) 82 : (2012) 1 SCC (L&S) 422] which has reiterated the position of Reshma Kumari v. Madan Mohan [Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044] , the relevant paragraph of which reads as under: (Reshma Kumari case [Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044] , SCC pp. 440-41, para 46) "46. In the Indian context several other factors should be taken into consideration including education of the dependants and the nature of job. In the wake of changed societal conditions and global scenario, future prospects may have to be taken into consideration not only having regard to the status of the employee, his educational qualification; his past performance but also other relevant factors, namely, the higher salaries and perks which are being offered by the private companies these days. In fact while determining the multiplicand this Court in Oriental Insurance Co. Ltd. v. Jashuben [(2008) 4 SCC 162 : (2008) 2 SCC (Cri) 752] held that even dearness allowance and perks with regard thereto from which the family would have derived monthly benefit, must be taken into consideration."
18. The fact that the appellant was a brilliant student at the time of the accident should also be taken into consideration while awarding compensation to her. Therefore, taking Rs 6000 as monthly notional income by the Tribunal for the purpose of awarding compensation under this head is too meagre an amount. The learned counsel appearing for Respondent 2 contended that the appellant can still finish her education and find employment and therefore, there is no necessity to enhance the amount of compensation under the head of "loss of income" and "future prospects". It is pertinent to reiterate here that the appellant claimant has undergone and is still undergoing substantial pain and suffering due to the accident which has rendered both her legs dysfunctional. This has reduced the scope of her future prospects including her marriage substantially. Moreover, a tortfeasor is not entitled to dictate the terms of the appellant claimant's career as has been held by the Karnataka High Court in K. Narasimha Murthy v. Oriental Insurance Co. Ltd. [ILR 2004 KAR 2471] , the relevant paragraph of which reads as under: (ILR pp. 2490-91, para 41) "41. ... Further, it needs to be emphasised that it is not the right of the tortfeasor or a person who has taken over the liability of the tortfeasor in terms of and under the Act to dictate that the injured person should do some other work, manual or otherwise, it does not matter, may be with pain and discomfort, in order to minimise his or its liability. Such insistence is untenable in law and if such is the case, it would violate basic human rights of the injured person. In this case, the appellant is reduced to such a state that he is unable to do any work, manual or otherwise, without subjecting himself to pain and suffering, agony and discomfort. In an accident, if a man is disabled for a work which he was doing before the accident, that he has no talents, skill, experience or training for anything else and he is unable to find any work, manual or clerical, such a man for all practical purposes has lost all earning capacity he possessed before and he is required to be compensated on the basis of total loss. In reaching this conclusion we may derive support from the judgments in Daniels v. Sir Robert McAlpine and Sons Ltd. [(1971) 11 KIR 141] and Blair v. FJC Lilley (Marine) Ltd.[1981 SLT 90] Secondly, the physical incapacity to earn income sustained by the appellant is not temporary, but permanent and complete as per Ext. P-43. Thirdly, it cannot be said that since the appellant has sustained only 54% permanent physical disability in respect of the whole body as per PW 3, the court should take into account functional disability also at 54% only while assessing the loss of earning capacity. Such hypothesis does not stand to reason nor can it be accepted as valid in terms of law. An injured person is compensated for the loss which he incurs as a result of physical injury and not for physical injury itself. In other words, compensation is given only for what is lost due to accident in terms of an equivalent in money insofar as the nature of money admits for the loss sustained. In an accident, if a person loses a limb or eye or sustains an injury, the court while computing damages for the loss of organs or physical injury, does not value a limb or eye in isolation, but only values totality of the harm which the loss has entailed the loss of amenities of life and infliction of pain and suffering: the loss of the good things of life, joys of life and the positive infliction of pain and distress."
19. Further, it has been held in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2009) 13 SCC 422 : (2009) 5 SCC (Civ) 143 : (2010) 1 SCC (Cri) 1044] that certain relevant factors should be taken into consideration while awarding compensation under the head of future prospect of income. The relevant paragraph reads as under: (SCC pp. 431-32, para 27) "27. The question as to the methodology required to be applied for determination of compensation as regards prospective loss of future earnings, however, as far as possible should be based on certain principles. A person may have a bright future prospect; he might have become eligible to promotion immediately; there might have been chances of an immediate pay revision, whereas in another (sic situation) the nature of employment was such that he might not have continued in service; his chance of promotion, having regard to the nature of employment may be distant or remote. It is, therefore, difficult for any court to lay down rigid tests which should be applied in all situations. There are divergent views. In some cases it has been suggested that some sort of hypotheses or guesswork may be inevitable. That may be so."
20. Therefore, in the light of the principles laid down in the aforesaid case, it would be just and proper for this Court, and keeping in mind her past results we take Rs 10,000 as her monthly notional income for computation of just and reasonable compensation under the head of loss of income. Further, the High Court has failed to take into consideration the future prospects of income based on the principles laid down by this Court in the catena of cases referred to supra. Therefore, the appellant is justified in seeking for re-enhancement under this head as well and we hold that the appellant claimant is entitled to 50% increase under this head as per the principle laid down by this Court in Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] . The relevant paragraph reads as under: (SCC pp. 426-27, para 13) "13. In Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , another two-Judge Bench considered various factors relevant for determining the compensation payable in cases involving motor accidents, noticed apparent divergence in the views expressed by this Court in different cases, referred to large number of precedents including the judgments in U.P. SRTC v.Trilok Chandra [(1996) 4 SCC 362] , Nance v. British Columbia Electric Railway Co. Ltd. [1951 AC 601 : (1951) 2 All ER 448 (PC)] , Davies v.Powell Duffryn Associated Collieries Ltd. (No. 2) [1942 AC 601 : (1942) 1 All ER 657 (HL)] and made an attempt to limit the exercise of discretion by the Tribunals and the High Courts in the matter of award of compensation by laying down a straitjacket formula under different headings, some of which are enumerated below: (Sarla Verma case [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC pp. 133-34, para 24)."
Reverting to the facts of the presents case, the undisputed facts are that on 17.04.2000 Km. Gunjan Pal, who was a brilliant student as she secured 78.5% marks in High School Examination and 81% marks in Intermediate Examination and the entrance test of UPTU, which was held at Nandini Nagar Mahavidayalya, Nawabganj, Gonda, was also cracked by the deceased and when she was returning from the said examination center to her house with Sri Somnath Pal on the motorcycle bearing registration No. U.P.-47, D-0750 at about 02:00 PM near the gate of University, met with an accident and expired due to rash and negligent driving of the driver of Mini Bus bearing registration No.UP-42, AT-4070 driven by Sri Rakesh Kumar owned by the opposite party no.2 and which was insured with the Oriental Insurance Company Ltd, Divisional Office, Civil Lines, District-Faizabad/Opposite Party No.3.
Thereafter, a Claim Petition No.111 of 2016 (Jaganath and oths Vs. Rakesh Kumar and oths.) was filed by the applicants before Tribunal under Section 166 read with Section 140 of the Act 1988 and Tribunal awarded the compensation by taking into consideration the notional income of the deceased as Rs.15,000/- per annum as per the provisions as provided in the Second Schedule under Section 163-A of the Act 1988 vide award dated 30.05.2017.
It is relevant to point out here that the findings recorded by the Tribunal in the award and also the award has not been challenged by the Orient Insurance Company or by the owner of the Mini Bus, involved in the accident.
Hon'ble Apex Court in the case of Arvind Kumar (supra) held that the Second Schedule under Section 163-A of the Act 1988 has no application to the claim petition made under Section 166 of the Act 1988, and in the case of V. Mekala (Supra), (the case of brilliant student of 11th Standard, who on account of accident became permanently disable) the Hon'ble Apex Court took the view that Rs.10,000/- per month should be taken for just and reasonable compensation. Accordingly, we are of the view that the Tribunal, in instant case of brilliant student, has erred in awarding the compensation to the appellants by taking the notional income of deceased as Rs.15,000/- per annum as per the provision of Second Schedule of Section 163-A of the Act 1988.
Now the next question which has to be considered that what income should be taken for awarding the compensation to the applicants.
In the present case, as per the material available on record and arguments raised by the parties as well as the findings given by the Tribunal and it is not in dispute, rather admitted fact that deceased Km. Gunjan Pal was a brilliant student and she had secured 75% and 81% marks in the High School and Intermediate Examinations respectively and in the UPTU examination also she was declared successful in which she appeared prior to the accident and death and after qualifying the said examination, she was eligible for pursuing the studies of Bachelor of Technology, so she had a bright carrier in the engineering field.
Therefore, in view of law propound by the Hon'ble Apex Court in V. Mekala (Supra) case, we are of the consistent opinion that Rs.10,000/- per month should be taken as the notional income of the deceased for awarding just and reasonable compensation, meaning thereby Rs.1,20,000/- per annum instead of Rs.15,000/- per annum.
In addition to above, we are of the considered opinion that the appellant are also entitled to Rs. 40,000/- each under the head of loss of consortium and interest @ 12% on the amount awarded, in view of the law laid down by the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. v. Nanu Ram reported in 2018 SCC Online SC 1546. The relevant para of the case of Magma General Insurance Co. Ltd. (supra) are quoted below for ready reference:-
"8.4. The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son. This contention deserves to be repelled. The deceased was a bachelor, whose mother had pre-deceased him. The deceased's father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents.
8.5. The Insurance Company has contended that the High Court had wrongly awarded Rs. 1,00,000 towards loss of love and affection, and Rs. 25,000 towards funeral expenses.
The judgment of this Court in Pranay Sethi (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below :
"Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years."
(Emphasis supplied) As per the afore-said judgment, the compensation of Rs. 25,000 towards funeral expenses is decreased to Rs. 15,000.
The amount awarded by the High Court towards loss of love and affection is, however, maintained.
8.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra).
The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the Claimant.
In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2.
8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium.
In legal parlance, "consortium" is a compendious term which encompasses ''spousal consortium', ''parental consortium', and ''filial consortium'.
The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. Rajesh v. Rajbir Singh, (2013) 9 SCC 54.
Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of "company, society, co-operation, affection, and aid of the other in every conjugal relation."Black's Law Dictionary (5th ed. 1979).
Parental consortium is granted to the child upon the premature death of a parent, for loss of "parental aid, protection, affection, society, discipline, guidance and training."
Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is a compensation for loss of the love, affection, care and companionship of the deceased child.
The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium.
Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count. Rajasthan High Court in Jagmala Ram @ Jagmal Singh v. Sohi Ram 2017 (4) RLW 3368 (Raj); Uttarakhand High Court in Smt. Rita Rana v. Pradeep Kumar 2014 (3) UC 1687; Karnataka High Court in Lakshman v. Susheela Chand Choudhary, (1996) 3 Kant LJ 570 (DB).
However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under ''Loss of Consortium' as laid down in Pranay Sethi (supra).
In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium.
11. In light of the above mentioned discussion, Respondent Nos. 1 and 2 are entitled to the following amounts :--
Head Compensation awarded i. Income:
Rs. 6,000 ii. Future Prospects:
Rs. 2,400 (i.e. 40% of the income) iii. Deduction towards personal expenditure:
Rs. 2,800 [i.e. 1/3rd of (Rs. 6,000 + Rs. 2,400) iv. Total Income:
Rs. 5,600 [i.e. 2/3rd of (Rs. 6,000 + Rs. 2,400] v. Multiplier:18
vi. Loss of future income:
Rs. 12,09,600 (Rs. 5,600 × 12 × 18) vii. Loss of love and affection:
Rs. 1,00,000 (Rs. 50,000 each) viii. Funeral expenses:
Rs. 15,000 ix. Loss of estate:
Rs. 15,000 x. Loss of Filial Consortium:
Rs. 80,000 (Rs. 40,000 payable to each of Respondent Nos. 1 and 2) Total compensation awarded:
Rs. 14,25,600 alongwith Interest @ 12% p.a. from the date of filing of the Claim petition till payment.
Out of the amount awarded, Respondent No. 1 is entitled to 60% while Respondent No. 2 shall be granted 40% alongwith Interest as specified above."
In addition to above, we feel it appropriate to refer paras 37, 42 and 59.1 to 59.8 of the judgment passed by the Hon'ble Apex Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors., as the same also relevant for adjudication of the case in hand, the same are as under:-
"37. Before we proceed to analyse the principle for addition of future prospects, we think it seemly to clear the maze which is vividly reflectible fromSarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] ,Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] and Munna Lal Jain[Munna Lal Jain v. Vipin Kumar Sharma, (2015) 6 SCC 347 : (2015) 3 SCC (Civ) 315 : (2015) 4 SCC (Cri) 195] . Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paras 30, 31 and 32, Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] lays down: (SCC p. 136) "30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362] , the general practice is to apply standardised deductions. Having considered several subsequent decisions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (¼th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two-third."
42. As far as the multiplier is concerned, the Claims Tribunal and the courts shall be guided by Step 2 that finds place in para 19 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] read with para 42 of the said judgment. For the sake of completeness, para 42 is extracted below: (Sarla Verma case [Sarla Verma v.DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , SCC p. 140) "42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the Table above (prepared by applyingSusamma Thomas [Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Trilok Chandra [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362] and Charlie [New India Assurance Co. Ltd. v. Charlie, (2005) 10 SCC 720 : 2005 SCC (Cri) 1657] ), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is, M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
59.1. The two-Judge Bench in Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] , a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
59.2. As Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] has not taken note of the decision in Reshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] , which was delivered at earlier point of time, the decision in Rajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] is not a binding precedent.
59.3. While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] which we have reproduced hereinbefore.
59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] read with para 42 of that judgment.
59.7. The age of the deceased should be the basis for applying the multiplier.
59.8. Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs 15,000, Rs 40,000 and Rs 15,000 respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
In view of the above, we modify the judgment and award dated 30.05.2017 keeping in view the principles settled by the Apex Court in the aforesaid judgments. For modification of award in issue, we have considered the age of the deceased as 18 years and Rs.10,000/- per month as notional income. The modification is as under:-
Age of the deceased 18 years Notional Income of the deceased Rs.10,000.00 per month, Total yearly Income Rs.10,000 X 12 - Rs. 1,20,000.00 Future Prospect 50% - Rs. 60,000.00 Total Income - Rs. 1,80,000.00 50% Deduction towards personal expenses - Rs.1,80,000.00 - Rs. 90,000.00 =Rs. 90,000.00 Income As per Sarla Verma's case, Multiplier in the present case would be of 18. As per Multiplier of 18, the amount would be -
Rs. 90,000 X 18 = Rs. 16,20,000/-
Loss of estate - Rs. 15,000.00 Loss of consortium - Rs. 80,000.00 (Rs. 40,000/- for each two claimants in the claim petition.) Funeral expenses - Rs. 15,000.00 Total Amount = Rs. - 16,20,000+Rs. - 15,000.00+Rs. - 80,000.00+Rs. - 15,000.00 = Rs. 17,30,000.00/-
On the total amount aforesaid, the appellant would be entitled to the interest @ 9 % per annum, as prayed, from the date of filing of the Claim Petition, as awarded in the case of Magma General Insurance (supra).
It is also stated that the multiplier applied by the Tribunal for grant of compensation is also required to be considered in the view of the pronouncement of the Hon'ble Apex Court in the judgment passed in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors.
The amount aforesaid is quantified and would be substituted to the amount quantified by the Tribunal towards compensation.
Needless to say that the Claim Petition was filed by two persons i.e. father and mother of the deceased and we have granted the amount towards consortium in view of law laid down by the Hon'ble Apex Court in the case of Magma General Insurance Co. Ltd. (supra).
The appeal is allowed in above terms.
Order Date :-14.02.2020 Vinay/-