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2020 DIGILAW 23 (HP)

ORIENTAL INSURANCE COMPANY LTD. v. JAMNA DEVI

2020-01-01

SANDEEP SHARMA

body2020
JUDGMENT : Sandeep Sharma, J. 1. By way of present appeal filed under Section 173 of the Motor Vehicles Act, challenge has been laid to award dated 31.10.2017, passed by learned Motor Accident Claims Tribunal, Ghumarwin, District Bilaspur, Himachal Pradesh, in MAC No.27-2 of 2012, titled as Jamna Devi versus Manoj Kumar and others, whereby learned Tribunal below while allowing the claim petition, having been filed by respondent No.1 (hereinafter 'claimant') under Section 166 of the Motor Vehicles Act (for short 'Act'), though held respondent Nos. 2 and 3, i.e. Manoj Kumar, Driver of the ill-fated vehicle and Anita Devi, owner of the vehicle in question, jointly and severally liable to pay compensation to the tune of 5,11,000/- to the claimant alongwith interest at the rate of 7.5% per annum from the date of the petition, but ordered that at first instance compensation amount would be paid by the appellant-insurance company, who thereafter would be at liberty to recover the same from respondents No.2 and 3. 2. Precisely, the facts as emerge from the record are that on 11.1.2012 deceased Bhajanu Ram, who was husband of respondent No.1, (hereinafter"claimant") hired vehicle bearing registration No. HP-23-B-2992 for bringing vegetables and fruits etc. from Sundernagar, District Mandi, Himachal Pradesh at a fare of Rs.2000/-, but at about 6:30 AM, aforesaid vehicle being driven by respondent No.2, Manoj Kumar rolled down into a gorge, as a result of which, deceased Bhajanu Ram suffered injuries and ultimately died on the spot. Injuries were also sustained by person namely, Devi Ram, i.e. son of deceased Bhajanu Ram. FIR in the case was registered under Section 279, 337 and 304-A of IPC against respondent No.2, at police Station, Sundernagar, District Mandi, Himachal Pradesh. Claimant claimed that deceased Bhajanu Ram was earning Rs.30,000/- per month from selling vegetables to retailers and Rs. 15,000/- per month from running his own shop at village Samoh. Claimant claimed before the tribunal below that the pick-up jeep involved in the accident was a Goods Vehicle, wherein deceased Bhajanu Ram was travelling as owner of the goods and as such, she is entitled to compensation being dependent of deceased Bhajanu Ram to the tune of Rs.20,00,000/- 3. 15,000/- per month from running his own shop at village Samoh. Claimant claimed before the tribunal below that the pick-up jeep involved in the accident was a Goods Vehicle, wherein deceased Bhajanu Ram was travelling as owner of the goods and as such, she is entitled to compensation being dependent of deceased Bhajanu Ram to the tune of Rs.20,00,000/- 3. Aforesaid claim put forth by the claimant came to be resisted on behalf of the appellant-insurance company, which claimed that at the time of alleged accident deceased Bhajanu Ram was travelling as gratuitous passenger and as such, it is not entitled to indemnify the insured. 4. Careful perusal of the impugned award passed by the tribunal below reveals that aforesaid plea having been taken by the insurance company was accepted and as such, it was absolved from liability to pay the compensation to the claimant. While deciding issues No. 1, 2, 4, 5, 6 and 7, tribunal below though held respondent Nos. 2 and 3 liable to pay compensation, but directed the insurance company to pay the amount of compensation at first instance and thereafter recover it from respondents Nos. 2 and 3. Appellant-insurance company being aggrieved and dissatisfied with the quantum of compensation, has approached this Court in the instant proceedings. 5. I have heard learned counsel representing the parties and gone through the record carefully. 6. Learned counsel representing the appellantinsurance company contended that learned tribunal below erred while awarding amount under certain conventional heads. In support of his aforesaid contention, learned counsel for the appellant insurance company invited attention of this Court to the judgment render by Hon'ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others, 2017 AIR (SC) 5157, wherein it has been held as under: "47. In our considered opinion, if the same is followed, it shall subserve the cause of justice and the unnecessary contest before the tribunals and the courts would be avoided. 48. Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses. In Santosh Devi (supra), the two-Judge Bench followed the traditional method and granted Rs.5,000/- for transportation of the body, Rs.10,000/- as funeral expenses and Rs.10,000/- as regards the loss of consortium. In Sarla Verma, the Court granted Rs.5,000/- under the head of loss of estate, Rs.5,000/- towards funeral expenses and Rs.10,000/- towards loss of Consortium. In Santosh Devi (supra), the two-Judge Bench followed the traditional method and granted Rs.5,000/- for transportation of the body, Rs.10,000/- as funeral expenses and Rs.10,000/- as regards the loss of consortium. In Sarla Verma, the Court granted Rs.5,000/- under the head of loss of estate, Rs.5,000/- towards funeral expenses and Rs.10,000/- towards loss of Consortium. In Rajesh, the Court granted Rs.1,00,000/- towards loss of consortium and Rs.25,000/- towards funeral expenses. It also granted Rs.1,00,000/- towards loss of care and guidance for minor children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socioeconomic issue has to be contrasted from a legal principle and ought to be periodically revisited as has been held in Santosh Devi (supra). On the principle of revisit, it fixed different amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also been moved by the concept of loss of consortium. We are inclined to think so, for what it states in that regard. We quote:- "17. ..... 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." 60. The controversy does not end here. 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." 60. The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50 years. Sarla Verma thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari. Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no addition thereafter. Similarly, in case of self employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts. 61. In view of the aforesaid analysis, we proceed to record our conclusions:- (i) The two-Judge Bench in Santosh Devi should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in Sarla Verma, a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench. (ii) As Rajesh has not taken note of the decision in Reshma Kumari, which was delivered at earlier point of time, the decision in Rajesh is not a binding precedent. (iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. The addition should be 30%, if the age of the deceased was between 40 to 50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax. (iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component. (v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30 to 32 of Sarla Verma which we have reproduced hereinbefore. (vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph of that judgment. (vii) The age of the deceased should be the basis for applying the multiplier. (viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years." 7. Having carefully perused the aforesaid judgment rendered by the Hon'ble Apex Court, this Court is in agreement with Mr. Lalit K. Sharma, learned counsel representing the appellant-insurance company, that learned tribunal below has erred in awarding sum of Rs.50,000/- in favour of the claimant on account of loss of consortium because as per aforesaid judgment in Pranay Sethi's case supra, only sum of Rs.40,000/- could have been awarded as consortium. Similarly, this Court finds that only sum of Rs.15,000/- ought to have been awarded by the learned tribunal below on account of loss of estate, whereas in the case at hand learned tribunal below has awarded sum of Rs. 50,000/- to the claimant on account of loss of estate and as such, award passed by the learned tribunal below, needs to be modified to the aforesaid extent. 8. Consequently, in view of the aforesaid modification made herein above, claimant/respondent is held entitled to following amounts under various heads: 1. Loss of dependency Rs. 50,000/- to the claimant on account of loss of estate and as such, award passed by the learned tribunal below, needs to be modified to the aforesaid extent. 8. Consequently, in view of the aforesaid modification made herein above, claimant/respondent is held entitled to following amounts under various heads: 1. Loss of dependency Rs. 3,96,000 2. Loss of estate Rs. 15,000 3. Funeral charges Rs. 15,000 4. Loss of consortium Rs. 40,000 Total Rs. 4,66,000 9. Consequently, in view of detailed discussion made herein above and law laid down by the Hon'ble Apex Court, present appeal is partly allowed and Award passed by learned Tribunal below is modified to the aforesaid extent only. 10. All pending miscellaneous applications, if any, are disposed of. Interim directions, if any, are vacated.