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2013 DIGILAW 391 (GUJ)

New Indian Assurance Company Limited, Rajkot v. Umashankar Mannalal Jayswal

2013-07-08

JAYANT PATEL, Z.K.SAIYED

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JUDGMENT : JAYANT PATEL, J. 1. As both the appeals arise from the common judgment and award of the Tribunal, they are being considered simultaneously. Both the appeals are directed against the judgment and award passed by the Tribunal in MACP No.890/02 and 910/02, whereby the Tribunal has awarded the compensation of Rs.18,17,000 and Rs.6,45,800 respectively with interest at the rate of 9% p.a. The short facts of the case are that on 20th December, 2002, at about 23.45 hours at Faizabad Allahabad road, deceased Umashankar Munnalal Jayswal and deceased Shrinarayan Mevalal Jayswal were going in Commander Jeep bearing No.UP-42-B-2711 and they were proceeding from Faizabad (UP) to Rajkot. When the aforesaid jeep reached nearby 1.5 kms. away towards Faizabad on Faizabad Allahabad road, at that time, one truck bearing No. UP-3C-5033 dashed with the aforesaid jeep. Such resulted into serious accident and both the deceased sustained serious injuries and ultimately, they succumbed to the injuries. Such incident gave rise to two claim petitions being MACP No. 890/02 preferred by the legal heirs of deceased Umashanker Munnalal Jayswal, MACP No. 910/02 preferred by the legal heirs of deceased Shrinarayan Mevalal Jayswal, for the compensation of Rs.30 lakhs and Rs.5 lakhs respectively. The Tribunal at the conclusion of the aforesaid claim petitions, passed the above referred judgment and award in the respective claim petitions. Under the circumstances, both the appeals before this Court. We have heard Mr. Vibhuti Nanavati, learned counsel for the appellant. The respondents are served, but none appears on their behalf. We have considered the Record and Proceeding. We have considered the Judgment and Award of the Tribunal. The learned counsel appearing for the appellant raised the first contention that the Tribunal has not correctly applied the multiplier. In the submission of the learned counsel for the appellant, if the decision of the Apex Court in the case of Sarla Verma v. Delhi Transport Corporation, (2009) 6 S.C.C. 121 : 2009 (2) T.A.C. 677, is taken into consideration, the age of the deceased was 35 years and therefore, the correct multiplier would be 16. As against the same, the Tribunal has considered the multiplier of 17 in MACP No. 890/02. Whereas in MACP No.910/02, the age of the deceased was 38 years and as per the decision of the Apex Court in the case of Sarla Verma (supra), the correct multiplier would be 15. As against the same, the Tribunal has considered the multiplier of 17 in MACP No. 890/02. Whereas in MACP No.910/02, the age of the deceased was 38 years and as per the decision of the Apex Court in the case of Sarla Verma (supra), the correct multiplier would be 15. As against the same, the Tribunal has awarded multiplier of 16. It was therefore submitted that the Tribunal has committed error in awarding compensation. 2. The examination of the aforesaid contention shows that the discussion in this regard in MACP No. 890/02 is available at para 9 of the judgment of the Tribunal. Wife of the deceased Shakuntalaben in her oral testimony has stated that her husband was 31 years old at the time when the incident happened. Whereas, as per the income tax return produced, age was mentioned as 35 years. Taking into consideration the said aspect, the learned Judge considered that the deceased was aged 31 years. The learned counsel appearing for the appellant is right in his submission that as per the decision of the Apex Court in the case of Sarla Verma (supra), for the age group of person from 31 to 35 years, available multiplier was 16. As against the same, the Tribunal has applied the multiplier of 17. Under these circumstances, it can be said that the Tribunal has committed error in applying the multiplier or rather has given one multiplier more as against the aforesaid settled legal position. 7. Same is the position in respect of MACP No.910/02 inasmuch as the deceased was aged 38 years and as per the above referred decision of the Apex Court in the case of Sarla Verma (supra), the available multiplier was 15. As against the same, the Tribunal has awarded multiplier of 16 and therefore, the error can be said as committed to that extent in awarding one multiplier more in comparison to the available multiplier. 3. The learned counsel appearing for the appellant next contended that the Tribunal has committed error in awarding Rs.1,25,000 towards conventional amount in MACP No.890/02 which is excessive amount awarded by the Tribunal. It was also submitted that even in MACP No.910/02, the Tribunal has also awarded Rs.1,25,000 as conventional amount which is much on the higher side and therefore, this Court may consider in appeal. 4. It was also submitted that even in MACP No.910/02, the Tribunal has also awarded Rs.1,25,000 as conventional amount which is much on the higher side and therefore, this Court may consider in appeal. 4. The examination of the aforesaid contention raised on behalf of the appellant needs to be considered in light of the recent decision of the Apex Court in the case of Rajesh v. Rajbir Singh, reported in 2013(6) SCALE 563 . The Apex Court in the above referred decision had an occasion to consider the aspect of compensation under the head of conventional amount in a case where the spouse husband had expired. It was observed by the Apex Court at para 20, as under: "20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socioeconomic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2,500/to Rs.10,000/in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), it was held that compensation for loss of consortium should be in the range of Rs.5,000/- to Rs.10,000/-. In legal parlance, 'consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That 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. 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 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."The aforesaid shows that as per the view taken by the Apex Court, at least Rs.1 lakh for the loss of consortium deserves to be awarded. As against the same, if we consider the judgment of the Tribunal, it appears that in MACP No. 890/02, the Tribunal has awarded Rs.50000 under the head of loss of consortium and has further awarded Rs.1,25,000 under the head of conventional amount, total Rs.1,75,000. Considering the facts and circumstances, in view of the above referred decision of the Apex Court, we find that the Tribunal has committed error in awarding two separate amount, one under the head of consortium and another under the head of conventional amount. As against the same, it would be just and proper to award the amount of Rs.1,00,000 under the head of consortium or loss of consortium." In the same manner, in another MACP No. 910/02, the Tribunal has awarded Rs.50,000 for consortium plus Rs.1,25,000 towards conventional amount which in view of the reasons recorded by us herein above, can be said as error and at the most, the Tribunal could award the amount of Rs.1,00,000 towards loss of consortium and awarding of amount separately towards loss of consortium and conventional amount was not proper. Considering the facts and circumstances, we find that the original claimants would be entitled to the amount of Rs.1,00,000 towards loss of consortium only. 12. Considering the facts and circumstances, we find that the original claimants would be entitled to the amount of Rs.1,00,000 towards loss of consortium only. 12. In view of the aforesaid observations and discussions, in MACP No.890/02, the amount of one multiplier of Rs.96,000 plus the amount of Rs.75,000 under the head of consortium and conventional amount has been wrongly awarded by the Tribunal as compensation. Therefore, the compensation awarded by the Tribunal to the respective claimants deserves to be reduced by Rs.1,71,000. Accordingly, the original claimants shall be entitled to the compensation of Rs.16,46,000 plus interest as awarded by the Tribunal. 5. In MACP No. 910/02, the amount of one multiplier being Rs.28,800 plus the amount of Rs.75,000 towards loss of consortium and conventional amount has been wrongly awarded by the Tribunal and therefore, the said amount deserves to be reduced to Rs.1,03,800. Consequently, the original claimants would be entitled to Rs.5,42,000 plus interest as awarded by the Tribunal. 14. In view of the aforesaid observations and discussions, the impugned judgment & award passed by the Tribunal in MACP No.890/02 for awarding compensation exceeding the amount of Rs.16,46,000 with the interest at the rate of 9% p.a. is quashed and set aside. It is observed and held that the original claimants of MACP No.890/02 shall be entitled to the compensation of Rs.16,46,000 with interest at the rate of 9% p.a. Similarly, in the case of MACP No. 910/02, the judgment and award of the Tribunal granting compensation exceeding Rs.5,42,000 shall stand quashed and set aside. It is observed and held that the original claimant shall be entitled to the compensation of Rs.5,42,000 with interest at the rate of 9% p.a. 15. Both the appeals are partly allowed to the aforesaid extent. Considering the facts and circumstances, no order as to costs. It is observed that the Tribunal by way of implementation of the judgment of this Court, shall appropriately refund the amount in the event the amount is fully deposited, within the period of three months from the receipt of the order of this Court. Appeals partly allowed.