Himachal Pradesh High Court
Indira Devi And Others vs Chandu Ram And Others on 31 August, 2023
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO No. 4195 of 2013 Reserved on: 19.07.2023 Decided on: 31st August, 2023 .
Indira Devi and others .......Appellants Versus Chandu Ram and others ...Respondents Coram of The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 Yes. For the appellant:
rt Mr. J.L. Bhardwaj,
Advocate with Mr.
Senior
Sanjay
Bhardwaj, Advocate.
For the respondents: Mr. Anirudh Sharma, Advocate
for respondents No.1 and 2.
Mr. Jagdish Thakur, Advocate
for respondent No. 3.
Virender Singh, Judge.
Appellants have filed the present appeal under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as the 'M.V. Act') against the award dated 22.08.2013 passed by learned Motor Accident Claims Tribunal-II, Solan, District Solan H.P. (hereinafter, referred to as the 'learned MACT') in MAC Petition No. 9-S/2 of 2012 titled as Indira Devi and others vs. Chandu Ram and others.
1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 31/08/2023 20:34:05 :::CIS 22. By way of award dated 22.08.2013, the learned MACT has awarded a sum of Rs.31,93,804/- as compensation to the appellants. However, according to the .
learned MACT, since, the relief has been restricted by the appellants to the tune of Rs. 30,00,000/-, as such, they were held entitled to compensation of Rs. 30,00,000/- along-with 6% interest per annum. The liability to pay the of compensation has been put on respondents No.1 and 2 jointly and severally, by specifying that respondent No.3 rt shall indemnify the award.
3. The parties, to the present lis, are hereinafter, referred to, in the same manner, as were referred to, by the learned MACT.
4. Brief facts, leading to the filing of the present, appeal before this Court, may be summed up as under:-
The petitioners have filed claim petition under Section 166 of the M.V. Act, seeking compensation on account of death of Sh. Babu Ram, predecessor-in-interest of the petitioners.
4.1. The petitioners are widow, daughter and son of Sh. Babu Ram, who, as per the claim petition, died in a road side accident on 04.12.2011, involving bus No. HP11B-7506 (hereinafter referred to as the 'offending vehicle').::: Downloaded on - 31/08/2023 20:34:05 :::CIS 3
4.2. The respondents have been impleaded in the claim petition being owner, driver and insurer of the offending vehicle.
.
4.3. According to the claim petition, on 03.12.2011 at about 2.30 p.m., Sh. Babu Ram was going on his scooter No.HP11-2382 from Arki to Baatal Ghatti side. When, he reached at a place Gas Store Baradghatti, then, the offending of vehicle, being driven by respondent No.2, in a rash and negligent manner, reached there from Arki side and hit the rt scooter being driven by Sh. Babu Ram. Due to the rash and negligent driving, Sh. Babu Ram sustained grievous injuries on his person.
4.4. After the accident, Babu Ram was firstly taken to Civil Hospital, Arki where, he was given first aid and for further management, he was referred to IGMC, Shimla and thereafter to PGI Chandigarh. However, said Babu Ram had expired on the next day. His dead body was brought back to the village for performing last rites.
4.5. The information regarding the accident in question was given to the police of Police Station, Arki, where, a case FIR No. 114 of 2011 dated 3.12.2011 under Sections 279, 337, 338 & 304-A IPC has been registered.
::: Downloaded on - 31/08/2023 20:34:05 :::CIS 44.6. It is further case of the petitioners that at the time of death, Sh. Babu Ram was aged about 42 years and was serving as R.M. (Regular Mazdoor) in telephone .
exchange, Dhami, Sub Division, Shimla and earning Rs.
25,000/- per month. Apart from this, he was also earning Rs.45,000/- per annum from the agricultural pursuits.
4.7. The petitioners have pleaded about their bleak of future and bright past.
4.8. On the basis of above facts, the petitioners have rt sought the compensation of Rs.30,00,000/- along-with 12% interest and Rs. 30,000/- along-with 12% for damages to the scooter.
5. When put to notice, the claim petition has been contested by the respondents.
6. Respondents No. 1 and 2 have jointly filed reply and have taken the plea that the accident in question had taken place due to rash and negligent driver of Sh. Babu Ram.
6.1. On merits, the contents of the claim petition have been denied, however, registration of FIR has been admitted, but, it has been pleaded that same has wrongly been registered against respondent No.2. Explaining their stand, it is the case of respondents No. 1 and 2, that bus was stopped ::: Downloaded on - 31/08/2023 20:34:05 :::CIS 5 by respondent No.2 for boarding the passengers, as, there was a stoppage. Rest of the contents have been denied.
7. The Insurance-Company of the offending vehicle .
has filed separate reply by taking preliminary objections that the offending vehicle was being plied in violation of the terms and conditions of the insurance policy, petition is not maintainable, petition is bad for non-joinder of necessary of parties, as the insurer of the scooter HP-11-2382 has not been impleaded as party.
rt 7.1. On merits, the contents of the claim petition have mainly been denied for want of knowledge.
7.2. Thus, the respondents have prayed for the dismissal of the claim petition.
8. From the pleadings of the parties, the following issues were framed by the learned MACT vide order dated 16.10.2012:-
1. Whether Babu Ram died in a motor vehicle accident which took place on 3.12.2011 at about 2.30 p.m. near Gas Store Baradhati due to rash and negligent driving of vehicle No.HP-11B-7506 being driven by respondent No.2? OPP.
2. If issue No.1 is proved in affirmative, whether the petitioners being legal heirs of deceased are entitled for grant of compensation is so to what amount and from which of the respondents ? OPP.
3. Whether the petition is not maintainable on the ground mentioned in preliminary objection No.1?::: Downloaded on - 31/08/2023 20:34:05 :::CIS 6
OPR-
1&2.
4. Whether the driver of the vehicle was not holding a valid and effective driving licence at the time of .
accident? OPR-3.
5. Whether the offending vehicle was being plied in breach of condition of the standard insurance policy, as alleged? OPR-3.
6. Relief.
of
9. After closure of the evidence, the learned MACT has allowed the claim petition and granted the relief, as referred above.
rt
10. Aggrieved from the said award, the petitioners have filed the present appeal before this Court on the ground that the learned MACT has wrongly added 30% increase only on account of future prospects, whereas, the same should have been taken as 100%, keeping in view the fact that there were chances of promotion of Sh. Babu Ram in near future.
Similarly, the learned MACT, according to the petitioners, has not given the adequate compensation under the heads, loss of estate, funeral expenses, as well as, loss of consortium.
10.1. According to them, the learned MACT has wrongly restricted the claim to the extent of Rs.30,00,000/-.
The interest, which has been awarded @6%, has also been challenged by the petitioners that the same should have been ::: Downloaded on - 31/08/2023 20:34:05 :::CIS 7 @12%. It is case of the appellants that just compensation has not been awarded.
11. On the basis of above facts, Mr. J.L. Bhradwaj, .
learned Senior Advocate assisted by Mr. Sanjay Bhardwaj, Advocate appearing for the petitioners has prayed that the amount of compensation may be enhanced as prayed for.
12. The prayer, so made, has been opposed by Mr. of Jagdish Thakur, learned counsel appearing for respondent No.3-Insurance Company on the ground that the learned rt MACT has rightly awarded the compensation to the petitioners and the award does not require any interference.
13. After framing of issues, the petitioners have examined LC Geetanjali, who has proved copy of FIR Ext.
PW-1/A.
14. Petitioner No.1 appeared in the witness box as PW-2 and has filed the affidavit in her examination-in-chief, which is almost based upon to the assertion made by her, in the claim petition.
14.1. According to her cross-examination, she has not witnessed the accident in question. Her husband was working from morning till evening in the telephone exchange.
Rest of the suggestions were denied by her, which were put to her, by learned counsel appearing for respondent No.3.
::: Downloaded on - 31/08/2023 20:34:05 :::CIS 815. PW-3 Uma Devi is the eye witness to the accident.
According to her on 03.12.2011, she had boarded the offending bus. The said bus was owned by respondent No.1 .
and driven by respondent No.2. At about 2.30 p.m., on that day, driver was driving the bus at a very high speed and in a rash and negligent manner and when, reached near Gas Store Brarghatti, then, the offending vehicle had hit the of scooterist, who was coming from Arki Side and moving towards Batal Ghatti. The said scooterist happened to be rt heruncle. She has categorically stated that the accident in question had taken place due to rash and negligent driving of the driver of the offending vehicle. This witness has admitted that deceased was her uncle. Police has recorded her statement. She was sitting on seat No.3 of the offending vehicle. The scooter had struck against the driver side.
16. PW-4 Anant Ram has deposed that scooter No. HP-11-2382 has been repaired by him on 12.06.2011 and he had charged a sum of Rs.11,500/- for the same. He has deposed that in the accident, the said scooter was badly damaged and turned into junk. The value of the same has been assessed by him as Rs.1500/-.
::: Downloaded on - 31/08/2023 20:34:05 :::CIS 917. PW-5 Sunil Subramanium has conducted the post-mortem on the dead body of Babu Ram and proved the copy of the same as Ext. PW-5/A. .
18. PW-6 Ashwani Kumar, Accounts Officer has proved the fact that the deceased was working with BSNL as regular Mazdoor. He has proved the last pay certificate as Ext. PW-6/A and deposed that his salary was Rs.21,900/-
of per month. According to him, Babu Ram was entitled for regular four up-gradations during his career.
rt His salary, according to this witness, at the time of retirement, would have been Rs.50,000/- per month.
19. To rebut this evidence, Chandu Ram has submitted the copy of insurance Ext. RW-1/B, copy of RC Ext. RW-1/A, permit Ext. RW-1/C and certificate Ext. RW-
1/D.
20. RW-2 Jai Dutt Sharma, Record Keeper has proved the copy of DL as Ext. RW-2/A.
21. In this case, neither the Insurance Company nor respondents No. 1 and 2 have assailed the award.
22. The petitioners have assailed the award on the ground of inadequacy of the award. It is no longer res-
integra that the primary object of the learned MACT, as well as, the Court is to grant just compensation. The M.V Act is a ::: Downloaded on - 31/08/2023 20:34:05 :::CIS 10 beneficial piece of legislation. Strict rules of Evidence Act are not applicable in the proceedings under the M.V. Act.
23. The Hon'ble Apex Court Oriental Insurance .
Company Limited vs. Mohd. Nasir and another, (2009) 2 SCC (Cri.) 987 has elaborately discussed the provisions of M.V. Act vis-à-vis of the Employees Compensation Act. The relevant paras 23 and 24 of the judgment are reproduced as of under:-
rt "23. Both, the 1923 Act and 1988 Act are beneficent legislation insofar as they provide for payment of compensation to the workmen employed by the employers and/or by use of motor vehicle by the owner thereof and/or the insurer to the petitioners suffering permanent disability. The amount of compensation is to be determined in terms of the provisions of the respective Acts. Whereas in terms of the 1923 Act, the Commissioner who is a quasi judicial authority, is bound to apply the principles and the factors laid down in the Act for the purpose of determining the compensation, Section 168 of the 1988 Act enjoins the Tribunal to make an award determining the amount of compensation which appears to be just.
24. Both the Acts aim at providing for expeditious relief to the victims of accident. In these cases, the accidents took place by reason of use of motor vehicles. Both the statutes are beneficial ones for the workmen as also the third parties. The benefits thereof are available only to the persons specified under the Act besides under the Contract of Insurance. The statutes, therefore, deserve liberal construction. The legislative intent contained therein is required to be interpreted with a view to give effect thereto." (self emphasis supplied)
24. Judging the facts and circumstances of the present case, in the light of the decision of the Hon'ble Apex Court in Mohd. Nasir's case (supra), the first and foremost ::: Downloaded on - 31/08/2023 20:34:05 :::CIS 11 question, which arises for consideration before this Court is about the fact as to whether the compensation, which has been awarded, in this case, falls within the definition of 'just .
compensation' or not?
25. The learned MACT has although assessed the compensation of Rs.31,93,804/-, but surprisingly, the learned MACT has restricted the claim to the tune of of Rs.30,00,000/- only on the ground that this much amount has been claimed by the petitioners in the claim petition. The rt said approach of learned MACT is not sustainable in the eyes of law as it is no-where provided in the M.V. Act or the rules framed thereunder that the amount of compensation claimed should be mentioned in the claim petition.
26. It is no longer res-integra that in order to achieve the object to award 'just compensation', the amount more than claimed, can be awarded by the learned MACT.
27. As per petitioners, the age of Sh. Babu Ram, at the time of his death, was 42 years. The accident in question had taken place on 03.12.2011. The date of birth of Sh.
Babu Ram, as per matriculation certificate, copy of which has been placed on record as Ext PW-2/D was 03.01.1969.
Meaning thereby, the age, so pleaded by the petitioners, is fully substantiated from the documentary evidence.
::: Downloaded on - 31/08/2023 20:34:05 :::CIS 1228. The salary certificate of Sh. Babu Ram for the month of November, 2011 is on the file as Ext.PW-6/A. As per the document, his monthly salary was Rs.21,922/-.
.
29. In this case, petitioner No.1 has sought the information from the General Manager, BSNL, Shimla regarding basic pay and calculation of up-gradation, had the deceased been survived till the age of superannuation. The of said document is Ext. PW6/B. As per this document, the basic pay of Sh. Babu Ram would have been Rs.16,840/-, rt had he been survived till his retirement. The learned MACT has added 30% of the actual salary on account of future prospects, had he been alive.
30. These findings have been assailed by the learned counsel for the petitioners on the ground that general principle of increase is not applicable, as, there is document in the shape of Ext. PW-6/B, which demonstrates that his basic pay would have been Rs.16,840/-, had he been alive, as such, according to the learned counsel for the petitioners, the increase, as per document Ext. PW-6/B, in the salary of deceased is liable to be given on the basis of general principle, as culled out by the Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others, ::: Downloaded on - 31/08/2023 20:34:05 :::CIS 13 (2017) 16 SCC 680 and Sarla Verma and others vs. Transport Corporation and others, 2009 (6) SCC 122.
31. In order to buttress his contention, learned .
counsel for the petitioners has relied upon the decision of the Hon'ble Apex Court in Hem Raj vs. Oriental Insurance Company Limited and others (2018) 15 SCC 654. The relevant paras 17 to 21 of the judgment are reproduced as of under:-
"17. Leave granted. Heard the learned counsel for the rt parties.
18. It is submitted that the view taken by this Court in National Insurance Co. Ltd. v. Pranay Sethi³ is no bar to future prospects being taken at a level higher than 25% in case the deceased was above 40 years or 50% in case the deceased was below 40 years if evidence on record so warrants. It is submitted that standardisation may be the increase based on presumption but when there is an actual evidence led to the satisfaction of the Tribunal/Court that future prospects were higher than the standard percentage, there is no bar to the Court/Tribunal awarding higher compensation on that basis. We find merit in submission.
19. In the present case, the Tribunal has applied the correct principle d law and made the assessment of income by adding the component of fine prospects higher than the standard percentage. The High Court held that Tribunal could not have gone beyond the standard percentage. To that extent the view taken by the High Court cannot be sustained.
20. Accordingly, we set aside the order of the High Court and restore the order of the Tribunal. The appeal is, accordingly, disposed of.
Civil Appeal No. 19606 of 2017 [arising out of SLP (C) No. 7241 of 2017.::: Downloaded on - 31/08/2023 20:34:05 :::CIS 14
21. Leave granted. Heard the learned counsel for the parties."
32. Judging the facts and circumstances of the .
present case in the light of the decision of the Hon'ble Apex Court in Hem Raj's case (supra), at the time of death of Sh.
Babu Ram, as per document, Ext.PW-6/B, his basic salary would be Rs.16,840/-, on the day of his superannuation i.e. of 01.10.2028. The increase, as, mentioned in the document Ext. PW-6/B, also falls within the increase, as given by the rt learned MACT i.e. 30%. By giving the increase of 30% on the basic salary, the same comes to Rs.16783/-. In the document, the same has been mentioned as Rs.16,840/-.
33. The age of deceased Babu Ram, at the time of his death, was 42 years. He was having permanent job, as such, learned MACT has rightly added 30% on account of his future prospects.
34. So far as deduction on account of personal expenses is concerned, considering the number of dependent i.e. petitioners, learned MACT has rightly deducted 1/3rd on account of personal expenses, had Sh. Babu Ram been alive.
35. While holding so, the view of this Court has been guided by the decision of the Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and ::: Downloaded on - 31/08/2023 20:34:05 :::CIS 15 others, (2017) 16 SCC 680. The relevant Para No. 37 of the judgment is reproduced 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 from Sarla Verma, Reshma Kumari, Rajesh and Munna Lal Jain. Three aspects need to be clarified. The first one pertains to deduction towards personal and living expenses. In paragraphs 30, 31 and 32, Sarla Verma lays down:-
of "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 Chandra4, the general practice is to apply standardised deductions. Having considered several subsequent decisions of rt this (2003) 3 SLR (R) 601 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 (1/4th) 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 petitioners 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 ::: Downloaded on - 31/08/2023 20:34:05 :::CIS 16 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."
36. Now, so far as the question of multiplier is concerned, the learned MACT has applied the multiplier of 14, which is as per decision of the Honble Apex Court in of Sarla Verma and others vs. Transport Corporation and others, 2009 (6) SCC 122.
37. rt Thus, the contribution of Sh. Babu Ram towards his family, at the time of his death, comes to Rs.21,922x12=2,63,064/- per annum. By adding 30% in the salary of deceased, on account of his future prospects, had he been alive, the same comes to Rs.78,919/- per annum and his total income comes to Rs.3,41,983/- per annum.
Deducting total tax liability out of this amount @ 15654/-, his annual income comes to Rs.3,26,329/-.
38. Keeping in view the number of claimants, who falls with the definition of dependents, after deducting 1/3rd amount towards his personal expenses, his net contribution comes to Rs.2,17,553/-.
39. The age of Sh. Babu Ram, at the time of his death has been proved to be 42 years. Keeping in view the law laid down in case Sarla Verma and others vs. Transport ::: Downloaded on - 31/08/2023 20:34:05 :::CIS 17 Corporation and others, 2009 (6) SCC 122, the multiplier of 14 would be appropriate multiplier, as such, petitioners are held entitled to compensation to the tune of .
Rs.2,17,553x14=Rs.30,45,742/-, under the head 'loss of dependency'.
40. In addition to this, the petitioners are also held entitled to the compensation under the following heads:-
of Loss of estate = Rs.15,000/-
Funeral expenses
rt = Rs.15,000/-
41. In view of the decision of the Hon'ble Apex Court in Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others, (2018) 18 SCC 130, the claimants are held entitled for compensation under the heads 'spousal consortium', 'parental consortium' and 'filial consortium'. The relevant paras 21 to 24 of the judgment are reproduced as under:-
"21. A Constitution Bench of this Court in Pranay Sethi 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 ::: Downloaded on - 31/08/2023 20:34:05 :::CIS 18 spouse, it would include sexual relations with the deceased spouse:
21.1. 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".
21.2. 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 of training."
21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a rt 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.
22. 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.
23. 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 ::: Downloaded on - 31/08/2023 20:34:05 :::CIS 19 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.
24. 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 of appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium."
rt
42. Thus, the claimants are entitled for consortium as under:
Loss of consortium = Rs.40,000x3=Rs.1,20,000/-
43. In view of the discussion made above, the award passed by the learned MACT is liable to be modified and the same is modified accordingly and the compensation, for which the petitioners are held entitled, is assessed as under:-
1. Loss of dependency = Rs.30,45,742/-
2. Loss of estate = Rs.15,000/-
3. Funeral expenses = Rs.15,000/-
4. Loss of consortium = Rs.1,20,000/-
44. As such, the petitioners are held entitled for the total compensation to the tune of Rs.30,45,742+Rs.15,000 +Rs.15,000+Rs.1,20,000=Rs.31,95,742/-.
::: Downloaded on - 31/08/2023 20:34:05 :::CIS 2045. The costs of the petition have rightly been assessed by the learned MACT.
46. In view of the discussion made above, the appeal .
is allowed by enhancing the amount from Rs. 30,00,000/-to Rs. 31,95,742/- and the petitioners and are held entitled for a sum of Rs. 31,95,742/- along-with interest @ 6% from the date of filing of petition till the realization of amount with of interest from the respondents.
47. Record be sent down.
rt
August 31, 2023 ( Virender Singh )
(naveen) Judge
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