Allahabad High Court
Smt. Vinodni And 6 Others vs Vijay Kumar Chopra And 2 Others on 31 May, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved A.F.R. Court No. - 24 Case :- FIRST APPEAL FROM ORDER No. - 32 of 2015 Appellant :- Smt. Vinodni And 6 Others Respondent :- Vijay Kumar Chopra And 2 Others Counsel for Appellant :- Shashank Singh,Vishnu Pratap Singh Counsel for Respondent :- Dinesh Kumar,Vivek Manishi Shukla Hon'ble J.J. Munir,J.
1. This is a claimants' appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, ''the Act') seeking enhancement of the compensation awarded by the Additional District Judge/ M.A.C.T. Court No.6, Lakhimpur Kheri (for short, ''the Tribunal') in a fatal road accident.
2. The claimants, who are seven in number, are all appellants in this appeal. They are the dependents of the late Vinod Kumar, who died in a road accident on 19.09.2012. The seven appellants shall hereinafter be collectively referred to as 'the claimants', except where the context requires individual reference. Respondent no.1, Vijay Kumar Chopra is the owner of the offending vehicle, a truck that caused the fatal accident. He shall hereinafter be referred to as 'the owner'. Shriram General Insurance Company Limited, Kutchehari Road, Branch Lakhimpur Kheri is the second respondent to the appeal, and likewise, to the claim petition. They are the insurers of the offending vehicle. Hereinafter, the second respondent aforesaid shall be referred to as 'the insurers'. Abdul Kader, the third respondent to the appeal and to the claim petition as well, is the driver of the offending vehicle. He shall be referred to in this judgment as 'the driver'.
3. The claimants' case in brief is that on 19.09.2012, the deceased Vinod Kumar had left home, riding his motorcycle bearing Registration No. UP-31U-9957, carrying, in secure position, a gas cylinder to the Indane Gas Agency. He was going there to fetch a full cylinder of LPG. At about 8:30 in the morning, as the deceased was moving on the road on his left hand side in front of the Ajmani International School, the driver of truck bearing Registration No. UP-40T-0055 appeared on the scene, driving his vehicle negligently and at a high speed. He hit the deceased's motorcycle leading to his death on the spot and badly damaging the two wheeler. At the time of accident, the deceased was aged 34 years. He was a diesel engine mechanic and did farming as well. He owned 5 bigha land and cultivated another 50 bigha on contract.
4. It is the claimants' case that from his agricultural exploits, the deceased garnered an income of Rs.12,000/- per mensem while his work as a mechanic yielded a monthly income of Rs.5,000/-. According to the claimants, therefore, the deceased earned a sum of Rs.17,000/- per month. He was a hard working man and in the event his life were not snuffed out in the accident, in the course of 2-3 years, he would have progressed to earn Rs.40,000-45,000/- per month. The accident, however, put an end to all prospects for the dependents of the deceased, whose future has been plunged into darkness. The dependents' source of livelihood has been annihilated. Amongst the claimants, Smt. Vinodini is the deceased's wife. She was aged 32 years at the time of accident. Besides the widow, the deceased has left behind four minor children amongst the claimants, to wit, Km. Pooja Devi, Km. Jyoti Devi, Nikhil Kumar and Jitin Kumar, aged 13 years, 10 years, 7 years and 2 years, in that order. Besides the aforesaid members of the deceased's nuclear family, he has left behind a dependent mother, Smt. Reshampati @ Kanti Devi aged 67 years and his father, Laxman Prasad aged 72 years. The claimants prayed before the Tribunal that they be awarded a sum of Rs.25 lakhs in compensation for the loss of dependency, and under the conventional heads, besides a sum of Rs.40,000/- for the damage to the deceased's motorcycle sustained in the accident.
5. The owner and the driver have filed a joint written statement denying the claimants' case. They have said that the deceased attempted to overtake the offending truck and was hit by a Pickup (truck) proceeding from the opposite direction. However, the Police caught hold of the offending truck and implicated the driver in the accident. It is asserted that the driver held a valid and effective driving licence on the date of accident. The liability, if any, would fall on to the insurers' shoulders.
6. The insurers filed a separate written statement denying the claimants' case. They have raised pleas to the effect that the site-plan relating to the accident has not been filed. No information of the accident was given to the insurer. The accident occurred due to the negligence of the deceased. The deceased was not at all hit by the offending truck. The offending truck was not insured with the insurer, entitling the claimants to recover from them. The driver did not have a valid and effective driving licence at the time of accident. The claim petition is bad for non-joinder of necessary parties and mis-joinder.
7. Upon pleadings of parties, the Tribunal proceeded to frame the following issues (translated into English from Hindi):
(1) Whether on 19.09.2012 at about 08:30 in the morning in front of the Ajmani Public School within the local limits of Police Station Kotwali, District Lakhimpur Kheri, the driver of Truck bearing Registration No. UP-40T-0055, driving his vehicle at a high speed and negligently, hit the deceased Vinod Kumar's motorcycle bearing Registration No. UP-31U-9957, causing injuries that resulted in the deceased's demise on the spot?
(2) Whether the aforesaid accident occurred as a result of contributory negligence of drivers of both the vehicles?
(3) Whether at the time of the aforesaid accident, the drivers of both the vehicles had a valid and effective driving licence and owners of both the vehicles had valid and effective papers relating to the two vehicles?
(4) Whether at the time of the aforesaid accident, both the vehicles were validly and effectively insured and not driving in violation of the policy conditions?
(5) Whether the claim petition is bad for non-joinder?
(6) Whether the claimants are entitled to the compensation sought; if yes, how much and from whom?
8. The claimants examined Laxman Prasad as PW-1, Surendra Pal, PW-2 and Smt. Vinodini, PW-3 in support of their case, who tendered their evidence on affidavits. All the witnesses were cross-examined. A host of documents establishing the factum of accident, the liability of the insurer, adherence to the policy etc. were filed. No one was examined orally on behalf of the insurer. However, documentary evidence was filed in the form of photostat copies of permit, insurance cover note, fitness certificate, registration certificate of the offending vehicle and the driver's driving licence.
9. Issues Nos.1 and 2 were decided for the claimants and likewise Issues Nos.3 and 4 were also decided in favour of the claimants holding the insurers liable to indemnify. Issue No.5 was also answered in favour of the claimants, holding that all necessary parties have been impleaded.
10. The only dispute that arises between parties is about the quantum of compensation that the Tribunal has awarded to the claimants. The Tribunal determined the income of the deceased at a figure of Rs.100/- per day in the absence of any documentary proof of income. The monthly income was, therefore, determined at a figure of Rs.3,000/- and the annual income in the sum of Rs.36,000/-. A deduction towards personal expenses of one-third was made working out the annual dependency to a sum of Rs.24,000/-. The deceased was placed in the age bracket of 35-40 years, and to work out the total dependency, a multiplier '16' was applied according to the Second Schedule to the Act framed under Section 167-A. The total dependency, thus, worked out to a figure of Rs.3,84,000/-. To the aforesaid, substantive compensation were added sums of money payable under the conventional heads: Rs.2,500/- was awarded for the funeral expenses, Rs.5,000/- for the loss of love and affection and Rs.2,500/- for the loss of consortium. Thus, under the conventional heads, a total sum of Rs.10,000/- was awarded. The total compensation, therefore, determined by the Tribunal is a sum of Rs.3,94,000/-.
11. The insurers were directed to pay the aforesaid compensation to the claimants with simple interest @ 7% per annum from the date of institution of the claim petition until realization. The Tribunal also directed an apportionment of the award. Rs.40,000/- each were directed to be paid to the minors, with the condition that the money due to them be invested with a Nationalized Bank for such time that the children attained majority. The deceased's parents were each held entitled to a sum of Rs.35,000/-. After apportionment of compensation between the minor claimants and the parents of the deceased, the balance was directed to be paid to the widow.
12. The claimants are aggrieved by the quantum compensation payable under of the impugned award and urge that it should be enhanced. Hence, this appeal.
13. Heard Mr. Shashank Singh, learned Counsel for the claimants and Mr. Dinesh Kumar, learned Counsel for the insurer.
14. There is no issue between parties in this appeal about the factum of accident, the negligence or contributory negligence or any other matter, whatsoever. The only dispute is about the quantum of compensation payable. This appeal is, therefore, limited to the question of quantum. The learned Counsel for parties too have addressed this Court on the question of quantum alone.
15. This Court has considered the rival submissions advanced by parties and carefully perused the record. Though the learned Counsel for the claimants has impressed upon the Court the fact that the deceased, most certainly, had an income of Rs.17,000/- per month and that his daily income ought to be determined at least at a figure of Rs.200/- per day, there is no dependable evidence to prove the fact. There is a pay certificate dated 05.03.2014, bearing paper No. ग65, issued by a certain M/s. Banswar Traders, Rathor Marg, Mela Road, Lakhimpur Kheri, certifying the fact that the deceased was employed with them as an engine mechanic and the firm paid him a sum of Rs.5,000/- per month. The certificate is signed by someone on behalf of M/s. Banswar Traders, but the proprietor of the said firm or his duly authorized representative has not been produced by the claimants to prove document. In the absence of the pay certificate being proved by M/s. Banswar Traders, the Tribunal has refused to accept it as evidence of the deceased's income. This Court is inclined to agree with the Tribunal, because notwithstanding the fact that the provisions of the Indian Evidence Act, 1872 may not strictly apply, a document on which the determination of financial liability depends, and which is not a public document, ought to be proved in some dependable manner. The document has not at all been proved. There is no evidence either to prove the deceased's agricultural income, such as the Khatauni to establish his ownership of agricultural land, or documents to prove his income that he is said to have earned by doing agriculture on large tracts of land on contract basis. These are facts that cannot be proved by parole evidence alone. In the circumstances, the Tribunal, in assessing the deceased's income at a figure of Rs.100/- per day, which appears to be the going daily-wage earned by an unskilled labourer, cannot be faulted.
16. The resultant monthly income of the deceased would be Rs.3000/- and the annual income Rs.36,000/-, as determined by the Tribunal. The Tribunal, however, has erred in not adding anything to the annual income towards future prospects. The Tribunal has, on the basis of available evidence, assessed the deceased to be in the age group of 35-40 years. He, therefore, had much future prospects to be reckoned, that the Tribunal has altogether ignored. The question about future prospects for the self-employed or those working on a fixed salary has been answered for the dependents by the Supreme Court in matters of award of compensation under the Act in National Insurance Company vs. Pranay Sethi and others, (2017) 16 SCC 680. It has been held:
"56. The seminal issue is the fixation of future prospects in cases of deceased who are self-employed or on a fixed salary. Sarla Verma [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] 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.
57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, 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 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 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 standardisation 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.
58. 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 [Sarla Verma v. DTC, (2009) 6 SCC 121 : (2009) 2 SCC (Civ) 770 : (2009) 2 SCC (Cri) 1002] thinks it appropriate not to add any amount and the same has been approved inReshma Kumari [Reshma Kumari v. Madan Mohan, (2013) 9 SCC 65 : (2013) 4 SCC (Civ) 191 : (2013) 3 SCC (Cri) 826] . 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, 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 self-employed 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."
17. The issue that still survives is whether the future prospects are to be awarded in accordance with the principle laid down in Pranay Sethi (supra) or Rule 220-A(3) of the Uttar Pradesh Motor Vehicles Rules, 1998 (for short, ''the Rules of 1998') framed under the Act. This issue has been settled by their Lordships of the Supreme Court in New India Assurance Co. Ltd v. Urmila Shukla and others, 2021 SCC OnLine SC 822. The appeal in Urmila Shukla (supra) arose out of a judgment of this Court in the context of a motor accident in the State of Uttar Pradesh. Therefore, the principle that has been laid down in Urmila Shukla regarding determination of future prospects squarely applies to the present case. In Urmila Shukla, it has been held that future prospects are to be determined in accordance with the Rules of 1998, which provide a statutory guide and scale for such assessment. The following question was dealt with by their Lordships in Urmila Shukla:
"4. The basic ground of challenge by the appellant is that sub-rule 3(iii) of Rule 220-A is contrary to the conclusions arrived at by the Constitution Bench of this Court in National Insurance Company Ltd v. Pranay Sethi reported in (2017) 16 SCC 680."
18. The question was answered thus:
"9. It is to be noted that the validity of the Rules was not, in any way, questioned in the instant matter and thus the only question that we are called upon to consider is whether in its application, sub-Rule 3(iii) of Rule 220A of the Rules must be given restricted scope or it must be allowed to operate fully.
10.The discussion on the point inPranay Sethiwas from the standpoint of arriving at "just compensation" in terms of Section 168 of the Motor Vehicles Act, 1988.
11.If an indicia is made available in the form of a statutory instrument which affords a favourable treatment, the decision inPranay Sethicannot be taken to have limited the operation of such statutory provision specially when the validity of the Rules was not put under any challenge. The prescription of 15% in cases where the deceased was in the age bracket of 50-60 years as stated inPranay Sethicannot be taken as maxima. In the absence of any governing principle available in the statutory regime, it was only in the form of an indication. If a statutory instrument has devised a formula which affords better or greater benefit, such statutory instrument must be allowed to operate unless the statutory instrument is otherwise found to be invalid.
12. We, therefore, reject the submission advanced on behalf of the appellant and affirm the view taken by the Tribunal as well as the High Court and dismiss this appeal without any order as to costs."
19. There is little doubt that future prospects in the State of Uttar Pradesh are governed by the Rules of 1998 and not by the principles laid down in Pranay Sethi. Rule 220-A(3) confers greater benefit upon the claimant and following the dictum in Urmila Shukla, it is to be applied in preference to Pranay Sethi for the purpose of determination of future prospects. It reads:
"220-A. Determination of compensation.- (1) x x x x (2) x x x x (3) The future prospects of a deceased, shall be added in the actual salary or minimum wages of the deceased as under-
(i) Below 40 years of age :
50% of the salary.
(ii) Between 40-50 years of age :
30% of the salary.
(iii) More than 50 years of age :
20% of the salary.
(iv) When wages not sufficiently proved :
50% towards inflation and price index.
(4) x x x x (5) x x x x (6) The rate of interest shall be 7% pendente lite and future till the actual payment."
20. Urmila Shukla speaks about application of the statutory formula, which affords better or greater benefit. Here, going by the age of the deceased, Rule 220-A(3)(ii) would place him in the age group of 40-50 years. Under clause (ii) of sub-Rule (3) of Rule 220-A, for the age bracket of 40-50 years, addition of future prospects allowed is 30% of the salary.
21. By comparison, the Rule in Pranay Sethi would entitle the dependents for a deceased in the age group of 40-50 years to add towards future prospects 25%. Therefore, Rule 220A(3)(ii) is to be followed, being the more beneficial option. Accordingly, the claimants are entitled to add 30% of the deceased's income towards future prospects.
22. The deductions towards personal expenses of the deceased have been long pronounced upon by the Supreme Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121. The principle about deduction in Sarla Verma (supra) has been approved by the Supreme Court in Pranay Sethi and United India Insurance Company Ltd. v. Satinder Kaur alias Satwinder Kaur and others, 2020 SCC OnLine SC 410. The holding in Sarla Verma lays down the principle that where the member of dependent family members is 4-6, one-fourth should be deducted towards personal expenses. Here, out of the seven claimants, the widow and the four minor children are certainly amongst the deceased's dependents. The mother and the father, at their given ages, have to be regarded as dependents of the deceased. Considering the minor as a half unit in the count of dependents, this Court proceeds on the basis that the deceased had a family of five dependent family members. This would entitle the claimants to deduct one-fourth towards personal and living expenses of the deceased out of his total income, in order to work out the dependency.
23. In Sarla Verma, about the multiplier to be applied, it has been held:
"41. Tribunals/courts adopt and apply different operative multipliers. Some follow the multiplier with reference to Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] [set out in Column (2) of the table above]; some follow the multiplier with reference to Trilok Chandra [(1996) 4 SCC 362] , [set out in Column (3) of the table above]; some follow the multiplier with reference to Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] [set out in Column (4) of the table above]; many follow the multiplier given in the second column of the table in the Second Schedule of the MV Act [extracted in Column (5) of the table above]; and some follow the multiplier actually adopted in the Second Schedule while calculating the quantum of compensation [set out in Column (6) of the table above]. For example if the deceased is aged 38 years, the multiplier would be 12 as per Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] , 14 as per Trilok Chandra [(1996) 4 SCC 362] , 15 as per Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] , or 16 as per the multiplier given in Column (2) of the Second Schedule to the MV Act or 15 as per the multiplier actually adopted in the Second Schedule to the MV Act. Some tribunals, as in this case, apply the multiplier of 22 by taking the balance years of service with reference to the retiring age. It is necessary to avoid this kind of inconsistency. We are concerned with cases falling under Section 166 and not under Section 163-A of the MV Act. In cases falling under Section 166 of the MV Act, Davies method [Davies v. Powell Duffryn Associated Collieries Ltd., 1942 AC 601 : (1942) 1 All ER 657 (HL)] is applicable.
42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas [(1994) 2 SCC 176 : 1994 SCC (Cri) 335] , Trilok Chandra [(1996) 4 SCC 362] and Charlie [(2005) 10 SCC 720 : 2005 SCC (Cri) 1657] ), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M-17 for 26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40 years, M-14 for 41 to 45 years, and M-13 for 46 to 50 years, then reduced by two units for every five years, that is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7 for 61 to 65 years and M-5 for 66 to 70 years."
24. The deceased being in the age group of 36-40 years, the applicable multiplier, according to Paragraph 42 of the report in Sarla Verma, would be ''15'. The Tribunal has applied a multiplier ''16' going by the Second Schedule to the Act framed under Section 163A thereof, which would not be applicable because of the directions in Paragraph 42 in Sarla Verma.
25. Under the conventional heads, this Court finds that the Tribunal has, again, erred in granting a very low sum of Rs.2,500/- for funeral expenses. Likewise, recompense for the loss of estate at a figure of Rs.2,500/- and a sum of Rs.5,000/- under the head of loss of love and affection are abysmally low. Under the conventional heads, the compensation to be awarded has been dealt with in Pranay Sethi thus:
"48. This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by the Court in Trilok Chandra [UP SRTC v. Trilok Chandra, (1996) 4 SCC 362] . Recently, in Puttamma v. K.L. Narayana Reddy [Puttamma v.K.L. Narayana Reddy, (2013) 15 SCC 45 : (2014) 4 SCC (Civ) 384 : (2014) 3 SCC (Cri) 574] it has been reiterated by stating : (SCC p. 80, para 54) "54. ... 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."
49. 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):
The following general damages shall be payable in addition to compensation outlined above:
(i) Funeral expenses Rs 2000
(ii) Loss of consortium, if beneficiary is the spouse Rs 5000
(iii) Loss of estate Rs 2500
(iv) Medical expenses -- actual expenses incurred before death supported by bills/vouchers but not exceeding Rs 15,000"
50. 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 [UP SRTC v.Trilok Chandra, (1996) 4 SCC 362] 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 inRajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . The justification for grant of consortium, as we find fromRajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] , is founded on the observation as we have reproduced hereinbefore.
51. On the aforesaid basis, the Court has revisited the practice of awarding compensation under conventional heads.
52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh[Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] . It has granted Rs 25,000 towards funeral expenses, Rs 1,00,000 towards 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. ThoughRajesh [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] refers to Santosh Devi [Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 : (2012) 3 SCC (Civ) 726 : (2012) 3 SCC (Cri) 160 : (2012) 2 SCC (L&S) 167] , 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 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."
(emphasis by Court)
26. The award of compensation under the conventional heads with special reference to the head for loss of consortium came up for consideration before the Supreme Court in Magma General Insurance Company Ltd. v. Nanu Ram alias Chuhru Ram and others (2018) 18 SCC 130. In Magma General Insurance Company Ltd. (supra), it has been held:
"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 inPranay 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."
(emphasis by Court)
27. Here, the Court finds that for loss of estate and funeral expenses, instead of a paltry sum of Rs.2,500/- each, a sum of Rs.15,000/- has to be awarded respectively. The wife is entitled to compensation for loss of spousal consortium, the four children to parental consortium and the old parents under the head of filial consortium. Each of the claimants would be entitled to a sum of Rs.40,000/-. In the circumstances, the compensation payable stands to be revised as follows:
(i) Monthly Income (of the deceased) = 3000/-
(ii) Monthly Income + Future Prospects (monthly income x 30%) = 3000+900 = 3900/-
(iii) Annual Income (of the deceased) = 3900 x 12 = 46,800/-
(iv) Annual Dependency = Annual Income - one-fourth deduction towards personal expenses of the deceased = 46,800 - 11,700 = 35,100/-
(iv) Total Dependency = Annual Dependency x Applied Multiplier = 35,100 x 15 = 5,26,500/-
(v) Claimants' entitlement towards conventional heads = Loss of Estate + Funeral Expenses + dependents' Consortium = 15,000 + 15,000 + 40,000+(40,000x4)+(40,000x2) = 3,10,000/-
The total claim of compensation would therefore, work out to a figure of Rs.5,26,500 + Rs.3,10,000 = 8,36,500/-
33. The rate of 7% per annum interest awarded by the Tribunal is in keeping with Rule 220A(6) of the Rules of 1998, does not require any interference.
34. In the result, this appeal succeeds and is allowed with costs throughout. The impugned award is modified and the compensation enhanced to a sum of Rs.8,36,500/- (Rupees Eight Lakh Thirty Six Thousand Five Hundred only). The said sum of money shall be payable by the Insurance Company. The claimants shall be entitled to simple interest @ 7% on the sum of compensation awarded from the date of institution of the claim petition until realization. The inter se apportionment of compensation and the other directions made by the Tribunal shall remain intact.
Order Date :- 31.05.2022 Anoop