Delhi District Court
Raj Kumar S/O Sh. Chhidda Singh vs Sanjeev Kumar on 18 January, 2014
IN THE COURT OF MS. REKHA RANI : JUDGE : MACT :
DELHI
MACT No. : 524/09
UNIQUE ID NO. : 02404C0265852009
DATE OF INSTITUTION : 30.10.2007
DATE OF RESERVING ORDER : 09.01.2014
DATE OF PRONOUNCEMENT : 18.01.2014
1. Raj Kumar S/o Sh. Chhidda Singh
(Father of deceased)
2. Ravita W/o Sh. Raj Kumar
(Mother of deceased) .....Petitioners
Both R/o A178, Paramhans Vihar,
Loni, Ghaziabad, Ward No.16, U.P.
MACT No. : 525/09
UNIQUE ID NO. : 02404C0265842009
DATE OF INSTITUTION : 30.11.2007
DATE OF RESERVING ORDER : 09.01.2014
DATE OF PRONOUNCEMENT : 18.01.2014
1. Manjeet Kaur W/o Sh. Makhan Singh
(Mother of deceased)
2. Makhan Singh S/o Sh. Gurdev Singh
(Father of deceased) .....Petitioners
Both R/o Village & Post Chak Mahrajka,
MACT No. 524/09, 525/09, 526/09 & 528/09 1 of 29
Distt. Ganga Nagar, (Raj).
MACT No. : 526/09
UNIQUE ID NO. : 02404C0265992009
DATE OF INSTITUTION : 30.10.2007
DATE OF RESERVING ORDER : 09.01.2014
DATE OF PRONOUNCEMENT : 18.01.2014
1. Anil Kumar Tyagi W/o Sh. Ravinder Singh Tyagi
(Father of deceased)
2. Munesh Tyagi W/o Sh. Ravinder Singh Tyagi
(Mother of deceased) .....Petitioners
Both R/o Jamuna Road, Near Hanuman Mandir,
Baghpat, U.P.
MACT No. : 528/09
UNIQUE ID NO. : 02404C0265832009
DATE OF INSTITUTION : 15.12.2007
DATE OF RESERVING ORDER : 09.01.2014
DATE OF PRONOUNCEMENT : 18.01.2014
1. Neelam W/o Late Sh. Virendra Pratap
(Widow of deceased)
2. Uday Pratap S/o Late Sh. Virendra Prata
(Minor son of deceased)
3. Savitri W/o Sh. Radhe Shyam
(Mother of deceased)
4. Radhe Shyam S/o Sh. Hari Charan
MACT No. 524/09, 525/09, 526/09 & 528/09 2 of 29
(Father of deceased) .......Petitioner.
All R/o Village Mulapur, Post Bhawanipur,
Distt. Sant Ravi Dass Nagar (Bhadohi), U.P.
Versus
1. Sanjeev Kumar
R/o 14/62, West Punjabi Bagh,
Delhi. (Owner)
2. ICICI Lombard General Insurance Co. Ltd.
Birla Tower, 5th Floor, 25th Barakhamba Road,
New Delhi. (Insurer)
....... Respondents
AWARD:
1. In re: Mediana (1900) AC 113, Lord Halsbury, L.C. Observed " How is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by arithmetical calculation establish what is the exact sum of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident..... But nevertheless the law recognises that as a topic upon which damages may be given."
(Quoted by Apex Court in R.K. Malik Vs. Kiran Pal 2009 ACJ 1924 at P 1930) Undoubtedly it is extremely difficult to quantify the MACT No. 524/09, 525/09, 526/09 & 528/09 3 of 29 compensation as the pain suffered on account of loss of human life is incalculable. Any amount of compensation can only put soothing balm over the wounds of the bereaved kith and kin. Hon'ble Apex Court has laid down guidlines for calculation of compensation to LR's of victim of motor vehicle accident and has observed that compensation has to be " fair and reasonable", neither niggardly nor a bonanza.
2. The guidlines will be referred to under the head "quantum of compensation" later on in this award. Let me first refer to facts in nutshell .
3. Petitioners having lost their young sons in a road accident filed petitions bearing numbers 524, 525 & 526/09 and petitioners having lost husband/father filed petition bearing No. 528/09 under section 166 & 140 of the Motor Vehicles Act (for short the Act), praying for compensation of an amount of Rs. 20,00,000/ each on account of death of Amit Kumar, aged 21 years, Sukhjinder aged 21 years, Ashish Tyagi aged 21 years and Virender Pratap, aged 25 years (in short the deceased) respectively pleading following facts: On 05.10.2007 at about 11:30 a.m, deceased were going in MACT No. 524/09, 525/09, 526/09 & 528/09 4 of 29 Tata Indigo Car bearing registration No. DL3CAC7827 (in short the offending vehicle) which was being driven by Manoj at very high speed rashly and negligently. He was requested by the deceased to drive the car slowly, but he did not listen to them. When the offending vehicle reached near cremation ground in village Ramsara Manoj (in short the driver) lost control over the same. It hit against a tree and thereafter against a katcha wall. All the deceased died at the spot. They were students in Homeopathy College, Abohar, Punjab. The petitioners have suffered mentally as well financially.
4. Sanjeev Kumar owner of the offending vehicle (in short R1) filed written statement. It is admitted that he is owner of the offending vehicle and Manoj was his driver. It is further pleaded that the offending vehicle was insured with ICICI Lombard General Insurance Co. Ltd. (in short R2) vide policy No. 3001/52113973/00/000, which was valid w.e.f 05.07.2007 to 04.07.2008. It is further stated that the driver was having driving licence bearing No. P04092002322069 which was valid from 16.06.2003 to 22.09.2022. Further it is pleaded that R1 had planned to go to Abohar alongwith his Guruji for MACT No. 524/09, 525/09, 526/09 & 528/09 5 of 29 certain yogic and spiritual purposes. However he could not go. His Guruji was taken to Abohar by the driver. The driver was living at Homeopathy Medical College, Abohar. It is further pleaded that the deceased were authorised gratuitous passengers as they were friendly with the driver. Further it is pleaded that offending vehicle was destroyed/mutilated and the deceased died at the spot. It is stated that the driver had never driven rashly and negligently. It is submitted that he was a cautions driver. Further it is submitted that since the vehicle is comprehensively insured with R2, it is the liability of R2 to pay compensation. It is denied that accident took place on account of rash and negligent driving of the offending vehicle by its driver. It is denied that deceased had requested the driver to slow down the vehicle, but he did not listen to them and consequently lost control of the vehicle and hit against trees and thereafter against a katcha wall.
5. R2 filed written statement. It is admitted that the offending vehicle was insured with it on the date of accident vide policy no. 3001/52113973/00/000, which was valid w.e.f 05.07.2007 to 04.07.2008 in the name of R1. It is denied that the MACT No. 524/09, 525/09, 526/09 & 528/09 6 of 29 offending vehicle was being driven by its driver rashly and negligently. It is denied that the passengers had requested the driver to slow down, but he did not listen to them and consequently the driver lost control of the vehicle which hit against the tree and thereafter against kacha wall. It is also denied that the passengers alongwith the driver died at the spot. It is submitted that the accident if any occurred due to fault of the deceased.
6. Following issues were framed by my Ld. Predecessor. i. Whether the deceased had sustained fatal injuries on 05.10.2007 at about 11:30 a.m in front of Cremation Ground, Village Ramsara due to rash and negligent driving by the driver of the offending vehicle i.e Car bearing registration No. DL3CAC7827?
ii. Whether the petitioners are entitled to any compensation? If so, to what amount and from whom?
iii. Relief.
7. Raghubir Singh PW1 is a common witness in all the cases. In case bearing No. 528/09, Neelam widow of deceased was examined as PW2. In case bearing No.524/09, Raj Kumar, MACT No. 524/09, 525/09, 526/09 & 528/09 7 of 29 father of deceased was examined as PW2. In case bearing No. 525/09, Makhan Singh, father of deceased was examined as PW2. In case bearing No.526/09, Anil Kumar Tyagi, father of deceased was examined as PW2. Sanjeev Kumar was also examined as R1W1 in all the cases.
8. I have carefully perused the material available on record and I have heard counsel for both sides.
Issue No. 1Qua Negligence
9. Legal representatives of all the deceased had examined Raghubir Singh as PW1. He deposed that on 05.02.2007 at about 11:30 a.m he was going to Sadul Share. When he reached at cremation ground, his motorcycle got punctured. He saw Tata Indigo Car bearing registration No. DL3C AC7827 (in short the offending vehicle) coming from Abohar side at very high speed, which was being driven by its driver rashly and negligently. He further deposed that its driver lost control of the vehicle with the result the vehicle hit a tree and thereafter a kacha wall. He further deposed that the car was totally smashed and its occupants died at the spot. He informed the college as well as the police and that the MACT No. 524/09, 525/09, 526/09 & 528/09 8 of 29 occupants of the vehicle were removed to Civil Hospital where they were declared brought dead.
10.The witness was crossexamined by counsel for R1 as well as counsel for R2. The witness admitted that his name is not mentioned in the hospital records that he had brought the deceased to the hospital. He denied the suggestion that he is not the eye witness and was not present at the site of accident. He stated that he did not have any document to show that he was getting his punctured motorcycle repaired near the site of accident. He denied the suggestion that the offending vehicle was not being driven by its driver at high speed, rashly and negligently. He also stated that his statement was never recorded by the police nor he ever visited police station to inform about the manner in which accident took place. He also stated that he had come to depose at the instance of Makhan Singh, one of the legal representatives of deceased Manjeet Kaur. It was contended on behalf of the respondents that PW1 is a planted witness. He never saw the accident and there is no evidence of his being present at the site of accident. Had he been present at the site of accident, investigating MACT No. 524/09, 525/09, 526/09 & 528/09 9 of 29 officer would have recorded his statement.
11. It has to be borne in mind that Motor Vehicles Act does not stipulate holding a trial for petition preferred under section 166 of the Act. Under Section 168 of the Act, a Claims Tribunal holds an inquiry to determine compensation which must appear to it to be just. Strict rules of evidence are not applicable in an inquiry conducted by the Claims Tribunal. In State of Mysore Vs. S.S. Makapur, 1993 (2) SCR 943. Hon'ble Apex Court held " that tribunal exercising quasijudicial functions are not courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can unlike courts, obtain all information for the points under the enquiry from all sources and through all channels, without being fettered by rules and procedure, which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it. What is a fair opportunity depend on the facts and MACT No. 524/09, 525/09, 526/09 & 528/09 10 of 29 circumstances of each case but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts"
12. In Bimla Devi and ors. Vs. Himachal Road Transport Corporation and Ors (2009) 13 SC 530, Supreme Court held that " In a situation of this nature, the Tribunal has rightly taken a holistic view of the matter. It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied."
13. In N.K. V. Brothers (P) Ltd Vs M. Karumal Ammal, AIR 1980 SC 1354 Supreme Court has reminded the Claim Tribunals stating as follows:
" Road accidents are one of the top killers in our country, specially, when truck and bus driver operate nocturnally. This MACT No. 524/09, 525/09, 526/09 & 528/09 11 of 29 proverbial recklessness often persuades the courts, as has been observed by us earlier in other cases, to draw an initial presumption in several cases bases on the doctrine of res ipsa loquitar. Accidents Tribunals must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here and some obscurity there. Save in plain cases, culpability must be inferred from the circumstances where it is fairly reasonable. The court should not succumb to niceties, technicalities and mystic maybes".
14. I have seen record of criminal case. Ram Lal is an eye witness who had stated that the offending vehicle had come from Abohar side at very high speed. Its driver lost control over the vehicle. After hitting trees it hit a kacha wall resulting in death of all its occupants on the spot. Ram Lal was not examined.
15. Testimony of Raghubir Singh PW1 is to the same effect as statement of Ram Lal. Both stated that offending vehicle was being driven at very fast speed. Consequently, its driver lost control over it. Both stated that offending vehicle first hit trees and then a katcha wall. Both stated that all its occupants MACT No. 524/09, 525/09, 526/09 & 528/09 12 of 29 died on the spot.
16. There is no dispute that the offending vehicle was totally destroyed/mutilated in the accident. There is no dispute that all the occupants died at the spot. R1 himself in para 13 of his written statement has made reference to total destruction/mutilation of the offending vehicle in the accident. It is true that neither Ram Lal, the eye witness nor investigating officer were examined by the petitioners. As I have already stated Raghubir Singh PW1 has not stated anything contrary to what Ram Lal the eye witness stated to the police.
17. The fact that the offending vehicle first hit the tree and then a katcha wall shows that its driver was driving very fast. The vehicle without being hit by any other vehicle hit against the tree. Vehicle did not stop even after hitting the tree. It then hit a kacha wall. The impact was so heavy that the vehicle was totally damaged/mutilated causing death of all the occupants at the spot. These facts show that its driver was driving it at such a fast speed that he was unable to control the vehicle at all. There is nothing on record which may exonerate Manoj the MACT No. 524/09, 525/09, 526/09 & 528/09 13 of 29 driver. Nothing has been brought to my notice which may suggest that driver of the offending vehicle was not driving it rashly and negligently.
18. In United India Insurance co. Ltd. v Ram Ratti and others 2012 ACJ 175 that driver of maruti van was injured and a passenger died in the accident. Claim was filed under section 163 A of the Act. Qua negligence Hon'ble High Court observed that " where the accident by a collision with a tree that was not known to have taken place as a result of any mechanical defect, it must not only be understood as resulting from a res ipsa loquitur situation. A vehicle simply does not hit against a tree. If it was not mechanical defect, the negligence of the driver speaks for itself. In such an event, the passenger in a vehicle is bound to be protected for claim through himself or through the representative in case of death''.
19. In view of the undisputed facts that the offending vehicle had hit trees yet it did not stop and hit a katcha wall without involvement of any other vehicle, the fact that the vehicle was completely damaged and the fact that all its occupants died at the spot in absence of any plea or proof of any mechanical MACT No. 524/09, 525/09, 526/09 & 528/09 14 of 29 defect prove that the driver of the offending vehicle was driving it rashly and negligently. This issue is accordingly decided in favour of the petitioners and against respondents. Issue No.2 Qua Quantum of Compensation
20. It is claimed that all the deceased were students of Homeopathy College of Abohar. It is no longer resintegra that loss of dependency in such a case in determined on potential income of the deceased.
21. In Ganga Devi & Ors v. New India Assurance Co. Ltd. & Ors. MAC APP 359/2008 decided on 23.11.09 which related to the death of a student (studying medicine) who was doing internship and was to be awarded the MBBS degree in a short time, Hon'ble Delhi High Court observed that the deceased would have ultimately joined as a doctor and his average monthly income was taken as Rs. 18,000/ p.m.
22. In Ramesh Chand Joshi & Anr. Vs. New India Assurance Company, MAC APP. No.21213/2006, decided on 20.01.2010 Hon'ble Delhi High Court took the potential income of a BE (BioTechnology) First year student of Delhi College of Engineering (DCE). During inquiry it came on MACT No. 524/09, 525/09, 526/09 & 528/09 15 of 29 record that all the 18 students of BioTechnology from DCE were offered placements/job offers ranging between Rs. 3 lac p.a (minimum) & Rs. 9 lac p.a (maximum). Hon'ble Delhi High Court took earning capacity of deceased as Rs. 38,333/ per month. No future prospects were granted saying that deceased was still a student having no permanent job.
23. In New India Assurance Co. Ltd, Appellant Vs. Bharat Singh @ Bharat Kumar @ Bharat Kumar Bilwal & Ors. MAC APP 137/2012 decided on 08th August 2012 deceased Abhilasha scored about 87% marks in 12th examination conducted by the Central Board of Secondary Education (CBSE) in the year 2008. On the basis of her good performance, she was able to get admission in Aurobindo College in Delhi University. Hon'ble Delhi High Court held that the deceased was a meritorious student and after completing her Graduation, she would have got some job as an Assistant Accountant or Accounts Clerk in any Govt. or any public sector company at a salary of Rs. 15,000/ per month. However since she was not doing any "professional course from any prestigious Institution", no addition towards the future prospects was MACT No. 524/09, 525/09, 526/09 & 528/09 16 of 29 made.
24. In Sumitra Sharma & Anr Vs. National Insurance Co. Ltd. MAC APP. 600/2010 decided on 31st May 2012 deceased Amit Sharma scored 89.3% marks in his 12th examination held by CBSE. He scored 97% marks in mathematics. He had qualified Haryana State All India Common Engineering Entrance Test (CEET2005) and got admission in the Institute of Technology & Management, Faridabad under the stream of Electronics and Communication Engineering. Hon'ble Delhi High Court observed that if a qualified degree holder Engineer joins a Govt. service he would get salary of Rs. 17,940/ per month. No addition was made towards future prospects as the deceased had scored admission in a College "which was not affiliated to a prestigious University".
25. In Bajaj Allianz General Insurance Company Ltd. Vs. Sheela Devi & Ors. MAC.APP.No. 780/2010, dated 24.08.2012 deceased a bachelor aged 19 years was 3rd year student of Electronics & Communication Engineering at Amity School of Engineering & Technology Bijwasan, New Delhi. Hon'ble Delhi High Court took potential income of deceased at Rs. MACT No. 524/09, 525/09, 526/09 & 528/09 17 of 29 20,000/ per month. No future prospects were granted as it was held that he was not doing engineering from any prestigious college.
26. In ICICI Lombard General Insurance Co. Ltd. Vs. Archana Sethi & Ors. MAC.APP.797/2012, both the deceased were first year engineering students in Delhi College of Engineering, (which later on became Delhi Technological University). As per testimony of PW2, training and placement officer Delhi Technological University, 100% placement was given to the students. He deposed that some of the students got multiple offers maximum offer was 40 lacs per annum and minimum offer was 3.5 lacs per annum. He deposed that all the big companies like Microsoft, IOCL, Morgan Stanley, GAIL, Maruti etc. and various overseas companies come to their campus for campus placement.
The Tribunal awarded compensation at assumed income of Rs. 35,000/ per month of an engineering student which was upheld by Hon'ble High Court.
27. In Bajaj Allianz General Insurance Company Ltd. Vs. Sheela Devi & Ors. MAC.APP.No. 780/2010, deceased was a third MACT No. 524/09, 525/09, 526/09 & 528/09 18 of 29 year student of electronics and Communication Engineering (ECE) from Amity School of Engineering & Technology, Bijwasan, New Delhi. Hon'ble Delhi High Court took potential income of the deceased at the rate of Rs. 20,000/ per month. Since the deceased was not doing engineering from any prestigious college and university, future prospects were not granted.
28. Petitioners have claimed that the deceased would have earned not less than Rs. 50,000/ per month. Petitioners have not examined any official from Homeopathy College Abohare, who could give information to this Tribunal about the placement given to students of the said college. So, there is no evidence as to how much the deceased would have earned after completion of the course.
29. In Ganga Devi (supra) where the deceased was to be awarded MBBS Degree in a short time Hon'ble Delhi High Court took potential income of the deceased as Rs. 18,000/ per month, in Bharat Singh (supra) where the deceased scored 87% marks in 12th examination and got admission in Aurobindo College in Delhi University, her potential income was assessed at Rs. MACT No. 524/09, 525/09, 526/09 & 528/09 19 of 29 15,000/ per month, in Sumitra Sharma (supra) where deceased scored 89.3% marks in 12th examination and 97% marks in mathematics, qualified CEET 2005 Test and got admission in the Institute of Technology & Management, Faridabad, her potential income was assessed at Rs. 17,940/ per month and in Sheela Devi (supra) where deceased was third year student of Electronics & Communication Engineering at Amity School of Engineering & Technology Bijwasan, New Delhi, potential income of deceased was taken as Rs. 20,000/ per month. However, in Ramesh Chand Joshi and in Archna Sethi (supra), Hon'ble Delhi High Court assessed the income of the deceased at Rs. 38,333/ per month and Rs. 50,000/ per month because the deceased were students of Delhi College of Engineering which later on became Delhi Technological University, where there were 100% placements and multinational companies came to their campus for campus placements.
30. In the present cases there is absolutely no evidence as to what were the future prospects qua placements of the students of Homeopathy College Abohar. There is absolutely no evidence MACT No. 524/09, 525/09, 526/09 & 528/09 20 of 29 that the deceased were brilliant students. The mark sheet of deceased Sukhjinder Singh in case bearing No. 525, which was proved as Ex.PW2/2 is on record which shows that he was an average student. In case bearing No. 526, high school mark sheet of deceased Ashish Tyagi which is Ex.PW2/1, shows that he scored about 43% marks. Ex.PW2/3 also shows his average performance. No mark sheet of deceased in cases bearing No. 524/09 & 528/09 is on record.
31. In view of the aforesaid, I assess potential income of the deceased at Rs. 15,000/ per month. It is not proved that deceased were brilliant students nor the college is proved to be prestigious. Therefore, in view of the judgments discussed above future prospects are not granted.
Calculation of loss of dependency in case bearing No. 524/09
32. Deceased was unmarried. As per Sarla Verma v. DTC (2009) 6 SCC 121, since the deceased was unmarried age of his mother is to be taken into consideration. As per copy of ration card Ex.PW2/4, she is shown to be 37 years old. However the date of issue of ration card is not there. Raj MACT No. 524/09, 525/09, 526/09 & 528/09 21 of 29 Kumar father of deceased deposed that deceased was 21 years old at the time of accident. In his crossexamination he stated that his wife/mother of deceased is 40 years old. He was crossexamined on 20.12.2010, so as per him in 2007 she was 37 years old. Since the deceased is stated to be 21 years old at the time of accident his mother could not be only 16 years old at that time. So her age is taken to be about 40 years old at the time of accident.
Potential income Rs.15,000/ 50% deduction towards personal and living expenses as per Sarla Verma (supra) Rs. 15,0007,500=7,500/ The loss of dependency comes to Rs.13,50,000/ (7,500X12X15) Calculation of loss of dependency in case bearing No. 525/09
33. Deceased was unmarried. As per Sarla Verma (supra), since the deceased was unmarried age of his mother is to be taken into consideration. As per copy of ration card proved as Ex.PW2/6, age of mother of deceased is 40 years old on 01.07.2009. So she was 38 years old at the time of accident.
MACT No. 524/09, 525/09, 526/09 & 528/09 22 of 29
Potential income Rs.15,000/
50% deduction towards personal and living expenses Rs. 15,0007,500=7,500/ The loss of dependency comes to Rs.13,50,000/ (7,500X12X15) Calculation of loss of dependency in case bearing No. 526/09
34. Deceased was unmarried. As per Sarla Verma (supra), since the deceased was unmarried age of his mother is to be taken into consideration. In copy of identity card of mother of deceased bearing No. GMS/2003341, issued by Election Commission of India, her age is shown as 42 years as on 01.01.2006. So she was 43 years at the time of accident.
Potential income Rs.15,000/ 50% deduction towards personal and living expenses Rs. 15,0007,500=7,500/ The loss of dependency comes to Rs.12,60,000/ (7,500X12X14) Calculation of loss of dependency in case bearing No. 528/09
35. Deceased was married. The age of deceased is mentioned as MACT No. 524/09, 525/09, 526/09 & 528/09 23 of 29 25 years in petition. The same age is mentioned in his postmortem report also. He was survived by his widow, one minor child and parents.
Potential income Rs.15,000/ ¼ deduction towards personal and living expenses Rs. 15,0003750= 11,250/ The loss of dependency comes to Rs.24,30,000/ (11,250 x 12 x 18)
36. Regarding compensation payable on account of loss of consortium Hon'ble Supreme Court in Rajesh & Ors (Supra) observed that "The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santosh Devi(Supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs. 2500/ to Rs. 10,000/ in those heads was fixed several decades ago and having regard to inflation MACT No. 524/09, 525/09, 526/09 & 528/09 24 of 29 factor, the same needs to be increased. In Sarla Verma's case (Supra), it was held that compensation for loss of consortium should be in the range of Rs. 5000/ to Rs. 10,000/. 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 nonpecuniary 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 nonpecuniary 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 recognized 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."
MACT No. 524/09, 525/09, 526/09 & 528/09 25 of 29 In view of the above Rs. 1 lac is given for loss of consortium in case bearing No. 528/09 only.
37. Regarding compensation payable towards funeral expenses it was further observed in Rajesh & Ors (Supra) "We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses". The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/."
In view of the above Rs. 25,000/ each is granted towards funeral expenses in all the cases bearing No. 524/09, 525/09, 526/09 & 528/09.
38. Following Rajesh (Supra) in Brij Kishore & Anr v. Sandeep MACT No. 524/09, 525/09, 526/09 & 528/09 26 of 29 Kumar & Ors. MAC.APP.965/2013 Hon'ble Delhi High Court vide its order dated 25th Oct, 2013 granted Rs. 1 lac towards loss of love and affection. Accordingly, Rs. 1,00,000/ is also granted towards loss of love and affection in all the cases Rs. 10,000/ is granted towards loss of estate in all the cases. Thus, the over all compensation comes to Rs.14,85,000/ in cases bearing No.524/09 and 525/09. Rs. 13,95,000/ in case bearing No. 526/09 and Rs. 26,65,000/ in case bearing No. 528/09.
39. R2 is accordingly directed to deposit the above mentioned awarded amount within 30 days from today with this Tribunal with interest at the rate of 7.5 % per annum from the date of filing of claim petition till notice of deposit of award amount to be given by R2 to petitioner/ his counsel.
40. I have heard learned counsel for petitioners regarding their financial needs. In view of the submissions made and further in view of the judgment in General Manager, Kerala State Road Transport Corporation Vs. Susamma Thomas & Others, 1994 (2) SC, 1631 following arrangements are hereby ordered:
41. In case bearing No.524/09, 525/09 & 526/09, Rs. 5 lac with MACT No. 524/09, 525/09, 526/09 & 528/09 27 of 29 proportionate interest be given to father of deceased, out of which Rs. 50,000/ be released to him and remaining amount with proportionate interest be kept in FDR in his name for five years. Remaining amount with proportionate interest be given to mother of deceased, out of which Rs. 50,000/ be released to her and remaining amount with proportionate interest be kept in FDR in her name for a period of 5 years.
42. In case bearing no. 528/09 Rs.5 lac with proportionate interest be given to petitioner No. 2 (minor son of deceased) and be kept in FDR in his name till he attains the age of majority. Rs. 2 lac each with proportionate interest be given to petitioner No. 3 & 4 (parents of deceased), out of which Rs. 50,000/ each be released to them and remaining amount with proportionate interest be kept in FDR in their names for 2 years. Remaining amount with proportionate interest be given to petitioner No.1 (widow of deceased), out of which Rs. 50,000/ be released to her and balance with proportionate interest be kept in FDR in her name for five years.
43. The interest on the aforesaid fixed deposit shall be paid monthly by automatic credit of interest in his Saving Account. MACT No. 524/09, 525/09, 526/09 & 528/09 28 of 29
44. The petitioner shall not have any facility of loan or advance on the FDR. However, in case of emergent need, he may approach this Tribunal for premature encashment of FDR.
45. The petition is accordingly disposed of. File be consigned to record room. Copy of order be given to parties for compliance.
Announced in the open Court Judge/MACT/NW today i.e.18.01.2014 Rohini Courts, Delhi MACT No. 524/09, 525/09, 526/09 & 528/09 29 of 29