Allahabad High Court
National Insurance Comp. Ltd. Through ... vs Mohd. Shahid Rizvi on 24 October, 2019
Author: Rajnish Kumar
Bench: Rajnish Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Court No. - 6
Case :- FIRST APPEAL FROM ORDER No. - 1138 of 2009
Appellant :- National Insurance Comp. Ltd. Through Its Astt. Manager
Respondent :- Mohd. Shahid Rizvi
Counsel for Appellant :- S.C.Gulati
Counsel for Respondent :- Akhter Abbas
AND
Case :- CROSS OBJECTION No. - 51 of 2009
Objector :- Mohd. Saahid And Ors. 1138(Fafo)2009
Respondent :- National Insurance Comp. Ltd. Through Its Astt Manager Lko
Counsel for Objector :- Akhter Abbas
Hon'ble Rajnish Kumar,J.
1. Heard, Ms.Pooja Arora, Advocate holding brief of Shri S.C.Gulati, learned counsel for the appellant/National Insurance Company Ltd. and respondent in Cross Objection no.51 of 2009 and Shri Akhter Abbas, learned counsel for the claimants/respondents and for the Cross Objectors in Cross Objection No.51 of 2009.
2. The First Appeal From Order No.1138 of 2009 has emanated from the judgment and award dated 29.05.2009, passed in M.A.C. No.83 of 2008;Mohd.Shahid Rizvi and others Versus Ateeq Ahmad Khan and others, by the Motor Accident Claims Tribunal/Additional District Judge, Court No.9, Sitapur by means of which an amount of Rs.7,96,000/- alongwith interest @ 5% from the date of filing of the Claim Petition has been awarded, which has been directed to be paid by the appellant/National Insurance Company Ltd.
3. The Cross Objection No.51 of 2009 has been filed by the Claimants for enhancement of the amount of compensation awarded by the Claims Tribunal.
4. Brief facts of the case for the purpose of cases in hand are that the deceased Meraj Akhter Rizvi is Claimants' son/husband/father. The deceased Meraj Akhtar Rizvi was going on 20/21.01.2008 by his brother-in-law Nazmul Hasan Rizvi's Car No.UP-30C-7244 from Lucknow to Sitapur at about 11.30 p.m. He was going with a limited speed on his left side of the road. Near Kasba Ataria, Police Station Ataria, District Sitapur the driver of DCM No.UP-31D-9206, driving the vehicle rashly and negligently, came from the side of Sitapur with an uncontrolled speed and dashed the Car of the deceased. In the accident deceased suffered serious injuries. He was brought to the Trauma Center, Lucknow Medical College, Lucknow where he died. The First Information Report was lodged at Police Station Ataria vide case Crime No.26 of 2008, under Sections 279, 337, 338, 427, 304A IPC, on 21.01.2008 at 17.15 p.m. After postmortem the dead body of the deceased was brought to his parental home at Mohalla Kazia Purana, Sitapur and he was cremated there. With the aforesaid allegations the Claim Petition was filed claiming compensation.
5. The Claim Petition was contested by the respondent no.1 in the claim petition who is owner of the D.C.M. No.UP-31D-9206. He stated that his vehicle had met with the accident due to technical fault. The deceased was not sitting in the vehicle and he had died somewhere else. All the documents of the vehicle such as Registration Certificate, Insurance, Driving Licence, Permit, Fitness etc. are valid and the vehicle is ensured with the National Insurance Company Ltd., Sitapur, which was being driven by an expert driver. In case any liability is determined in the claim petition the Insurance Company is liable to make the payment.
6. The respondent no.2 i.e. the National Insurance Company Limited/Appellant filed its written statement denying the averments made in the claim petition and taking a plea of violation of the various provisions of the Motor Vehicles Act. It was also stated that the case should be made against the drivers of both the vehicles.
7. On the basis of the pleadings of the parties 4 issues were framed. Mohd. Sadiq Rizvi as P.W.1 and Jazvi Rizvi as P.W.2 were got examined on oath on behalf of the claimants. The copy of the first information report, postmortem report and certain other documents were filed. The respondent-Insurance Company had filed copy of the application.
8. After hearing learned counsel for the parties and considering the evidence available on record the learned Tribunal held that the driver of DCM had driven the vehicle rashly and negligently and dashed the Car on account of which the deceased Meraj Akhter Rizvi had died. The Tribunal also held that the DCM was ensured with the National Insurance Company Ltd. i.e. the appellant and the documents were valid and after assessing the compensation allowed the claim petition and awarded the amount as aforesaid. Hence the present appeal has been filed by the National Insurance Company Ltd. challenging the same and the Cross Objection has been filed by the claimants for enhancement of the amount of compensation.
9. Learned counsel for the appellant submitted that the deceased was going with the Car of his brother-in-law. The car was insured under the Act only Policy. As per the First Information Report lodged by the brother-in-law of the deceased, the deceased was sitting in the Car while as per the evidence of Jazvi Rizvi, who was sitting on the back seat of the car, the deceased Meraj Akhter Rizvi was driving the Car. The accident had occurred on account of head on collision of the Car No.UP-30C-7244 and the DCM No.UP-31D-9206. But the learned Tribunal has not considered the contributory negligence of the deceased. Since the deceased himself was driving the car, therefore, he cannot be treated as third party against the Insurance Company of his car in which he was travelling, therefore, no compensation has been claimed against the said Company. Since it was head on collision therefore there was 50% negligence on the part of the deceased also, therefore, the appellant can be, at the most, held liable for payment of 50% of the compensation. It is not liable to make the payment of the total compensation. Learned counsel for the appellant relied on a judgment of the Hon'ble Apex Court in the case of Bijoy Kumar Duggar Versus Bidyadhar Dutta and others;AIR 2006 SC 1255.
10. Per contra, learned counsel for the claimants submitted that the claimants have claimed the compensation against the DCM as the accident had occurred due to rash and negligent driving of the driver of the DCM. The informant was not an eye witness, therefore, if there is any discrepancy in the first information report the same cannot be fatal in the accident claim case. He further submitted that the Insurance Company has taken the contradictory pleas and in fact it is the insurer of both the vehicles. The Insurance Company has admitted in paragraph 25 of the written statement that there was no rash and negligent driving of the alleged vehicles, therefore the submission of the learned counsel for the appellant that the Car was being driven by the deceased rashly and negligently is misconceived and not tenable. He further submitted that it is apparent from the site plan that the car of the deceased was going on his left side and without any contrary evidence in regard to the site plan or its proof the same cannot be a ground for holding that there was any negligence of the deceased merely because the DCM had dashed the car from the front. Learned counsel for the respondents had relied on a Division Bench judgment of this court in the case of New India Assurance Company Ltd., Lucknow Versus Salma Begum;2014 (32) LCD 712.
11. In regard to the cross objection for enhancement learned counsel for the claimants submitted that the deceased was aged between 40-45 years and there were six claimants, therefore, the deduction has wrongly been made @ 1/3rd while it should have been @ 1/4th looking to the 3 minor children and 3 major dependents, which comes to 4.5. He further submitted that no future prospects have been allowed while the claimants are entitled for future prospects to the tune of 30% of the income and only Rs.2000/- has been awarded towards funeral expenses and Rs.2000/- towards the loss of consortium while each of dependent is entitled for loss of consortium and also the amounts towards the other conventional heads as per the law laid down by the Hon'ble Supreme Court. Lastly he submitted that the interest has been awarded at the lower side @ 5% per annum which is also liable to be enhanced.
12. In reply learned counsel for the appellant submitted that not only the site plan but the eye witness has also stated that it was a head on collision, therefore, there was contributory negligence on the part of the deceased. She further submitted that in view of the plea taken in paragraph 25 that there was no negligence of drivers of both the vehicles, the claim petition was not maintainable. However, in other paragraphs a specific plea has been taken that there was negligence of the driver of the Car also. In regard to the enhancement she submitted that some amount should be deducted towards the contributory negligence and the claimants are not entitled for compensation towards the conventional heads and loss of consortium etc. as there was negligence on the part of the deceased also.
13. I have considered the submissions of the parties and perused the record.
14. The fact of accident on 20/21.01.2008 in which the deceased Meraj Akhter Rizvi had died has not been disputed. The dispute which has been raised is that the deceased was driving the car in which he was travelling and since it was a head on collision with DCM, therefore, there was contributory negligence on the part of the deceased also so the claimants are not entitled for full compensation awarded by the Tribunal and the compensation is liable to be deducted to the tune of 50% on account of the negligence of the deceased. The car which was being driven by the deceased was insured under the Act only Policy and since the deceased was driving the vehicle, therefore, the claimants are not entitled for compensation from insurer of the car which happens to be the appellant National Insurance Company Ltd. itself. The First Information Report was lodged on 21.01.2008 in which it is mentioned that the deceased Meraj Akhter Rizvi alongwith Jazvi Rizvi and driver Abdul Qayyum were going to see the Tazia in Khairabad. The First Information Report was lodged by the brother-in-law of the deceased on the information given by the driver and Jazvi Rizvi. Jazvi Rizvi was examined as P.W.2, who has stated that the deceased Meraj Akhter Rizvi was driving the car which was dashed by the driver of the DCM No.UP-31D -9206 from the front driving it rashly and negligently. It is nowhere mentioned in the First Information Report that the Car was being driven by the driver Abdul Qayyum.
15. Learned Tribunal after considering the pleadings and evidence on record has recorded a categorical finding that the accident had occurred due to rash and negligent driving of the driver of the DCM. Mohd. Shahid Rizvi P.W.1 though is not an eye witness but as per his evidence he had gone at the spot of accident and on inquiry found that the accident had occurred on the date time and place and the DCM was standing on the spot in which his son had died. The appellant Insurance Company could not ellicit anything in the cross examination, which could create any doubt about the testimony of the witnesses. The Insurance Company has also not adduced any evidence to contradict the evidence adduced by the claimants. Merely because it was a head on collision it cannot be said that there was contributory negligence on the part of the deceased also on the basis of some doubt on the basis of site-plan while the site plan also does not indicate any such negligence on the part of the deceased.
16. The Division Bench of this Court, on the basis of the judgment of the Hon'ble Apex Court, in the case of the New India Assurance Company Limited, Lucknow Versus Salma Begum (Supra) has held that merely on the basis of postmortem report or scene mahazar (Naksha nazari) inference may not be drawn with regard to the contributory negligence. The relevant paragraph 11 is reproduced as under:-
"11. The observation made and finding recorded by the Tribunal seems to be correct in view of recent judgment of Hon'ble Supreme Court reported in (2013)9 SCC 166 Jiju Kuruvilla and others versus Kunjujamma Mohan and others. Their lordships of Hon'ble Supreme Court held that merely on the basis of post mortem report or scene mahazar (Naksha nazari) inference may not be drawn with regard to the contributory negligence. Relevant paras 20.5 and 20.6 of the said judgment are reproduced as under :
"20.5 The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. Depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual.
20.6 Post Mortem report, Ext.-A5 shows the condition of the deceased at the time of death. The said report reflects that the deceased had already taken meal as his stomach was half full and contained rice, vegetables and meat pieces in a fluid with strong smell of spirit. The aforesaid evidence, Ext.-A5 clearly suggests that the deceased had taken liquor but on the basis of the same, no definite finding can be given that the deceased was driving the car rashly and negligently at the time of accident. The mere suspicion based on Ext.-B2, 'Scene Mahazar' and the Ext.- A5, post mortem report cannot take the place of evidence, particularly, when the direct evidence like PW.3, independent eye- witness, Ext.-A1(FIR), Ext.-A4(charge-sheet) and Ext.-B1(F.I. Statement) are on record."
17. The Hon'ble Apex Court in the case of Sunita and others Versus Rajasthan State Road Transport Corporation and others;MANU/SC/0204/2019 has held that the theory of negligence contributable on the deceased on the basis of site plan cannot be accepted unless it is proved by a competent witness. The relevant paragraph 33 is reproduced as under:-
"33. The site plan (Exh. 3) has been produced in evidence before the Tribunal by witness A.D. 1 (appellant No.1 herein) and the record seems to indicate that the accident occurred in the middle of the road. However, the exact location of the accident, as marked out in the site plan, has not been explained much less proved through a competent witness by the respondents to substantiate their defence. Besides, the concerned police official who prepared the site plan has also not been examined. While the existence of the site plan may not be in doubt, it is difficult to accept the theory propounded on the basis of the site plan to record a finding against the Appellants regarding negligence attributable to deceased Sitaram, more so in absence of ocular evidence to prove and explain the contents of the site plan."
18. In view of above this court is of the considered opinion that the finding recorded by the learned Tribunal in regard to the accident due to rash and negligent driving of the driver of the DCM is based on material and cogent evidence on record and the contention of learned counsel for the appellant regarding contributory negligence of the deceased merely on the basis of head on collision is misconceived and not tenable and is only liable to be rejected.
19. The Hon'ble Apex Court in the case of Kumari Kiran Versus Sajjan Singh and others;(2015) 1 SCC 539 has held that it cannot be said that the appellant's father was rash and negligent just on the assumption made by the Tribunal that the collision occurred in the middle of the road since the two vehicles were approaching from opposite directions without any proof showing negligence on his part. The relevant paragraph 17 is extracted below:-
"17.The observations made by this Court in Jiju Kuruvila [Jiju Kuruvila v. Kunjujamma Mohan, (2013) 9 SCC 166 : (2013) 3 SCC (Cri) 849] surely apply to the fact situation on hand. Upon thorough examination of the facts and legal evidence on record in the present case, it cannot be said that the appellant father was rash and negligent just on the assumption made by the Tribunal that the collision occurred in the middle of the road since the two vehicles were approaching from opposite directions of the road. However, the only aspect of the case on hand that we can reasonably assume is that the appellant father would have taken sufficient caution while riding the motorcycle since he was travelling with his two minor children (appellant minors). Further, upon examining the evidence produced on record, there is no proof showing negligence on the part of the appellant father. Thus in our view, the contributory negligence apportioned by the High Court at 25% on the appellant father and 75% on the driver of the offending tractor is erroneous keeping in view the legal principles laid down by this Court on this aspect in the above-referred case. Thus, we are of the firm conclusion that the negligence is wholly on the part of the driver of the offending tractor since he was driving the heavier vehicle. Therefore, we set aside the 25% contributory negligence on the part of the appellant father as apportioned by the High Court."
20. In the case of Bijoy Kumar Dugar Versus Bidyadhar Dutta and others (Supra) P.W.2 Rajesh Kumar Gupta who was travelling in the Maruti Car alongwith the deceased Raj Kumar Dugar had stated in evidence that before the accident Raj Kumar Dugar had noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner and there was head on collision, therefore, the Hon'ble Apex Court observed that the MACT has rightly observed that in the case of head on collision the drivers of both the vehicles should be held responsible to have contributed equally to the accident. In the present case P.W.2 Jazvi Rizvi has stated in her evidence that Meraj Akhter Rizvi was driving slowly on the left side of the Road and had put on the safety belt. But there is no evidence that he had noticed that the vehicle is coming in a zigzag manner. In the cross-examination also the appellant could not ellicit anything which could indicate that there was any negligence of the driver. Therefore this court is of the view that the case relied by the learned counsel for the appellant is of no assistance to him on the facts and circumstances of the present case.
21. Now coming to the question of enhancement of compensation awarded by the Tribunal. While considering the issue regarding payment of compensation to the claimants the learned Tribunal has assessed the compensation on the basis of the income of the deceased as Rs.6600/- per month. The deceased was between the age of 40 to 45 years. The learned Tribunal has deducted 1/3rd towards the personal and living expenses. There are 6 claimants; 3 major and 3 minor, therefore counting the minors as half the dependents would come 4.5. The deceased was married, therefore, the deduction towards personal and living expenses would be 1/4th as per Rule 220-A(2)(ii) of the Uttar Pradesh Motor Vehicle Rules, 1998 and the judgment of the Hon'ble Apex Court in the case of Sarla Verma (Smt.) and others Versus Delhi Transport Corporation and another;(2009) 6 SCC 121, which has been approved by the Hon'ble Apex Court in the Constitution Bench judgment of National Insurance Company Limited Versus Pranay Sethi and others;(2017) 16 SCC 680. The relevant paragraph 30 of the case of Sarla Verma (Smt.) and others Versus Delhi Transport Corporation and another (Supra) is reproduced as under:-
"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 Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decisions of this 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 dependant family members is 4 to 6, and one-fifth (1/5th) where the number of dependant family members exceed six."
22. So far as the question of future prospects and amounts towards the conventional heads is concerned, the Constitution Bench of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and Others (Supra), after considering several judgments, recorded its conclusion in Paragraph no.59 regarding determination of the compensation which is reproduced as under:-
"59. In view of the aforesaid analysis, we proceed to record our conclusions:-
59.1. The two-Judge 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.
59.2. 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.
59.3. 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 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.
59.4. In case the deceased was self-employed 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.
59.5. 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.
59.6.The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.
59.7. The age of the deceased should be the basis for applying the multiplier.
59.8. 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."
23. The deceased was working in the Lucknow Bench of Central Investigation and Security Services Limited (CISS), Block New Dalal Street, Mumbai Central Bridge, Mumbari and he was getting the salary of Rs.6650/- per month and the learned Tribunal has treated the income of the deceased as Rs.6600/-, therefore, the addition of 25% in the income of the deceased towards the future prospects would be made as per paragraph 59.4 above.
24. The learned Tribunal has allowed Rs.2000/- and Rs.2000/- towards the conventional heads while the claimants are entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- towards funeral expenses in view of paragraph 59.8 above. In addition to above this court is of the considered opinion that the claimants/respondents no.1 to 6 are also entitled to Rs.40,000/- each under the loss of consortium in view of law laid down by the Hon'ble Apex Court in the case of Magma General Insurance Company Limited Versus Nanu Ram alias Chuhru Ram and others;(2018) 18 SCC 130. The relevant paragraphs 19 to 24 of which are reproduced as under:-
"19. The Insurance Company has contended that the High Court had wrongly awarded Rs 1,00,000 towards loss of love and affection, and Rs 25,000 towards funeral expenses. The judgment of this Court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below: (SCC p. 711, para 52) "52. ... Therefore, we think it seemly to fix reasonable sums. It seems to us that 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 principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be @ 10% in a span of three years."
(emphasis supplied) As per the aforesaid judgment, the compensation of Rs 25,000 towards funeral expenses is decreased to Rs 15,000. The amount awarded by the High Court towards loss of love and affection is, however, maintained.
20. MACT as well as the High Court have not awarded any compensation with respect to loss of consortium and loss of estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognised by the Constitution Bench in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the claimant. In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs 15,000 towards loss of estate to Respondents 1 and 2.
21. A Constitution Bench of this Court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] 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 spouse, it would include sexual relations with the deceased spouse: [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] 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, cooperation, affection, and aid of the other in every conjugal relation". [Black's Law Dictionary (5th Edn., 1979).] 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 training".
21.3. 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.
22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised 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 awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count [ Rajasthan High Court in Jagmala Ram v. Sohi Ram, 2017 SCC OnLine Raj 3848 : (2017) 4 RLW 3368; Uttarakhand High Court in Rita Rana v. Pradeep Kumar, 2013 SCC OnLine Utt 2435 : (2014) 3 UC 1687; Karnataka High Court in Lakshman v. Susheela Chand Choudhary, 1996 SCC OnLine Kar 74 : (1996) 3 Kant LJ 570] . 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 [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . In 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."
25. The learned Tribunal has allowed the simple interest @ 5% per annum, which this court finds is on the lesser side and the adequate interest would be 9% per annum which has been allowed by a three Judge bench of Hon'ble Apex Court in the case of Sube Singh & Another Vs. Shyam Singh (Dead) & Others; 2018 (1) CRC 598. Thus the rate of interest is modified and enhanced to 9% per annum in place of 5% per annum.
26. In view of above, this court is of the considered opinion that the FAFO No.1138 of 2009 is liable to be dismissed and Cross Objection No.51 of 2009 is liable to be allowed partly and the judgment and award dated 29.05.2009 passed in MAC No.83 of 2008, passed by the learned Tribunal is liable to be modified and the claimants/respondents are held entitled to a compensation, which is calculated as follows:-
1.
Income (Yearly) Rs.79,200/-
2. After Deduction @ 1/4 Rs.59,400/-
3. Multiplier; 59,400x15 Rs.8,91,000/-
4. Future Prospects (25%) Rs.2,22,750/-
5. Loss of estate Rs.15,000/-
6. Loss of consortium (40000x6) Rs.2,40,000/-
7. Funeral expenses Rs.15,000/-
Total (3+4+5+6+7) Rs.13,83,750/-
27. Thus the First Appeal From Order No.1138 of 2009 is dismissed and Cross Objection No.51 of 2009 is partly allowed and the judgment and award dated 29.05.2009 passed by Motor Accident Claims Tribunal/Additional District Judge, Sitapur in M.A.C. No.83 of 2008;Mohd.Shahid Rizvi and others Versus Ateeq Ahmad Khan and others is modified accordingly as indicated in Paragraph no.26 above. The appellant i.e National Insurance Company Limited is directed to make the payment of Rs.13,83,750/- alongwith interest @ 9% per annum from the date of filing of claim petition after adjusting the amount already paid, if any, to the claimants/respondents within a period of eight weeks from today. No order as to costs.
28. The lower court record and the amount deposited before this court, if any, alongwith the statutory deposit shall be remitted to the concerned Tribunal within a period of four weeks from today for adjusting in the compensation to be paid to the claimants. The remaining amount shall be paid by the Insurance Company within a period of six weeks.
Order Date:24.10.2019 (Rajnish Kumar,J.)
Banswar