Himachal Pradesh High Court
Shriram General Insurance Company ... vs Anita Kumari And Others on 26 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
FAO No. 9 of 2018
Decided on: March 26, 2018
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.
Shriram General insurance Company Limited ..Appellant
Versus
Anita Kumari and others ..........Respondents
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
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For the Appellant : Mr. Jagdish Thakur, Advocate.
For the Respondents : Mr. G.R. Palsra, Advocate, for
respondents No.1 to 3.
Mr. Surender Verma, Advocate, for
r respondents No.4 and 5.
_________________________________________________________________
Sandeep Sharma, Judge:
Instant appeal is directed against Award dated 31.12.2016 passed by the learned Motor Accident Claims Tribunal (II), Mandi, District Mandi, Himachal Pradesh, in Claim Petition No. 88/13/2011, whereby claim petition filed by respondents No.1 to 3 (hereinafter, 'claimants') has been allowed and appellant-
Insurance Company has been saddled with liability to pay compensation amount of ` 46,77,000/- alongwith interest at the rate of 7.5% per annum from the date of filing of petition till its realization. Learned Tribunal below has further ordered that in the event of failure to deposit award amount within two months, 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 2appellant-Insurance Company shall be liable to pay an interest at the rate of 9% per annum from the date of award.
2. Necessary facts, as emerge from record are that the .
claimants approached learned Tribunal below by way of petition under Section 166 of Motor Vehicles Act, seeking therein compensation to the extent of `30.00 Lakh, on account of death of Shri Ashok Kumar, i.e. husband of claimant No.1 and father of claimants No.2 and 3. On 17.6.2011, at about 6.35 pm, deceased Ashok Kumar, who at the relevant time was working as a Plumber in RE/DPH Slapper r (Power Wing) BBMB Slapper, Tehsil Sundernagar, District Mandi, Himachal Pradesh, was driving his motor cycle bearing registration No. HP-31A-2575. At about 6.35 pm, when above named Ashok Kumar was going from Slapper to Chandigarh, a truck bearing registration No. HP-65-1922 came from opposite side in a rash and negligent manner and hit his motor cycle, as a result of which, he suffered injuries and ultimately succumbed to his injuries on 18.6.2011. Offending truck was owned by present respondent No.5 and insured with the appellant-Insurance Company. Claimants further averred in the claim petition that deceased was earning `29,662/- as salary from service and was left with thirteen years service. Apart from above, claimants also claimed that deceased was earning ` 10,000/- from landed property situate at Jammu and as such, his total income was `39,662/- per month. Claimants also claimed ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 3 that claimants No.2 and 3 were pursuing their studies and after the death of Ashok Kumar, they lost support of their father.
Besides above, claimant No.2 was claimed to be handicapped and .
under treatment.
3. Respondents No.4 and 5 by way of a joint reply, denied rash and negligent driving on the part of respondent No. 4, who was driving the truck at the relevant time. Above named respondents further claimed that deceased Ashok Kumar himself was rash and negligent at the time of alleged accident and it was he, who struck his motor cycle with the truck. Respondents No.4 and 5 further claimed that compensation being demanded was on higher side and they specifically denied that deceased was earning `39,662/- per month. Respondent No.4 specifically claimed that he was having a valid and effective driving licence to drive the offending truck. In the alternative, respondents No.4 and 5 claimed that liability, if any, was of the appellant-Insurance Company.
4. Appellant-Insurance Company also resisted the claim petition by raising preliminary objections of maintainability and offending truck being plied in violation of terms and conditions of the insurance policy. Appellant-Insurance Company further claimed before the learned Tribunal below that respondent No.5 being insured was liable to supply details of policy, date, time and place of accident, particulars of deceased and name of driver and ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 4 particulars of driving licence, but he failed to do so. Appellant-
Insurance Company further averred that the police of Police Station Sundernagar failed to forward the relevant documents to .
the insurer within 30 days. Appellant-Insurance Company categorically denied that deceased was 45 years old and was earning ` 29,662/- per month. It was also denied that an amount of `50,000/- was spent on funeeral of the deceased.
5. learned Motor Accident Claims Tribunal below, on the basis of aforesaid pleadings adduced on record by the respective parties, allowed the claim petition and held claimants entitled to compensation to the tune of `46,77,000/- alongwith interest at the rate of 7.5% per annum, as has been taken note in the opening para above. In the aforesaid background, appellant has approached this Court by way of instant proceedings, praying therein for setting aside the impugned award.
6. Mr. Jagdish Thakur, learned counsel representing the appellant-Insurance Company, vehemently argued that the impugned award is against law and facts and as such, is liable to be set aside. He further stated that bare perusal of impugned award clearly suggests that the learned Tribunal below has not appreciated the evidence in its right perspective, as a result of which, erroneous findings have come on record. Learned counsel representing the appellant-Insurance Company further contended that the learned Tribunal below has erred while taking income of ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 5 the deceased as `39,662/-. He further contended that the learned Tribunal below has further committed error by granting 30% addition on account of future prospects, because addition has .
been made on the salary of the deceased i.e. `29,662/-, whereas amount deducted on account of income tax was to be excluded from the said salary. He further contended that multiplier of 14 has been wrongly applied. While referring to the age of deceased, learned counsel representing the appellant-Insurance Company contended that multiplier of 13 ought to have been applied instead of 14, as such impugned award being contrary to basic provisions of law can not be allowed to sustain. While placing reliance upon judgment rendered in National Insurance Company Limited v.
Pranay Sethi and Ors., AIR 2017 SC 5157, Mr. Thakur, contended that learned Tribunal has erred in awarding ` 25,000/-
on account of funeral expenses. He further contended that no amount could be awarded under the head of love and affection.
While inviting attention of this Court to the impugned award, wherein an amount of `1,00,000/-, has been awarded on account of loss of consortium, Mr. Thakur contended that as per latest judgment passed by the Hon'ble Apex Court supra, only `40,000/-
could be awarded under this head. Lastly, Mr. Thakur, contended that Tribunal below has awarded 7.5% interest on the award amount, whereas same could not be more than 6%. In this regard, he placed reliance upon judgment passed by the Hon'ble Apex ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 6 Court in Laxmidhar Nayak and Ors. v. Jugal Kishore Behera and Ors., in Civil Appeal No. 19856 of 2017 (arising out of SLP (C) No. 31405 of 2016).
.
7. Mr. G.R. Palsra, learned counsel representing claimants while refuting aforesaid submissions having been made by the learned counsel representing the appellant, contended that there is no illegality and infirmity in the impugned award passed by the learned Tribunal below and as such, same deserves to be upheld. Mr. Palsra, while inviting attention of this Court to the evidence led on record by the respective parties, contended that the appellant-Insurance Company has miserably failed to prove its case. While referring to the evidence available on record, Mr. Palsra contended that it stands proved on record that deceased died due to rash and negligent driving of the driver of offending vehicle, which was admittedly insured with the appellant-
Insurance Company at that relevant time. While referring to the quantum of compensation, Mr. G.R. Palsra further contended that it stands duly proved on record that deceased was drawing salary of ` 29,662/- per month and as such, there is no force in the argument of learned counsel representing the appellant-company that learned MACT below wrongly took ` 29,662/- as salary while determining the monthly income of the deceased. Mr. G.R. Palsra while referring to the judgment passed by the Hon'ble Apex Court in National Insurance Company Limited v. Pranay Sethi and ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 7 Ors (supra) fairly conceded that the claimants are entitled to ` 15,000/- on account of funeral expenses and ` 40,000/- on account of loss of consortium, however he categorically disputed .
the contention put forth by Mr. Jagdish Thakur, Advocate, that no amount could be awarded in favour of the claimants under the head of "loss of love and affection".
8. Having heard the learned counsel representing the parties and perused the record, this Court is not inclined to agree with aforesaid submissions having been made by the learned counsel representing the Insurance company because it stands duly proved on record that deceased Ashok Kumar died in an accident due to rash and negligent driving of respondent No.4 i.e. driver of the truck. Similarly, this Court finds from the evidence led on record by the respective parties that onus to prove that respondent No. 4 i.e. driver of the offending vehicle, was not having valid and effective licence to drive the vehicle in question, was upon appellant-Insurance Company, who has not been able to discharge the aforesaid onus, rather it stands duly proved on record that at that relevant time, respondent No. 4 was having a valid driving licence to drive the offending vehicle. Record further reveals that claimants with a view to substantiate income of the deceased placed on record cogent and convincing evidence that monthly income of the deceased was `29,662/- at the time of unfortunate incident. Claimants also proved on record salary slip ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 8 (Exhibit P-3) and as such, learned Tribunal below, while placing reliance upon judgment rendered by Hon'ble Apex Court in Sarala Verma & Ors. v. Delhi Transport Corporation and Anr., AIR .
2009 SC 3104, rightly added 30% of actual income to the income of the deceased towards the future prospects as deceased was admittedly 45 years old at the time of the accident. This Court also sees no illegality in applying the multiplier of "14", because deceased was 45 years of age at the time of the accident. As per the Second Schedule to the Motor Vehicles Act, 1988, for the age groups 40 to 45 years, multiplier is "15". As per Sarla Verma's case supra, for the age groups, 40-45 years, multiplier to be adopted is "14", but in the case at hand, as has been noticed above, age of deceased at the time of accident was 45 years.
Recently Hon'ble Apex Court in Pranay Sethi's case supra has reiterated that while determining the income, an addition of 30% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was between age of 40-50 years, should be made. In the case at hand, there is no dispute that age of the deceased at the time of accident was 45 years and as such, learned Tribunal below has rightly made an addition of 30% of actual salary of deceased towards future prospects.
9. After having perused judgment rendered by Hon'ble Apex Court in Pranay Sethi's case (supra), this Court is ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 9 persuaded to agree with the contention of Mr. Jagdish Thakur, learned counsel representing the appellant-Insurance Company that no money could be awarded under the head, "loss of love and .
affection". Hon'ble Apex Court has categorically held that head relating to loss of care and guidance for the minor children does not exist. There are only three conventional heads i.e. loss of estate, loss of consortium and funeral expenses. Hon'ble Apex Court has further quantified the amount to be paid under the aforesaid conventional heads. Relevant paras of aforesaid judgment are reproduced here in below:-
"47. In our considered opinion, if the same is followed, it shall subserve the cause of justice and the unnecessary contest before the tribunals and the courts would be avoided. 48. Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses. In Santosh Devi (supra), the two-Judge Bench followed the traditional method and granted Rs. 5,000/- for transportation of the body, Rs. 10,000/- as funeral expenses and Rs. 10,000/- as regards the loss of consortium. In Sarla Verma, the Court granted Rs. 5,000/- under the head of loss of estate, Rs. 5,000/- towards funeral expenses and Rs. 10,000/- towards loss of Consortium. In Rajesh, the Court granted Rs. 1,00,000/- towards loss of consortium and Rs. 25,000/- towards funeral expenses. It also granted Rs. 1,00,000/- towards loss of care and guidance for minor children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socioeconomic issue has to be contrasted from a legal principle and ought ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 10 to be periodically revisited as has been held in Santosh Devi (supra). On the principle of revisit, it fixed different amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also .
been moved by the concept of loss of consortium. We are inclined to think so, for what it states in that regard. We quote:-
"17. ... In legal parlance, "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. 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 of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."
49. Be it noted, Munna Lal Jain (2015 AIR SCW 3105) (supra) did not deal with the same as the notice was confined to the issue of application of correct multiplier and deduction of the amount.
50. This aspect needs to be clarified and appositely stated.
The conventional sum has been provided in the Second Schedule of the Act. The said Schedule has ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 11 been found to be defective as stated by the Court in Trilok Chandra (supra). Recently in Puttamma and others v. K.L. Narayana Reddy and another it has been reiterated by stating:-
.
"...we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy."
51. As far as multiplier or multiplicand is concerned, the same has been put to rest by the judgments of this Court. Para 3 of the Second Schedule also provides for General Damages in case of death. It is as follows:-
"3. General Damages (in case of death):
r The following General Damages shall be payable in addition to compensation outlined above:-
(i) Funeral expenses- Rs.2,000/-.
(ii) Loss of Consortium, if beneficiary is the spouse- Rs.5,000/-
(iii) Loss of Estate - Rs. 2,500/-
(iv) Medical Expenses - actual expenses incurred before death supported by bills/vouchers but not exceeding - Rs.
15,000/-"
52. On a perusal of various decisions of this Court, it is manifest that the Second Schedule has not been followed starting from the decision in Trilok Chandra (supra) and there has been no amendment to the same. The conventional damage amount needs to be appositely determined. As we notice, in different cases different amounts have been granted. A sum of Rs. 1,00,000/- was granted towards consortium in Rajesh. The justification for grant of consortium, as we find from Rajesh, is founded on the observation as we have reproduced hereinbefore.
::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 1253. On the aforesaid basis, the Court has revisited the practice of awarding compensation under conventional heads.
54. As far as the conventional heads are concerned, we .
find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/- towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs.
1,00,000/- towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided. 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 ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 13 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 at the rate of 10% in a span of three years. We are disposed to hold so because that will bring in consistency in respect of those heads.
55. Presently, we come to the issue of addition of future prospects to determine the multiplicand.
56. In Santosh Devi the Court has not accepted as a principle that a self-employed person remains on a fixed salary throughout his life. It has taken note of the rise in the cost of living which affects everyone without making any distinction between the rich and the poor. Emphasis has been laid on the extra efforts made by this category of persons to generate additional income. That apart, judicial notice has been taken of the fact that the salaries of those who are employed in private sectors also with the passage of time increase manifold. In Rajesh's case, the Court had added 15% in the case where the victim is between the age group of 15 to 60 years so as to make the compensation just, equitable, fair and reasonable.
This addition has been made in respect of self employed or engaged on fixed wages.
57. Section 168 of the Act deals with the concept of "just compensation" and the same has to be determined on the foundation of fairness, reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude.
::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 14It can never be perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual case. The conception of "just .
compensation" has to be viewed through the prism of fairness, reasonableness and non violation of the principle of equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an apology for compensation. It cannot be a pittance.
Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the tribunal to be rguided by the expression, that is, "just compensation". The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter the opposite multiplier to be applied. The formula relating to multiplier has been clearly stated in Sarla Verma (supra) and it has been approved in Reshma Kumari (supra). The age and income, as stated earlier, have to be established by adducing evidence. The tribunal and the Courts have to bear in mind that the basic principle lies in pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance, a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the Courts is difficult and hence, an endeavour has been made by ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 15 this Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are concerned, there has been standardization keeping in .
view the principle of certainty, stability and consistency. We approve the principle of "standardization" so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.
58. The seminal issue is the fixation of future prospects in cases of deceased who is self-employed or on a fixed salary. Sarla Verma (supra) has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has not, per se, allowed any future prospects in respect of the said category.
59. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale not to apply the said principle to the self employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment, there is an acceptable ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 16 certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to the benefit of future prospects for the purpose of computation of compensation would be .
inapposite. It is because the criterion of distinction between the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude in the private sector to enhance the salary to get better efficiency from the employees. Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve acceptance. We are inclined to think that there can be some degree of ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 17 difference as regards the percentage that is meant for or applied to in respect of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or .
on a fixed salary. But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the marrows of ground reality. And, therefore, degree- test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.
60. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 18 there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of selfemployed or person on fixed salary, the addition .
should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.
61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) 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 r 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 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 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.::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 19
(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.
.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 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."
8. While applying ratio of aforesaid law laid down by the Hon'ble Apex Court in Pranay Sethi's case, amounts awarded under various heads i.e. funeral expenses, loss of love and affection and loss of consortium, need reassessment. Accordingly, amount awarded qua funeral expenses and loss of consortium is modified to Rs. 15,000 and Rs. 40,000 instead of Rs. 25,000/-
and ` 1,00,000/-, as awarded by the learned MACT below. It is quite apparent from the aforesaid law laid down by the Hon'ble Apex Court that no amount can be awarded under the head "loss of love and affection" and as such, award made qua the same is quashed and set aside. However, this Court while exercising power under Order XLI, Rule 33 CPC, wherein appellate Court enjoys power to pass any decree and make any order, which ought to have been passed or made as the case may be, deems it fit to grant an amount of Rs. 15,000/- on account of loss of estate. In ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP 20 view of the modifications made herein above, now the respondents-claimants shall be entitled to following amount:-
Compensation for dependency: ` 44,52,000/-
.
(as determined by the court below)
Funeral Expenses: ` 15,000/-
Loss of consortium: ` 40,000/-
Loss of estate: ` 15,000/-
Total `45,22,000/-
9. This Court after having perused law relied upon by the learned counsel representing the appellant-Insurance Company in Laxmidhar Nayak (supra) in support of his contention that court below has fallen in grave error while awarding 7.5% rate of interest to the claimants, has no hesitation to conclude that there is no thumb rule/law that interest on the compensation/awarded amount cannot be 7.5% and as such, impugned award on the aspect of interest part is upheld..
10. Consequently, in view of the detailed discussion made herein above and law laid down by the Hon'ble Apex Court, present appeal is partly allowed and impugned award passed by the learned MACT below is modified to the aforesaid extent only.
Present appeal is disposed of, so also pending applications if any.
(Sandeep Sharma) Judge March 26, 2018 (vikrant) ::: Downloaded on - 20/05/2018 21:15:28 :::HCHP