Nirmala Banjare @ Mala, W/o. Late Jhamman Banjare v. Kishor Kumar, S/o. Mannu Lal
2023-04-26
RADHAKISHAN AGRAWAL
body2023
DigiLaw.ai
JUDGMENT : With the consent of the parties, heard finally. 1. This appeal has been filed by the appellants/claimants being aggrieved by the impugned award dated 21.09.2022 passed by the Chief Motor Accident Claims Tribunal, Raipur (C.G.) (for short, 'the Tribunal) in Claim Case No. 608/2021, whereby the Tribunal has awarded compensation of Rs.12,12,500/- along with interest @ 8% per annum from the date of filing of claim petition till its realisation. Hence, this appeal by the appellants seeking enhancement. Parties to this appeal shall hereinafter be referred as per their description before the Claims Tribunal. 2. Brief facts of the case are that on 02.06.2021 at about 12:00 noon, after bathing, when the deceased Jhamman Banjare was waiting for his wife on the road side, at the same time, truck bearing registration No.CG-08-AE- 6444 being driven by Non-applicant No.1/driver in a rash and negligent manner, dashed the deceased Jhamman Banjare, resulting therein, the deceased died on the spot and her wife also sustained injuries. Matter was reported to the Police Station Abhanpur, Dist. Raipur, where crime No.216/2021 under Sections 279, 337, 338 and 304-A of IPC was registered. 3. On account of sad and sudden demise of Jhamman Banjare, the appellants/claimants, being legal representatives, filed a claim petition stating, inter alia, that at the time of accident, he was 44 years old and was earning Rs.1,000/- per month by doing pulses business and being legal heirs they are fully dependents upon him, as such, claimed a sum of Rs.73,00,000- under various heads. 4. The Respondent/Non-applicant No.1/driver did not file written statement and remained ex parte whereas respondent No.2/Non-applicant No.2/owner filed reply stating, inter alia, that the driver was not responsible for the cause of accident whereas the deceased himself was responsible; at the time of accident, the driver was possessing valid and effective driving licence and that the offending vehicle was insured with respondent No.3/insurer, therefore, in case of any liability being fastened, the same could be indemnified by the insurance company. However, Non-applicant No.2 remained ex parte at the evidence stage.
However, Non-applicant No.2 remained ex parte at the evidence stage. While admitting the fact that Non-applicant No.2 is the registered owner of the offending vehicle, which was insured with the insurer as per terms and conditions of the policy, Respondent/Non-applicant No.3, the insurer has contested the claim mainly on the ground that the vehicle in question has been used in violation of the policy as the driver of it, was not possessing the effective and valid driving license, therefore, no liability could be fastened upon it. 5. The Tribunal, vide impugned award dated 21.09.2022, after considering the evidence led by the parties, has held that the alleged accident took place on 02.06.2021 due to rash and negligent driving of Respondent/Non-applicant No.1, driver of the offending vehicle. It held that it was not established that the offending vehicle was used in violation of the insurance policy. Having held as such, the Claims Tribunal passed the impugned award/order in favour of the appellants/claimants and against the Respondent/Non-applicant No.3/insurer. 6. Learned counsel for the appellants/claimants submits that the amount of compensation granted to the claimants vide impugned award is on lower side, which needs to be enhanced suitably. 7. On the other hand, learned counsel appearing for the respondents No. 2 & 3 submit that the Tribunal, after due and proper appreciation of the evidence led before it, awarded just and proper amount of compensation, therefore, findings so recorded by the learned Claims Tribunal do not warrant any interference 8. I have heard learned counsel for the parties and perused the record of the Tribunal including the evidence adduced by the parties minutely. 9. Perusal of the record would show that the Claims Tribunal, based on Naksha Panchayatnama (Ex.P.7), application for autopsy (Ex.P.8) and post-mortem report of the Doctor (Ex.P.9) treated the age of the deceased to be 44 years at the time of accident. Although it was pleaded that the monthly income of the deceased was Rs.1000/- by doing pulses business, but, there is no evidence on record to show the exact income of the deceased.
Although it was pleaded that the monthly income of the deceased was Rs.1000/- by doing pulses business, but, there is no evidence on record to show the exact income of the deceased. Therefore, the Claims Tribunal, taking into account the inflation rate, minimum wages rate and living conditions of the year 2021, classified the deceased as unskilled labourer by doing qualified work and had he worked as such, he would have definitely earned monthly income of Rs.7,000/-, assessed the deceased's monthly income at Rs.7,000/- yearly Rs.84,000/-, which in my considered opinion is just and proper. Thereafter, keeping in mind the principles laid down in the case of Smt. Sarla Verma and others v. Delhi Transport Corporation and others reported in 2009 SCJ 1298 : (2009) 6 SCC 121 , the Claims Tribunal has applied the multiplier 14, looking to the age of the deceased, deducted 1/4th (Rs.21,000/-) towards his personal and living expenses, assessed the annual income of the deceased at Rs.63,000/- (Rs.84,000/- - Rs.21,000) and then worked out the loss of dependency at Rs.8,82,000/- (Rs.63,000/- x 14). I am of the view that the Tribunal was justified in assessing loss of dependency as Rs.8,82,000/-. 10. Taking into consideration the age of the deceased as 44, i.e., falls between 40 to 50 years and was self-employed, 25% amount of his established income has been added towards future prospects, which comes to Rs.2,20,500/-. The said amount has been added in view of law laid down by the Hon'ble Supreme Court in the matter of National Insurance Company Limited -v- Pranay Sethi, reported in 2017 ACJ 2700 : (2017) 16 SCC 680 , which is also correct and no infirmity is seen. 11. In addition to above amounts, the Tribunal, taking into consideration the principles laid down in the case of National Insurance Company vs. Pranay Sethi (supra), awarded Rs.40,000/- as well towards loss of consortium to applicant No.1/wife, Rs.15,000/- towards loss of estate, Rs.15,000/- towards funeral expenses and Rs.40,000/- for loss of love and affection and filial loss of consortium to applicants No.2 to 5 and thus awarded total compensation to the tune of Rs.12,12,500/- along with interest at 8% per annum from the date of filing of claim petition till its realisation.
I am of the considered opinion that the amounts awarded under heads, i.e., loss of consortium to wife, funeral expenses and loss of estate are not in consonance with the guidelines laid down in Pranay Sethi's case wherein the Supreme Court has held in para 59.8 as under:- “59.8 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.” 12. Therefore, while keeping the aforesaid observation by the Supreme Court, this Court is of the opinion that the amounts awarded under funeral expenses, loss of estate and loss of consortium to wife should be enhanced by 10%. Accordingly, in place of Rs.15,000/-, 15,000/- and 40,000/- respectively, the claimants/appellants are now entitled to get Rs.16,500/- as funeral expenses, Rs.16,500/- towards loss of estate and Rs.44,000/- towards loss of consortium to wife, respectively. 13. While dealing with the head consortium, the Supreme Court in Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others reported in (2018) 18 SCC 130 has observed in paras 21, 21.1, 21.2, 21.3, 22 and 23 as under:- “21. A Constitution Bench of this Court in Pranay Sethi 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: 21.1. 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, cooperation, affection, and aid of the other in every conjugal relation”. 21.2. 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”. 21.3 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.
21.3 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. Children are valued for their love, affection, companionship and their role in the family unit. 22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised 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. 23. 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. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.” 14. A perusal of above, it is clear that the Motor Vehicles Act is a beneficial and welfare legislation aimed at providing relief to the victims or their families, in cases of genuine claims. The Tribunals must bear in mind the object of the Act in awarding just and fair compensation to the victim or motor accident cases and it is also the bounden duty of the Court/Tribunals to see that the victim or injured of the motor accident to get just compensation and in assessing, what has been described as a just compensation under the Act, all factors including possibilities have to be kept in mind. 15.
15. In view of dictum rendered in the case of Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others (supra), the amount of Rs.40,000/- awarded under loss of love and affection and parental consortium to applicants No.2 to 5 is also on lower side. As the claimants/applicants No. 2 to 5 are children of the deceased, each of them are entitled to be awarded a sum of Rs.44,000/- in the light of Magma General Insurance Company Limited (supra). 16. On the basis of the above discussion, I shall now recalculate the total amount of compensation as under :- S.No. Particulars Amount in Rs. 1. Loss of dependency Rs.63,000 x 14 8,82,000/- 2. Future prospects 2,20,500/- 3. Loss of consortium to wife 44,000/- 4. Loss of estate 16,500/- 5. Funeral expenses 16,500/- 6. Loss of parental consortium to applicants No. 2 to 5 Rs.44,000/- x 4 1,76,000/- Total compensation 13,55,500/- 17. Hence, the appellants/claimants are now entitled to get total compensation of Rs13,55,500/- instead of Rs.12,12,500/- along with interest @ 8%, as 8 awarded by the learned Claims Tribunal, from the date of filing of claim petition till its realisation. 18. In the result, the appeal is allowed in part and the impugned award is modified to the extent indicated herein above. Rest of the observations as made by the Tribunal shall remain intact. No order as to costs.