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2016 DIGILAW 393 (RAJ)

Manju Devi v. Indra Singh

2016-03-09

KANWALJIT SINGH AHLUWALIA

body2016
ORDER Kanwaljit Singh Ahluwalia, J. Instant miscellaneous appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988, by the legal heirs of Mahaveer Prasad Jain, in order to assail the impugned award dated 28.01.2004 rendered by the Court of Motor Accident Claims Tribunal, Tonk, whereby a sum of Rs.2,89,600/- has been awarded to the claimant-appellants. 2. In the claim petition, it was pleaded that on 05.05.2002 Mahaveer Prasad Jain was going-on his scooter at a very slow speed at Jaipur Road, meanwhile a bus bearing registration No.RJ-01-P-0220 driven by respondent No.1 - Indra Singh came in a rash and negligent manner and hit scooter of Mahaveer Prasad Jain, as a result thereof, Mahaveer Prasad Jain sustained injuries and died. 3. Mr. Sandeep Mathur, learned counsel appearing for the claimant-appellants, has submitted that Mahaveer Prasad Jain was forty-five years old and was earning Rs.5000/- per month. 4. In the claim petition filed by the legal heirs, ld. tribunal, in all, awarded Rs.2,89,600/- as compensation to the family of the deceased. 5. Aggrieved against the same, the present appeal has been preferred by the claimants for enhancement of the compensation. 6. The finding returned by ld. tribunal that the alleged accident had taken place due to rash and negligent driving of the respondent No.1 - Indra Singh has not been assailed by the Insurance Company before this Court. 7. On behalf of the claimants, learned counsel has contended that ld. tribunal having assessed the income of the deceased as Rs.2000/- per month, has gravely erred in not awarding future prospects. 8. Counsel appearing for the claimant-appellants has submitted that in the case of Rajesh and others v. Rajbir Singh and Others, reported in A.I.R. 2003 S.C. 674, three-judge Bench of the Supreme Court held that in case, deceased is less than forty-years of age and is self-employed with fixed wages, there must be an addition of 30% to the actual income of the deceased while computing future prospects. 9. 9. It will be apposite to note here Para 11 of the judgment rendered in the case of Rajesh & Others (supra) :- "Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sarla Verma's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increase in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years." 10. The above view of the Supreme Court has been recently followed by another three-judge Bench in the case of Munna Lal Jain and another v. Vipin Kumar Sharma and others, reported in MACD 2015 (SC) 139. 11. Following dictum of the ratio of law laid down in Rajesh and others (Supra) and Munna Lal Jain and another (supra), this Court is of the view that 30% of the actual income determined by the ld. tribunal is required to be added under the heading of "future prospects". 12. Since the deceased was forty-five years old, thirty percent of actual income of the deceased are computed and awarded as future prospects. Hence, ld. tribunal ought to have assessed the income of the deceased as Rs.2400/- per month. 13. The claim petition was filed by the widow, parents of the deceased and major daughter and son. 14. Since the children were major and the father cannot be termed as dependent, only widow and mother were dependent upon the deceased. Hence, the ld. tribunal has rightly deducted ?rd as "Personal Living Expenses" of the deceased. However, ld. tribunal has awarded "consortium" on the lower side to the wife and has also awarded meager amount to the children towards loss of care, affection & guidance by the father. The ld. tribunal has also not awarded any amount to the mother towards "loss of care and affection by the son". 15. However, ld. tribunal has awarded "consortium" on the lower side to the wife and has also awarded meager amount to the children towards loss of care, affection & guidance by the father. The ld. tribunal has also not awarded any amount to the mother towards "loss of care and affection by the son". 15. 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. The loss of companionship, love, care and protection etc., as per ratio of law laid down in the case of Rajesh and Others v. Rajbir Singh and Others, reported in (2013) 9 S.C.C. 54 is required to be enhanced. 16. In the case of Rajesh and Others (supra) in Para 20, Supreme Court has observed 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 socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practise 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." 17. Taking into account the observations made by Supreme Court regarding "loss of consortium", this Court is of the view that since occurrence had taken place in year, 2002, consortium of Rs.50,000/- can be awarded in favour of claimant-appellants. However, funeral expenses are also required to be raised from Rs.5000/- to Rs.15,000/-. 18. As a result of above discussions, the compensation to be awarded to the claimant-appellants by ld. tribunal is required to be reassessed as under :- SI. No. Heads Calculation (i) Income Rs. 2000/- per month (ii) 30% of (i) above to be added as future prospects ( Rs. 2000/- + Rs. 600/- = Rs. 2600/- per month (iii) ⅓rd of (ii) deducted as personal expenses of the deceased ( Rs. 2600/- - Rs. 866/- = Rs. 1734/- per month (iv) Compensation after multiplier of 13 is applied (Rs. 1734/- x 12 x 13= Rs. 2,70,504/- (v) Loss of consortium Rs. 50,000/- (vi) Loss of care, affection & guidance of father to each children Rs. 30,000/- x 2 = Rs. 60,000/- (vii) Loss to mother of care & affection of son Rs. 30,000/- (viii) Funeral expenses Rs. 15,000/- Total compensation awarded Rs. 4,25,504/- 19. Thus, the amount awarded by ld tribunal is enhanced to Rs. 4,25,504/- in above terms. The said amount will carry interest @ 6% per annum from the date of filing of the petition till realization. 20. The mother of the deceased will be entitled to Rs. 30,000/- (viii) Funeral expenses Rs. 15,000/- Total compensation awarded Rs. 4,25,504/- 19. Thus, the amount awarded by ld tribunal is enhanced to Rs. 4,25,504/- in above terms. The said amount will carry interest @ 6% per annum from the date of filing of the petition till realization. 20. The mother of the deceased will be entitled to Rs. 30,000/- towards loss of care and affection of the son and the children of deceased will also be entitled to Rs.30,000/- each under the heading of loss of care, affection & guidance of the father, remaining amount shall be paid to the widow. 21. It is, hereby, ordered that the enhanced amount, as per share of each claimant in above terms shall be kept in the Monthly Income Scheme in the post office initially for a lock-in period of three-years and the interest accrued upon the deposit shall be paid to the widow of deceased, mother and two major children, on monthly basis. 22. The ld. tribunal in the best interest of the claimants, shall keep the amount in the Monthly Income Scheme with the Indian Post Office and shall open separate accounts in the name of each claimant. 23. However, a further direction is, hereby, issued to the Secretary, District Legal Services Authority, Tonk to acquaint the claimants regarding the amount, which has accrued to them by way of enhancement and the fact that the amount shall be kept in Monthly Income Scheme in the Indian Post Office for the benefit of the claimants. 24. The above direction regarding deposit in Monthly Income Scheme with Indian Post Office has been issued as it has been brought to the notice of this Court, that go-between or relations fritter away with amount awarded as compensation, on the ground that money has been spent towards litigation expenses. 25. With the above modification in the award passed by Motor Accident Claims Tribunal, Tonk, present appeal stands disposed of.