Punjab-Haryana High Court
Jagdish Kumar vs Joginder Singh & Ors on 29 November, 2019
Equivalent citations: AIRONLINE 2019 P AND H 1525
Author: Alka Sarin
Bench: Alka Sarin
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
FAO No.5192 of 2016 (O&M)
DATE OF DECISION: 29.11.2019
Jagdish Kumar
.....Appellant
versus
Joginder Singh and others
.....Respondents
2. FAO No.5939 of 2016 (O&M)
Kamiya Dua and another .....Appellants
versus
Joginder Singh and others .....Respondents
3. FAO No.6464 of 2017 (O&M)
Kamiya Dua and another .....Appellants
versus
Joginder Singh and others .....Respondents
CORAM:- HON'BLE MRS. JUSTICE ALKA SARIN
Present: Mr. Aayush Gupta, Advocate for the appellant in
FAO No.5192 of 2016 and for respondent No.4 in
FAO Nos.5939 of 2016 and 6464 of 2017
Mr. Raj Kumar Rana, Advocate for the appellants in
FAO Nos.5939 of 2016 and 6464 of 2017 and for
respondent No.4 and 5 in FAO No.5192 of 2016
Mr. Amit Kumar Goyal, Advocate for respondent
No.3/Oriental Insurance Company in all the appeals
..
ALKA SARIN, J.:
This order shall dispose of the aforementioned three appeals filed by the claimants for enhancement challenging a 1 of 10 ::: Downloaded on - 13-01-2020 02:47:52 ::: FAO-5192-2016, etc. (O&M) - 2 -
common award passed by the Motor Accident Claims Tribunal, Ambala dated 27.04.2016. FAO No.5192 of 2016 has been preferred by the father of the deceased on the ground that no compensation has been granted to him by the Tribunal on account of death of his son in the accident. FAO Nos.5939 of 2016 and 6464 of 2017 both have been preferred by the wife and the son for enhancement of the compensation awarded by the Tribunal.
At the outset, learned counsel appearing for the same set of appellants in FAO No.5939 of 2016 and FAO No.6464 of 2017 stated that FAO No.6464 of 2017 had wrongly been filed and seeks permission to withdraw the same.
Permitted to do so.
FAO No.6464 of 2017 is dismissed as withdrawn.
A brief matrix of facts leading to filing of the present appeals is as under.
On 21.05.2015, Deepak Kumar (deceased) was going to his factory situated in Industrial Area, Saha on his motorcycle bearing registration No.HR-78-A-4950 and was driving on the left side of the road. At about 4.30 P.M., as he reached Industrial Area Road, Saha, a truck bearing registration No. HP-11-B-2204, which was being driven by respondent No.1 in a rash and negligent manner on the wrong side of road, struck the motorcycle thereby crushing both legs of Deepak Kumar. Deepak Kumar was taken to K.D. Hospital, Ambala Cantt. from where he was referred to Post Graduate Institute of Medical Education & Research, Chandigarh. Due to the serious injuries sustained in the accident, Deepak Kumar 2 of 10 ::: Downloaded on - 13-01-2020 02:47:53 ::: FAO-5192-2016, etc. (O&M) - 3 -
died on the same day and the post-mortem was conducted on 22.05.2015. FIR No.60, dated 21.05.2015 under section 279, 304-A of the Indian Penal Code, 1860, was registered against respondent No.1 in Police Station Saha.
The father, wife and minor child of the deceased filed a claim petition before the Tribunal under section 166 of the Motor Vehicles Act, 1988, for grant of compensation. The claim petition was contested by respondent Nos.1 and 2, by taking a preliminary objection that no accident took place as alleged and that the FIR had been lodged only in order to extract compensation. The Insurance Company i.e. respondent No.3 also contested the claim petition as being misconceived, vexatious and untenable. Respondent No.3 also raised a plea that the driver of the truck bearing registration No.HP-11-B- 2204 was not having a valid and effective driving licence, permit/authorisation, fitness, etc. at the time of the alleged accident.
The Tribunal, after recording necessary evidence and hearing the parties, awarded the following compensation:-
Sr. Head Compensation Awarded
No.
1. Monthly Income of ---- ` 7500/-
deceased
2. One-third deduction ---- ` 2500/-
for personal expenses
3. Monthly dependency ---- ` 5000/-
after deduction
4. Annual dependency ------ ` 60,000/-
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5. Multiplier - 17 ---- ` 60,000 x 17 = 10,20,000/-
(Age: 25 to 30 years)
6. Loss of love & ---- ` 50,000/-
affection and pain &
agony
7. Funeral expenses ---- ` 25,000/-
8. Consortium to wife ---- ` 50,000/-
9. Total compensation ---- ` 11,45,000/-
awarded
along with 7.5% interest per
annum from the date of filing
claim petition till its
realization.
Having heard learned counsel for the parties and having gone through the record of the case with their able assistance, I am of the view that FAO No.5192 of 2016, filed by Jagdish Kumar, father of the deceased, challenging the award of the Tribunal on the ground that no compensation has been awarded to him is liable to be partly allowed for the reason that some compensation ought to have been awarded on account of loss of filial consortium to the father.
It has come in the cross-examination of PW1 Kamiya Dua, wife of deceased, that her father-in-law was running a Karyana shop. No evidence was led to show that the father-in- law was dependent on the income of the deceased. That being so, as laid down by the Apex Court in the case of National Insurance Company Ltd. vs. Pranay Sethi and others, 2017 (16) Supreme Court Cases 680 the father of the deceased, not being dependent upon his deceased son, would not be entitled to any compensation on this count. However, the father would 4 of 10 ::: Downloaded on - 13-01-2020 02:47:53 ::: FAO-5192-2016, etc. (O&M) - 5 -
definitely be entitled to grant of some compensation for loss of filial love and affection, since the same is the right of a father in case of accidental death of his son. Their Lordships of the Supreme Court in the case of Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and others, (2018) 18 Supreme Court Cases 130, have held as follows:-
"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 and Ors. v. Rajbir Singh and Ors. (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."[20] [20] 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 5 of 10 ::: Downloaded on - 13-01-2020 02:47:53 ::: FAO-5192-2016, etc. (O&M) - 6 -
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[21]. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
[21] Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors 2017 (4) RLW 3368 (Raj);
Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors. 2014 (3) UC 1687;
Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors (1996) 3 Kant LJ 570 (DB) 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 L 40,000 each for loss of Filial Consortium."
Keeping in view the law laid down by the Apex Court, the appellant in FAO No.5192 of 2016 would be entitled to `40,000/- as compensation for loss of filial love and affection. The appeal is, thus, partly allowed. The appellant 6 of 10 ::: Downloaded on - 13-01-2020 02:47:53 ::: FAO-5192-2016, etc. (O&M) - 7 -
in FAO No.5192 of 2016 would be entitled to an amount of Rs.40,000/- along with 7.5% per annum interest from the date of filing of the claim petition till date of realisation.
Coming to the appeal preferred by the wife and minor child of the deceased, learned counsel for the appellants stated that the Tribunal has wrongly assessed the income at `7,500/- per month. It was argued that the said assessment of income by the Tribunal is totally arbitrary and without any basis. Learned counsel for the appellants was, however, unable to show any evidence, besides a salary slip, to prove that the monthly income of the deceased was ` 16,000/- per month, as claimed. When confronted with the said difficulty, learned counsel for the appellants submitted that in case of absence of any conclusive and reliable evidence regarding the monthly income of the deceased, the Tribunal ought to have assessed the income from the minimum wages of skilled workers prevalent in the year 2015. I am inclined to accept the argument of learned counsel for the appellants that in the absence of any evidence qua the income of the deceased the income ought to have been assessed by taking into account the minimum wages of a skilled worker.
It has further been argued that the Tribunal while granting compensation has not awarded any amount towards future prospects as per the law laid down by the Apex Court in the case of Pranay Sethi (supra). Learned counsel appearing for the Insurance Company has not been able to show as to on what grounds the award of the Tribunal ought to be maintained.
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After hearing learned counsel for the parties and going through the record of the case, I am of the considered opinion that the income of the deceased ought to have been assessed as per the minimum wages of a skilled worker in the year 2015. The Tribunal has, thus, erred in assessing the monthly income of the deceased at ` 7,500/-. I, therefore, deem it appropriate to assess the income of the deceased as per the minimum wages of a skilled worker prevalent in the State of Haryana in the year 2015, which was `8160/-. After deducting 1/3rd towards personal expenses, the monthly dependency of the appellants would come to `5440/- and annual dependency would, thus, be worked out as `65,280/-. To this income future prospects at the rate of 40% would also be liable to be granted, as laid down by the Apex Court in Pranay Sethi (supra).
I am also of the considered view that keeping in view the law laid down by the Apex Court in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another, 2009(6) Supreme Court Cases 121, Pranay Sethi (supra) and Magma General Insurance Company Limited (supra), the wife and minor child, in addition to compensation under other heads, would also be entitled to compensation for loss of consortium at the rate of ` 40,000/- each.
As per the ratio of decision of the Apex Court in Pranay Sethi (supra), the Apex Court has held that reasonable compensation under 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 Tribunal has 8 of 10 ::: Downloaded on - 13-01-2020 02:47:53 ::: FAO-5192-2016, etc. (O&M) - 9 -
awarded ` 50,000/- for love & affection and pain & agony, `25,000/- towards funeral expenses and ` 50,000/- for loss of consortium. Accordingly, the compensation under these heads is liable to be modified as per the law laid down by the Apex Court.
In the light of the above discussion, both the appellants in FAO No.5939 of 2016 are entitled to the following compensation:-
Sr. Head Compensation Awarded
No.
1. Monthly Income of ---- ` 8160/-
deceased
2. One-third deduction ---- ` 2720/-
for personal expenses
3. Monthly dependency ---- ` 5440/-
after deduction
4. Annual dependency ---- ` 65280/-
5. Annual dependency ------ ` 91392/- (65280+26112)
after adding Future
prospects @ 40%
6. Multiplier - 17 ---- ` 15,53,664/-
(Age: 25 to 30 years)
7. Loss of estate ---- ` 15000/-
8. Funeral expenses ---- ` 15000/-
9. Spousal Consortium to ---- ` 40000/-
wife
10. Parental Consortium ------ ` 40000/-
to minor son
11. Total compensation ------ ` 16,63,664/-
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Thus, the appellants/claimants shall be entitled to an amount of Rs.5,18,664/- on account of enhanced compensation along with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realisation. The enhanced amount of compensation shall be shared by the appellants in the same manner as ordered by the Tribunal.
The appeals stand disposed of in the above terms.
(ALKA SARIN) JUDGE 29.11.2019 parkash NOTE:
Whether speaking/non-speaking: Speaking Whether reportable: YES/NO 10 of 10 ::: Downloaded on - 13-01-2020 02:47:53 :::