Jammu & Kashmir High Court
United India Insurance Co. Ltd vs National Insurance Co. Ltd. & Ors on 7 December, 2012
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. CIMA No. 278 OF 2010 United India Insurance Co. Ltd Petitioners Ram Payari & ors Respondent !Mr. Vishnu Gupta, Advocate. ^Mr. Narinder Kumar Attri, Advocate. Mr. JUSTICE J. P. SINGH Date: 07.12.2012 :J U D G M E N T :
J U D G M E N T
1. NOT knowing as to what was in store for him, Bishamber Dass, a Mason by occupation, was traveling as pillion rider on Scooter No. JK02P-7991 on June, 19, 2007, when, driven rashly and negligently, Vehicle No. JK02V- 5295, hit it near Gangyal- Jammu, causing him such injuries that took life force out of his body. His wife Ram Payari, daughter Usha Kiran and sons Kewal Krishan and Pawan Kumar claimed compensation of Rs.34,04,144/- (Rupees Thirty Four Lac Four Thousand One Hundred Forty Four) for his untimely death.
2. The Motor Accidents Claims Tribunal, Jammu awarded them Rs.6,24,000/- (Rupees Six Lac Twenty Four Thousand) 2 along with interest @7.5% per annum which included Rs.15,000/-(Rupees Fifteen Thousand) for LOSS OF CONSORTIUM and the same amount for FUNERAL EXPENSES.
3. The appellant-United India Insurance Company Limited, the insurer of the offending vehicle, is in Appeal against the Tribunals Award dated 16.01.2010.
4. The appellants learned counsel argued vehemently questioning allowance of Rs.15,000/- (Rupees Fifteen Thousand) for Loss of Consortium and Rs.15,000/- (Rupees Fifteen Thousand) for Funeral Expenses to the claimants urging that in view of what was contained in Second Schedule issued under Section 163-A of the Motor Vehicles Act, 1988, only Rs.5,000/- (Rupees Five Thousand) for Loss of Consortium and Rs.2,000/- (Rupees Two Thousand) for Funeral Expenses could permissibly be awarded to the claimants and the Tribunal had, therefore, erred in awarding excess amount of compensation to the claimants under above indicated two Heads. He further submitted that Bishamber Dass, having been shown 60 years of age in the Postmortem Examination Report, the economic dependence of the claimants on his income was required to be assessed taking the age of the deceased as 60 years and not 47 years, as was erroneously done by the Tribunal. The finding of the Tribunal that the deceased was a Mason at the time of death too is disputed by the learned counsel urging that there being no evidence on records to support the finding, the income of the deceased was required to be assessed treating him an ordinary labourer and not skilled one-Mason.
35. Supporting the Award, the claimants learned counsel on the other hand, submitted that there was sufficient material on records to support the Award of the Tribunal and the findings recorded by it that the age of the deceased was 47 years and he was working as Mason at the time of the death. As regards the appellants plea that Tribunal had awarded excess amount for Loss of Consortium and Funeral Expenses, he would submit that the deceased being a Hindu, his family members had spent much more than the amount which was allowed to them by the Tribunal. According to him, the Funeral Expenses would not only be the expenses incurred on the day of cremation but also those, which Hindus, going by their tradition and custom, prevalent since times immemorial, had been spending on post death rites of the deceased initially for a period of thirteen days until Kriya Ceremony and then on rites performed after six months and a year of the death. Dealing with appellants learned counsels submission on the award of excess amount for Loss of Consortium, the counsel would submit that Loss of Consortium to the wife, was such loss, that cannot be compensated as such in money and the amount awarded by the Tribunal for the loss caused to the widow, in body, mind and soul, may not, therefore, need interference keeping in view the life that the widow had to lead in the absence of her husband in the backward area to which the deceased and the claimants belong.
6. Heard learned counsel for the parties, considered their submissions and perused the evidence and material on records.
7. Appellants learned counsels first submission that compensation more than the one indicated in the Second 4 Schedule issued under Section 163-A of the Motor Vehicles Act, was not awardable for Loss of Consortium and Funeral Expenses, may not be tenable, in that, the Schedule would not as such apply to claims under Section 166 of the Motor Vehicles Act, allowance whereof would depend on the proof of wrongful act or neglect or default of the owner of the vehicle or of any other person whereas in claim under Section 163-A of the Act, the claimant(s) may not have to plead or establish that death or permanent disablement was due to any wrongful act or neglect or default.
The compensation payable for claims preferred under Section 166 of the Motor Vehicles Act, is required to be determined in terms of the provisions of Section 168 of the Act, which contemplate payment of just compensation to victims of the Motor Accidents. The just compensation contemplated by the above Section is required to be determined in such a way that the family of the deceased or in case of an injured, such amount was awarded to the family or injured which may place them/him/her in the same economic condition which they were living in before they suffered because of the motor accident.
Even if one were to keep the Second Schedule in mind as a guide while assessing just compensation under various Heads including Loss of Consortium and Funeral Expenses, the increase in cost of living that the Country has witnessed for the last eighteen years after coming into force of Section 163-A of the Act, cannot be lost sight of, when despite there being provision in Section 163-A of the Act providing for 5 amendment in the Schedule on the basis of the cost of living, the Schedule has not been amended.
The multiplier method which has come to be accepted in the Courts in India provides methodology for assessment of economic dependence. It involves the ascertainment of the loss of dependence 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 taken by the age of the deceased or that of the claimant(s) whichever is higher and by calculation as to what capital sum, if invested at the rate of interest appropriate to a stable economy, would yield the multiplicand by way of annual interest and while ascertaining this, regard should 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. But the loss of life or damage caused by the accident to the Mind and Soul too needs to be compensated and for that each case may need determination on its own facts and circumstances.
8. Now coming to the question as to whether or not compensation awarded to the widow for Loss of Consortium was justified in the present case, the expression Consortium needs to be understood.
9. The word consortium, derived from the Latin word, consort, in the context it is used in the Motor Vehicles Act means marital association and in legal parlance, the right of one spouse, to the company, affection, and assistance of the other, and to sexual relationship with each other.
6Marriage is an arrangement which two individuals of opposite sex agree to carry on, inter alia, for satiation of the biological needs of their bodies besides of their craving at mental and levels higher thereto, to achieve peace and happiness.
Every person is a world by itself no doubt a mystery with a long past and eternal future. When two persons meet, a new phenomenon is created. Existence which never existed and was never before, comes into being. With the meeting of two persons, change in their personalities sets in, And with the passage of time both start treading on their onward journey for transformation complete. A new relationship, therefore, develops in between the spouses. Unrelated to each other, they were a different entity; And Related, they become entirely a different phenomenon after coming into association with each other. With the passage of time and continuance of marriage, both the spouses become what neither of them had envisioned, in that, experience they taste, association they share and the satisfaction they get, may not be explained in words, for, only it is feel, taste and experience as such, that may define the phenomenon.
In the beginning of the marriage, the two individuals meet only at peripheral level but when the relationship grows intimate and intense, they come closer, And with their coming closer, their inner centers (not physical) proceed to meet each other. When centers meet, love germinates. In the start of marriage and until love blossoms, the two spouses, when they meet only on the peripheral level, they are only acquaintances; but when they touch each others center, the 7 real marriage of the two souls takes place and the love generates.
Marital association cannot, therefore, be viewed as ordinary association, for, if carried truly with love and affection, it ultimately leads to salvation. The true concept and purpose of marital association therefore needs to be kept in view while assessing Loss of Consortium because of abrupt and unexpected cessation of the marital relationship and the loss that it occasions to the surviving partner.
In India marriages are performed not only for procreation but for many high ideals. Long and meaningful marital association results in lasting peace besides elevation of the two individuals to achieve the real purpose of life i.e., Salvation-MOKSH.
Respondents learned counsel, therefore, appears right in contending that no amount of money would compensate the actual loss caused to the surviving spouse, in body, mind and soul because of the untimely and abrupt exit of his/her partner. Loss at physical, associational, mental and spiritual levels, should, therefore, be present in the mind of the person/authority, duty bound, in law, to determine compensation for Loss of Consortium and the like. The facts and circumstances of each case are, therefore, required to be kept in view while completing the exercise.
10. Coming to the facts of the present case and considering these in the above backdrop, it is found that the widow had unsettled, though, grown up children, from the deceased at the time of latters death. This speaks of their long happy marital 8 association. Cessation of the marital association, at this stage of the widows life, depriving her of biological needs of her body in the years to come, besides her deprivation of the opportunities to develop and elevate her Self in association with her husband, has caused her incalculable loss. Therefore, looked from any angle, the award of Rs. 15,000/- (Rupees Fifteen Thousand) for Loss of Consortium, cannot by any stretch of reasoning be construed as just compensation muchless, excessive, as argued by the appellants learned counsel, particularly when the societal restrictions in this part of the Country still operating against remarriage of aged widows was kept in view, in that, there may not now be any chance of her having another companion for rest of her life to continue her onward journey for peace and happiness. All efforts done by her in the company of her husband for her onward journey may not now be continued further in her life. Although, the widow would have been entitled to compensation much more than the one awarded to her by the Tribunal for Loss of Consortium in view of what is said above, but having not preferred any Appeal/Cross-Appeal against the Award, the claimants will have to be satisfied with what has been awarded to them by the Tribunal.
11. Award of Rs.15,000/- (Rupees Fifteen Thousand) for Funeral Expenses too cannot be said unjustified, for, the Funeral Expenses would certainly include the post death rites as well and in this view of the matter performance of all post death rites for initial thirteen days until kriya ceremony and even thereafter every month for one year and for feeding all those who attend the last ceremony, in accordance with 9 prevalent customs amongst Hindus, would certainly result in spending much more than the one that was awarded to the claimants by the Tribunal.
The appellants learned counsels submission that the Tribunal had awarded excess amount of compensation for Loss of Consortium and Funeral Expenses cannot, therefore, be accepted, hence rejected.
12. Coming to the next contention of the appellants learned counsel, it is found that to support their Claim, the claimants had examined Ajeet Singh, who was working with the deceased as Mason besides the widow of the deceased. Both these witnesses have testified that the deceased was a Mason with monthly income ranging from Rs. 10,000/- to Rs. 15,000/-. To prove the age of the deceased, they have placed on records the deceaseds Matriculation Examination Certificate issued by Punjab School Education Board and his Passport where his date of birth is entered as March 20, 1962. The appellant-Insurance Company did not lead any evidence before the Tribunal to rebut the claimants evidence.
13. It is true that the age of the deceased is indicated 60 years in the Postmortem Examination Report but no reliance can be placed thereon in view of the entries appearing in the Matriculation Certificate and the Passport issued to the deceased during his lifetime. The Postmortem Report prepared after the death of the deceased cannot have precedence over the age indicated by the deceased himself in the documents, which came into existence much before his death. This apart, the claimants have proved even by oral evidence that the deceased was 47 years of age at the time of 10 death. The statement of the widow of the deceased to the above effect has remained unchallenged by the appellant.
14. The appellant-Company has not led any evidence to rebut the claimants evidence that deceased was a Mason and his monthly income ranged between Rs. 10,000/- to Rs. 15,000/-. Giving margin to the possible exaggeration that might have been pleaded by the claimants, the Tribunal has, however, taken the monthly income of the deceased at Rs. 6,000/-.
15. Looking to the nature of the evidence led by the claimants and there being no rebuttal thereto by the appellant, I do not find any material on records to disturb the factual findings recorded by the Tribunal holding the deceased a Mason with monthly income of Rs. 6,000/-.
16. Even otherwise, there may not be any scope for interference with the monthly income assessed by the Tribunal, in that, even if the monthly income of the deceased were to be decreased, the compensation awarded to the claimants would not be less than the one allowed by the Tribunal, in that, 30% of the income would have to be added to the income of the deceased being the prospective increase that he would have made in the income in the years to come had he survived the accident, in view of the legal position settled in this behalf permitting allowance of 30% increase in the income of the persons, who did not have fixed income or assured income, by the Honble Supreme Court of India in Santosh Devi Vs. National Insurance Co. Ltd. & ors., reported as 2012 ACJ 1428.
1117. The findings returned by the Tribunal and the compensation awarded to the claimants may not, therefore, warrant interference.
18. For all what has been said above, I find no merit in the Appeal, which is accordingly dismissed with costs quantified at Rs. 10,000/- (Rupees Ten Thousand).
The amount deposited in Court be released in favour of the appellants in terms of the Award.
( J. P. Singh ) Judge JAMMU:
Sunita. 07.12.2012