Allahabad High Court
Jiuti Devi And 3 Others vs Manoj Kumar Rai And 2 Others on 13 January, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 70 Case :- FIRST APPEAL FROM ORDER No. - 2705 of 2015 Appellant :- Jiuti Devi And 3 Others Respondent :- Manoj Kumar Rai And 2 Others Counsel for Appellant :- Shrawan Kumar Ojha,Hemant Kumar Counsel for Respondent :- Pranjal Mehrotra Hon'ble J.J. Munir,J.
1. This is an Appeal by the claimants, seeking enhancement of the award made by the Motor Accidents Claims Tribunal/ District Judge, Ballia in M.A.C.P. No.21 of 2015.
2. The appellants, who shall hereinafter be referred to as 'the claimants', are the widow and the three sons of the late Hira Lal, who died in a motor accident on 24.01.2015. The Tribunal has thought that looking to the age of Hira Lal and his station in life, that serve as the index of his income, the claimants are entitled to a compensation of Rs.1 lakh alone. The claimants feel that the compensation awarded is atrociously low and have, therefore, appealed the Tribunal's award through the present Appeal under Section 173 of the Motor Vehicles Act, 19881.
3. The facts giving rise to the Appeal, in some detail, are these:
On 24.01.2015, Hira Lal had left home for some kind of a pathological test along with a relative. He was buying at the greengrocer's, who had put up shop by the roadside at Nagra Road, Ballia. A truck, bearing registration No. UP-61J-7671, driven rashly and negligently by Yogendra Kushwaha, respondent no.3, was proceeding from Belthra towards Rasra. The greengrocer's shop was located on the western pavement of the road, where the deceased and his relative were buying vegetables. The rashly driven truck hit the deceased. In consequence of the injuries sustained, Hira Lal died on the spot. Hira Lal is survived by the claimants, where Jiuti Devi is his widow, whereas Laxmikant Chauhan, Jagdish Chauhan and Ramesh are his sons. The sons are all adults. The deceased was self-employed as a casual labourer, and according to the claimants, he earned a sum of Rs.250/- per day, which would work out to a figure of Rs.7500/- per month. The claimants say that they have lost their dependency to the extent of the income that the deceased contributed to the household. The claimants, therefore, petitioned the Tribunal under Section 166 of the Act, seeking compensation in the sum of Rs.15 lakhs.
4. Manoj Kumar, respondent no.1, is the owner of the offending vehicle, that was driven by Yogendra Kushwaha. Manoj Kumar Rai is respondent no.1 to this Appeal. The Chola MS General Insurance Company Limited, Marie Gold Road, Hazratganj, Lucknow are the insurers of the offending vehicle and they have been impleaded to this appeal, like the claim petition, through the Manager of the Insurance Company as respondent no.2. The Manager, Chola MS General Insurance Company Limited, Marie Gold Road, Hazratganj, Lucknow, respondent no.2 to this Appeal, shall hereinafter be referred to as 'the insurers'. Manoj Kumar Rai, respondent no.1, shall hereinafter be referred to as the owner, whereas Yogendra Kushwaha shall be called 'the driver'.
5. The owner and the insurers filed their separate written statements, denying the factum of involvement of the offending truck in the accident.
6. The Tribunal, on the pleadings of parties, framed the following issues:
"1- Whether on 24-01-2015 at about 01.00, P.M. in Nagra market, P.S. Nagra, District Ballia, an accident took place due to rash and negligent driving of vehicle Truck bearing Registration No. UP-61 J-7671, in which, Hira Lal Chauhan sustained injuries and died? If so, its effect?
2- Whether the driver of the offending vehicle No. UP-61 J-7671 was not having a valid and effective driving licence at the time of accident? If so, its effect?
3- Whether the aforesaid vehicle bearing Registration No. UP-61 J-7671 was not validly and effectively insured with opposite party No. 2, Chola Mandalam M/S General Insurance Co. Ltd.? If so, its effect?
4- Whether the aforesaid vehicle was not being plied under the terms and conditions of insurance policy? If so, its effect?
5. To what amount of compensation, are the petitioners entitled? And from whom?"
7. Issue Nos.1 to 4 have been answered in favour of the claimants and against the respondents. There is no dispute about these issues in the present Appeal, that is confined to the quantum of compensation, subject matter of Issue No.5.
8. The Tribunal allowed the claim in part, granting a total compensation of Rs.1 lakh with interest at the rate of 6% per annum, payable from the date of institution of the petition until realization.
9. Aggrieved, the claimants have appealed the Tribunal's award, seeking enhancement of the compensation to the figure claimed, that is, Rs.15 lakhs.
10. Heard Mr. Hemant Kumar, Advocate along with Mr. S.K. Ojha, learned Counsel for the claimants and Mr. Pawan Kumar Mishra, Advocate holding brief of Mr. Pranjal Mehrotra, learned Counsel for the insurers. The impugned award and the record have been perused.
11. A perusal of the impugned award shows that the Tribunal has taken note of the fact that the deceased's age, pleaded by the claimants, is 55 years and coalesces with the opinion of the autopsy Doctor. The Tribunal has then taken into consideration the evidence of Jiuti Devi in her cross-examination on 20.05.2015, where she has said that her elder son, Laxmikant is aged about 40 years. The Tribunal has accepted the age of the deceased's elder son as 40 years and, on the basis of that fact, has opined that it is impossible that a son would have been born to the deceased at the age of 15 years. It has been remarked that it appears that in order to maximize compensation, the deceased's age has been understated. It is also concluded by the Tribunal that the circumstances show that at the time of death, the deceased was aged 60 years or more. It has then been opined that going by that age, it is difficult to accept that the deceased's income can be anything more than Rs.3000/- per month. It has been concluded that bearing in mind the deceased's age, it would be just to assess his income at a figure of Rs.75/- per day. The monthly income has, therefore, been assessed at a figure of Rs. 2,250/- and the annual income a sum of Rs.27,000/-. Making allowance for a deduction of 1/3rd on personal expenditure, the Tribunal has held that the claimants' annual dependency is Rs.18,000/-. The Tribunal has also opined that the three sons being adults, the sole dependent is the widow.
12. Based on the aforesaid parameters, the Tribunal has resorted to the Second Schedule, appended to the Act framed under Section 163-A, and on the basis of that Schedule, held that the deceased being in the age bracket of 60-65 years, a multiplier of 'Five' would apply. Applying the multiplier of 'Five' to the annual dependency of Rs.18,000/-, a substantive compensation of Rs.90,000/- has been determined. In addition, Rs.5000/- has been awarded towards funeral expenses and Rs.5000/- towards loss of consortium. Thus, adding to the substantive compensation of Rs.90,000/-, a sum of Rs.10,000/- awarded under the non-pecuniary heads, a total compensation of Rs.1,00,000/- has been awarded by the Tribunal, that would carry an annual interest of 6% from the date of presentation of the claim petition.
13. Criticizing the aforesaid quantification of compensation, Mr. Hemant Kumar submits that the sum of Rs.1,00,000/- awarded for the accidental death of an adult and a productive person is too inadequate. He submits that going by the decision of the Supreme Court in Ramachandrappa v. Manager, Royal Sundaram Alliance Insurance Co. Ltd.2, some amount of guesswork is involved to assess the daily income of a casual labourer, which has to be done by resort to ground realities of wages at the relevant point of time. It is submitted that their Lordships of the Supreme Court in Ramachandrappa opined that a coolie or a casual labourer must be held to earn a wage of Rs.100 - 150/- per day or Rs.4500/- per month. It is pointed out that the accident involved in Ramachandrappa related to the year 2004 and going by the ground realities prevalent at that time, it was opined that the daily-wage earned by a casual labourer was Rs.100 - 150/- per day. Here, the accident is one that occurred in the year 2015. It is urged that the rise in price index and in daily wages cannot, therefore, be ignored. He submits that a wage of Rs. 250/- per day is a modest assessment, based on a truthful account of what the deceased was earning at the time of the fateful accident. To assess the deceased's income at Rs. 75/- per day, it is submitted by Mr. Hemant Kumar, is perverse.
14. It is also argued by the learned Counsel for the claimants that deduction on account of money spent by the deceased on himself should be fixed at 1/4th of the income instead of 1/3rd, since the family members of the deceased or the claimants were four. Learned Counsel has relied upon the decision of the Supreme Court in Sarla Verma (Smt) and others v. Delhi Transport Corporation and another3 to submit that where family members of the deceased are 4-6 in number, the deduction on account of expenditure by the deceased on himself should be 1/4th and not 1/3rd. Reliance has also been placed on the decision of the Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi and others4 and United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur and Others5 to the same end.
15. It is also argued by the learned Counsel for the claimants that the multiplier to be applied, according to the decision in Sarla Verma (supra), would be 'Eleven', going by the age of the deceased, that was in the age bracket of 51-55 years. It is emphasized that in the postmortem report, the deceased was opined to be 55 years old at the time of accident. The conclusion of the Tribunal, that the deceased was aged above 60 years, is based on pure conjecture. It is urged that the multiplier of 'Five' in any case cannot be applied.
16. It is next submitted by the learned Counsel for the claimants that the deceased being self-employed and in the age group of 50-60, is entitled to award of compensation towards future prospects to the extent of 10% of his income as held in United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur (supra). The Tribunal, in not awarding future prospects or even considering that, has committed a manifest of law. It is submitted that the award is also grossly flawed, inasmuch as the Tribunal has much underestimated the loss of consortium to the widow and not paid anything to the sons, who too would be entitled to consortium, relying on the decision in United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur. It has been held that each of the dependents would be entitled to Rs.40,000/- towards loss of consortium, that would aggregate to a figure of Rs.40,000 X 4 = Rs.1,60,000/-. Funeral expenses, again, have been assessed miserably low. The decision of their Lordships of the Supreme Court under reference lays down a figure of Rs.15,000/- towards funeral expenses, whereas Rs.5,000/- has been awarded. It is also submitted that nothing has been awarded towards loss of estate.
17. Mr. Pawan Kumar Mishra, learned Counsel for the insurers, submits that the deceased was a low earning member of the society in the twilight years of his life. It cannot be said that he was much in the productive phase of it. Three of the claimants were, in no way, dependent on the deceased, that is to say, the three adult sons. The widow alone can be classed as a dependent. It is submitted further by Mr. Mishra that loss of consortium would not be available for the adult sons, if the principles in United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur are to be understood for what they mean on the issue. The income of the deceased and the multiplier have been correctly applied by the Tribunal and the award does not merit any interference.
18. The basic parameters, on which assessment of just compensation payable to the dependents of a deceased is to be made in the case of a motor accident, have been laid down by the Supreme Court in Sarla Verma (supra). In Sarla Verma, it has been held:
"18. Basically only three facts need to be established by the claimants for assessing compensation in the case of death:
(a) age of the deceased;
(b) income of the deceased; and
(c) the number of dependants.
The issues to be determined by the Tribunal to arrive at the loss of dependency are:
(i) additions/deductions to be made for arriving at the income;
(ii) the deduction to be made towards the personal living expenses of the deceased; and
(iii) the multiplier to be applied with reference to the age of the deceased.
If these determinants are standardised, there will be uniformity and consistency in the decisions. There will be lesser need for detailed evidence. It will also be easier for the insurance companies to settle accident claims without delay.
19. To have uniformity and consistency, the Tribunals should determine compensation in cases of death, by the following well-settled steps:
Step 1 (Ascertaining the multiplicand) The income of the deceased per annum should be determined. Out of the said income a deduction should be made in regard to the amount which the deceased would have spent on himself by way of personal and living expenses. The balance, which is considered to be the contribution to the dependant family, constitutes the multiplicand.
Step 2 (Ascertaining the multiplier) Having regard to the age of the deceased and period of active career, the appropriate multiplier should be selected. This does not mean ascertaining the number of years he would have lived or worked but for the accident. Having regard to several imponderables in life and economic factors, a table of multipliers with reference to the age has been identified by this Court. The multiplier should be chosen from the said table with reference to the age of the deceased.
Step 3 (Actual calculation) The annual contribution to the family (multiplicand) when multiplied by such multiplier gives the "loss of dependency" to the family.
Thereafter, a conventional amount in the range of Rs 5000 to Rs 10,000 may be added as loss of estate. Where the deceased is survived by his widow, another conventional amount in the range of 5000 to 10,000 should be added under the head of loss of consortium. But no amount is to be awarded under the head of pain, suffering or hardship caused to the legal heirs of the deceased.
The funeral expenses, cost of transportation of the body (if incurred) and cost of any medical treatment of the deceased before death (if incurred) should also be added."
19. It must be said here that the basic principles for determining just compensation, payable to the dependents of a fatal motor accident victim, are ones lay down above, with modification over time regarding the sum relating to future prospects in case of self-employed persons and figures that are to be awarded under non-conventional heads. Further, non-conventional heads have been streamlined by their Lordships of the Supreme Court in subsequent authorities. These will be spoken of a little later in this judgment.
20. Going by the parameters for the determination of compensation, the first to be encountered is the age of the deceased. The deceased's wife has said clearly in her testimony that her husband was aged 55 years at the time of accident. This assertion by the wife of the deceased finds corroboration by opinion evidence of a medical expert, that is mentioned in the postmortem report. The Tribunal has undertaken an exercise in relative age determination between the eldest son and the father to disbelieve the evidence of the deceased's wife as well as the doctor's opinion about the deceased's age. The reasoning adopted by the Tribunal is based on some strained logic. For one, it proceeds to assume that the deceased's wife, in her testimony, has accurately described her son's age as '40 years'. It is a case, where there are no educational records of parties nor other document to shed light on the son's age or that of the deceased.
21. This Court has perused the testimony of APW-1, Smt. Jiuti Devi. Apparently, she is an illiterate woman, who has thumb marked her testimony. Therefore, the estimation of her eldest son's age at about 40 years has to be taken with a margin of error. This is particularly so as the witness's age, given in her particulars on the record of her evidence, mentions her as aged 50 years. It is, indeed, impossible to accept that the mother and the son would be just 10 years apart in age, even in a rural Indian setting. To the contrary, it is not that unlikely, given the background of parties, that a father and son could be 15, 16 or 17 years apart or a little more. The likelihood is that the eldest son was younger than 40 at the relevant time. This is particularly so, as the assertion about the deceased's age by his wife finds corroboration by the Doctor's opinion evidence. On the other hand, the statement of APW-1 about her son's age is without the basis of a document or an expert estimation to corroborate. Therefore, to disbelieve the assertion about the deceased's age by APW-1, corroborated by medical opinion, would not be correct. Even if there is some doubt of a slight difference in the deceased's age than that stated and opined, the Act being a beneficial legislation, the doubt must be resolved in favour of the claimants. In the opinion of this Court, therefore, the Tribunal has erred in holding the deceased to be aged 60 years or more. This Court finds and holds that the deceased was aged 55 years.
22. The second fundamental parameter, on which compensation is to be assessed, is the income of the deceased. The Tribunal has opined it to be Rs. 75/- per day, going more by an ipse dixit that considering the deceased's age, he would have earned no more in wage than Rs.75/- a day. The accident is one that took place in the year 2015. Regarding the principle about determining income of a casual labourer, the Supreme Court in Ramachandrappa (supra) has observed :
"13. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a coolie and was earning Rs 4500 per month at the time of the accident. This claim is reduced by the Tribunal to a sum of Rs 3000 only on the assumption that the wages of a labourer during the relevant period viz. in the year 2004, was Rs 100 per day. This assumption in our view has no basis. Before the Tribunal, though the Insurance Company was served, it did not choose to appear before the court nor did it repudiate the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning to be a sum of Rs 3000 per month. Secondly, the appellant was working as a coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant.
14. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guesswork, which may include the ground realities prevailing at the relevant point of time.
15. In the present case, the appellant was working as a coolie and in and around the date of the accident, the wage of a labourer was between Rs 100 to Rs 150 per day or Rs 4500 per month. In our view, the claim was honest and bona fide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs 4500 to Rs 3000 per month. We, therefore, accept his statement that his monthly earning was Rs 4500."
(Emphasis by Court)
23. No doubt, Ramachandrappa was a case relating to a much younger man, who was working as a coolie. Moreover, it was not a fatal accident. But, the principle about estimating the monthly income of a casual labourer in the said decision would apply. Ramachandrappa was decided relating to an accident that took place some time in the year 2004. At that time, taking into account the ground realities, the daily income of a casual labourer was accepted by their Lordships to be in the range of Rs.100-150/- per day. The accident here took place in the year 2015. This Court is in agreement with Mr. Hemant Kumar, learned Counsel for the claimants, that considering the rising price index and the corresponding increase in wages, a daily-wage of Rs.250/- per day asserted by the claimants is, in no way, unbelievable. To the contrary, reckoning the ground realities, which this Court, as a Court of Appeal on facts and law, is as competent as the Tribunal to determine, it is held that the deceased would have earned a daily-wage of Rs. 250/-, contemporaneous in time to the accident. The finding of the Tribunal, that the deceased was working at a wage of Rs. 75/- per day, is indeed perverse. The said finding is set aside and it is held that the deceased had a daily income of Rs. 250/-, which would work out to a sum of Rs.7500/- per month.
24. The third parameter, on which the substantive compensation is to be determined, is the number of dependents. This parameter comes to the fore in determining what deduction is to be allowed for the personal expenses of the deceased. It has been argued here that the deceased had a family of four, including his widow and three sons and, therefore, the deduction towards personal expenses ought to have been a fraction of one-fourth; not one-third. This submission is, again, inspired by the observations of their Lordships of the Supreme Court in Sarla Verma (supra), where it has been held :
"30. 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 [(1996) 4 SCC 362] , the general practice is to apply standardised 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 dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six.
31. 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 considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, because they will either be independent and earning, or married, or be dependent on the father.
32. 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 the family of the bachelor is large and dependent 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."
25. Here, it must be remarked that the deceased in this case, no doubt, left behind his wife and three sons, but the sons do not appear to be dependent on their father financially. This Court has noticed the testimony of APW-1, where she has said that her eldest son, Laxmikant, is employed as a labourer; Jagdish works with a private employer; whereas Ramesh works with a private employer in the City of Ballia. Two of the sons are married. This profile for three of the claimants, who are adult sons of the deceased, do not show them to be dependents. In the circumstances, this Court understands that the principle in Sarla Verma would operate to endorse a deduction of one-third and not one-fourth. This Court, therefore, is in agreement with the Tribunal's view that deduction for personal expenses of the deceased here ought to be a fraction of one-third of his total income, and not one-fourth, as urged by Mr. Hemant Kumar.
26. Once the age of the deceased has been found to be 55 years, the appropriate multiplier has to be applied according to the table in Paragraph No. 42 of the judgment of the Supreme Court in Sarla Verma. The aforesaid table for the application of multiplier, based on the age bracket of the deceased, has been approved by the Constitution Bench of their Lordships in National Insurance Co. Ltd. v. Pranay Sethi (supra). In a recent decision of the Supreme Court in United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur, following the Constitution Bench decision last mentioned, it was held:
"40. A Constitution Bench of this Court in National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680, held that the standards fixed in Sarla Verma (supra) would provide guidance for appropriate deduction towards personal and living expenses, and affirmed the conclusion in para 43.6 of Reshma Kumari (supra).
(b) Determination of Multiplier
41. With respect to the multiplier, the Court in Sarla Verma (supra), prepared a chart for fixing the applicable multiplier in accordance with the age of the deceased, after considering the judgments in General Manager, Kerala S.R.T.C., Trivandrum v. Susamma Thomas, (1994) 2 SCC 176, U.P.S.R.T.C. v. Trilok Chandra, (1996) 4 SCC 362 and New India Assurance Co. Ltd. v. Charlie, (2005) 10 SCC 720.
42. The relevant extract from the said chart i.e. Column 4 has been set out hereinbelow for ready reference:--
Age of the deceased Multiplier (Column 4) Upto 15 years
-
15 to 20 years 18 21 to 25 years 18 26 to 30 years 17 31 to 35 years 16 36 to 40 years 15 41 to 45 years 14 46 to 50 years 13 51 to 55 years 11 56 to 60 years 9 61 to 65 years 7 Above 65 years 5
43. The Court in Sarla Verma (supra) held:--
"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, 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."
(emphasis supplied)
44. In Reshma Kumari (supra), this Court affirmed Column 4 of the chart prepared inSarla Verma (supra), and held that this would provide uniformity and consistency in determining the multiplier to be applied. The Constitution Bench in Pranay Sethi (supra) affirmed the chart fixing the multiplier as expounded in Sarla Verma (supra), and held:--
"44. At this stage, we must immediately say that insofar as the aforesaid multiplicand/multiplier is concerned, it has to be accepted on the basis of income established by the legal representatives of the deceased. Future prospects are to be added to the sum on the percentage basis and "income" means actual income less than the tax paid. The multiplier has already been fixed in Sarla Verma which has been approved in Reshma Kumari with which we concur.
...
59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment."
(emphasis supplied)"
27. The deceased being 55 years of age, the case would fall in the age bracket of 51-55 years of the table in Sarla Verma, for which a multiplier of 'Eleven' is prescribed. The Tribunal has not only fixed a multiplier of 'Five' on a very different assessment of age than what has been found by this Court, but has also adopted a multiplier according to Schedule-II appended to the Act framed under Section 163-A. Going by the principles laid down in the Constitution Bench of the Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi, the appropriate multiplier to apply would be by reference to the table in Paragraph No. 42 of the decision in Sarla Verma; and not the Schedule to which the Tribunal has taken resort. The deceased being found by this Court to be aged 55 years, his case would fall in the age bracket of 51-55 years, enumerated in the table in Sarla Verma. The relevant multiplier to that age bracket is 'Eleven'. Thus, it has to be held that the multiplier applicable would be 'Eleven'; and not 'Five'.
28. Now, to assess the basic parameters of compensation, this Court finds that going by the deceased's daily income, that is to say, Rs. 250/- per day, the deceased would have a monthly income of Rs. 7,500/-. A fortiori, he would have an annual income of Rs. 90,000/-. Deducting a fraction of one-third towards the personal expenditure of the deceased, the multiplicand would work out to a figure of Rs. 60,000/-. Applying the determined multiplier of 'Eleven' to the annual dependency, the total dependency of the claimants would be a sum of 60,000 X 11 = Rs. 6,60,000/-. Thus, Rs. 6,60,000/- would be substantive dependency that the claimants would be entitled to. But, this is not where the matter rests, going by the principles of law that have been evolved over time. This Court finds that the Tribunal has not added anything towards future prospects. A reading of the Tribunal's award makes it appear that the Tribunal thought that the deceased had no future prospects. This Court is afraid that the Tribunal's approach does not accord at all with current judicial opinion. The Constitution Bench in National Insurance Co. Ltd. v. Pranay Sethi went much ahead of Sarla Verma in finding for self-employed persons, a case for future prospects, where their dependents, in the event of a fatal accident, were held entitled to add future prospects. In National Insurance Co. Ltd. v. Pranay Sethi, it was 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."
(Emphasis by Court)
29. Going by the aforesaid decisions, it is evident that the deceased, a self-employed man in the age group of 50-60 years, would entitle his dependents, that is to say, the claimants to add 10% to his income by way of future prospects.
30. Quite apart from the determination of compensation based on dependency, the Tribunal has awarded some compensation under non-pecuniary heads. Mr. Hemant Kumar has emphasized that the Tribunal has not awarded anything under the head ''loss of estate', besides the fact that the figure awarded for funeral expenses is much below than what has been laid down in National Insurance Co. Ltd. v. Pranay Sethi and followed in United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur. The award shows that nothing has been granted towards loss of estate and Rs.5000/- each have been awarded for loss of consortium and funeral expenses, aggregating a figure of Rs.10,000/-.
31. In this regard, reference may be made to the holding of the Constitution Bench of the Supreme Court in National Insurance Co. Ltd. v. Pranay Sethi, where it is observed:
"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."
32. The principles regarding award of compensation under conventional heads, particularly, with regard to award of consortium, have been elaborated by the Supreme Court in Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram and others6, where, 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)
33. It needs to be emphasized that in Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram (supra), the deceased was a 24 year-old man and the claim was brought by his father, brother and sister. Their Lordships of the Supreme Court, as would appear from Paragraph No.24 of the Report in Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram, awarded compensation under the non-pecuniary head of consortium to the father and the sister of the deceased. The brother was not awarded anything under this head.
34. Elaborating further on the aspect of award of compensation under the conventional head of ''loss of consortium', it was held by the Supreme Court in United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur thus :
"54. The Court held that the conventional and traditional heads, 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, which has to be based on a reasonable foundation. It was observed that factors such as price index, fall in bank interest, escalation of rates, are aspects which have to be taken into consideration. The Court held 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 Court was of the view that the amounts to be awarded under these conventional heads should be enhanced by 10% every three years, which will bring consistency in respect of these heads.
a) Loss of Estate - Rs. 15,000 to be awarded
b) Loss of Consortium
55. Loss of Consortium, in legal parlance, was historically given a narrow meaning to be awarded only to the spouse i.e. the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. 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 for awarding compensation in various jurisdictions such as the United States of America, Australia, etc. English courts have recognised the right of a spouse to get compensation even during the period of temporary disablement.
56. In Magma General Insurance Co. Ltd. v. Nanu Ram,12 this Court interpreted "consortium" to be a compendious term, which encompasses spousal consortium, parental consortium, as well as 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.
57. 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.
58. 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 and affection, and their role in the family unit.
59. 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 permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is the compensation for loss of love and affection, care and companionship of the deceased child.
60. The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of 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.
61. Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents.
62. The amount to be awarded for loss consortium will be as per the amount fixed inPranay Sethi (supra).
63. At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses.
64. In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.
65. The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head."
(Emphasis by Court)
35. In United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur, the facts show that the claim for compensation was brought by the wife of the deceased and the three minor children of parties. It was, therefore, clearly a case where children, who were minors, lost the company, guidance, care and protection of their father. It was not a case where on facts or on principle, the question arose whether an adult for the loss of his parent to a fatal accident, would be entitled to compensation under the conventional head of parental consortium. In Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram, the deceased was, as already noted, a 24-year-old man, where compensation under the head of filial consortium was granted to the father and the sister, but not the brother. Here, of the four claimants, two are married men with children. The loss of a parent at any age is a painful event. But, going by the principles so far evolved, loss of consortium, in case of an adult losing his parent, does not seem to be approved by the law. The considerations, on which parental consortium is granted to children, have been enumerated in Magma General Insurance Co. Ltd. v. Nanu Ram alias Chuhru Ram, which are expressed as "loss of parental aid, protection, affection, society, discipline, guidance and training".
36. Loss of consortium, that includes parental consortium, unlike dependency, is not some tangible economic loss. It is an emotional loss to the next of kin of the deceased-victim of a motor accident. In case of parental loss, it causes a particular deprivation to minors and young children, about whom it is said by the Supreme Court in United India Insurance Co. Ltd. v. Satinder Kaur alias Satwinder Kaur, to borrow the words of their Lordships, "Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents".
37. To the understanding of this Court, the impact of loss of parental consortium upon the deceased's children, in the very nature of that loss, is dependent upon the children's age. The loss of parent is a disheartening and emotional event for the child at any age of his maturity, but by the nature of the principle governing award of compensation under the head of parental consortium, the deprivation, that is suffered by a child or a minor, appears to be the determinative and entitling fact. A child, who has advanced into matured adulthood, is married or otherwise in the mainstream of life, would not be entitled to compensation under that head.
38. In the view that this Court takes about the entitlement to parental consortium for children of the deceased-victim, who are adults and married or settled in life, I am fortified by the decision of the Tripura High Court in National Insurance Company Ltd. (To be represented by Senior Divisional Manager) v. Pratibha Das and Others7. In National Insurance Company Ltd. v. Pratibha Das, it has been held by S.G. Chattopadhyay, J.:
"29. With regard to payment of consortium, it was contended by the counsel of the respondent that the trial court should have granted parental consortium in this case. Counsel relied on the decision of the Supreme Court in Magma General Insurance Company Ltd. v. Nanu Ram reported in (2018) 18 SCC 130 and Apex Court's decision in United India Insurance Co. Ltd. v. Satinder Kaur reported in AIR 2020 SC 3076. In the case ofMagma General Insurance Co. Ltd. (supra) deceased was a bachelor. Father, brother and sisters filed the claim petition. The Apex Court granted 40,000/- to each of the claimant brother and sister for loss of filial consortium. In the case of United India Insurance Co. Ltd. (supra), the Apex Court granted 40,000/- to each of the children of the deceased for loss of parental consortium. Each of the children in that case were minor and the Apex Court observed that 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. In the case in hand, the sons and daughters of the deceased were all married when the deceased died in the accident. Situated thus, respondents cannot derive any benefit from the judgments cited above. The Tribunal did not commit any error in declining to grant consortium to the claimant sons and daughters of the deceased."
(Emphasis by Court)
39. In view of what this Court has concluded on the entitlement to consortium, it is held that it is the widow of the deceased, who alone is entitled to consortium (that is spousal). The three adult sons of the deceased, two of whom were married on the date of accident, would not be entitled to parental consortium.
40. Thus, the entitlement of the claimants to compensation is determined as follows:
(i) Monthly Income (of the deceased) = 7,500/-
(ii) Annual Income (of the deceased) = 7500 X 12 = 90,000/-
(iii) Annual Dependency = Annual Income - one-third deduction towards personal expenses of the deceased = 90,000 - 30,000 = 60,000/-
(iv) Total Dependency = Annual Dependency X Applied Multiplier = 60,000 X 11 = 6,60,000/-
(v) Total loss of dependency = Total Dependency + 10% of Total Dependency towards Future Prospects = 6,60,000 + 66,000 = 7,26,000/-
(vi) Claimants' entitlement towards conventional heads = Loss of Estate + Funeral Expenses + Spousal Consortium = 15,000 + 15,000 + 40,000 = 70,000/-
The total claim of compensation would therefore, work out to a figure of Rs.7,26,000 + Rs.70,000 = 7,96,000/-
Thus, the claimants are entitled to a total compensation of Rs.7,96,000/- (Rupees Seven Lakh Ninety-Six Thousand only). The said sum of compensation shall carry interest at the same rate as awarded by the Tribunal, but from the date the claim petition was instituted. Any sum of money, already paid under the award or in terms of the interim orders passed in this appeal, shall be adjusted.
41. Out of the total sum of compensation payable, the sum of Rs.40,000/- towards spousal consortium shall be set apart and paid exclusively to Smt. Jiuti Devi, claimant-appellant no.1, together with the proportionate interest accrued on the said sum. Out of the balance of the total compensation payable, Smt. Jiuti Devi, claimant-appellant no.1 shall be entitled to and receive 70% whereas the balance 30% shall be divided equally amongst claimant-appellant nos. 2, 3 and 4. The sum of compensation to be so divided between the claimant-appellants shall include the accrued interest on the sum of compensation payable. It is further provided that the entire compensation payable to the claimant-appellants, shall be paid into their respective bank accounts by the Tribunal upon realization through crossed Bank Instruments, drawn in the name of each individual claimant-appellant. The compensation to be distributed amongst the claimant-appellants, as directed, shall include the sum earlier invested under orders of the Tribunal. Any sum of money, already received by the claimant-appellants, shall be proportionately adjusted.
42. In the result, this appeal succeeds and is allowed in part. The compensation awarded by the Tribunal is modified and enhanced in terms hereinabove directed.
43. There shall be no order as to costs.
Order Date :- 13.1.2022 Anoop (J.J. Munir, J.)