Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 203 (ALL)

Dinesh Chandra Tiwari v. Niramal Tiraki

2019-01-24

SARAL SRIVASTAVA

body2019
JUDGMENT : 1. Heard Sri Sudhanshu Kumar & Sri Man Mohan Misra, learned counsel for the appellants and Sri Pramod Kumar Singh, learned counsel for the respondents. 2. The appellant being dissatisfied with the quantification of compensation awarded by the Tribunal has preferred the present appeal for enhancement of compensation. 3. A claim petition was instituted by the appellants for the death of their son Anand Kumar Tiwari in an accident on 28.05.2003 by army bus no.85P/5046 N. According to the claimants appellants the deceased had completed Bachelor of Arts and was also running PCO shop and merchant shop and was earning Rs.5000/- per month. The appellants in the aforesaid backdrop, prayed for compensation of Rs.2,10,000/-. 4. The Tribunal while assessing the compensation has held the income of the deceased to be Rs.15,000/- per month on the basis of notional income as provided in second schedule of under Section 163(A) of the Motor Vehicles Act. The Tribunal thereafter deducted 2/3rd from the said amount towards personal expenses of the deceased and applied multiplier of 13 and awarded Rs.65,000/-. 5. Besides above, the Tribunal awarded Rs.2000/- towards funeral expenses and Rs.2500/- towards loss of estate. Thus, the Tribunal awarded Rs.69,500/- alongwith 6% interest as compensation to the claimants respondents. 6. Challenging the finding on the issue of quantification of compensation, Sri Sudhanshu Kumar, learned counsel for the appellants has contended that the deceased had completed Bachelor of Arts and was also engaged in running PCO and general merchant shop and the nature of job in which the deceased engaged was duly proved by the appellants. The respondents did not lead any evidence to rebut the fact as regard the work of the deceased at the time of accident and hence, even if there was no evidence on record to establish the income of the deceased to be Rs.5000/-, the Tribunal should have taken at least Rs.3000/- per month as income of the deceased for the purpose of computing the compensation in view of the judgment of the Apex Court in Laxmi Devi and others Vs Mohammad Tabbar and another 2008 AICC 915 (SC) wherein the Apex Court has held Rs.3000/- to be notional income in case of death of a person who died in an accident in the year 2004. He further submits that though the wife of the deceased had married and is not entitled to any compensation, the appellants are parents and dependents of the deceased, therefore, in view of the judgment of the Apex Court in Sarla Verma and others Vs. Delhi Transport Corporation and others 2009 (6) SCC 121 , the Tribunal should have deducted half towards personal expenses of the deceased instead of 2/3rd. He further submits that the age of the deceased was 22 years and, therefore, in view of the judgment of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others 2017 (16) SCC 680 , the claimants are entitled to 40% towards future prospect. 7. The further submission of the learned counsel for the appellants is that the Tribunal has erred in applying the multiplier of 13 instead of 18 as the age of the deceased was 22 years. Lastly, he contends that the award of Rs.2000/- and Rs.2500/- towards funeral expenses and loss of estate is inadequate and the claimants are entitled to Rs.15,000/- each under the aforesaid heads. he next submitted that the appellants being parents are also entitled for consortium in view of the judgment of the Apex Court in Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram and others 2018(4) T.A.C. 345 (S.C.). 8. Sri Pramod Kumar, learned counsel for the respondent no.3 has contended that in the instant case, the compensations awarded by the Tribunal is just and proper and does not call for any interference by this Court. 9. I have considered the rival submission of the parties and perused the record. 10. In the instant case, the appellants have proved that the deceased was running PCO and merchant shop, though, there was no proof of income of the deceased but in the opinion of the Court, the assessment of compensation by the Tribunal treating the income of the deceased to be Rs.15,000/- per month is on lower side in view of the judgment of the Apex Court in Laxmi Devi (supra) wherein the Apex Court has held Rs.3000/- to be the notional income in case of death of a person in an accident in the year 2004. 11. 11. Thus, following the judgment of the Apex Court in Laxmi Devi (supra), this Court holds that the income of the deceased should be taken to be Rs.3000/- i.e. Rs.36000/- per annum for the purpose of computing the compensation. 12. The submission of the learned counsel for the appellants as regards the wrong deduction towards personal expenses of the deceased has also substance in view of the judgment of the Apex Court in Sarla Verma (supra). As in the instant case, the claimants/appellants are parents of the deceased and, therefore, this Court holds that the compensation should be computed by deducting half towards personal expenses of the deceased instead of 2/3rd. 13. Submission of the learned counsel for the appellants as regards the future prospect has also substance in view of the judgment of the Apex Court in Pranay Sethi (supra) and accordingly, considering the age of the deceased, this Court awards 40% towards future prospect on the income of the deceased. 14. It is settled in law that the multiplier corresponding to the age of deceased is to be applied for computing the compensation. Thus, in the opinion of the Court, the Tribunal has erred in applying multiplier of 13 corresponding to the age of the claimants/appellants instead of 18 corresponding to the age of the deceased in computing the compensation. Accordingly, it is provided that the compensation should be computed by applying multiplier of 18 instead of 13. 15. Submission of the learned counsel for the appellants regarding inadequate amount of compensation awarded by the Tribunal funeral expenses, loss of estate has also substance in view of the judgment of the Apex Court in Pranay Sethi (supra) and accordingly, it is provided that the claimants are entitled to Rs.15,000/- towards funeral expenses in place of Rs.2000/- and Rs.15000/- towards loss of estate in place of Rs.2500/- as has been awarded by the Tribunal. 16. Submission of the learned counsel for the appellants as regards loss of consortium has substance in view of the judgment of the Apex Court in Magma General Insurance Co. Ltd. (supra) wherein the Apex Court has held that filial consortium is the right of the parents to compensation in the case of accidental death of a child. 16. Submission of the learned counsel for the appellants as regards loss of consortium has substance in view of the judgment of the Apex Court in Magma General Insurance Co. Ltd. (supra) wherein the Apex Court has held that filial consortium is the right of the parents to compensation in the case of accidental death of a child. Relevant portion of paragraph 8.7 of the judgment of Apex Court in Nanu Ram alias Chuhru Ram (supra) is quoted herein below:- “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. he 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. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions worldover 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 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.” 17. Thus, following the judgment of the Apex Court, this Court awards Rs.40,000/- each to appellant nos.1 and 2 in respect of loss of filial consortium. 18. For the reasons given above, the appeal is allowed and the order of the Tribunal is modified to the extent indicated above. 19. The respondent no.3 is directed to pay the enhanced amount of compensation within a period of three months from today.