Rajasthan High Court - Jodhpur
Smt.Sua & Ors vs Naresh Kumar & Anr on 9 June, 2017
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 385 / 2003
1. Smt. Sua W/o late Shri Roopa Ram, aged about 32 years,
2. Sumer S/o late Shri Roopa Ram, aged about 9 years,
3. Gudki D/o late Shri Roopa Ram, aged about 7 years,
4. Khemaram S/o Shri Tillaram, aged about 59 years,
5. Smt. Soni W/o Shri Khemaram, aged about 54 years,
All are by caste Jat, residents of Dhadhaniya Mayla, Tehsil
Shergarh, District Jodhpur.
Appellants No.2 & 3 minor through mother Smt. Sua devi
W/o late Shri Roopa Ram.
----Appellant
Versus
1. Shri Naresh Kumar S/o Shri Balram, by caste Kumhar,
resident of Ganganagar, c/o M/s. Shree Transport,
Ganganagar, Post Box No.-40, Jaisalmer.
(Owner of Tata Truck No.RJ-15/G.105)
2. United India Insurance Company Ltd. Through Divisional
Manager, In front of Goyal Hospital, Residency Road, Jodhpur
----Respondent
_____________________________________________________
For Appellants : Mr. L.K. Purohit.
For Respondent No.1 : Mr. L.D. Khatri.
For Respondent No.2 : Mr. Mahesh Thanvi with Mr. Bhawani
Singh
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Judgment 09/06/2017 Appellant-claimants, dependents/legal heirs of Roopa Ram, have preferred this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short, 'the Act') seeking enhancement in compensation quantified and awarded by Motor Accident Claims Tribunal, Jodhpur-I (for short, 'learned Tribunal') by its judgment (2 of 11) [CMA-385/2003] and award dated 10th of December, 2002. Learned Tribunal, by the award impugned, has determined total amount of compensation to the tune of Rs.5,50,000/- under different heads but awarded 50% of compensation, i.e., Rs.2,75,000/- on account of contributory negligence apportioned equally between drivers of both the vehicles.
In brief, facts of the case are that on 06.01.1999, when bus bearing registration No.RNM 5415, driven by Roopa Ram, reached Tikado Ki Dhani at about 10:00 PM, a truck bearing registration No.RJ-15-G-0105 driven rashly and negligently by its driver hit the bus on frontal side. Due to said accident, front portion of the bus got damaged and Roopa Ram suffered grievous injuries and thereby succumbed on spot. The appellant-claimants, who are wife, children and parents of deceased-Roopa Ram, laid a claim for compensation under Section 166 of the Act quantifying compensation to the tune of Rs.20,70,500/- under different heads. In the claim petition, owner of the offending truck and insurer were impleaded as non-claimants. For claiming compensation, it is, inter-alia, averred by the appellants that deceased-Roopa Ram was 30 years' old at the time of his death and was earning Rs.3,000/-. It is averred in the claim petition that wife of deceased, his children and parents were dependents on the income of deceased and he was the sole bread winner of the family. Attributing rash and negligent driving to the driver of truck, appellant-claimants claimed compensation from owner as (3 of 11) [CMA-385/2003] well as the insurer.
Respondent No.1 filed written statement to the claim petition and denied the averments contained therein. In the written statement, it is averred that accident occurred on account of rash and negligent driving of the bus by the deceased Roopa Ram, who drove the bus at a high speed and hit the truck on frontal side.
Respondent No.2 also filed reply to the claim petition and refuted all the averments contained in the claim petition. In the reply, insurer averred that accident did not occur due to rash and negligent driving of the truck. A specific objection is incorporated in the reply that at the time of accident, driver of the truck was not having a valid driving licence, and therefore, the insured has violated the terms of insurance policy, as such, liability to pay compensation cannot be fastened on the insurer.
Learned Tribunal, on the basis of pleadings of rival parties, settled following issues for determination:
1& vk;k iz'uxr okgu Vªd la[;k vkj-ts- 15@th&0105 ds pkyd lksguyky ds }kjk fnukad 6-1-99 dks vkxksykbZ VhdM+ksa dh <k.kh ds ikl mDr okgu dks mis{kk@mrkoysiu ls pyk dj dh xbZ nq?kZVuk esa vkbZ pksVksa ds ifj.kkeLo:i :ikjke dh e`R;q gqbZ rFkk iksdjjke pksVxzLr gqvk \ 2& vk;k mDr okgupkyd rd mDr okgu Lokeh foi{kh la[;k&1 ds fu;kstu esa gkdj mlh ds fgrkFkZ ,oa ykHkkFkZ dk;Z ugha dj jgk Fkk\ 3& vk;k foi{kh la[;k&nks chek dEiuh }kjk vius fyf[kr dFku dh izkjfEHkd vkifRr;ksa ,oa fo'ks"k dFku ds en~ns utj rFkk D;k Vªd pkyd ds ikl oS/k o izHkkoh MªkbZfoax ykbZlsUl ugha (4 of 11) [CMA-385/2003] Fkk lks D;k chek dEiuh vius nkf;Ro ls eqDr gks ldrh gS ugha rks bldk izHkko gSa\ 4& vk;k nkosnkj vius nkoksa esa vafdr iz'uxr~ jkf'k ;k vU; dksbZ U;k; lEer~ jkf'k ik ldrs gSa gk rks dkSu dkSu nkosnkj fdruh fdruh jkf'k fdl fdl foi{kh ,oa fdl izdkj ls ik ldrs gSa\ In support of claim, appellants tendered documentary as well as oral evidence and examined twelve witnesses on their behalf. They also exhibited forty-eight documents. In counter to the evidence of appellants, respondent No.1-Naresh Kumar himself appeared in the witness box and exhibited three documents.
Learned Tribunal, while deciding issue No.1, recorded its finding that deceased driver of the bus was also contributorily negligent for the cause of accident and apportioned 50% contributory negligence on the part of deceased-Roopa Ram. Issues No.2 & 3 were decided against respondents and in favour of the appellants. In relation to issue No.4 for determining quantum of compensation, the learned Tribunal has taken monthly income of the deceased to the tune of Rs.3,000/- and, after deducting Rs.500/- which he would have spent upon himself, has taken Rs.2,500/- for computing loss of dependency. By applying multiplier of 17, the learned Tribunal worked out compensation to the tune of Rs.5,10,000/- under the head "Loss of Dependency". Apart from Loss of Dependency, learned Tribunal also awarded Rs.10,000/- to claimant No.1 for "Loss of Consortium"; for "Loss of Love & Affection" Rs.5,000/- each to claimants No.2 & 3; "For (5 of 11) [CMA-385/2003] Loss of Companionship Rs.5,000/- each to claimants No.4 & 5"; and Rs.10,000/- for Funeral Expenses. The total amount of compensation is quantified by the learned Tribunal to the tune of Rs.5,50,000/-, and after making deduction of 50% for contributory negligence of deceased Roopa Ram, awarded Rs.2,75,000/- to the claimants.
Mr. L.K. Purohit, learned counsel for the appellant-claimants has strenuously urged that learned Tribunal has grossly erred in recording finding that deceased was contributorily negligent for the cause of accident. Learned counsel would contend that the amount of compensation determined by learned Tribunal is grossly inadequate in the backdrop of calamity, which has engulfed life of a young man of 30 years. Assailing the impugned award for determining compensation under different heads, Mr. Purohit submits that the learned Tribunal has erroneously applied multiplier of 17 whereas it ought to have applied multiplier of 18. Learned counsel further submits that the compensation awarded by the learned Tribunal for "Loss of Consortium, "Loss of Love and Affection", and "Loss of Companionship" is grossly inadequate, which is liable to be enhanced in the peculiar facts and circumstances of the case.
E converso, Mr. Thanvi, learned counsel appearing for insurer submits that learned Tribunal, while recording its finding has meticulously analyzed the entire evidence available on record, (6 of 11) [CMA-385/2003] which is not liable to be interfered with. Mr. Thanvi further submits that the evidence, which was available on record, has been rightly construed by learned Tribunal for recording its finding that deceased equally contributed for the mishap, and therefore, the said finding cannot be interfered with in exercise of appellate jurisdiction. Joining issue with the appellants on quantum of compensation, Mr. Thanvi contends that in totality of circumstances, learned Tribunal has rightly applied the multiplier and quantified the amount of compensation, which merits no interference.
Mr. Khatri appearing on behalf of respondent No.1 also echoed the contentions raised by learned counsel for respondent No.2.
I have heard learned counsel for the appellant-claimants as well as learned counsel for the respondents and perused the impugned judgment & award and also thoroughly scanned the record of the case.
Learned Tribunal, while determining the compensation, has though resorted to Second Schedule which prescribes structured formula for determination of compensation under Section 163A of the Act, but then, it has not cared to apply multiplier which is prescribed in the Schedule. Indisputably, at the time of accident, Roopa Ram was 30 years old, and therefore as per Second Schedule the learned Tribunal ought to have pressed into service multiplier of 18 instead of 17. Thus, applying multiplier of 18 the (7 of 11) [CMA-385/2003] amount worked out under the head "Loss of Dependency" would obviously result in enhancement of the claim amount by Rs.5,40,000/- and after deducting 50% for contributory negligence would come to Rs.2,70,000/-, which I feel persuaded to grant to the appellants.
The learned Tribunal has eschewed one relevant aspect for determining compensation inasmuch as it has not awarded any compensation under the head Future Prospects. While, it is true that there was no definite income of the deceased as he was not in permanent employment but the fact remain that had he survived there were fair chances of enhancement in his income. As all the appellants are dependent and family members of the deceased, it is rather difficult to comprehend that the calamity, which has occasioned due to accident would have no impact on them had he survived. Therefore, applying the ratio laid down in Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. [2009 (6) SCC 121], I feel persuaded to grant 30% amount for future prospects which comes out to Rs.1,62,000/- and declare the claimants entitled for the same without any deduction. Although for contributory negligence of the deceased compensation amount is reduced upto 50%, but upholding said finding of the learned Tribunal itself cannot be construed a plausible ground for slashing the compensation under the head future prospects. The beneficent object manifested in the provisions of the Act regarding accident claims cannot be construed narrowly by taking a hyper-
technical view while determining just compensation. Legislature, (8 of 11) [CMA-385/2003] in its wisdom, has used phrase "just compensation" under Section 168 of the Act, which denotes equitability, fairness and reasonableness having large peripheral field.
Supreme Court in Sarla Verma (supra) has dilated on just compensation and held:
""Just compensation" is adequate compensation which is fair and equitable, on the facts and circumstances of the case, to make good the loss suffered as a result of the wrong, as far as money can do so, by applying the well settled principles relating to award of compensation. It is not intended to be a bonanza, largesse or source of profit. Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision-making process and the decisions. While it may not be possible to have mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be the result of adjudication to arrive at just compensation."
Adverting to the compensation awarded by learned Tribunal for "Loss of Consortium", "Loss of Love & Affection" and "Loss of companionship", suffice it to observe that untimely death of the bread winner of the family is a colossal loss for a bereaved family which cannot be compensated in terms of money. I am aghast that learned Tribunal has reduced the amount of compensation determined under these heads solely on the basis of finding that deceased was contributorily negligent for the cause of accident.
(9 of 11) [CMA-385/2003] This sort of finding of the learned Tribunal is wholly perverse, and therefore, reduction in the amount of compensation under these heads to the extent of 50% merits annulment.
In the case of Rajesh & Ors. V/s. Rajbir Singh & Ors. [(2013) 9 SCC 54], Supreme Court has elaborately dealt with concept of "Consortium" and has opined as under:-
"In legal parlance, "consortium' is the right of the spouse to the company, care, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately 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."
According to the Hon'ble Supreme Court, considering the emotional, physical and psychological bonding that existed between husband and wife, which the wife is certainly deprived of, at least, a compensation of Rs.75,000/- should be paid to the wife for "Loss of Consortium". Grant of mere Rs.10,000/- is certainly (10 of 11) [CMA-385/2003] on the lower side. Therefore, this Court enhances compensation under this head to Rs.75,000/-.
Similarly, the plight of two young children, who suddenly lost their father, need not be described in detail. Suffice it to say, that for the rest of their life the children will search for a father figure. They will no longer have his love and affection, his advice, suggestion, and guidance for the rest of their life. A mere compensation of Rs.10,000/- is certainly on the lower side. Therefore, this Court grants the children a compensation of Rs.1,00,000/- for deprivation of "Loss of Love and Affection" due to untimely death of their father.
Had the son of appellants No.4 & 5 survived, he could have served them during their old age, and therefore, in that background, the amount of compensation for loss of companionship quantified and awarded by learned Tribunal is per se inadequate and not commensurating with the calamity, which has occasioned in the family of appellants. Taking into account this fact scenario, I feel persuaded to enhance the amount of compensation under this head so as to declare the appellants entitled for compensation of Rs.50,000/-.
Funeral Expenses awarded by learned Tribunal to the tune of Rs.10,000/- is maintained while overturning the award to the extent it is reduced to 50%.
In view of foregoing discussion, the instant appeal is allowed in part and the amount of compensation awarded to the appellant- claimants is re-determined and assessed as under:
(11 of 11) [CMA-385/2003] S. Head Amount Amount Reassesse Enhanced No Determined Awarded d Amount Amount by Tribunal (Rs.) (Rs.)
1. Loss of 5,10,000/- 2,55,000/- 2,70,000/- 15,000/-
Dependency
2. Future Prospect - - 1,62,000/- 1,62,000/-
3. Loss of 10,000/- 5,000/- 75,000/- 70,000/-
Consortium
4. Loss of Love & 10,000/- 5,000/- 1,00,000/- 95,000/-
Affection
5. Loss of 10,000/- 5,000/- 50,000/- 45,000/-
Companionship
6. Litigation 10,000/- 5,000/- 10,000/- 5,000/-
Expenses Total 5,50,000/- 2,75,000/- 6,67,000/- 3,92,000/- Appellant-claimants are, accordingly, declared entitled for the enhanced additional amount of Rs.3,92,000/-. The enhanced amount shall carry interest @ 9% per annum from the date of institution of this appeal. The respondents are directed to pay the enhanced amount of compensation along with interest within a period of four weeks from the date of receipt of certified copy of judgment.
Costs are made easy.
(P.K. LOHRA)J. a.asopa/-