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2023 DIGILAW 105 (BOM)

Seema Parveen Yusuf v. Santosh Ramnarayan Tiwari

2023-01-09

URMILA JOSHI-PHALKE

body2023
JUDGMENT : 1. By preferring this appeal, appellants who are the original claimants are seeking enhancement of compensation which is granted by the Motor Accident Claims Tribunal, Wardha in Motor Accident Claim Petition No.117/2006, on 6.3.2008. 2. Brief facts, which are necessary to decide the appeal are as follows : On 4.6.2006 deceased Sk. Yusuf along with Sk. Abdul and Rajesh were proceeding on scooter bearing No.MH-31-T-4846. At the relevant time offending vehicle tipper bearing No. MTG-7248 which was driven by its driver in a rash and negligent manner in high and excessive speed dashed against the scooter. Due to severe dash, Sk. Yusuf and Sk. Abdul sustained injuries and succumbed to the death on the spot. As per the contention of the claimants the said incident took place due to rash and negligent driving of the tipper driver, therefore, offence was registered against the tipper driver vide CR No.39/2006, dated 4.6.2006 under Sections 279, 337, 304-A read with Section 184 of the Motor Vehicles Act. As the accident took place due to the rash and negligent driving of the tipper driver, claimed the compensation. 3. It is further contention of the claimants that the offending vehicle was driven by the respondent No.1 Santosh Ramnarayan Tiwari and owned by respondent No.2 Sandeep Suryakant Chaurasia and validly insured with the respondent No.3 New India Assurance Company Limited on the date of accident. As the accident took place due to the rash and negligent driving of the tipper driver, which is owned by the respondent No.2 and validly insured with the respondent No.3, all the respondents are jointly and severally liable to pay compensation to the appellants. 4. In response to the notice, the respondent No.3-Insurance Company opposed the appeal on the ground that there was contributory negligence of the deceased who was riding the scooter and hence Insurance Company is not liable to pay compensation and hence prayed for dismissal of the petition. 5. Learned Tribunal recorded the evidence and after hearing both the sides granted compensation to the appellants of Rs.1,79,500/- along with interest at the rate of 7.5% p.a. from the date of petition till its realization. 6. 5. Learned Tribunal recorded the evidence and after hearing both the sides granted compensation to the appellants of Rs.1,79,500/- along with interest at the rate of 7.5% p.a. from the date of petition till its realization. 6. Being aggrieved and dis-satisfied with the judgment and award passed by the Tribunal original claimants preferred this appeal for enhancement on the ground that the Presiding Officer of the Tribunal had not considered the evidence on record that deceased was agriculturist as well as running the milk business and earning Rs.75,000/- to Rs.80,000/- from agriculture yearly and also getting income from the milk business as deceased was owner of 20 buffalos and 20 cows. The appeal is further filed on the ground that the Presiding Officer had not considered other benefits which are to be awarded to the claimants. In view of the judgment of the Hon’ble Apex Court in Sarla Verma as well as in Pranay Sethi and claimed enhanced compensation. 7. Heard learned Advocate Mr. Bharat D. Vora for the appellants and learned Advocate Ms. Anita Mategaovkar for the respondent No.3 Insurance Company. 8. Learned Advocate Mr. Bharat Vora for the appellants submitted that the appellant No.1 has adduced her evidence and she specifically deposed before the Court that now she is staying at the mercy of her parents as her in-laws had not allowed her to run the agriculture operations in the agriculture field. She further deposed that her husband who was doing agriculture operations in a agriculture field owned by the family admeasuring 5 acres and drawing income of Rs.70,000/- to 75,000/-per year. He was also doing milk business as family had owned 20 buffalos and 20 cows and thus he was earning Rs.250/-per day from the milk business. Her evidence further shows that after the death of her husband her mother-in-law and brother-in-law are cultivating the land of her husband and they have also looking after cows and buffalos. She had not received any income from the said agriculture land as well as milk business. It is further submitted by him that learned Tribunal had not considered the same. He further submitted that even for the sake of argument it is considered that the deceased was doing labour work then also he can get Rs.150/- to Rs.200/-per day and, therefore, his monthly income comes to Rs.6,000/-per month. It is further submitted by him that learned Tribunal had not considered the same. He further submitted that even for the sake of argument it is considered that the deceased was doing labour work then also he can get Rs.150/- to Rs.200/-per day and, therefore, his monthly income comes to Rs.6,000/-per month. Thus, treating him as agriculture labour his income would be Rs.72,000/- after deducting 1/3rd, it comes to Rs.48,000/-, at the time of accident deceased was 35 years old and, therefore, in view of judgment of Sarla Verma & Ors. Vs. Delhi Transport Corporation and another, reported in (2009) 2 SCC (Civil) 770, the multiplier would be 16. Thus, the amount of compensation comes to Rs.7,68,000/-. He further placed his reliance on National Insurance Company Limited vs. Pranay Sethi and others, reported in (2017) 16 SCC 680 , wherein it is held that, ‘the reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses with escalation to be granted’. In the said judgment it is further held by the Hon’ble Apex Court that 40% to be added towards future prospect if the deceased is unskilled labour and below the age of 40 years. But, these aspects are not considered by the Tribunal. He further relied upon the judgment of the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors., wherein Hon’ble Apex Court considered the judgment of constitutional Bench in Pranay Sethi and others (supra) which 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 para No.8.7 it is held by the Hon’ble Apex Court, which is re-produced hereinafter for reference. ‘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.’ 9. He submitted that in view of the Judgment of the Hon’ble Apex Court the appellants are entitled for the consortium by considering that appellant No.1 has lost her husband, appellant No.2 has lost his father and respondent No.4 has lost her son. He submitted that in view of the Judgment of the Hon’ble Apex Court the appellants are entitled for the consortium by considering that appellant No.1 has lost her husband, appellant No.2 has lost his father and respondent No.4 has lost her son. He submitted that the appellants are also entitled for the expenses towards loss of estate, funeral expenses by considering 10% increase in the amount. Thus, he submitted that by calculating the entire amount towards the compensation appellants are entitled for Rs.8,89,000/- towards compensation + 40% future prospects comes to Rs.3,07,400/- total amount comes to Rs.11,96,200/-, after deducting the amount granted by the Tribunal, the amount of compensation comes to Rs.10,16,700/-. Thus, the appellants are entitled to receive Rs.10,16,700/- along with the interest. 10. Learned Advocate appearing for the Insurance Company Ms. Anita Mategaovkar submitted that it is the case of contributory negligence and therefore the appellants are not entitled for any enhanced compensation. The learned Tribunal has awarded just compensation. Thus, the appeal has no merit and liable to be dismissed. 11. Heard rival submissions of the parties. Perused the evidence on record. It is well settled that just compensation is to be awarded to the legal representative of the person who died in an accident or the injured who sustained the accidental injuries in the accident. The provision of compensation under the Motor Vehicles Act is enacted to compensate the legal representatives whose near and dear one met with an accident or sustained injuries in an accident. The concept of just compensation should be on the basis of fairness reasonableness, simultaneously the compensation cannot be granted as a bonanza though the discretion vested in the Tribunal is wide. It is obligatory on the part of the Tribunal to be guided by the expression that it just compensation. The determination has to be on the foundation of evidence brought on record as regards the age and income of the deceased and thereafter by applying the multiplier. The formula relating to multiplier has been determined in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation and another, reported in (2009) 2 SCC (Civil) 770. The duty of the Tribunal and the Court has also to see that just compensation is to be awarded by including addition of future prospects on the proven income at present. 12. Vs. Delhi Transport Corporation and another, reported in (2009) 2 SCC (Civil) 770. The duty of the Tribunal and the Court has also to see that just compensation is to be awarded by including addition of future prospects on the proven income at present. 12. In the light of the above legal principles it has to be seen whether the appellants are entitled for enhanced compensation. In support of the contention appellant No.1 stepped into the witness box and adduced her evidence. It is not disputed that the accident took place on 4.2.2006 when deceased was proceeding on the scooter bearing No. MH-31/T-4846. It is also not disputed that the offending vehicle tipper came from opposite side and gave dash to the scooter. Due to the said dash, husband of the appellant Sk. Yusuf along with his friend died on the spot. The offending vehicle is owned by the respondent No.2 driven by the respondent No.1 and validly insured with the respondent No.3. Regarding the said accident offence is registered against the respondent No.1 vide CR No.39/2006 dated 4.6.2006 under Sections 279, 337, 304-A read with Section 184 of the Motor Vehicles Act. The certified copy of the F.I.R. is at Exh.-31, the recitals of the F.I.R. shows that the accident took place due to the rash and negligent driving of the tipper driver and in an accident husband of the appellant along his friend succumbed to the death. The certified copy of the panchanama is also on record. The genuineness of the panchanama is not disputed by the Insurance Company. Post Mortem Report is also on record at Exh.-34 which shows that deceased died due to the accidental injuries sustained by him in an accident. Though respondent No.3 Insurance Company raised the defence that the said accident took place due to the contributory negligence of the scooter rider also and therefore Insurance Company of offending vehicle tipper is not only responsible to pay the compensation. However, the finding of the Tribunal is not challenged by the Insurance Company by preferring any appeal. The Insurance policy Exh.-35 shows that on the date of accident the offending vehicle was validly insured with the Insurance Company. 13. However, the finding of the Tribunal is not challenged by the Insurance Company by preferring any appeal. The Insurance policy Exh.-35 shows that on the date of accident the offending vehicle was validly insured with the Insurance Company. 13. In support of the contention appellant No.1 adduced the evidence i.e. oral evidence and deposed that her husband was agriculturist having 5 acres agricultural land and drawing Rs.70,000/- to Rs.75,000/- income per year from the said agriculture land. She further deposed that he was also having income by running milk business i.e. Rs.250/-per day. Though the appellant is cross-examined at length by the respondent No.3, the appellant has denied the suggestion that her husband was not the owner of any buffalos or cows. She also denied the suggestion that her husband was not having any income from the milk business. When the appellant has come with the case that her husband was having income at the Rate of Rs.70,000/- to Rs.75,000/-per year from the agricultural land then burden is on the appellant to prove the same. She has filed on record 7/12 extract of Survey No.1/1 of village Laxminarayanpur, Taluka Deoli, District Wardha which is at Exh.-36. Said 7/12 extract is standing in the name of respondent No.4 Safiabegum as well as the names of other legal heirs are also appearing on the 7/12 extract. The cultivation column shows that family was cultivating the land and getting income from the crops like cotton and toor. However, no evidence is brought on record by the appellants regarding the monthly income of the deceased. Even if it is considered that the land was cultivated by the deceased husband of the appellant thereafter also loss of the appellant would be in the managerial capacity as other family members are cultivating the land. However, considering that now appellant is residing along with her parents. She specifically testified that she was driven out of the house and her in-laws are not providing her any income from the said agricultural land. In fact, there is no evidence that deceased was cultivating the said land and was earning the income from the said land. 14. In absence of the evidence the notional income of the deceased was calculated by the learned Tribunal. In the case of National Insurance Company Limited Vs. In fact, there is no evidence that deceased was cultivating the said land and was earning the income from the said land. 14. In absence of the evidence the notional income of the deceased was calculated by the learned Tribunal. In the case of National Insurance Company Limited Vs. Pranay Sethi and others, the Hon’ble Apex Court has held that, ‘although the wages/income of those employed in unorganised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the government employees and those employed in private sectors, but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis or even seasonal basis.’ It is further held by the Hon’ble Apex Court that, ‘judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this context, it may be useful to give an example of a tailor who earns his livelihood by stitching clothes. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour like barber, blacksmith, cobbler, mason, etc.’. 15. By applying this principle even if it is considered that the deceased was doing labour work and was earning Rs.150/- to Rs.200/-per day his monthly income comes to Rs.6,000/-per month. The learned Advocate of the appellant prayed that monthly income of the deceased by considering him as a agriculture labour is considered then his annual income comes to Rs.72,000/- p.a. The submission made by the learned Advocate of the appellant appears to be reasonable one if the said submission is considered in the light of the fact that the accident took place in the year 2006 at that time agriculture labour were getting Rs.150/- to 200/-per day thus monthly income comes to Rs.6,000/-per month. Yearly income comes to Rs.72,000/- after deducting 1/3rd yearly income comes to Rs.48,000/-. The deceased was 35 years old at the time of accident. As per the observation in Sarla Verma & Ors Vs. Delhi Transport Corporation and another (supra) as cited supra multiplier is to be applied of 16. Yearly income comes to Rs.72,000/- after deducting 1/3rd yearly income comes to Rs.48,000/-. The deceased was 35 years old at the time of accident. As per the observation in Sarla Verma & Ors Vs. Delhi Transport Corporation and another (supra) as cited supra multiplier is to be applied of 16. After applying multiplier compensation amount of Rs.7,68,000/-. After adding 40% future prospects in view of the judgment of Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others (supra) said addition of future prospects is to be added, considering that the deceased was below 40 years of age and there is every likelihood of addition of labour charges considering his agriculture labour. So after adding 40% of future prospect the amount comes to Rs.3,07,200/-. Thus, the appellants are entitled to receive the compensation of Rs.7,68,000/- + by adding 40% towards future prospects Rs.3,07,200/- it comes to Rs.10,75,200/-. Besides the above amount of compensation the appellant No.1 is the wife, who lost her husband at the young age. At the time of filing the petition she was only 21 years of age, she has to lead her life without the love and affection of her husband. Petitioner No.2 Sk. Ahmed Sk. Yusuf who is son of the deceased and was aged about 11 months at the time of accident. He lost love and affection of his father and has to lead his life without the love and affection of his father. At the same time respondent No.4 Safiabegam is mother, who lost her son at her old age. The Hon’ble Apex Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others (supra) has considered the aspect of consortium and held that we accept the principle of standardization, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. It is further held that the concept of loss of consortium 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. Said 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. Said 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.”. The Hon’ble Apex Court had further laid down the reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses as laid down the figures Rs.40,000/- towards loss of consortium to Rs.15,000/- each towards loss of estate and funeral expenses. It is further held that the amount should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of three years. 16. In the judgment of Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors. (supra), wherein by referring the judgment of Constitution Bench in Pranay Sethi the Hon’ble Apex Court held that, in legal parlance, “consortium” is a compendious term which encompasses ‘spousal consortium’, ‘parental consortium’, and ‘filial consortium’. The right of consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. 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. 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 family and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Whereas consortium to the spouse would include sexual relations with the deceased spouse. 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.’. 17. In the light of the above principles laid down by the Hon’ble Apex Court here in the present case also it appears that the learned trial Court has not considered this aspect and awarded inadequate compensation. In view of the judgment of the Hon’ble Apex Court appellant Nos.1 and 2 and respondent No.4 are entitled to receive consortium by adding 10% in the amount of Rs.40,000/-. The amount towards consortium to appellant Nos.1 and 2 and respondent No.4 comes to Rs.1,32,000/-. The appellants are also entitled to receive compensation under the head of loss of estate and funeral expenses by adding 10%. So it comes to Rs.16,500/-. Thus, the appellants are entitled for the compensation which comes to Rs.11,96,200/- after deducting the earlier compensation granted by the Tribunal i.e. after deducting Rs.1,79,500/- the amount comes to Rs.10,16,700/-. 18. The appellants have made out a case for enhancement of compensation as Tribunal has not considered the dependency of the appellants as they were totally dependent upon the income of the deceased. Though evidence is not adduced by the appellants regarding the exact income of the deceased. However, considering as a agricultural labour the income ought to have considered which is not considered by the Tribunal. It cannot be forgotten that the provisions under the Motor Vehicle Act are enacted in the nature of beneficial legislation at the same time Court is duty bound to see that the Insurance Company are not to be burdened by awarding the exorbitant and excessive compensation and therefore just compensation is to be awarded. It cannot be forgotten that the provisions under the Motor Vehicle Act are enacted in the nature of beneficial legislation at the same time Court is duty bound to see that the Insurance Company are not to be burdened by awarding the exorbitant and excessive compensation and therefore just compensation is to be awarded. The amount of Rs.10,16,700/- is a just compensation which is to be awarded to the appellants. 19. Learned Advocate for the Insurance Company submitted that the respondent No.3 Insurance Company has deposited the amount of compensation along with accrued interest on the compensation awarded. She also prayed that the interest on the enhanced amount of compensation is to be awarded from the date of filing of the appeal. The Tribunal has awarded the interest at the rate of 7.5% which is just and reasonable one. Considering the compensation amount is enhanced by allowing this appeal, appellants are entitled to receive the compensation from the date of appeal i.e. on 4th July, 2006 at the rate of 7.5% on the enhanced compensation amount. 20. In view of this observation, appeal is allowed. 21. The appellants are entitled to receive compensation of Rs.10,16,700/- after deducting compensation amount awarded by the Tribunal with interest at the rate of 7.5% from the date of filing of the appeal. 22. The appellants are directed to deposit deficit court fee stamp on enhanced compensation amount. 23. The Insurance Company is directed to deposit the enhanced amount of compensation within two months from today. 24. The appellants are entitled to withdraw the amount of compensation after depositing the deficit court fee stamp on the enhanced amount. 25. The enhanced amount of compensation is to be apportioned 40% each to the appellant Nos.1 and 2 and 20% to the respondent No.4. 26. Appeal is disposed of.