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Rajasthan High Court · body

2019 DIGILAW 2470 (RAJ)

Pratap v. Raju

2019-09-13

SANDEEP MEHTA

body2019
JUDGMENT Sandeep Mehta, J. - The instant appeal has been preferred by the appellant claimants herein being aggrieved of the judgment-cum-award dated 01.12.2006 passed by the Motor Accident Claims Tribunal, Nathdwara in MAC Case No.130/2005, whereby the claim petition filed by the claimants seeking damages pursuant to the death of Smt. Sayari, wife of the appellant-claimant No.1 and mother of the appellant claimant No.2 in a road accident was partly accepted and they were awarded a total sum of Rs.1,43,000/- as damages. The appeal has been preferred seeking enhancement in the quantum of damages awarded to the appellants. 2. While deciding the claim case, the Tribunal held the owner of the offending vehicle, namely, Nandlal and the insurance company, i.e. the New India Assurance Company Limited, jointly and severally responsible to satisfy the award. Since the findings of the Tribunal regarding the entitlement of the claimants to damages and regarding the liability of the insurance company and the owner of the truck to bear the damages jointly and severally have not been challenged, the same have attained finality. 3. The appellants have sought enhancement in the damages on numerous counts. However, during the course of arguments, Mr. Rishabh Shrimali, learned counsel representing the appellants, urged that the deceased was a 47 years old lady. The claimants gave evidence establishing the fact that she was earning a sum of Rs.4000/- per month by rearing cattle and selling milk as well as by doing labour job. The Tribunal wrongly omitted to award any compensation to the claimants towards general damages, rise in income by future prospects as well loss of consortium. Mr. Shrimali relied upon the Hon'ble Supreme Court decision in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram & Ors.,2018 4 MACD(SC) 273 and urged that the Tribunal was under an obligation to award compensation to both the claimants under the head of loss of consortium as well. 4. Mr. Sanjeev Johari, learned counsel appearing for the respondents, vehemently and fervently opposed the submissions advanced by the appellants' counsel. He submitted that the claimants did not lead plausible evidence to establish the income of the deceased. He did not dispute the age of the deceased, which as per the ration card (Ex.A/2) was 47 years. However, as per Mr. Mr. Sanjeev Johari, learned counsel appearing for the respondents, vehemently and fervently opposed the submissions advanced by the appellants' counsel. He submitted that the claimants did not lead plausible evidence to establish the income of the deceased. He did not dispute the age of the deceased, which as per the ration card (Ex.A/2) was 47 years. However, as per Mr. Johari, since in the five Judges Bench decision in the case of [ National Insurance Company Limited vs. Pranay Sethi & Ors., (2017) 16 SCC 680 ], no criterion has been approved regarding the award of compensation under the head of loss of consortium, the appellant cannot claim any enhancement on that count. 5. I have given my thoughtful consideration to the arguments advanced at bar and gone through the material available on record. 6. The evidence of the appellant-claimant Pratap examined as A.W.1 and the averments made in the pleading of the claim petition regarding the income of the deceased are contrary to each other. Whilst in the claim petition, the claimants mentioned that the deceased used to do the job of rearing cattle and selling milk etc. and that she also used to do labour jobs, whereby she used to earn Rs.2000/- per month under each head. On the contrary, upon being examined as A.W.1, the claimant Pratap alleged that his wife used to do the job of selling milk, by which she used to earn Rs.5000/- per month. However, in his evidence, there is no assertion regarding the deceased being indulged in labour job as well. No other evidence was led to prove the income of the deceased. Thus, I have no hesitation in holding that the income of the deceased has to be fixed at Rs.2000/- per month. 7. The contention advanced by Mr. Shrimali that both the appellants would be entitled for damages under the head of loss of consortium is justifiable. In the case of Pranay Sethi (supra), Hon'ble Apex Court approved damages under the head of loss of consortium quantified at Rs.40,000/-. This aspect was further explained by two Judges Bench of Hon'ble Supreme Court in the case of Magma General Insurance Co. In the case of Pranay Sethi (supra), Hon'ble Apex Court approved damages under the head of loss of consortium quantified at Rs.40,000/-. This aspect was further explained by two Judges Bench of Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. (supra), wherein the court held as below :- "8.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra). The Motor Vehicles Act is a beneficial and welfare legislation. The Court is dutybound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the Claimant. In exercise of our power Under Article 142 and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2. 8.7 A Constitution Bench of this Court in Pranay Sethi (supra) 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 & Ors. Vs. Rajbir Singh & Ors., (2013) 9 SCC 54 ] 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, co-operation, affection, and aid of the other in every conjugal relation." [Black's Law Dictionary (5th ed. 1979] 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." 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. 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. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. 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 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. 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 @ Jagmal Singh & Ors. Vs. Sohi Ram & Ors., (2017) 4 RajLW 3368 (Raj.) ; Uttarakhand High Court in Smt. Rita Rana & Anr. vs. Pradeep Kumar & 6 Ors., (2014) 3 UC 1687 ; Karnataka High Court in Lakshman & Ors. Vs. Susheela Chand Choudhary & Ors., (1996) 3 KarLJ 570 (DB)] . However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium. 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 in Pranay Sethi (supra). 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." 8. 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 in Pranay Sethi (supra). 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." 8. The Hon'ble Supreme court expounded the criterion of spousal consortium, which would be awardable to spouse after death of husband/wife, as the case may be, filial consortium, which would be awardable to parents of the deceased and parental consortium, which would be awardable to the children, who lose their parents in a motor vehicle accident. As the decision in the case of Magma General Insurance Co. Ltd. (supra) was arrived at after considering the judgment in the case of Pranay Sethi (supra), manifestly, the ratio thereof is binding on this court. 9. The appellant No.1 is the husband of the deceased and the appellant No.2 is the daughter of the deceased. Thus, both deserve to be awarded a sum of Rs.40,000/- each towards loss of spousal consortium and parental consortium respectively applying the ratio of the aforementioned judgments. 10. Now coming to the remaining heads of damages awardable to the appellant-claimants. Admittedly, the deceased Smt. Sayari was 47 years of age on the date of the incident. This court has assessed her income to be Rs.2000/- per month. The Tribunal has rightly applied the multiplier of 13 while calculating the loss of income caused to the claimants, but it did not account for future prospects, which would have to be added to the extent of 25%. Out of this amount, one-third has to be deducted towards personal expenditures and needs. The Tribunal has awarded an amount of Rs.13,000/- to the claimants towards general damages, viz. loss of love and affection, funeral expenses and transportation expenses. 11. Viewed in light of the principles enunciated in the case of Pranay Sethi (supra) and Magma General Insurance Co. Ltd. (supra), the quantum of damages awarded to the claimants deserve to be suitably enhanced. The Tribunal has awarded an amount of Rs.13,000/- to the claimants towards general damages, viz. loss of love and affection, funeral expenses and transportation expenses. 11. Viewed in light of the principles enunciated in the case of Pranay Sethi (supra) and Magma General Insurance Co. Ltd. (supra), the quantum of damages awarded to the claimants deserve to be suitably enhanced. Accordingly, the claimants are entitled to enhancement in the claim amount in the following terms :- TOTAL Annual income of the deceased Rs.2000/- X 12 = Rs.24,000/- per annum Rs.24,000 /- 25% Enhancement of annual income by future prospects Rs.6000/- Rs.30000/- 1/3 Deduction from enhanced income towards personal expenditure and needs Rs.10000/- Rs.20000/- (Rs.30000 - Rs.10000) Multiplier to be applied to net income @ 13 Rs.20000 x 13 Rs.2,60,000/- General damages, viz. (i) Loss of estate (ii) Funeral expenses (iii) Loss of spousal consortium to the appellant No.1 (iv) Loss of parental consortium to the appellant No.2 (i) Rs.15,000/- (ii) Rs.15,000/- (iii) Rs.40,000/- (iv) Rs.40,000/- Rs.1,10,000/- Total compensation awardable Rs.3,70,000/- Amount awarded by Tribunal Rs.1,43,000/- Enhanced Amount of damages Rs.2,27,000/- 12. The enhanced amount of compensation shall carry interest at the rate of 7.5% per annum from the date of filing of the claim till the date of reimbursement. The insurance company shall deposit the above amount with the Tribunal within two months from today, failing which, the interest shall stand increased to 9.1% per annum from the date of this order till the date of actual payment. 13. The record be returned to the Tribunal forthwith.