Jammu & Kashmir High Court
National Insurance Company Ltd vs Purna Devi And Others on 18 July, 2020
Equivalent citations: AIRONLINE 2020 J AND K 458
Author: Sanjeev Kumar
Bench: Sanjeev Kumar
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
MA No. 231/2016
Reserved on:- 08.07.2020
Pronounced on:- .18.07.2020
National Insurance Company Ltd.
......Appellant(s)
Through :- Mr. Sanjay K. Dhar Advocate
v/s
Purna Devi and others
......Respondent (s)
Through :- Mr. F.S.Butt Advocate.
Coram: HON'BLE MR. JUSTICE SANJEEV KUMAR, JUDGE
::: : JUDGMENT
1. National Insurance Company Ltd. (hereinafter referred to as the „insurer‟) is in appeal against the judgment and award dated 20 th August, 2016 passed by the Motor Accident Claims Tribunal, Kishtwar („Tribunal‟ for short) in a claim petition No. 77/Claim titled "Purna Devi and others vs. National Insurance Company Ltd and others" whereby respondent Nos. 1 to 3 (hereinafter referred to as the „claimants‟) have been held entitled to a compensation of Rs. 19,66,928/- along with interest @ 7.5% per annum. The Tribunal has directed the insurer to indemnify the owner (respondent No.4) and pay the awarded compensation to the claimants.
2. Before adverting to the grounds of challenge urged in this appeal, it would be appropriate to refer to few facts relevant to the disposal of this appeal.
The predecessor-in-interest of the claimants Sh. Sadhu Ram was travelling in a private car (Alto make) bearing registration No. JK06-2149 (hereinafter „the offending vehicle‟ for short) driven by one Javed Zargar and 2 was going from Jammu to Kishtwar. The offending vehicle met with an accident at about 1:00 pm at Korapani Assar. The accident happened due to rash and negligent driving of the driver. In the accident, both Sadhu Ram and driver of the vehicle namely Javed Zargar died. FIR No. 27/2019 for offence under Sections 279/337/304-A RPC came to be registered at Police Station Assar.
3 The claimants, being wife and children of the deceased Sadhu Ram, filed a claim petition before the Tribunal seeking compensation to the tune of Rs.26,20,000/- on account of death of their sole breadwinner. It is claimed that the deceased, at the time of accident, was 52 years old and was serving as a Jr. Assistant in the CAPD Doda. As per the salary certificate produced, the deceased was shown to have drawn his last salary of Rs.18256/-. 4 On being put on notice, the insurer contested the claim petition. The owner of the vehicle i.e respondent No.4 herein despite service opted not to appear before the Tribunal and contest the claim petition. He was, thus, proceeded ex parte by the Tribunal vide its order dated 09.08.2010. The Tribunal, on the basis of pleadings of the parties, framed the following issues for adjudication:
i. Whether deceased Sadhu Ram S/o Late Ram Krishan was travelling from Jammu towards Kishtwar, died in an accident due to rash and negligent driving of vehicle (Alto car) bearing registration No. JK06-2149 on 25.10.2009 belonging to respondent No.2 near Kora Pani ?OPP ii. If issue No.1 is proved in affirmative to what amount of compensation the petitioner is entitled and from whom ? OPP iii. Whether deceased Sadhu Ram was travelling in the offending vehicle as gratuitous passenger, not entitled to any compensation, if so, what is its effect on the claim petition ? OPR-1 3 iv. Whether the offending vehicle was being driven by its driver without holding a valid driving licence, if so what is its effect on the claim petition ? OPR-1.
v. Relief...................? O.P. Parties
5 The claimants examined three witnesses i.e, PW-1 Sohail Sen, PW-2 Sewa Ram and PW-4 Ajaz Hussain. The wife of the deceased, one of the claimants, also entered the witness box and was examined as PW-3. The claimants also produced the salary certificate of the deceased, copy of FIR pertaining to the accident in question, photocopy of registration certificate of the offending vehicle and insurance cover issued by the insurer before the Tribunal.
6 The insurer, despite availing of numerous opportunities granted by the Tribunal, did not produce any oral or documentary evidence. The evidence led by the claimants, thus, remained un-rebutted.
7 On the basis of evidence on record, oral as well as documentary, the Tribunal held issue No.1 proved in favour of claimants. The Tribunal concluded that it was proved that on 25th October, 2009, the deceased Sadhu Ram, who was admittedly travelling in the offending vehicle, had died in the accident which had occurred due to rash and negligent driving by its driver, who too, had lost his life. The Tribunal also found that the insurer had failed to discharge the burden of proof of issue Nos. 3 and 4. It is, thus, held by the Tribunal that the insurer had failed to prove by leading any evidence that the deceased was travelling in the offending vehicle as a gratuitous passengers. Similarly, with regard to issue No.4, the Tribunal came to the similar conclusion that the insurer had not led any evidence to prove that the driver of the offending vehicle was not holding a valid and effective licence. Accordingly, based on the findings of the aforesaid issues, the Tribunal 4 decided issue Nos. 2 and 5 and computed the compensation payable to the claimants. The claimants were, thus, held entitled to a compensation of Rs.19,66,928/- in terms of the impugned award.
8 The insurer is dissatisfied with the award and has assailed the same by way of instant appeal, inter alia, on the following grounds:
(i) That the assessment of compensation by the Tribunal is arbitrary and against the established principles laid down by the Supreme Court in various judgments.
(ii) That the deduction on account of personal living expenses of the deceased has not been correctly made by the Tribunal, in that, the Tribunal has deducted 1/3rd of the income, whereas in the instant case, the same should have been ½ of the income. It is submitted that the deceased was survived by only her wife and two children being major were not dependent upon him and, therefore, since there was only one dependent on the deceased, the deduction should have been made at the rate of ½ of the income.
(iii) That the Tribunal also committed an error of law and fact by not deducting the income tax from the annual income of the deceased. It is submitted that during the financial year 2009-10, the income above Rs.1,60,000/- was in taxable range.
(iv) That the Tribunal also remained oblivious to the effect that the claimants, besides being entitled to compassion appointment in terms of SRO 43 of 1994, were also entitled to full pay and salary of the deceased for a period of seven years and, therefore, seven years salary receivable by the claimants ought to have been included or adjusted in the award of compensation.
(v) That the Tribunal committed a serious error by awarding interest for the period i.e, from the date of petition till realization, whereas the claimants were themselves guilty of unnecessarily delaying the finalization of the claim, in that, the claimants had filed an application for transfer of the claim petition in this Court which remained pending from June 2013 to February 2016 when the same was withdrawn by the claimants after wasting three 5 years‟ time. It is submitted that during the pendency of the said transfer petition, the claim petition remained stayed.
9 Apart from the grounds of challenge specifically raised in the memo of appeal, Mr. Sanjay Dhar learned counsel appearing for the insurer also raised additional pleas during the course of arguments which are as under:
(a) That the deceased was travelling as a gratuitous passenger in the offending vehicle and, therefore, the insurer was not liable to indemnify the owner.
(b) That the burden of proof of issue No.4 was required to be initially discharged by the owner, who despite notice chose not to contest the claim petition and, therefore, the finding of the Tribunal that issue No.4 was not proved by the insurer is not correct in law.
10 Learned counsel for the insurer has placed strong reliance on the judgments rendered in the cases of Sarla Verma and others vs Delhi Transport Corporation and another, (2009) 6 SCC 121 and Reliance General Insurance Company Ltd. vs. Shashi Sharma and others, (2016) 9 SCC 627 .
11 Per contra, Mr. Butt, learned counsel representing the claimants vehemently submits that the issues raised by the insurer in this appeal are no longer re instegra. He submits that the compensation awarded by the Tribunal is, as a matter of fact, on the lower side and, in any case, cannot be termed as excessive or exorbitant as is contended by learned counsel for the insurer. He supports the applicability of deduction at the rate of 1/3 rd of the income on account of personal living expenses of the deceased on the ground that even the major unmarried daughter is dependent upon her father. He, therefore, submits that even if we exclude the major son i.e, claimant Rajesh Kumar, the deceased was still survived by two dependents i.e. wife and unmarried daughter and, therefore, this would make the deduction at the rate of 1/3rd of the income as laid down in the case of Sarla Verma (supra). 6 12 Learned counsel for the claimants counters the argument of learned counsel for the insurer that the Tribunal committed an error by not deducting the income tax from the gross income of the deceased. He urges that learned counsel for the insurer is perhaps not aware that a Government employee is also entitled to standard deduction and if the standard deduction is taken note of, admittedly the income of the deceased was not taxable. 13 Regarding the plea of the insurer that the deceased was a gratuitous passenger and, therefore, the insurer was not liable to indemnify the owner and pay compensation to the claimants, it is, argued that the burden of issue framed in this regard was specifically placed on the insurer which insurer miserably failed to discharge. He submits that no oral evidence or documentary evidence was produced by the insurer to discharge the burden. He, therefore, submits that the finding of the Tribunal on issue No.3 cannot be, thus, disputed.
14 Heard learned counsel for the parties and perused the record.
GRATUITOUS PASSENGER; Liability of Insurer.
15 With regard to the liability of insurer qua gratuitous passenger, in the instant case, it has been rightly held by the Tribunal that the insurer had failed to prove that the deceased was travelling in the offending vehicle as a gratuitous passenger. Admittedly, the offending vehicle is private car owned by respondent No.4 and the same, at the relevant time, was being driven by its driver Javed Zargar. Nothing has been brought on record by the insurer to determine whether the policy of insurance of the vehicle was an Act only policy or comprehensive/package policy. In the case of later, the passengers travelling in the insured vehicle would also be covered. 17 Learned counsel for the insurer could not substantiate his arguments by drawing the attention of this Court to the insurance policy. Unfortunately, 7 neither the insurer nor the claimants have placed on record of this appeal the policy of insurance. It is, thus, evident that the issue; whether the deceased was a gratuitous passenger or a passenger covered by the policy of insurance is factually not proved. In that view of the matter, the necessity to go into the question of liability of insurer viz-a-vis the gratuitous passenger travelling in the private car is obviated. Otherwise also, the judgment rendered in the case of Manuara Khatun & Ors vs Rajesh Kumar Singh, (2017) 4 SCC 796 covers the field and is being consistently followed by this Court. In such situation, normally the principle of „pay and recover‟ is made applicable to safeguard the interest of third party.
FINANCIAL BENEFITS payable on death of a Government employee; Deductions from loss of income.
18 As far as deduction on account of financial benefits in terms of the family pension etc. from the amount payable for loss of dependency is concerned, in the instant case, nothing has come on record as to the benefits that were received or were payable to the claimants on account of the unfortunate death of Sadhu Ram. It may be noted that the wife of the deceased was cross-examined by the insurer before the Tribunal, but no question was put to her by the insurer with regard to the financial benefits which had been received by her on account of untimely death of her husband. In the absence of any material on record, the discussion on the issue raised would be pointless. Otherwise also, as is rightly contended by Mr. Butt that the Government scheme providing for full salary of seven years of the deceased employee to his family has since ceased to exist and, in its place, the family of the Government employee dying in harness is now entitled to enhanced pension at the rate of 50%. This is amply clear from Rule 20(bb) 8 inserted in the CSR vide SRO 391 dated 15th July 1983. The enhanced pension, it is submitted, is payable for a period of ten years. 19 Relying upon the judgment rendered in the cases of Reliance General Insurance Company vs. Shashi Sharma and others, 2016 (9) SCC 627, Sebastiani Lakra and others vs. National Insurance Company Limited and another, AIR 2018 SC 5034 and National Insurance Company Ltd vs. Mannat Johal and others, AIR 2019 SC 2079, it is urged that the issue, whether the pensionery benefits can be deducted by calculating the loss of income is no longer res integra. It is, thus, urged that the family pension received by the family of the deceased employee cannot be deducted from calculating the loss of income. As already noted, the issue in the absence of clear evidence on record does not call for determination in this case.
20 Law in this regard was set at rest way back in the year 2016 in the case of Shashi Sharma (supra) in which three Judge Bench of the Hon‟ble Supreme Court in paragraph 26 of the Judgment concluded as under:
".................................................................. ..................................................................... ........................................ Similarly, other benefits extended to the dependents of the deceased Government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5 including family pension, Life Insurance, Provident Fund etc., that must remain unaffected and cannot be allowed to be deducted, which, any way would be paid to the dependents of the deceased Government employee, applying the principle expounded in Helen C.Rebello and Patricia Jean Mahajan‟s cases (supra)".9
21 The legal position as enunciated in the aforesaid Judgment, to put it precisely, is that the pecuniary advantage, to be deducted from the loss of income while assessing the compensation claimed under the Motor Vehicles Act must be from a source which correlates to the injury or death arising out of a motor vehicle accident. The pecuniary advantage which is payable or derivable on account of death of an employee in harness whether or not such death is result of motor vehicle accident is not to be deducted from the loss of income. This principle has been followed by the Hon‟ble Supreme Court in its later judgments and also by this Court consistently. 22 In the instant case, 50% enhanced pension payable to the family of a Government employee dying in harness is not co-related to the death arising out of motor vehicle accident. The amount would be payable under the relevant SRO even in case of a natural death of an employee in harness. In that view of the matter, the enhanced benefit of pension payable to the Government employee, dying in harness, including those dying in motor vehicle accidents cannot be deducted while calculating the loss of income in motor accident claims.
DEDUCTION on account of personal living expenses: Whether unmarried daughter a dependent.
23 Regarding deduction on account of personal living expenses of the deceased, much has been argued by both the sides on the issue. When the instant case is examined on its facts, it is evident that the claimants Purna Devi and Arti Devi, who are the wife and the unmarried daughter of the deceased respectively were admittedly dependent on the earnings of the deceased. Rajesh Kumar being the major son may not be the sole dependent. Going by the dictum laid down in the case of Sarla Verma (supra) and noted with approval by a Constitution Bench in the case of Pranay Sethi (supra), if 10 the deceased is survived by two dependents, then deduction at the rate of 1/3 rd of the income is required to be applied on account of personal living expenses. I am in agreement with the learned counsel for the claimants that even if the major son Rajesh Kumar is excluded as being not dependent on the deceased, still the deduction would be 1/3rd. I regret my inability to accept the contention of learned counsel for the insurer that a major daughter even if unmarried cannot be held dependent upon her father.
24 The contention of learned counsel for the insurer that claimant Arti Devi who has got married after the filing of the claim petition cannot be considered to be dependent is equally devoid of any merit. Admittedly, claimant Arti Devi, daughter of the deceased, was unmarried on the date of accident and even on the date of filing of claim petition. This claim petition is pending for the last 10 years and one would not expect her to remain unmarried till the claim petition is decided.
25 For the foregoing reason, I am not impressed with the argument of learned counsel for the insurer on this score.
PARENTAL CONSORTIUM: Whether payable to major sons and daughters.
26 Insofar as compensation on account of consortium is concerned, consistent position of law before the judgment of Magma General Insurance Co. Ltd vs. Nanu Ram alias Chuhru Ram, 2018 ACJ 2782 was that the consortium was payable only to the wife, but, in the aforesaid judgment, the Hon‟ble Supreme Court expanded the scope of term „consortium‟ and held that the term encompasses „spousal consortium‟, „parental consortium‟, and „filial consortium‟. The consortium, it was held, would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. 11 27 With the aforesaid judgment rendered by the Hon‟ble Supreme Court, perhaps for the first time, two other kinds of consortium i.e parental and philial came to be recognized as legitimate conventional heads for assessment of compensation under the Motor Vehicles Act. This position of law is reiterated by the Hon‟ble Supreme Court in its recent judgment passed in the case of United India Insurance Company Ltd vs Satinder Kaur (Civil Appeal No.2705/2020) and others, decided 30.06.2020. 28 What was held by the Hon‟ble Supreme Court in this three Judge Bench judgment deserves to be taken note of and the same is reproduced hereinbelow.
"Loss of Consortium, in legal parlance, was historically given a narrow meaning to be awarded only to the spouse i.e. the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. The loss of companionship, love, care and protection, etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non- pecuniary damage for loss of consortium is one of the major heads for awarding compensation in various jurisdictions such as the United States of America, Australia, etc. English courts have recognized the right of a spouse to get compensation even during the period of temporary disablement. In Magma General Insurance Co.
Ltd. v. Nanu Ram & Ors., this Court interpreted
"consortium" to be a compendious term, which
encompasses spousal consortium, parental consortium, as well as 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. Parental consortium is granted to the child upon the premature death of a parent, for loss of parental aid, protection, affection, society, discipline, 12 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 and affection, and their role in the family unit. 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 permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child. The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of 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 the children who lose the care and protection of their parents in motor vehicle accidents. The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra). At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses. In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of 13 love and affection is comprehended in loss of consortium.
The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head".
29 In view of the clear legal position enunciated by the Hon‟ble Supreme Court, it is now a foregone conclusion that not only the wife, who is deprived of company, love and affection of her husband, is entitled to spousal consortium, but even a minor child, who is deprived of his parents, is entitled to parental consortium. The word „child‟ used by the Hon‟ble Supreme Court both in the cases of Magma General (supra) and Satinder Kaur (supra) clearly indicates that it is only minor child who is entitled to parental consortium and the major sons and daughters are excluded.
30 In that view of the matter, I am in agreement with the learned counsel for the insurer that the spousal consortium alone was payable to the wife, that too, at the fixed rate of Rs.40000. Similarly as laid down in the case of Pranay Sethi, loss of estate and funeral expenses are payable at the rate of Rs.15000 each.
31 After the judgment of Satinder Kour (supra), it is now emphatically clear that the loss of love and affection is comprehended in the loss of consortium and, therefore, there is no justification to award compensation separately under this head.
32 Learned counsel for the respondents has also raised plea with regard to the maintainability of the appeal on the ground that in the absence of specific permission granted by the Tribunal in terms of Section 170(b) of M.V.Act, the insurer is not entitled to assail the award on quantum. 33 In the instant case, the insurer was arrayed as party respondent along with the owner by the claimants of their own. It is also on record that the 14 owner despite service chose not to contest the claim petition and in that eventuality, the plea that in the absence of permission under Section 170 (b) of M.V.Act granted by the Tribunal to the insurer the instant appeal was not maintainable is not sustainable ( See National Insurance Co. v. Nicolletta Rohtagi and Ors., AIR 2002 SC 3350) Payment of interest: Whether could be denied to party responsible for the delay ?
34 Whether the Tribunal was justified in awarding interest even for the period during which the proceedings in the claim petition remained suspended due to the act of the claimant is another issue that was debated hotly by the learned counsel for the parties.
35 It is not in dispute that while the claim petition was pending before the Tribunal, the claimants in the month of June 2013 filed a transfer petition seeking transfer of the claim petition from MACT, Kishtwar to MACT, Jammu which was finally dismissed as not pressed by this Court vide order dated 18.02.2016. The said transfer petition, thus, remained pending for almost three years and during this period, the proceedings in the claim petition remained stayed. According to learned counsel for the insurer, no interest should have been paid for this period as the claimants cannot be given the benefit of their own wrong.
36 Per contra, Mr. Bhat submits that the interest awarded by the Tribunal is not a penal interest, but is only a compensation for the amount withheld and, therefore, the Tribunal was right in awarding interest even for the aforesaid period when the proceedings in the claim petition remained suspended. Reliance is placed upon the judgment of Hon‟ble Supreme Court rendered in the case of Alok Shankar Pandey v. Union of India (AIR 2007 SC 1198) 15 37 I have given my thoughtful consideration to the plea raised and am of the view that, although in the commercial parlance, the interest is ordinarily not a penalty or punishment, but is a normal accretion on capital, yet the same cannot be applied in the cases of claims under the Motor Vehicles Act. Granting interest to a party, who is guilty of protracting the litigation, would be encouraging the parties to indulge in unnecessarily delaying the litigation. It is well settled that a person cannot be permitted to take the benefit of his own wrong. In the instant case, determination of compensation by the Tribunal was delayed by almost three years due to filing of a transfer petition by the claimants which later on was not pressed and was dismissed by this Court. In that view of the matter, I am inclined to accept the submission of learned counsel for the insurer that the claimants should not be held entitled to interest for the period from June 2013 to 18th February 2016. In the light of discussion made hereinabove the appeal of the insurer is partly allowed and the award is modified to the following extent.
(i) Loss of dependency 18,41,928/-
(ii) Loss of consortium to wife Rs.40000/-
(instead of Rs.1.00 lac awarded by the Tribunal)
(iii) Funeral expenses Rs.15000
(instead of Rs.25000/- awarded by the Tribunal)
(iv) Loss of estate Rs.15000
(not awarded by the Tribunal)
Total amount of compensation: Rs.19,11,928/-
38 The compensation awarded aforesaid shall be payable with interest at
the rate of 7.5% per annum from the date of filing of claim petition till its realization minus the interest for the period from June 2013 to February 2016. 16
39 The interim compensation if already paid by the insurer shall be deducted from the awarded amount. The amount deposited in the Registry shall be released in favour of the claimants in terms of the impugned award.
(Sanjeev Kumar) Judge Jammu 18.07.2020 Sanjeev Whether the order is speaking? Yes Whether the order is reportable? Yes SANJEEV KUMAR UPPAL 2020.07.20 11:36 I attest to the accuracy and integrity of this document