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2016 DIGILAW 60 (RAJ)

Aditi Bharti v. Om Prakash Vishnoi

2016-01-11

VEERENDR SINGH SIRADHANA

body2016
ORDER : Veerendr Singh Siradhana, J. The claimant-appellant wife of the deceased has instituted the instant appeal with a prayer for enhancement of the award dated 2nd June, 2010; made in her favour by the Motor Accident Claims Tribunal, Ajmer (for short 'the Tribunal'), for the Tribunal wrongly applied the deduction to the extent of ?rd towards personal and living expenses. Further, adequate compensation has not been awarded under conventional heads: loss of consortium to the spouse, loss of love and affection (spouse), loss of care and guidance to children and funeral expenses. 2. Briefly, the skeletal material facts necessary for appreciation of the controversy involved in the present appeal seeking enhancement of the compensation are that deceased Anand Prakash Bharati was aged about 44 years, while he died in an accident, which occurred on 29th March, 2008. While he was driving his car bearing Registration Number RJ-06-CA-3455 with moderate speed, the offending truck bearing Registration Number RJ-19-1G-5387, driven in a rash and negligent manner and with excess speed, collided with the car of the deceased. On institution of the Motor Vehicle Accident Claim before the Tribunal; an award of Rs. 22,88,500/- has been made. 3. Learned counsel for the claimant-appellant, Mr. Sandeep Mathur, reiterating the pleaded facts and grounds of the appeal, asserted that the factual matrix is not in dispute and the award needs to be enhanced. Firstly, for in the family of the deceased, there are four members i.e. claimant-appellant (wife), mother of the deceased and two children; thus, where the number of dependent members in the family of the deceased are four to six; ¼th amount is to be deducted towards personal and living expenses. Secondly, having regard to the compensation under conventional heads: loss of consortium to the spouse, loss of love and affection to the parent/s, loss of care and guidance to children and funeral expenses; the amount awarded is far less than the amount ought to have been allowed in the backdrop of the law declared by the Hon'ble Supreme Court in the case of Rajesh & Ors. v. Rajbir Singh & Ors., (2013) 9 SCC 54 . In support of his submissions, he has also placed reliance on the opinion of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 . 4. Per contra; learned counsel, Mr. v. Rajbir Singh & Ors., (2013) 9 SCC 54 . In support of his submissions, he has also placed reliance on the opinion of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) & Ors. v. Delhi Transport Corporation & Anr., (2009) 6 SCC 121 . 4. Per contra; learned counsel, Mr. Rishipal Agarwal, appearing on behalf of the respondent-Corporation vehemently argued that the impugned award is perfectly legal and valid and no enhancement is called for since the two children, who are said to be dependent were major. Learned counsel would further submit that the compensation awarded under the conventional heads is perfectly legal and valid. In support of his submissions, he has placed reliance on the opinion of the Hon'ble Supreme Court in the case of Manjuri Bera (Smt.) v. Oriental Insurance Company Ltd. & Anr., (2007) 10 SCC 643 ; The Oriental Insurance Company Limited v. Athmakuri Rama Rao & Anr., M.A.C.M.A. Number 2632 of 2012; of the Andhra Pradesh High Court decided on 14th December, 2012; and in the case of Ram Puneet Singh & Ors. v. Kuldeep Agrawal & Ors., MADC 2013 (1) (Raj.) 3. 5. I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions at Bar. 6. Indisputably, in the instant case at hand, the children were dependent upon the deceased and this fact is not in dispute. The fact that the number of family members were four, is also not in dispute, as is evident from the findings recorded by the Tribunal. 7. In the case of Sarla Verma (supra), while considering the issue of deduction for personal and living expenses, the Hon'ble Supreme Court on a survey of earlier opinions held thus:- "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, the general practise is to apply standardised deductions. 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, the general practise 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 (?rd) where the number of dependent family members is 2 to 3, one-fourth (¼th) where the number of dependant family members is 4 to 6, and one-fifth (?th) where the number of dependant family members exceed six." 8. In the case of Rajesh (supra), on a survey of earlier opinions, the Hon'ble Supreme Court observed that on the basis of the report of the accident, it is the duty of the Tribunal to award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages, irrespective of the claims made in the application, if necessary, ignoring the claim made in the application for compensation. Their Lordships in order to maintain uniformity and consistency on a socioeconomic issue; as contrasted from a legal principle, revisited the practise of awarding compensation under conventional heads. Referring to the case of Santosh Devi v. National Insurance Co. Ltd., (2012) 6 SCC 421 and Sarla Verma (supra), held thus: "18. 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 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. 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. 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. 19. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head 'Funeral Expenses'. The 'Price Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/-." 9. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs. 25,000/-." 9. In the case of Manjuri Bera (supra), the Hon'ble Supreme Court with reference to the deceased, who lost his life in an accident and had no legal heir, held that though a married daughter can be covered by the expression "legal representative" appearing in Section 166 of the Act of 1988, she was not entitled to any compensation unless she was dependent on the deceased. The expression "legal representative" has not been defined either in the Act or in the West Bengal Motor Vehicles Act, 1989. The Hon'ble Supreme Court taking note of the earlier opinions specifically observed that the liability under Section 140 of the Act, 1988 does not cease because there is absence of dependency. The right to file a claim application has to be considered in the background of the right to entitlement and further held that there is distinction between "right to apply for compensation" and "entitlement of compensation", and therefore, on the principle of "no fault liability" as envisaged under Section 140 of the Act of 1988, which is distinguishable from the right of "strict liability". The claim for statutory compensation was held to constitute part of estate. The daughter, thus, was entitled for compensation under "no fault liability" in the terms of Section 140 of the Act of 1988. 10. The case referred to and relied upon was entirely in a different backdrop of the facts and has no application to the present case at hand. That apart, the right to compensation has been recognised by the Hon'ble Supreme Court in the case of Athmakuri Rama Rao & Anr. (supra), wherein the claimant, who described himself to be 38 years of age and an agriculturist, did not whisper, in his evidence while he appeared as a witness that he was a dependent upon the deceased, and therefore, the Court concluded that the claimant not being dependent upon the deceased, was not entitled to any amount for having failed to specifically plead and prove dependency, as is evident from the findings arrived at by the learned Tribunal. In the case of Ram Puneet Singh (supra), a Coordinate Bench of this Court dealt with the appeal where all the dependents of the deceased were major sons and were not dependant upon the deceased, and therefore, were not held entitled to compensation on the basis of the dependency, but the quantum was restricted only as referred to under Section 140 of the Act of 1988, applying the law declared by the Hon'ble Supreme Court in the case of Manjuri Bera (supra); which is not the case at hand. 11. The argument raised on behalf of the respondent-Corporation to the effect that the mother and children, who have been impleaded as proforma respondents to the memo of the appeal, are not entitled to any relief for they have not approached this Court by way of separate appeals; is absolutely misconceived in view of the relevant text of Section 166 of the Act of 1988, which reads thus:- "166. Application for compensation. - 1. An application for compensation arising out of an accident of the nature specified in sub-section (1) of section 165 may be made-- a. By the person who has sustained the injury; or b. By the owner of the property; or c. Where death has resulted from the accident, by all or any of the legal representatives of the deceased; or d. By any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be: Provided that where all the legal representatives of the deceased have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives who have not so joined, shall be impleaded as respondents to the application. 2. ........" 12. A bare glance of the text of Section 166, as extracted here in above, would reveal that all the legal representatives of the deceased, who have not joined in any such application for compensation, the application shall be made on behalf of or for the benefit of all the legal representatives of the deceased and the legal representatives were not joined, shall be impleaded as respondents to the application. The argument is, thus, rejected. 13. The argument is, thus, rejected. 13. On the principles enunciated by the Hon'ble Supreme Court in the case of Sarla Verma (supra), the Tribunal fell in error while deducting ? (one-third) of the income as against the standardised deduction towards personal and living expenses of the deceased in view of the number of the members of the family, which is four in the instant case at hand, and therefore, only ¼ (one-fourth) of the income ought to have been deducted on account of personal and living expenses of the deceased. 14. Accordingly, the award needs to be enhanced to that extent. Thus, the total income of the deceased, which was determined as Rs. 20,000/- deducting ¼ (one-fourth), the total amount for the purpose of compensation ought to have been determined as Rs. 15,000/-, therefore, on that basis, the award would stand enhanced accordingly (15000x12x14 = Rs. 25,20,000/- less amount already awarded). Hence, the amount already awarded i.e. Rs. 22,42,500/-, is enhanced by an amount of Rs. 2,78,000/- (Rupees : Two Lac Seventy Eight Thousand). 15. The amount of compensation award under conventional heads against the loss of consortium, which has been awarded as Rs. 10,000/- is enhanced to Rs. 1,00,000/- (Rupees : One Lac). The compensation for loss of care and guidance for children is enhanced from Rs. 40,000/- to Rs. 50,000/- (Rupees : Fifty Thousand), and funeral expenses would stand enhanced from Rs. 5,000/- to Rs. 25,000/- (Rupees : Twenty Five Thousand). 16. The impugned award stands modified to the extent as aforesaid with interest on the amount due @ 6% per annum from the date of filing of the application till its realization. 17. No costs.