Himachal Pradesh High Court
Shriram General Insurance Company ... vs Kanta Devi And Ors on 18 December, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA FAO (MVA) No.170/2016 Decided on: 18.12.2018 .
Shriram General Insurance Company Limited ...... Appellant Vs. Kanta Devi and ors. ..... Respondents Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No. For the Appellant: Mr. Jagdish Thakur, Advocate.
For the Respondents: Mr. H.S. Rangra, Advocate, for respondents No. 1 and 2.
Mr. Lalit K. Sehgal, Advocate, for respondents No. 3 and 4.
Tarlok Singh Chauhan (oral) The Insurance Company has assailed the award dated 14.5.2015 passed by the learned Motor Accidents Claim Tribunal, Mandi, in claim petition No. 62/2013 on the ground that the same is contrary to the constitution bench judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Pranay Sethi and others, 2017(16) SCC 680.
1Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 21/12/2018 22:55:24 :::HCHP 2 2 The factual matrix of the present case, briefly stated, is as under: On 30.1.2013, the deceased was going from Gohar .
to Kullu with his friends in Alto Car bearing registration No. HP 69A0670 and when the car reached near Thalout, it struck with the hill due to rash and negligent driving of respondent No.4 herein, namely, Jatinder, as a result whereof, the deceased along with other occupants of the car sustained injuries. The deceased was taken to Zonal Hospital, Mandi, where he succumbed to his injuries. The matter was reported to the police and an FIR No.11 was lodged against respondent No.4 on 30.1.2013 under Sections 279 and 337 of the Indian Penal Code at Police Station Aut, District Mandi. It was averred that the deceased was healthy and stout and teetotaler. He was aged about 23 years at the time of accident and still bachelor. It was also averred that the deceased was driver by profession and earning Rs.7,000/ per month and on account of his untimely death, the claimants had been deprived not only of his income, but also his love and affection.
Resultantly, the claimants filed claim petition claiming therein compensation of Rs.20,00,000/.
3 The owner and driver of the vehicle, respondents No. 3 and 4 herein, opposed the petition by filing reply, wherein ::: Downloaded on - 21/12/2018 22:55:24 :::HCHP 3 preliminary objections qua maintainability and locus standi were raised. On merits, the averments made in the claim petition were denied. However, the factum of death and involvement of the .
vehicle in the accident was also admitted, but it was averred that the accident was result of sudden latent defect in the vehicle and not because of rash and negligent driving of respondent No.4.
4 The appellantInsurance Company filed separate reply, wherein it was averred that the driver of the vehicle in question was not holding valid and effective driving license and the vehicle was being driven in contravention of the terms and conditions of the Insurance Policy, therefore, the Insurance Company was not liable to indemnify the compensation, as sought.
5 On 10.3.2015, the learned Tribunal framed the following issues:
1. Whether the deceased Mohit Kapoor had died in Motor Vehicle Accident on 30.1.2013 at about 6.30 P.M. at place Thalaut on account of rash and negligent driving of the respondent No.2? OPP
2. If issue No.1 is proved in affirmative, to what amount the petitioners are entitled for compensation? OPP
3. Whether the respondent No.3 Insurance Company can be held liable to indemnify the award amount?OPR1 & 2 ::: Downloaded on - 21/12/2018 22:55:24 :::HCHP 4
4. Whether the vehicle was driver by respondent No.2 in violation of the terms and conditions of the Insurance Policy? OPR3
5. Whether the respondent No.2 was not having valid and .
effective driving license to drive the vehicle at the time of the accident? OPR3.
6. Relief.
6 After recording the evidence and evaluating the same, the learned Tribunal allowed the claim petition and awarded the compensation to the claimants as follows: Sr. Head Compensation No. Awarded i. Income Rs.5000/ ii. Future prospects @ 50% of Rs.2500/ the income iii. Deduction of personal Rs.3750/ expenses @ 50% iv. Multiplier 18 ( as per age of the deceased) v. Loss of future income Rs.8,10,000/ (i.e. 3750 x 12 x18) vi. Loss of love and affection Rs.50,000/ vii. Loss of estate Rs.50,000/ viii. Funeral expenses Rs.25,000/ Total compensation Rs.9,35,000/ along with interest @ 9% per annum from the date of filing of petition till the final realization of the amount.
::: Downloaded on - 21/12/2018 22:55:24 :::HCHP 5The compensation amount was held to be payable jointly and severally by the Insurance Company and the driver and owner of the vehicle.
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7 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
8 The principal grounds on which the appeal has been filed by the appellantInsurance Company are that (i) the learned Tribunal has, without any basis, erroneously calculated taken the income of the deceased to be Rs.5000/, whereas at the relevant time, under the Minimum Wages Act monthly income of the deceased was Rs.3600/; and (ii) the learned Tribunal has erroneously awarded 50% of the income towards the future prospects as the same, in terms of Pranay Sethi's case, could only be 40%. The grant of compensation, i.e. Rs.50,0000/ on account of loss of love and affection, Rs.50,000/ on account of loss of estate and Rs.25,000/ towards funeral expenses is also erroneous and at best only Rs.70,000/ in lump sum could have been awarded to the claimants in accordance with the judgment in Pranay Sethi's case.
9 Adverting to the first ground, it would be noticed that the learned Tribunal, without there being any basis and rather only on the basis of the oral statement of the claimants, ::: Downloaded on - 21/12/2018 22:55:24 :::HCHP 6 determined the income of the deceased to be Rs.5000/ per month, which, in absence of there being legally admissible evidence, could have at best been fixed by taking into .
consideration the minimum wages prevalent at the relevant time, which admittedly in the present case was Rs.3600/ per month (i.e. Rs.120/ per day). The nature of the employment of the deceased was "self employed person" and therefore, future prospects ought to have been awarded @ 40% of the actual income of the deceased instead of 50% as awarded by the learned Tribunal.
10 As regards the claimants, who are parents of the deceased, in terms of Pranay Sethi's case, they would be entitled to loss of estate @ Rs.15,000/, loss of consortium @ Rs.40,000/ and funeral expenses @ Rs.15,000/ in terms of Pranay Sethi' s case.
11 However, it needs to be noticed that the Hon'ble Supreme Court in Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram and ors. 2018 (11) Scale 247, after considering the judgment in Pranay Sethi's case, considered one of the heads for awarding compensation i.e. loss of consortium and observed as under:
::: Downloaded on - 21/12/2018 22:55:24 :::HCHP 78.7 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.
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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.
Spousal consortium is generally defined as rights pertaining to the relationship of a husbandwife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation."
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.
::: Downloaded on - 21/12/2018 22:55:24 :::HCHP 8Consortium 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 . 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, ::: Downloaded on - 21/12/2018 22:55:24 :::HCHP 9 an amount of Rs. 40,000 each for loss of Filial Consortium.
12 In view of the aforesaid exposition of law, the .
claimants are entitled to a sum of Rs.40,000/ each for loss of filial.
13 Accordingly, in light of the aforesaid discussion, the claimants, being parents of the deceased, are now held entitled to the following amounts: Sr. Head Compensation No. Awarded i.
Income Rs.3600/
ii. Future prospects Rs.1440/ (40% of the
income)
iii. Deduction towards Rs.2520/ (i.e. 50% of personal expenditure Rs. 3600 + Rs.1440) @ 50% iv. Total income Rs.2520/ (50% of Rs.3600 + Rs.1440) v. Multiplier 18 ( as per age of the deceased) vi. Loss of future income Rs.5,44,320/ (i.e. 2520 x 12 x18) vii. Loss of love and Rs.1,00,000/ affection (Rs.50,000/ each) viii. Loss of estate Rs.15,000/ ix. Funeral expenses Rs.15,000/ x. Loss of filial Rs.80,000/ (Rs.40,000/ each) Total compensation Rs.7,54,320/ along with interest @ 9% per annum from the date of filing of petition till ::: Downloaded on - 21/12/2018 22:55:24 :::HCHP 10 the final realization of the amount.
14 Accordingly, the appeal is partly allowed and the .
award dated 14.5.2015 passed by the learned Tribunal is modified to the extent that the claimants would now be entitled to a total compensation of Rs.7,54,320/ instead of Rs.9,35,000/ along with interest @ 9% per annum from the date of filing of the claim petition till its realization. Pending application(s), if any, also stands disposed of leaving the parties to bear their own costs.
December 18, 2018 (Tarlok Singh Chauhan)
(pankaj) Judge
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