Himachal Pradesh High Court
Dalbir Singh (Deceased) Through Lrs vs Sunny Jindal & Another on 18 April, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
FAO No.227 of 2021 a/w
.
FAO No.254 of 2021
Date of Decision: 18.04.2024
-----------------------------------------------------------------------------------------
1. FAO No.227 of 2021
Dalbir Singh (deceased) through LRs ...Appellants
Versus
Sunny Jindal & another ...Respondents
2. FAO No.254 of 2021
National Insurance Company Ltd.
r to ...Appellant
Versus
Dalbir Singh (deceased) through LRs & Ors ...Respondents
-----------------------------------------------------------------------------------------
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
---------------------------------------------------------------------------------------
For the Appellant(s): Mr. B.S.Chauhan, Advocate, for the
appellants in FAO No.227 of 2021
and for the respondents in FAO
No.254 of 2021.
For the Respondents: Ms. Shilpa Sood, Advocate, for the
appellant in FAO No.254 of 2021
and for respondent No.2 in FAO
No.227 of 2021.
-----------------------------------------------------------------------------------------
Sandeep Sharma, J. (Oral)
Above captioned appeals filed under Section 173 of the Motor Vehicles Act ( for short 'Act'), lay challenge to award 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 23/04/2024 20:32:10 :::CIS 2dated 31.03.2021, passed by learned Motor Accident Claims Tribunal (IV) Shimla, Himachal Pradesh, in M.A.C.C. No. 29-S/2 of .
2016, titled as Dalbir Singh (deceased) through LRs Smt. Seema Devi and others vs. Sunny Jindal and another, whereby tribunal below, while holding claimants i.e. appellants in FAO No.227 of 2021, entitled for compensation, saddled National Insurance Company i.e. appellant in FAO No.254 of 2021, with liability to pay sum of Rs. 4, 65, 179/- alongwith interest at the rate of 9% per annum from the date of filing of the petition till payment.
2. Precisely, the facts of the case, as emerge from the record are that deceased Dalbir Singh, instituted claim petition under Section 166 of the Act, seeking therein compensation to the tune of Rs. 50,00,000/- on account of the injury suffered by him in the motor vehicle accident occurred on 25.02.2016 at place called Mansar between Kandaghat and Solan. Above named person claimed that on 25.02.2016, while he was driving his car bearing registration No.PB-13-AA-7671(Maruti Swift), a truck being driven by respondent No.1, Sh. Sunny Jindal rashly and negligently, hit his car, as detailed hereinabove, as a result of which, he suffered multiple injuries and remained admitted in the hospital. Deceased, named hereinabove, specifically claimed that accident occurred on account of rash and negligent driving of respondent No.1 and at the time of the accident, he was earning Rs. 12,000/- per month ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 3 being a driver and sum of Rs. 18,000/- per month from other sources including horticulture and agriculture. He claimed before .
the tribunal below that on account of multiple injuries suffered by him, he remained hospitalized at IGMC, Shimla w.e.f.25.02.2016 to 5.4.2016 and during this period, he spent sum of Rs. 2, 00,000/-
on his treatment. He claimed that his disability was assessed to the extent of 100% and after his being discharged from IGMC, Shimla, he remained hospitalized in Civil Hospital, Kupvi and also remained regular visitor to Orthopaedic Department IGMC, Shimla.
Since on 22.12.2016, above named deceased died in Civil Hospital, Kupvi due to the aforesaid injuries, his LRs got themselves impleaded in the claim petition and pursued the claim put forth by the deceased Dalbir Singh. LRs of deceased Dalbir Singh specifically claimed before the Tribunal below that deceased died in Civil Hospital, Kupvi on account of the injuries suffered by him in the accident and as such, learned tribunal below while ordering their impleadment, permitted them to pursue the proceedings initiated at the behest of deceased Dalbir Singh.
3. Aforesaid claim put forth by the deceased and thereafter his LRs came to be seriously refuted at the behest of the respondents. Respondent No.1, though in his reply, admitted factum with regard to the accident, but specifically denied that the accident occurred on account of his rash and negligent driving. He ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 4 claimed that the accident occurred on account of rash and negligent driving of deceased Dalbir Singh and since the vehicle in .
question was duly insured, liability to pay compensation, if any, is of Insurance Company.
4. Appellant-Insurance Company resisted the claim of the claimants on the ground that at the time of the accident, driver of the offending vehicle was under influence of liquor and as such, it cannot be held liable to indemnify him. Appellant-Insurance Company also denied allegation of rash and negligent driving, if any, by driver of the offending vehicle and claimed that deceased himself was negligent in driving the vehicle. Besides above, appellant-Insurance Company though nowhere disputed factum with regard to treatment of deceased at IGMC, Shimla as well as Civil Hospital, Kupvi, but denied that he was earning Rs. 18000/-
per month, as claimed by the claimants/ original claimant.
5. On the basis of afore pleadings adduced on record by the respective parties, Tribunal below framed following issues:-
1. Whether the deceased Dalbir Singh died due to the injuries sustained in a motor vehicle accident on 25.02.2016 at about 4.20 AM at place Mansar, while travelling in his vehicle from Shimla to Solan and being hit by the vehicle bearing No.PB-13-AN-
7671 being driven by its driver in a rash and negligent manner? OPP.
::: Downloaded on - 23/04/2024 20:32:10 :::CIS 52. Whether the petitioners are entitled for grant of compensation, is so then what should be quantum of compensation and from whom? OPP.
.
3. Whether the petition is not maintainable in the present form, as alleged? OPR.
4. Whether vehicle was being driven by the driver in violation of the terms and conditions of the insurance policy and in contravention of provision of Motor Vehicle Act, as alleged? OPR.
5. Relief:-
6. Subsequently, vide impugned award dated 31.03.2021, learned Tribunal below, though rejected the claim of the appellants/claimants for compensation on the basis of death of deceased, but yet considering the monthly income to the tune of Rs. 10,000/-, proceeded to award compensation to the tune of Rs. 4, 65,179/- on account of the injuries sustained by the deceased in the accident.
7. Being aggrieved and dissatisfied with the findings returned by learned Tribunal below that appellants/claimants are not entitled to compensation on account of death of deceased, appellants-claimants have approached this Court in FAO No.227 of 2021, whereas appellant-Insurance Company has approached this Court in appeal bearing FAO No.254 of 2021 on the ground that since appellants-claimants were not able to prove monthly income of the deceased to the tune of Rs. 10,000/- at the time of the accident, there was no occasion, if any, for the tribunal below to ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 6 calculate monthly income of the deceased on the basis of Rs. 10,000/-.
.
8. Having heard learned counsel for the parties and perused the material available on record vis-à-vis findings returned by learned Tribunal below in the impugned award, this Court finds that the appellants/claimants in FAO No.227 of 2021 have laid challenge to the impugned award on the ground that once PW-4, Dr. Mukand Lal, Principal, IGMC, Shimla, had specifically deposed that death can be caused directly or indirectly with such type of the injuries, there was no occasion, if any, for tribunal below to grant compensation on the basis of injuries suffered by deceased Dalbir Singh that too on the ground that no postmortem report ever came to be adduced on record suggestive of the fact that deceased died on account of the injuries suffered by him in the accident.
9. On the other hand, grouse of the appellant-Insurance Company, as has been highlighted in the appeal and further canvassed by Ms. Shilpa Sood, learned counsel for the appellant in FAO No.254 of 2021, is that once no positive evidence ever came to be led on record with regard to monthly income of the deceased, there was no occasion for Tribunal below to assess the income of deceased to the tune of Rs. 10,000/- per month. Apart from above, appellant-Insurance Company has also claimed that since it stood duly proved on record that at the time of the accident, ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 7 driver of the offending vehicle was under the influence of the liquor, it could not be held liable to indemnify the owner of the .
offending vehicle.
10. It has been claimed on behalf of the appellant-
Insurance Company that since claimants in the claim petition as well as by leading evidence were not able to prove factum with regard to engagement of two attendants for care of the deceased, there was no occasion, if any, for Tribunal below to award compensation for engagement of two attendants, that too on the basis of statement of Doctor (PW-4) to the effect that such patient requires minimum of two attendants.
11. Admittedly, in the case at hand, deceased, after his having suffered injuries in the accident was rendered disabled to the extent of 100% and on the basis of the same, he filed claim petition before the competent court of law, seeking therein compensation to the tune of Rs. 50,00,000/-. It is also not in dispute that on account of the injuries suffered by the deceased, he remained admitted in IGMC, Shimla w.e.f. 25.02.2016 to 5.4.2016 and thereafter, he remained admitted at Civil Hospital, Kupvi.
Perusal of OPD slip Ex. PW4/B, reveals that deceased had visited the department of Orthopaedics for regular follow up treatment on 28.06.2016. He was admitted and discharged on 28.10.2016, as is ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 8 evident from discharge slip Ex. PW4/C. It is also not in dispute that deceased died on 22.12.2016 at Civil Hospital, Kupvi. After his .
death, his LRs made prayer for amendment of the petition on the ground that deceased died on account of injuries suffered by him in the accident. Learned Tribunal below, while accepting the prayer made in the application, not only impleaded them as claimants, but also permitted them to pursue the petition instituted at the behest of the deceased.
12. rPrecisely, the question, which falls for adjudication of the case is, "whether learned Tribunal below could have denied to award compensation on account of death of the deceased on the ground that no postmortem report was adduced in evidence?".
13. Admittedly, in the case at hand, deceased was not subjected to postmortem and as such, there was no occasion for the claimants to place on record postmortem report. However, to prove factum with regard to death of the deceased on account of the injuries suffered by him in the accident, they examined PW-4, Dr. Mukand Lal, Principal IGMC, Shimla, who categorically deposed that deceased was hospitalized in the Orthopaedic Department of IGMC, Shimla on 25.02.2016. He deposed that with such type of injuries, the patient requires regular follow up treatment. While stating that deceased was discharged vide discharge slip Ex.PW4/A, he also admitted that deceased visited ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 9 the Department on 28.06.2016 vide OPD Slip Ex.PW4/B and remained hospitalized in IGMC, Shimla till 28.10.2016. Most .
importantly, this witness deposed that injuries on the person of deceased mentioned in the discharge slip, can possibly be caused in motor vehicle accident and death can be caused directly or indirectly with such type of injuries. He denied that with the passage of time, the patient can improve from his disability.
Interestingly, record reveals that repeatedly opportunity was given to the Insurance Company as well as respondent No.1 to rebut the aforesaid oral as well as documentary evidence adduced on record by the claimants, but in vain.
14. Ms. Shilpa Sood, learned counsel representing Insurance Company, while referring to the statement of PW-4, Dr. Mukand Lal, vehemently argued that there is nothing on record suggestive of the fact that the aforesaid witness categorically deposed about the cause of the death of the deceased. She submitted that mere saying that injuries suffered by the deceased could cause on death, may not be sufficient to conclude that deceased died due to the injuries suffered by him in the accident, rather to establish such fact, onus was upon the claimants to lead positive evidence in the shape of postmortem report, but since in this regard, claimants failed to discharge aforesaid onus, no illegality can be said to have been committed by learned Tribunal ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 10 below while awarding compensation on the basis of the injuries suffered by the deceased in the alleged accident.
.
15. However, having carefully gone through the statement made by PW-4, Dr. Mukand Lal, this Court is not persuaded to agree with Ms. Shilpa Sood, learned counsel for the Insurance Company for the reason that accident in the case at hand had actually taken place on 25.02.2016 and thereafter, deceased remained under treatment at IGMC, Shimla and Civil Hospital, Kupvi. It is apparent from the statement of PW-4, Dr. Mukand Lal that on 5.4.2016, deceased was discharged, but yet was advised to visit Orthopaedic department for follow up treatment. Following the advice of the doctor concerned, deceased kept on coming for his follow up treatment, as is evident from OPD Slip Ex.PW4/B, which reveals that deceased was again hospitalized on 28.6.2016 and thereafter was discharged on 28.10.2016, as is evident from discharge slip Ex.PW4/C.
16. Claimants categorically averred in the claim petition that on account of the injuries suffered by the deceased in the accident, he remained admitted in IGMC, Shimla for some time and for some time in Civil Hospital, Kupvi. Since deceased died after ten months of the accident that too while he was admitted in Civil Hospital, Kupvi, necessity may not have been felt by the LRs of deceased or by the hospital authority to send the body of the ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 11 deceased for postmortem, but certainly on account of the omission, if any, on the part of the hospital authority, claimants cannot be .
made to suffer, especially when doctor attending upon the deceased categorically deposed that the injuries suffered in the accident can be caused of the death of the deceased. Once, there is ample evidence available on record in the shape of oral or documentary evidence suggestive of the fact that deceased died on account of his having suffered injuries in the accident, learned Tribunal below could not have refused to grant compensation on account of death of the deceased. Reliance in this regard is placed upon the judgment passed by Hon'ble High Court of Madras in National Insurance Company Limited vs. Anthony (since deceased) and others, 2015 ACJ, 2392, wherein afore Court categorically held that production of postmortem report is not compulsory, especially when reason of death can be inferred from other documents. At this stage, it would be profitable to reproduce para Nos. 13-14 of the aforesaid judgment hereinbelow:-
13. In the Judgment reported in Khairullah v. Anita, 1994 ACJ 1017, the Andhra Pradesh High Court has held as follows:
"4. It is vehemently contended by Mr. P. Rama Rao, learned Counsel appearing for the Appellants, that no autopsy was conducted over the dead body of the deceased to arrive at the cause of death. It may be remembered that the deceased died during the course of Medical treatment after about 25 days after the accident and he succumbed to the injuries. As already stated, Exh. A-10, the in-patient discharge ticket of the ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 12 Hyderabad Nursing Home, where the deceased was undergoing treatment at the time of his death, shows that due to cardio-respiratory failure the deceased had died which is a .
consequence and secondary to head injury. The head injury was sustained by the deceased at the time of the accident. It is not a case under Section 302, Penal Code, 1860, wherein the conducting of Post-Mortem examination to know the cause of death may be necessary. In this case, the cause of death is known from the documentary evidence, especially Exh. A-10 and also from the evidence of PW 2. The evidence of PW 2 is convincing. In the light of both oral and documentary evidence available in this case, the failure to conduct Post-Mortem examination over the dead body of the deceased cannot be taken as a circumstance against the Claimants, who are claiming Compensation for the death of the deceased."
14. The ratio in the Judgments are squarely applicable to the present facts of the case. As stated above, the deceased was under continuous Medical treatment. Exhibits P-4 to P-10 also reveal the presence of infection which is also corroborated by the evidence of PW 3. No contradictory evidence has been let in by the 2nd Respondent. Applying the ratio in the above cases, I hold that the production of Post-Mortem Report is not compulsory as the reason for the death can be inferred from other documents namely P-4 to P-10.
17. Reliance is also placed upon the judgment rendered by Punjab and Haryana High Court in case titled United India Insurance Company Limited vs. Sumitra and others, 2015 ACJ 115, wherein it has been held as under:-
"6. Learned counsel appearing for the appellant- Insurance Company referring to the evidence of PW-6 and Exhibit P-22 would submit that there was no major injury sustained by Subhash in the motor accident. PW-6 Dr. Tarun Sapra had also not given definite evidence to ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 13 the effect that the death of Subhash had a direct connection with the injuries he sustained in the motor accident. It is his further submission that the post-
.
mortem examination was not conducted on the dead-
body of Subhash to unravel the cause of death. Therefore, it is his submission that the claim petition is liable to be dismissed.
7. It has been established by the claimants that deceased Subhash sustained injuries in the motor accident that took place on 8.5.2011. The medico-legal report Exhibit P-
22 would categorically establish that though Subhash had sustained abrasions over right foot and right knee, he had been under trauma on account of the chest injuries he received on account of the accident. A chest r x-ray was taken but of course the evidence of PW-6 Dr. Tarun Sapra would go to show that Subhash was discharged in a satisfactory condition. In other words, we cannot conclusively conclude that the injured was discharged after recovering fully from the injuries he received and the trauma he underwent. The accident had taken place on 8.5.2011. He was admitted to the hospital on 9.5.2011. He was discharged therefrom on 21.5.2011.
But unfortunately, he died on the way to the hospital on 1.6.2011 when he developed some complications on account of the accident.
8. Further, PW-6 Dr. Tarun Sapra has stated that the cause of death may be related to the road accident. In the face of aforesaid evidence on record, one can easily come to the conclusion that the death of Subhash had direct nexus with the chest injuries he had received in the accident."
18. In the afore cases, though, there was no postmortem report indicative of the fact that deceased died on account of the ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 14 injuries suffered by him in the accident, but yet Court having taken note of the statement of doctor, who deposed that cause of death .
may be related to the road accident, proceeded to award compensation on account of the death of the deceased to the claimants.
19. Needless to say, the Motor Vehicle Act has been enacted for providing compensation by way of award to people, who sustain bodily injuries or get killed. It has been repeatedly held by Hon'ble Apex Court as well as other Constitutional Courts that Courts in construing social welfare legislations have to adopt a beneficial rule of construction, which fulfils the policy of the legislation favourable to those, in whose interest the Act has been passed. Section 116(1)(a) of the Act provides for a statutory claim of compensation arising out of an accident by the person, who has sustained the injury. Under Clause (b), compensation is payable to the owner of the property. In case of death, the legal representatives of the deceased can pursue the claim. If the legal heirs can pursue claims in case of death, they can also pursue the claim for loss of property akin to estate of the deceased if he is deceased subsequently for reasons other than attributable to the accident or injuries under Clause 1(c) of Section 166. Insurance Company being insurer has a statutory obligation to pay compensation in motor accident claim cases and such, obligation ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 15 cannot be evaded on the ground that it was available only for personal injuries and abates on his death irrespective of the loss .
caused to the estate of the deceased because of the injuries.
20. No doubt, in the case at hand, claim petition was initially instituted by deceased being injured, but admittedly he died during the pendency of the claim petition and his LRs successfully proved on record that the deceased died on account of the injuries sustained by him in the accident, Tribunal below ought not have proceeded to award compensation on the basis of the injuries, rather it should have calculated the compensation on the basis of the death of the deceased.
21. In the instant case, though deceased and thereafter his LRs claimed that deceased was earning Rs. 12000/- per month on account of his being driver and Rs. 18000/- on account of agricultural and horticultural pursuits, but since no cogent and convincing evidence ever came to be led on record to substantiate aforesaid plea, learned Tribunal below proceeded to consider the monthly income of the deceased to the tune of Rs. 10,000/-.
Though, Ms. Shilpa Sood, learned counsel for the Insurance Company, vehemently argued that Tribunal below, in the absence of specific evidence, could not have proceeded to conclude monthly income of the deceased to the tune of Rs. 10,000/-, but careful perusal of cross-examination of PW-1, if perused in its ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 16 entirety, nowhere suggests that evidence, if any, ever came to be put forth to the effect that deceased was not earning Rs. 12,000/-
.
on account of his being driver and Rs. 18,000/- per month in total including agriculture pursuits. Even otherwise, Tribunal below in the absence of specific evidence with regard to income, proceeded to calculate income on the basis of the Minimum Wages Act.
Since, at no point of time, it came to be refuted by the Insurance Company that at the time of the accident, deceased was driving his vehicle as taxi, Tribunal below rightly assessed monthly income of the deceased as Rs. 10,000/-. However, there appears to be merit in the submission of learned counsel for the Insurance Company that Tribunal below could not have awarded compensation qua two attendants, especially when claimants in the claim petition as well as while deposing before the Tribunal below claimed that one attendant was kept for the care of the deceased. It appears that Tribunal below merely relying upon statement of PW-4, Dr. Mukand Lal that such patient requires at least two attendants, proceeded to award amount qua two attendant, which probably, in the case at hand, was not called for, especially in view of the claim put forth by the claimants. Hence, award needs to be modified in this regard.
22. Having perused the judgment rendered by this Court in Oriental Insurance Company Ltd. vs. Sangeyum and others, ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 17 2016 ACJ, 1783, this Court finds no force in the submission of learned counsel for the Insurance Company that Tribunal below .
failed to take note of the fact that at the time of the alleged accident, driver of the offending vehicle was under the influence of liquor. In the aforesaid judgment, Co-ordinate Bench of this Court categorically held that in terms of Section 149 of the Act the ground of intoxication is not available to the Insurance Company. Having perused aforesaid judgment, coupled with the provision of Section 149 of the Act, this Court finds that afore ground raised on behalf of the Insurance Company, deserves outright rejection and accordingly same is rejected. At this stage, it would be profitable to reproduce para Nos. 10 and 11 of afore judgment hereinbelow:-
"10. The insurer has not led any evidence on Issues No. 3 to 6. Thus, it cannot lie in the mouth of the appellant insurer that the driver was driving the offending vehicle in the state of intoxication. In terms of Section 149 of the Motor Vehicles, Act, 1988, the ground of intoxication is not available.
11. This Court in Khem Chand versus Smt. Uma Devi Khem Chand versus Smt. Uma Devi and others, reported in Latest HLJ 2010 (HP) 1, Latest HLJ 2010 (HP) 1, has laid down the same principle. It is apt to reproduce para-4 of the judgment,, herein:-
4. The law is very well settled that a claim which falls within the purview of an Act policy i.e. a liability falling within the ambit of Section 147 of the Motor Vehicles Act, 1988 ( the Act) can only be contested by the Insurance Company on the grounds available to it under Section 149 of the Act. It is not permitted ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 18 to contest the proceedings on any other grounds.
Intoxication of the driver is not a ground available to the Insurance Company under Section 149 of the .
Act. Therefore, the liability, which is statutory under Section 147 of the Act, has to be satisfied by the insurer. It may be clarified that in case the insurer in addition to the liability which it is bound to cover under the Act covers other liability then in case of such extended liability, it may raise the defences available to it as per terms of the policy, but as far as statutory liability is concerned, the insurer has no authority to incorporate any term in the policy which is not contemplated in terms of Section 149 of the Act. Therefore, the Insurance Company could not r have been permitted to raise this defence and it could not be permitted to recover the awarded amount from the insured."
23. While inviting attention of this Court to the judgment rendered by Hon'ble Apex Court in Magma General Insurance Co. Ltd. v. Nanu Ram and Ors., Civil Appeal No. 9581 of 2018 decided on 18.9.2018, learned counsel representing the claimants contended that sum of Rs.40,000/- each is required to be awarded in favour of the claimants on account of consortium. Hon'ble Apex Court in Magma General Insurance Co. Ltd. (supra) has held as under:
"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'.::: Downloaded on - 23/04/2024 20:32:10 :::CIS 19
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 husband wife which allows compensation to the surviving spouse for loss of "company, society, cooperation, affection, and aid of the other in every conjugal relation."
4 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 3 Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 4 BLACK'S LAW DICTIONARY (5th ed. 1979) 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 worldover 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 count5. However, there was no clarity with 5 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. 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).
::: Downloaded on - 23/04/2024 20:32:10 :::CIS 20In 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."
.
24. In view of above, all the claimants, who are wife, mother, daughters and sons of the deceased, are entitled to consortium at the rate of Rs.40,000/- each.
25. Learned counsel representing the appellant/claimants, while referring to the judgment passed by Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others, AIR 2017, SC 5157 argued that the claimants are also entitled to certain amount under the conventional heads i.e funeral charges to the tune of Rs. 15, 000/- and loss of estate Rs. 15,000/-
respectively. Since in the case at hand deceased was not working in an organized sector and was 30 years old, addition of 40% is required to be made in the instant case towards future prospects.
Relevant paras of Pranay Sethi supra is as under:
"59. In view of the aforesaid analysis, we proceed to record our conclusions:
(i) The twoJudge Bench in Santosh Devi 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, 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.
(ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent.
(iii) 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 ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 21 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.
(iv) In case the deceased was selfemployed 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.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore.
r (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) 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."
26. In view of aforesaid, after making 40% addition to the established income of the deceased, net monthly income would come to Rs. 10,000x40/100=4000+10000=14,000 and net income per month after deducting 1/4th towards personal expenses of the deceased would be Rs. 14000-Rs.3500=Rs.10,500/-.
27. Since at the time of the death, deceased was 30 years of age, multiplier of '17' is required to be applied in the present case as per the judgment passed Hon'ble Apex Court in Sarla ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 22 Verma vs. Delhi Transport Corporation and another, (2009) 6 Supreme Court Cases 121. Therefore, the total loss of dependency .
would be Rs.10500x12x17= Rs. 21, 42,000/-.
28. The claimants also proved on record that the deceased remained hospitalized and his medical bills are Ex.PW1/C-1 to Ex.PW1/C-169 and as such, claimants have been rightly held entitled for medical expenditure amounting to Rs.65179/-. The deceased used to visit IGMC Shimla for follow up from his native place Kupvi and as such, he has been rightly held entitled to sum of Rs. 80,000/- on account of transportation charges, therefore to that extent no interference is called for.
29. Thus the total amount of compensation to which claimants are entitled is as under:-
Head Amount
(Rs.)
Loss of dependency 2142000
Loss of estate 15,000
Funeral charges 15,000
loss of consortium payable to the claimants 2,00,000
(40,000 each)
Transportation charges 80,000
Medical bills 65179
Special Diet 1,00,000
Attendant charges of one attendant @ 6000x10 60,000
Total compensation 26,77,179
30. Consequently, in view of detailed discussion made herein above and law laid down by the Hon'ble Apex Court, ::: Downloaded on - 23/04/2024 20:32:10 :::CIS 23 impugned Award passed by learned Tribunal below is modified to the aforesaid extent only. Both the appeals are accordingly .
disposed of.
31. However, this Court finds force in the submission of Ms. Shilpa Sood, Advocate that the rate of interest awarded by learned tribunal below is on higher side as at the time of accident/death of the deceased, rate of interest on fixed deposit was around 7.5% as such, the rate of interest on the award amount is modified to 7.5% instead of 9%.
32. Insurance Company is directed to deposit the enhanced amount of compensation in the Registry of this Court within a period of two months from today in terms of this judgment alongwith upto date interest at the rate of 7.5 % per annum from the date of filing of the petition under Section 166 of the Act till the date of passing of the judgment.
33. All pending miscellaneous applications, if any, are disposed of. Interim directions, if any, are vacated.
(Sandeep Sharma) Judge April 18,2024 (shankar) ::: Downloaded on - 23/04/2024 20:32:10 :::CIS