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2019 DIGILAW 656 (HP)

HDFC ERGO General Insurance Company Ltd v. Kaushalya Saini

2019-05-30

SURESHWAR THAKUR

body2019
JUDGMENT : SURESHWAR THAKUR, J. 1. The insurer of the offending vehicle, and, also the claimants, respectively through FAO No. 161 of 2019, and, though FAO No. 225 of 2016, hence, direct an onslaught, vis-a-vis, the award rendered by the learned Motor Accident Claims Tribunal-1, Solan, H.P., upon, MAC Petition No. 34-S/2 of 2013/11, whereunder, compensation amount, borne in a sum of Rs. 8 lakhs, stood awarded, vis-a-vis, the claimants/parents of deceased Master Mithlesh Saini, aged eight years, at the time of relevant mishap, and, thereon stood levied interest, at, the rate of 7% per annum, and, was ordered to commence from the date of petition, and, till realization, of, the afore compensation amount. The apposite indemnificatory liability thereof, stood fastened, upon, insurer of the offending vehicle. 2. The learned counsel appearing, for, the insurer of the offending vehicle, does not, contest the validity of findings, rendered, upon issue No.1, appertaining to the relevant mishap, hence, sequelling the demise, of, afore Master Mithlesh Saini, rather arising from, the rash and negligent manner of driving, of, the offending vehicle by its driver, one Subhash Chand, nor he contests the validity of the findings, rendered upon issue No.4. 3. However, the learned counsel for the insurer, has contended, with much vigour before this Court, that, the learned tribunal (i) in gauging the monetary contribution of deceased Master Mithlesh Saini, aged 8 years, at the relevant time, conspicuously, vis-a-vis, his estate, in a consolidated sum of Rs.8,00,000/-, has, wandered astray from, the verdict rendered by the Hon'ble Apex Court, in a case titled, as Kishan Gopal and another vs. Lata and others, (2014) 1 SCC 244 . Contrarily, the learned counsel appearing for the aggrieved claimants, in FAO No. 225 of 2016, has, contended with vigour (ii) that the expostulation of law, borne in the afore judgment, rather warranting apart, from, a strict deference thereto, also meteings, of, deference, vis-a-vis, the, further postulation borne therein, qua, the currency (ies), since, the date of occurrence, inasmuch as on 25.8.2010, uptonow, rather begetting devaluation(s) hence, warranting, levying thereon, of interest @ 9% interest per annum, (iii) rather, there through, concomitantly, hence, an espousal, is, made before this Court, qua hence, the surviving parents of the deceased, being entitled, to, compensation in a sum higher than, the, sums as assessed, in the impugned award. 4. 4. Be that as it may, obviously this Court, is, for answering the afore contra espousals, made before this Court, by the learned counsel, appearing for the contesting litigants, hence, enjoined, to, delve deep into the afore referred verdict(s), rendered by the Hon'ble Apex Court, and, thereafter cull therefrom, the expostulation of law, borne therein, and, thereafter accept or reject, the, afore contentions addressed before this Court, by the learned counsel, respectively appearing for the contesting litigants. In the afore endeavour, the, significant date of the ill-fated mishap qua wherewith, a, pronouncement, is, made by the Hon'ble Apex Court, in Kishan Gopal's case (supra), is, 19.7.1992, and, reiteratedly the afore date, is, of utmost significance, (i) and, visibly, the, afore judgment, the Hon'ble Apex Court, also, vindicated the contemplations, borne in Lata Wadhwa vs. State of Bihar, (2001) 8 SCC 197 , verdict whereof stood rendered, vis-a-vis, an occurrence which happened in the year 1989, and, wherein, vis-a-vis, occurrence, of, demise of a child, in, a motor vehicle accident, and, his/her being thereat, rather aged 5 to 10 years, (ii) and, evidently, when, in the afore group(s), rather the deceased child of the hereat claimants ex-facie fell, hence, computed, a consolidated compensation amount borne in a sum of Rs.1.5 lakhs, and, thereto added, a, conventional figure of Rs.50,000/-, adding(s) whereof hence totalled Rs.2 lacs. As afore stated, the afore expostulation of law, vis-a-vis, the defrayable compensation amount, upon, occurrence, of, demise of a child in a motor vehicle accident, and, his/her thereat, hence, visibly falling within the afore age group, in group whereof, evidently, the deceased Master Mithlesh Saini, hence, ex-facie fell, did come, to be also revered by the Hon'ble Apex Court, even, in Kishan Gopal's case (supra). Alike the age of the deceased, in Lata Wadhwa's case (supra), also, the deceased child's age in Kishan Gopal's case (supra), is/was 10 years, and, the Hon'ble Apex Court, in the latter case meted deference, vis-a-vis, the occurrence, of, devaluation(s) in currency(ies), hence since the time, of, demise of the deceased, in the afore case, and, upto the decision being pronounced thereon, (iii) and, hence thereafter proceeded, vis-a-vis, the hitherto expostulation, as, made in Lata Wadhwa's case, qua the apposite monetary contribution, of, the deceased child, upon, being aged between 10 to 15 years, rather, to, make addition(s) thereto, from, Rs.24,000/- to Rs.30,000/-, and thereafter proceeded, to upon, reckoning the age of the mother, hence, apply the appropriate multiplier thereon. The factual emphatic stand point, which, emerges hereat, and, also the marked distinction, as upsurges, vis-a-vis, the facts borne therein, and, the facts hereat, (i) is, rather the afore accretions, as, made in Kishan Gopal's case (supra), vis-a-vis, the hitherto judicially pronounced apposite monetary contribution(s), of the deceased child, vis-a-vis, his estate, upon, his being at the relevant stage, aged between 10 to 15 years, hence, there through(s) rather standing manifestly, and, visibly being spurred, (ii) reiteratedly rather by apt occurrence(s), of, devaluation(s) in the currency, hence happening, and, thereupon, the afore apt sum(s) being computed, at, Rs.30,000/-. Hereat, the age of the deceased Master Mithlesh Saini, at the relevant time is ex-facie, and, evidently in the age group of 5 to 10 years, (iii) and, given at the relevant time, his being aged 8 years, and, obviously, when he was neither aged 10 or beyond 10, and, when there, is, a emphatic pronouncement in Lata Wadhwa's case, qua upon, the deceased child hence falling in the afore age group, (iv) thereupon, his surviving parents, being, entitled to, a consolidated compensation of Rs.2 lacs, (v) thereupon, with the afore expostulation, standing, reiterated by the Hon'ble Apex Court in Kishan Gopal's case (supra), (v)conspicuously, vis-a-vis a deceased child, hence, falling in the age group of 8 to 10 years, thereupon, the striving(s), of the learned counsel, for the, claimants, for, making the afore addition(s), given the occurrence, of, devaluation(s) in currency(ies), since the pronouncement in Lata Wadhwa's case (supra), upto, the decision being recorded, vis, the instant appeal, is, rather a gross misadventure, and, is liable to be rejected. 5. 5. However, in consonance with the verdict rendered by the Hon'ble Apex Court in Civil Appeal No.9581 of 2018, Magma General Insurance Co. Ltd. vs. Nanu Ram Alias Chuhru Ram & others, wherein the parents were held entitled, under, the head "Loss of Filial consortium" hence, to, a sum of Rs.80,000/- (Rs.40,000/- payable to each of them), consequently, the afore sums are awarded under the afore head qua the claimants, besides they are also entitled to a sum of Rs.15,000/- on account of funeral expenses. Consequently, the claimants are entitled, to, a total compensation of Rs.2,95,000/-. Moreover, the surviving parents of the deceased, are also, entitled to interest, upon, the afore sum, at the rate of 9% per annum, commencing from the date of petition, till realization, as, thereupon, it would beget concurrence with the verdict, of, the Hon'ble Apex Court, pronounced in Kishan Gopal's case (supra). 5. For the foregoing reasons, the appeal filed by the insurer bearing FAO No. 161 of 2019 is allowed, whereas, the appeal filed by the claimants, bearing FAO No. 225 of 2016, is also partly allowed, and, the impugned award, is, modified in the afore manner. Consequently, the claimants/parents, of, the deceased child, are held entitled to a compensation, borne in a sum of Rs.2,95,000/- along with interest @ 9% per annum, commencing from the date of petition, till realization. The indemnificatory liability, vis-a-vis, the afore compensation amount, is, saddled, upon, the insurer of the offending vehicle. The amount of interim compensation, if awarded, be adjusted in the aforesaid compensation amount, at the time of final payment. The aforesaid amount of compensation be apportioned in the manner as ordered by the learned tribunal. All pending applications also stand disposed of. Records be sent back forthwith.