Himachal Pradesh High Court
Reliance General Insurance Co. Ltd vs Renuka Massey & Ors on 8 July, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
FAO(MVA) No. 246 of 2016 Judgment reserved on : 01.07.2017 .
Date of decision: 08.07.2018.
Reliance General Insurance Co. Ltd. ...Appellant.
Versus
Renuka Massey & Ors. ...Respondents
For the Appellant : Mr. Jagdish Thakur, Advocate.
For the Respondents : Mr. Bimal Gupta, Sr.
Advocate with Mr. Vineet
r Vashisht, Advocate, for
respondents No. 1 to 3.
Mr. Desh Raj Thakur,
Advocate, for respondent No.
4.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 Yes.
Tarlok Singh Chauhan, Judge.
Aggrieved by the award passed by the learned Motor Accident Claims Tribunal-II, Sirmaur District at Nahan, H.P., whereby the appellant has been directed to pay a sum of Rs. 12,53,200/-
with interest at the rate of 7.5% per annum from the date of 1 Whether reporters of Local Papers may be allowed to see the Judgment ?Yes ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 2 petition, to the date of realization, the appellant-Insurance Company has filed the instant appeal.
.
2. Mr. T. C. Massey (deceased) husband of claimant/respondent No. 1 and father of the claimants/respondents No. 2 and 3 died in a motor vehicle accident on 06.04.2009. The vehicle involved in the accident was a car bearing registration No. HP-17A-7598 owned by respondent No. 4 Gurdeep Singh and was being driven by respondent No. 5 Sangeet Singh and was duly insured with the appellant company. The case of the claimants was that while deceased was coming towards Paonta Sahib in the aforesaid vehicle, it met with an accident in which deceased succumb to injuries and the claimants being dependent on him, are entitled to compensation on account of his death. It was averred that the accident occurred due to rash and negligent driving of the driver, who could not control the car in question which dashed against an unknown truck, whose driver at once applied brakes of the truck leading to the accident.
3. Three folds point-wise submissions are made by the learned counsel for the appellant; (i) that the learned Tribunal erred in ignoring the law laid down by the Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Rattani 2009 (2) SCC 75, wherein it has been held that when the FIR is made basis for the grant of compensation, then the Tribunal ought to look into the ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 3 contents of the same even though the same may not have a substantive piece of evidence; (ii) since, this is a case of .
contributory negligence, therefore, the entire compensation could not have been awarded in favour of the claimant; and (iii), the award is not in tune and in conformity with the judgment of the Constitution Bench of the Hon'ble Supreme Court in National Insurance Co. Ltd. versus Pranay Sethi and others 2017 ACJ 2700.
4. On the other hand, Mr. Bimal Gupta, Senior Advocate, while answering the point-wise submissions made by the appellant, would argue that it is more than settled law that an FIR is not a substantive piece of evidence, therefore, its contents cannot be made the basis for deciding the case. Secondly, he would urge that the instant case is not one of the contributory negligence but composite negligence, therefore, the claimants have rightly been awarded the entire award.
5. In reply to the submissions regarding the award not being in conformity with the judgment in Pranay Sethi's case, it is argued that apart from the compensation already awarded by the learned Tribunal, the claimants are further entitled to award of Rs.40,000/- each as loss of filial as held by the Hon'ble Supreme Court in Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chandu Ram & Ors 2018 (11) SCALE 263.
::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 4I have heard learned counsel for the parties and have gone through the record of the case.
.
Point Nos. (i) & (ii)
6. Both these questions are intrinsically interlinked and inter connected, therefore, they are taken up together for consideration and are being disposed of by a common reason.
7. Ordinarily, the allegations made in the FIR would not be admissible in evidence per se. In case, the same is made part of the claim petition, the Tribunal and Appellate Court would entitle to look into the same. This is so held by the Hon'ble Supreme Court in National Insurance Col. Ltd. vs. Rattani Devi, 2009 (2) SCC 75.
8. Bearing in mind the aforesaid exposition of law, now if the claim petition is adverted to, it has been specifically averred that FIR No. 216 dated 07.04.2004 was registered qua this accident. It shall be apposite to refer to para-9 in its entirety, which reads thus:-
9. Name and Address of Police Station, Yamuna Police Station in whose Nagar City, where FIR No. jurisdiction the Accident 216, Dt. 07/04/2009 was took place and was registered U/s 279, 337, registered 304A IPC at about 01:50 AM on 07/04/2009
9. It is, thus, amply clear that the basis of the petition happens to be the FIR. Now, in case the FIR is perused, it is ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 5 specifically stated therein that the vehicle in question dashed against an unknown truck as a result whereof the deceased .
sustained injuries and succumbed to the same.
10. However, the learned trial Court by placing reliance on the statement of PW4 Paramjit Singh came to the conclusion that it was the driver of the Car who was driving the vehicle in rash and negligent manner. But this statement is contrary to the pleaded case of the claimants themselves.
11. Now, the further question whether it is a case of contributory negligence or composite negligence as contended by the learned Senior Counsel for the respondents. It is settled law that there is a difference between contributory and composite negligence. In case of contributory negligence, a person who has himself contributed to the accident cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who suffered has not contributed to the accident but due to the outcome of combination of negligence of two or more other persons. In case of contributory negligence, the injured need not establish the extent of responsibility of each wrongdoer separately nor it is necessary for the Court to determine the extent of liability of each wrongdoer separately. It is only in the case of contributory negligence that the injured himself has contributed by his ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 6 negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the .
injuries have to be reduced in proportion to his contributory negligence (Refer:- T.O. Anthony vs. Karvarnan and Ors., 2008 (3) SCC 748, Andhra Pradesh State Road Transport Corp. & Anr. vs. K. Hemlatha & Ors., 2008 (6) SCC 767).
12. Judged in light of the aforesaid exposition of law, it would be noticed that the specific case set up by the claimants was to the effect that the driver of the offending vehicle has dashed against an unknown truck.
13. Rule 23 of the Rules of the Road Regulations, 1989 provides for distance from vehicles in front and reads as under:-
"23. Distance from vehicles in front The driver of a motor vehicle moving behind another vehicle shall keep at a sufficient distance from that other vehicle to avoid collision if the vehicle in front should suddenly slow down or stop."
14. Since, it is the pleaded case of the claimants themselves that the vehicle in question dashed against an unknown truck, it is legitimate to infer that the driver of the car moving behind that truck had not kept sufficient distance from that vehicle to avoid collision and it is for that reason that the car collided with the unknown truck.
::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 715. Shri Bimal Gupta, learned Senior Counsel for the claimants/respondents would still urge that even if it is the case of .
collision as aforesaid, even then this is not a case of contributory negligence but would be a case of composite negligence. In support of his contention, he has cited the following judgments:-
1. T. O. Anthony vs. Karvarnan & Ors. (2008) 3 SCC 748
2. Khenyei vs. New India Assurance Co. Ltd. & Ors. (2015) 9 SCCC 433.
3. Kamlesh and Ors. vs. Attar Singh & Ors., (2015) 15 SCC 364
4. National Insurance Co. Ltd. vs. Pranay Sethi & Ors. (2017)
16 SCC 680.
5. Magma General Insurance Co. Ltd. vs. Nanu Ram, 2018 SCC OnLine SC 1546.
16. In the first judgment, T. O. Anthony vs. Karvarnan & Ors. (2008) 3 SCC 748, the facts therein admittedly were that the vehicle in question was coming from the opposite side and collided with each other. It is in this background that the Hon'ble Supreme Court observed as under:-
5. The Tribunal assumed that the extent of negligence of the appellant and the first respondent is fifty:fifty because it was a case of composite negligence. The Tribunal, we find, fell into a common error committed by several Tribunals, in proceeding on the assumption that composite negligence and contributory negligence are the same. In an accident involving two or more vehicles, where a third party (other than the drivers and/or owners of the vehicles involved) claims damages for loss or injuries, it is said that ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 8 compensation is payable in respect of the composite negligence of the drivers of those vehicles. But in respect of such an accident, if the claim is by one of the drivers .
himself for personal injuries, or by the legal heirs of one of the drivers for loss on account of his death, or by the owner of one of the vehicles in respect of damages to his vehicle, then the issue that arises is not about the composite negligence of all the drivers, but about the contributory negligence of the driver concerned.
6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers. In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong-doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 97. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies .
negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence.
The High Court has failed to correct the said error.
17. In Khenyei vs. New India Assurance Co. Ltd. & Ors.
(2015) 9 SCC 273, a distinction between composite and contributory negligence as set out in para-15 and thereafter taking into consideration the law on this subject, the following principles were laid down in paras 22 to 22.4, which read as under:-
22. What emerges from the aforesaid discussion is as follows :
22.1 In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several. 22.2 In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 10 plaintiff/claimant is not permissible. Hecan recover at his option whole damages from any of them. 22.3 In case all the joint tort feasors have been .
impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.
22.4 It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.
18. In Kamlesh and Ors. vs. Attar Singh & Ors., (2015) 15 SCC 364, the facts therein were that a Maruti Car coming from opposite side collided with the Temo in which the deceased was traveling. Again the facts that this case was regarding head on collision between two vehicles coming from opposite direction. It is in this background, the Hon'ble Supreme Court observed as under:-
::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 117. We have heard learned counsel for the parties and perused, inter alia, the evidence on record of Ram Parshad PW2 and Devender PW.3. The method and manner in which .
the accident has taken place leaves no room for doubt that it was a case of composite negligence of drivers of both the vehicles, that is the driver of Maruti car and driver of tempo.
Though Police has registered a case against driver of the tempo Attar Singh and has filed a chargesheet but the same cannot be said to be conclusive. Though, Attar Singh has stated that it was in order to oblige the driver of the Maruti car, a case wasregistered against him. Be that as it may. It appears both the drivers have tried to save their liability. In such circumstances, the version of eye-witnesses, PW.2 and PW.3 assumes significance. The fact remains that car had dashed the tempo on the middle portion near footstep. Thus the method and manner in which the accident has taken place leaves no room for doubt that both the drivers were negligent. Man may lie but the circumstances do not is the cardinal principle of evaluation of evidence. No effort has been made by the High Court to appreciate the evidence and method and manner in which the accident has taken place. Both the aforesaid witnesses have stated Maruti Car was in excessive speed. However, it appears driver of tempo also could not remove his vehicle from the way of Maruti Car. Thus, both the drivers were clearly negligent. It appears from the facts and circumstances that both the drivers were equally responsible for the accident. Thus, it was a case of composite negligence. Both the drivers were joint "tort- feasors", thus, liable to make payment of compensation.
8. The law in the case of an accident arising out of composite negligence has been considered by a 3 Judges' bench of this Court in Khenyei v. New India Assurance ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 12 Co. Ltd. & Ors., 2015 AIR(SC) 2261 wherein following propositions have been laid down:
"(i) In the case of composite negligence, plaintiff/claimant is .
entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.
(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.
(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award."
9. In view of the aforesaid, the amount determined/awarded by the Claims Tribunal was Rs.5,81,000/- along with 6 per cent interest from the date of filing of the petition till the ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 13 date of realization of the amount is upheld as no appeal for its enhancement was filed before the High Court by the claimants. It would be open to the claimants to recover the .
entire amount from any of the respondents, that is from owner, driver and insurer of the Maruti car or respondent No.4, driver of the tempo as their liability is joint and several with respect to claimants. It would be open to the respondents to settle their inter se liability as per the aforesaid decision of this Court. Appeal is allowed. No order as to costs.
19. Evidently, the entire case law cited by the learned counsel for the claimants only relates to head on collision between two vehicles coming from opposite direction. It is in this background that the Hon'ble Supreme Court has held the cases to be one of composite negligence as against the case of contributory negligence and, therefore, none of the judgments apply to the facts of the instant case where admittedly the moving car collided with an unknown truck that was moving in the same direction.
Therefore, in this background, the entire compensation amount could not have been ordered to be paid to the claimants as it is a case of contributory negligence but some deductions towards contributory negligence were required to be made.
Point No. (iii)
20. It was claimed that the deceased was 52 years old and employed as Laboratory Manager in M/s TI Steels Pvt. Ltd. and was ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 14 getting a salary of Rs.25,000/- per month. The claimants placed on record the Income Tax return of the deceased which reveals his .
income to be Rs. 1,34,232/- and he had paid tax of Rs. 2496/-. The learned Tribunal after relying upon the judgment of the Hon'ble Supreme Court in Rajesh & Ors. vs. Rajbir Singh & Ors, (2013) 9 SCC 54, worked out the income after deducting the income tax to be Rs. 1,32,000/- per annum and then applying the ratio laid by the Hon'ble Supreme Court in Sarla Verma vs. DTC, 2009 (6) SCALE 129 and in Rajesh's case supra, the learned Tribunal made an addition of 15% to the actual monthly salary to workout the salary which was then taken to be Rs. 1,51,800/- per annum. Since, the deceased had left three legal heirs, 1/3rd of the income is to be deducted as personal and living expenses and the net salary was worked out to be Rs.1,01,200/-. After applying the multiplier of 11, the compensation was then assessed to Rs.11,13,200/-. In addition thereto, the petitioners were held entitled to Rs.1,00,000/- as loss towards consortium, Rs.25,000/-
towards funeral expenses and Rs.15,000/- under the head of loss of estate.
21. Now as regards the award of compensation, there can be no dispute that the compensation awarded by the learned Tribunal is now required to be determined in accordance with the decision of a Constitutional Bench of the Hon'ble Supreme Court in ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 15 National Insurance Co. Ltd. versus Pranay Sethi and others 2017 ACJ 2700.
.
22. Why this case came to be referred to the Constitutional Bench, the answer is not difficult to find and the same is set out in para-1 of the judgment itself which reads thus:
"Perceiving cleavage of opinion between Reshma Kumari v.Madan Mohan, 2013 ACJ 1253 (SC) and Rajesh v. Rajbir Singh 2013 ACJ 1403 (SC), both three-Judge Bench decisions, a two-
Judge Bench of this Court in National Insurance Co. Ltd. v. Pushpa, (2015) 9 SCC 166, thought it appropriate to refer the matter to a larger Bench for an authoritative pronouncement, and that is how the matters have been placed before us."
23. The conflict between the judgments as extracted above was resolved by concluding that the decision in Rajesh versus Rajbir Singh, 2013 ACJ 1403 (SC) was not a binding precedent as it had not taken note of the decision in Reshma Kumari versus Madan Mohan, 2013 ACJ 1253(SC). The Hon'ble Supreme Court after considering the entire conspectus of law arrived at the following conclusions:-
"i) The two-Judge Bench in Santosh Devi, 2012 ACJ 1428 (SC), 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, 2009 ACJ 1298 (SC), a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
(ii) As Rajesh, 2013 ACJ 1403 (SC) has not taken note of the decision in Reshma Kumari,2013 ACJ 1253 (SC), which was ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 16 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 and 50 years. In case the deceased was between the age of 50 and 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 and 50 years and 10% where the deceased was between the age of 50 and 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.
(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 14 and 15 of Sarla Verma 2009 ACJ 1298 (SC), which we have reproduced hereinbefore.
(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma, 2009 ACJ 1298 (SC), read with para 21 of that judgment.
(vii) The age of the deceased should be the basis for applying the multiplier.
(viii) Reasonable figures under conventional heads, namely, loss to 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 per cent in every three years."
Conclusions (iii) to (viii) are relevant for the adjudication of these cases.
24. It is thus clear from the aforesaid that the compensation henceforth to be awarded in favour of the claimants is essentially to be abide by the aforesaid conclusions, more ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 17 particularly, conclusions No.(iii) to (viii) which except for conclusions No.(v) and (vi) are self-speaking.
.
25. Now, as regards conclusions No. (v) and (vi), it would be apposite to extract paragraphs No.14, 15 and 21 along with table as referred to in Sarla Verma and others versus Delhi Transport Corporation and another, 2009 ACJ 1298 (SC) which read thus:-
"14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra's case, 1996 ACJ 831 (SC), the general practice is to apply standardized deductions. Having considered several subsequent decisions of this court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependant family members is 4 to 6, and one-
fifth (1/5th) where the number of dependant family members exceed six.
15. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent/s and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependant and the mother alone will be ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 18 considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and .
earning, or married, or be dependant on the father. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where family of the bachelor is large and dependant on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to one-third and contribution to the family will be taken as two- third.
21. 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, Trilok Chandra and Charlie), 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."
Age of the Multiplier Multiplier Multiplier Multiplier Multiplier deceased scale as scale as scale in specified in actually used envisaged adopted in Trilok second in Second in Trilok Chandra as column in Schedule to Susamma Chandra clarified in the Table in MV Act (as Thomas Charlie Second seen from the Schedule to quantum of MV Act compensation ) (1) (2) (3) (4) (5) (6) Up to 15 - - - 15 20 years 15 to 20 16 18 18 16 19 ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 19 years 21 to 25 15 17 18 17 18 years 26 to 30 14 16 17 18 17 .
years 31 to 35 13 15 16 17 16 years 36 to 40 12 14 15 16 15 years 41 to 45 11 13 14 15 14 years 46 to 50 10 12 13 13 12 years 51 to 55 9 11 11 11 10 years 56 to 60 8 10 9 8 8 years 61 to 65 6 8 7 5 6 years Above to 65 years 5 5 5 5 5
26. Evidently, the judgment in Pranay Sethi's case (supra) has brought about radical and fundamental changes with regard to award of compensation. For this purpose, this Court would deal with the case by drawing a comparative table of the amount actually awarded by the learned Tribunal along with modified award.
27. Bearing in mind the aforesaid exposition of law and the law laid down in Pranay Sethi's case (supra), it would be noticed that since the deceased was working in a private establishment only an increase of 10% instead of 15% could have been awarded in his favour by the learned Tribunal. In addition thereto, as against the amounts of Rs. 1,00,000/- awarded towards ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 20 loss of consortium, an amount of Rs. 25,000/- awarded towards funeral expenses and Rs.15,000/- awarded towards loss to estate, .
the claimants would only be entitled to an amount of Rs.40,000/-
towards loss of consortium, Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss to estate.
28. As regards the grant of loss of filial, even though it is vehemently contended by learned counsel for the appellant that the judgment in Magma's case (supra) is per incurium as being contrary as it is not considered in the judgment of the Pranay Sethi's case (supra), the same need to be rejected as it was after considering Pranay Sethi's case (supra), that the Hon'ble Supreme Court while considering one of the heads of awarding compensation i.e. loss of consortium, observed as under:-
8.7 A Constitution Bench of this Court in Pranay Sethi (supra) 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.
::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 21Spousal 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."
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."
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.
Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world over have recognized that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions 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.
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 ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 22 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. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under 'Loss of Consortium' as laid down in Pranay Sethi (supra).
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.
29. Yet the claimants cannot be held entitled to any compensation under this head because filial consortium is the right of the parents to compensation in the case of an accidental death of a child, the reason being that 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. This was so held by the Hon'ble Supreme Court in Magma's case (supra) itself as would be evident from underlined portion above.
::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 2330. Admittedly, the claimants in the instant case happen to be the wife and children of the deceased, therefore, are not .
entitled to claim compensation under the head "Filial Consortium"..
31. In view of the aforesaid discussion, the compensation that would eventually work out is as under:-
Sr.N Award passed by the Tribunal Modified Award by this Court o.
Details/Particulars Details/Particulars
(i) Age of the deceased: 52 years
(ii) Assumed salary plus 15% Modified proved salary plus 10%
addition: Rs.11,000/- + Rs. 1650/- addition: Rs.11,000/- + Rs. 1100/- = = 12,650/- 12,000/-
Annual: Rs.12,650 x12 = Annual: Rs.12,000 x12 = 1,44,000/- 1,51,800/-
(iii) After deduction of 1/3rd of Rs. After deduction of 1/3rd of Rs.
1,51,800/- i.e. Rs. 50,600/- = 1,44,000/- i.e. Rs. 48,000/- =Rs.
1,01,200/- 96,000/-
(v) Multiplier of 11: Rs. 1,01,200 x Multiplier of 11: Rs.96,000x11 =Rs.
11=Rs.11,13,200/- 10,56,000/-
(vi) Plus Plus
Loss of consortium Loss of consortium = Rs.40,000/-
=RS.1,00,000/-
(vii) Funeral expenses: Rs.25,000/- Funeral expenses: Rs.15,000/-
(viii) Loss to the estate : Rs.15,000/- Loss to estate : Rs.15,000/-
(ix) Total Award: Rs.12,53,200/- Total Modified Award:
plus interest Rs.11,26,000/- plus interest
32. Now, the last and most crucial question as to what deduction should be made towards contributory negligence in such type of cases.
33. In United India Insurance Co. Ltd vs. Mahima Singh and Ors, 2019 ACJ 697, a learned Single Judge of the Delhi High Court in similar circumstances where the vehicle in question was being driven in violation of Rule 23, held the ::: Downloaded on - 29/09/2019 00:27:32 :::HCHP 24 deceased to be contributory negligent for the accident to the extent of 16.58% and I really see no reason for taking contrary .
view and, therefore, a sum of Rs. 1,86,690/- is deducted towards contributory negligence and in this manner the claimants are held entitled to a total compensation of Rs. 9,39,310/- with interest at the rate of 9% per annum.
34. In view of the aforesaid discussion, the appeal is partly allowed in the aforesaid terms and instead of an amount of Rs.12,53,200/- as awarded by the learned Tribunal below, the claimants shall now entitle to a sum of Rs. 9,39,310/- plus interest @ 9% per annum till the date of actual payment, leaving the parties to bear their own costs. Pending application, if any, stands disposed of.
( Tarlok Singh Chauhan ) 8th July, 2018. Judge.
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