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2019 DIGILAW 487 (ALL)

Somwati v. Dharmendra Kumar

2019-02-25

SALIL KUMAR RAI

body2019
JUDGMENT : Salil Kumar Rai, J. Heard Mohd. Asim, Advocate holding brief of Sri Ram Singh, the counsel for the appellants and Sri Parv Agrawal, the counsel for respondent no. 2-Insurance Company. 2. The present appeal has been filed by the claimants under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as, 'Act, 1988') praying to increase the compensation awarded by the Motor Accident Claims Tribunal, Kaushambi through its award dated 22.3.2003 passed in Motor Accident Claim Petition No. 7 of 2002. 3. Motor Accident Claim Petition No. 7 of 2002 was filed by the claimants alleging that one Ram Jiyawan died on 5/6.12.2001 in an accident caused due to the rash and negligent driving of Truck No. U.P.-78N/5378 (hereinafter referred to as, 'Offending Vehicle'). The respondent no. 1 is the owner of the offending vehicle which was insured with respondent no. 2. It was alleged in the claim petition that at the time of his death, Ram Jiyawan was earning Rs. 5,000/- per month by working as labour and from his agricultural holding and by trading in pigs. The claimants prayed for a compensation of Rs. 15,25,000/- for the death of the deceased. The claimants are the wife and the minor children of the deceased. The respondent nos. 1 and 2 filed their written statements denying the factum of accident as well as the negligence of the driver of the offending vehicle in causing the accident and also the entitlement of the claimants to compensation. The Tribunal framed Issues regarding the factum of accident, the negligence of the driver of the offending vehicle in causing the accident, the inter se liability of the defendants to pay compensation as well as the amount of compensation to which the claimants were entitled. As the present appeal has been filed by the claimants for increasing the compensation amount, therefore, I am not entering into the details of the findings of the Tribunal regarding the factum of accident, the negligence of the driver of the offending vehicle in causing the accident and the inter se liability of the defendants to pay compensation to the claimants. It is sufficient to state that in its award dated 22.3.2003, the Tribunal decided the Issues regarding the factum of accident and the negligence of the driver of the offending vehicle in favour of the claimants and held the Insurance Company liable to pay compensation. It is sufficient to state that in its award dated 22.3.2003, the Tribunal decided the Issues regarding the factum of accident and the negligence of the driver of the offending vehicle in favour of the claimants and held the Insurance Company liable to pay compensation. The Tribunal awarded a compensation of Rs. 1,57,000/- to the claimants after deducting 1/3rd as personal expenses of the deceased from the notional income of Rs. 15,000/- per annum and by applying a multiplier of 15 because at the time of accident, the deceased was 45 years old. The Tribunal awarded a compensation of Rs. 5,000/- to the claimant/appellant no. 1 for loss of consortium and an additional compensation of Rs. 2,000/- for funeral expenses. 4. Assailing the amount of compensation awarded by the Tribunal through its award dated 22.3.2003, the counsel for the appellants has argued that the compensation payable to the claimants was to be determined on the basis of minimum wages payable to an unskilled labour because the claim-petition was filed under Section 166 of the Act, 1988 and the Tribunal had erred in awarding compensation on the basis of a notional income of Rs. 15,000/- per annum according to the second schedule to Act, 1988. The counsel for the appellants has referred to Savita & Others vs. Divisional Manager, (2018) 2 TAC 376 (S.C.) and the Division Bench judgments of this Court in Shrikrishna vs. Surendra Singh & Others, (2014) 104 AllLR 87 and Mishri Lal Yadav & Another vs Oriental Insurance Company Ltd. & Others, (2018) 2 TAC 434 (All.) in support of his argument that, in any case, the notional income of the deceased could not have been treated to be less than Rs. 3,000/- per month. It was further argued by the counsel for the claimants/appellants that the Tribunal had erred in deducting 1/3rd as personal expenses of the deceased and has also awarded very meager compensation under the conventional heads. It was further argued by the claimants/appellants that while determining the multiplicand, the Tribunal has not added future prospects to the income of the deceased. It was argued that for the aforesaid reasons, the award of the Tribunal is liable to be modified by increasing the amount of compensation. 5. Rebutting the arguments of the counsel for the appellants, the counsel for respondent no. It was argued that for the aforesaid reasons, the award of the Tribunal is liable to be modified by increasing the amount of compensation. 5. Rebutting the arguments of the counsel for the appellants, the counsel for respondent no. 2-Insurance Company has argued that in view of the Division Bench judgment of this Court in First Appeal From Order No. 2006 of 2017 (Dalveer Singh vs. M/S Tiger Lili & Others) and considering the fact that the accident took place on 5/6.12.2001, the Tribunal did not commit any error in determining compensation on the basis of a notional income of Rs. 15,000/- per annum. It has been further argued by the counsel for respondent that according to the judgment of the Supreme Court in Sarla Verma (Smt) & Ors. vs Delhi Transport Corporation & Anr., (2009) 6 SCC 121 , deductions against the personal expenses of the deceased were to be made by following the unit method whereby two units were to be allotted to the adult members of the family and one unit was to be allotted to the minor members of the family. It was argued that in view of the aforesaid, the Tribunal committed no illegality in deducting 1/3rd as personal expenses of the deceased. It was further argued by the counsel for respondent no. 2-Insurance Company that in its impugned award the Tribunal had already applied a higher multiplier of 15 while determining the compensation payable to the claimants which was contrary to the judgment of the Supreme Court in Sarla Verma (supra) prescribing a multiplier of 14 in case where the deceased was 45 years old and, therefore, it was not a fit case to modify the award of the Tribunal by increasing the compensation amount. It was argued that, for the aforesaid reasons, the present appeal was liable to be dismissed. 6. I have considered by the submissions of the counsel for the parties. 7. A perusal of the different judgments of the Supreme Court and this High Court and from reasons presently stated it would be evident that the claimants/appellants are entitled to a higher compensation than what has been awarded by the Tribunal. 8. It is evident from the findings of the Tribunal that, at the time of accident, the deceased was 45 years old and the claimants/appellants are the dependents of the deceased. 8. It is evident from the findings of the Tribunal that, at the time of accident, the deceased was 45 years old and the claimants/appellants are the dependents of the deceased. Further, it is also evident from the findings of the Tribunal that the deceased owned agricultural land and also worked as a labour. The fact that the deceased owned agricultural lands (measuring 0.072 hects.) was also proved from the documentary evidence on record. The aforesaid findings of the Tribunal have not been challenged by the Insurance Company. 9. In Mishri Lal Yadav (supra), this Court, for determining compensation under the Act, 1988 fixed the income of the deceased who, at the time of accident, was employed at sweat meat shop but was not in regular employment, on the basis of minimum wages payable to an unskilled labour, i.e. Rs. 100/- per day. It appears that in First Appeal From Order No. 2006 of 2017, referred by the counsel for the Insurance Company, the Division Bench judgment of this Court in Mishri Lal Yadav (supra) was not brought to the notice of the Court. The judgment in Mishri Lal Yadav (supra) was delivered on 25.1.2018 while the judgment in First Appeal From Order No. 2006 of 2017 was delivered on 12.4.2018. In Mishri Lal Yadav (supra), the accident took place in 2002 and in the present case the accident occurred in 2001. Thus, in the light of the Division Bench judgment of this Court in Mishri Lal Yadav (supra), the notional income of the deceased for determining compensation under the Act, 1988 had to be fixed as Rs. 100/- per day, i.e., Rs. 3,000/- per month which, at the time of accident was the minimum wages payable to an unskilled labour in the State of Uttar Pradesh. Thus, the notional income of the deceased for determining the multiplicand in the present case would be Rs. 36,000/- per annum. 10. There were eight dependents - the widow and seven minor children - of the deceased, who are also appellants in the present case. The contention of the counsel for respondent no. 2 that according to the judgment of the Supreme Court in Sarla Verma (supra), the unit system had to be applied for deducting the personal expenses of the deceased cannot be accepted. In paragraph no. 30 of its judgment, the Supreme Court observed as follows: "30. The contention of the counsel for respondent no. 2 that according to the judgment of the Supreme Court in Sarla Verma (supra), the unit system had to be applied for deducting the personal expenses of the deceased cannot be accepted. In paragraph no. 30 of its judgment, the Supreme Court observed as follows: "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 practice is to apply standardized 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 (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceed six." (emphasis added) 11. Because eight family members were dependent on the deceased, therefore, 1/5th of the income of the deceased is to be deducted as his personal expenses. Thus, Rs. 600/- has to be deducted from the income of Rs. 3,000/- per month of the deceased. 12. At the time of his death, the deceased was 45 years old. According to the judgment of the Supreme Court in National Insurance Company Ltd. vs Pranay Sethi & Ors., (2017) 16 SCC 680 , 25% is to be added as future prospects in the income of the deceased. Further, according to the judgment of the Supreme Court in Sarla Verma (supra), a multiplier of 14 is to be applied while determining the compensation payable to the claimants. 13. In addition to the pecuniary damages, calculated as aforesaid, the claimants are also entitled to compensation under the conventional heads as provided by the Supreme Court in Pranay Sethi (supra) read with Magma General Insurance Company Ltd. vs. Nanu Ram, 2018 SCC OnLine (SC) 1546. 14. In Pranay Sethi (supra), the Supreme Court held that Rs. 40,000/- would be a reasonable compensation for loss of consortium. 14. In Pranay Sethi (supra), the Supreme Court held that Rs. 40,000/- would be a reasonable compensation for loss of consortium. Subsequently in Magma General (supra), the Supreme Court, after referring to Pranay Sethi (supra), held that a spouse is entitled to loss of spousal consortium in case of death of a spouse in accident and parents are entitled to loss of Filial Consortium where they have lost their minor child, or unmarried son or daughter, and children are entitled to loss of parental consortium for the death of their parents in motor vehicles accident under the Act, 1988. In Magma General (supra), the Supreme Court awarded compensation of Rs. 40,000/- for loss of Filial Consortium to each of the dependents of the deceased. From a reading of Paragraph nos. 8.7 and 9 of the judgment of the Supreme Court in Magma General (supra), it can be concluded that the compensation of Rs. 40,000/- fixed by the Supreme Court in Pranay Sethi (supra) for loss of consortium is to be awarded separately to each of those claimants who are entitled to compensation for loss of spousal consortium, Filial Consortium or parental consortium. It is also noticeable that in Magma General (supra), the Supreme Court treated loss of love and affection as a category separate from loss of consortium and awarded compensation for loss of love and affection in addition to compensation for loss of consortium. Further, the Supreme Court upheld the judgments of the High Court awarding a total of Rs. 1,00,000/- as compensation for loss of love and affection with Rs. 50,000/- to each of the two claimants. 15. Thus, the claimants are entitled to a compensation of Rs. 15,000/- for loss of estate, Rs. 15,000/- for funeral expenses, the claimant no. 1 is entitled to Rs. 40,000/- for loss of spousal consortium, the claimant/appellant nos. 2 to 8 are entitled to Rs. 40,000/- each for loss of Parental Consortium due to the death of their father. In addition to the aforesaid amount, the claimants are also entitled to Rs. 50,000/- each for loss of love and affection. 16. In view of the above, the compensation amount payable to the claimants is computed as follows: (i) Notional income of the deceased = Rs. 3,000/- per month. (ii) Deduction towards personal expenses of the deceased = Rs. 600/- per month (1/5th of his income). (iii) 25% future prospects = Rs. 50,000/- each for loss of love and affection. 16. In view of the above, the compensation amount payable to the claimants is computed as follows: (i) Notional income of the deceased = Rs. 3,000/- per month. (ii) Deduction towards personal expenses of the deceased = Rs. 600/- per month (1/5th of his income). (iii) 25% future prospects = Rs. 600/- per month (i.e. 25% of Rs. 2,400/-). (iv) The multiplicand would be (Rs.2,400 + Rs. 600 x 12) = Rs. 36,000/-. (v) Applying the multiplier of 14, the loss of future income = Rs. 36,000/- x 14 = Rs. 5,04,000/-. (vi) Loss of love and affection = Rs. 4,00,000/- (Rs.50,000/- to each of the eight claimants). (vii) Loss of spousal consortium to respondent no. 1 = Rs. 40,000/-. (viii) Loss of Parental Consortium to claimant/appellant nos. 2 to 8 = Rs. 2,80,000/- (Rs.40,000/- to each of the claimants). (ix) Loss of estate = Rs. 15,000/-. (x) Funeral expenses = Rs. 15,000/- Total compensation awarded = Rs. 12,54,000/-. 17. Thus, it is held that the claimants are entitled to a compensation of Rs. 12,54,000/- It is clarified that the amount computed as aforesaid by this Court shall carry the same interest as awarded by the Tribunal through its award dated 22.3.2003. The award dated 22.3.2003 passed by the Tribunal is modified to the aforesaid extent. 18. The compensation amount shall be apportioned among the claimants as follows: (1) Half of the amount computed above against loss of future income in addition to Rs. 40,000/- for loss of spousal consortium and Rs. 50,000/- for loss of love and affection awarded to appellant no. 1 along with the interest accruing on the said amounts shall be paid to the claimant/appellant no. 1 who is the widow of the deceased. (2) The balance amount left after the amount paid to claimant/appellant no. 1 shall be divided equally between claimant/appellant nos. 2 to 8. 19. The Tribunal had awarded a compensation of Rs. 1,57,000/- to the claimants. The balance amount/excess amount as awarded by this Court in the present appeal shall be deposited by respondent no. 2 in the Tribunal within three months from today. The amount so deposited by respondent no. 1 shall be divided equally between claimant/appellant nos. 2 to 8. 19. The Tribunal had awarded a compensation of Rs. 1,57,000/- to the claimants. The balance amount/excess amount as awarded by this Court in the present appeal shall be deposited by respondent no. 2 in the Tribunal within three months from today. The amount so deposited by respondent no. 2 under the order of this Court shall be fixed by the Motor Accident Claims Tribunal, Kaushambi in the highest interest bearing fixed deposit schemes either of the post office or of any nationalized bank. The receipts of the fixed deposits shall be handed over to the claimants/legal representatives of the deceased who shall be entitled to withdraw the maturity amount on the expiry of the period of the fixed deposits. The maturity amount shall be credited by the bank/post office in any savings account held singly by the claimants/legal representatives of the deceased. The concerned bank or post office shall not permit any loan or advance against the fixed deposits made in favour of the claimants/legal representatives of the deceased. The Tribunal, while depositing the amount in the fixed deposit schemes, shall communicate the directions issued by this Court to the concerned bank/post office. 20. With the aforesaid directions and observations, the appeal is allowed.