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2023 DIGILAW 835 (PAT)

Mamta Devi v. Manoj Kumar

2023-07-31

KHATIM REZA

body2023
ORDER Heard Mr. Mukesh Prasad Singh, learned counsel for the appellants as well as Mr. Durgesh Kumar Singh, learned counsel for the respondent no. 3. 2. The instant Miscellaneous Appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as ‘the Act of 1988’) for enhancing of the525 compensation allowed to the claimants-appellants by the learned Additional District Judge-VIII-cum-Motor Accident Claim Tribunal, Patna (hereinafter referred to as ‘the learned Tribunal’) in Claim Case No. 281 of 2012. By judgment dated 14.11.2014 and award dated 27.01.2016, the learned Tribunal directed the Reliance General Insurance Company to pay the compensation amount of Rs. 5,85,500/- (Five Lacs eighty five thousand and five hundred only) with annual interest @6% from the date of institution of this case. Details of calculation made by the learned tribunal as under: – (i) Monthly income of deceased Rs. 4,000/- (ii) Annual income of deceased Rs. 4,000X12=48,000/- (iii) 1/3rd personal expenses of deceased Rs. 16,000/- (iv) Rest early income of deceased Rs. 32,000/- Age of the deceased was 30 years at the time of accident so multiplier as to age group becomes 18. (v) Total compensation Rs. 32,000X18=5,76,000/- (vi) Loss of estate Rs. 2,500/- (vii) Funeral expenses Rs. 2,000/- (viii) Loss of consortium Rs. 5,000/- Total Rs. 5,85,500/- 3. The appellants being aggrieved by the judgment and award passed by the learned tribunal pray for the following relief(s): – “the learned tribunal ought to have awarded following compensation which is just compensation under Section 168 of the Act: – Monthly income of the deceased Rs. 6,000 + food allowances. Annual income of the deceased 6,000 + (75X30) X 12 = 99,000/- Annual income and future prospects of the deceased as the deceased about 30 years old, 50% of the actual income should be added. 99,000 + (99,000 X 50%) = Rs. 148,500/- Out of total income personal expenses of 1/4th should be deducted (148,500-1/4th) = Rs. 1,11,375/- The appropriate multiplier would be 17. The compensation would be 11,375X17 = Rs. 18,93,375.00 Loss of consortium, loss of estate, loss of love to the children, loss of love to the parents and funeral expenses should be added as per decision of Apex Court in the recent as well as in the case of “Rajesh vs. Rajbir Singh” & Smt. Neeta case. (1,00,000 + 1,00,000 + 1,00,000 + 1,00,000 + 25,000) = Rs. 18,93,375.00 Loss of consortium, loss of estate, loss of love to the children, loss of love to the parents and funeral expenses should be added as per decision of Apex Court in the recent as well as in the case of “Rajesh vs. Rajbir Singh” & Smt. Neeta case. (1,00,000 + 1,00,000 + 1,00,000 + 1,00,000 + 25,000) = Rs. 3,25,000.00/- (wrongly calculated) Total Rs. 22,18,375.00/-” 4. Before considering the claim of the appellants, it is important to mention that the insurance company has not challenged this impugned judgment and award. 5. The case of the appellants, in short, is that Tribhuwan Singh @ Tribhuwan Kumar (deceased) was the Assistant Driver-cum-Khalasi of truck bearing Registration no. JH-05Q-9986. On 17.12.2007, at about 03:00 am, the driver of the said truck, namely, Pankaj Kumar Yadav asked the khalasi to remove obstacle from behind the rear wheel of the truck, the driver Pankaj Kumar Yadav started the truck and as such, the truck ran over him. As a result, the Assistant Driver-cum- Khalasi, namely, Tribhuwan Singh became badly injured and sustained multiple injuries and on way to the hospital, he succumbed to injury. On the basis of fardbeyan of Pankaj Kumar Yadav, a case was registered in Mango P.S. Case No. 428 of 2007 dated 17.12.2007 under Section 304(A) of the Indian Penal Code. After investigation, charge-sheet was submitted under Section 304A of the Indian Penal Code against the driver, namely, Pankaj Kumar Yadav. 6. Learned counsel for the appellants submits that the deceased was getting Rs. 6,000/- (six thousand only) per month with food allowance (khuraki) of Rs. 75/- only per day. As per the postmortem report, the age of the deceased is 30 years. The offending truck bearing registration no. JH-05Q- 9986 is said to be registered with Reliance General Insurance Company Ltd. having policy no. 1506072329013887 which was valid from 02.11.2007 to 01.11.2008. The claimants are the wife, old parents, minor daughter and minor son. Further, it is submitted that the owner and the driver of the offending truck appeared but they did not file their written statement and they were debarred from filing the written statement. Opposite Party No. 3, Reliance General Insurance Company Ltd. appeared and filed his written statement and denied the claim of the appellants. Further, it is submitted that the owner and the driver of the offending truck appeared but they did not file their written statement and they were debarred from filing the written statement. Opposite Party No. 3, Reliance General Insurance Company Ltd. appeared and filed his written statement and denied the claim of the appellants. In its written statement, it is specifically admitted that vehicle in question was covered at the material time under the policy of insurance issued by the respondent subject to the terms and condition. It is alleged that the driver of the said truck was not holding a valid and effective driving license at the time of accident and he was not qualified for holding or obtaining such driving license. It is stated that the applicant has to prove the age of the deceased and earning of the deceased. 7. On the basis of the pleadings of the parties, the learned tribunal has framed the following issues: – ISSUES (i) Is the claim case as framed maintainable? (ii) Whether the claimant has got valid cause of action for compensation case? (iii) Whether the deceased Tribhuwan Singh died in this accident due to rash and negligent driving by the driver of offending truck bearing registration no. JH-05Q-9986? (iv) Whether the alleged vehicle was involved in the alleged, insured with the O.P. no. 3 on the alleged dated of accident? (v) Whether the driver of the offending truck was having valid and effective driving license and the owner of the offending truck was having permit to ply the vehicle at the relevant time? (vi) Whether the drivers and owners of offending truck has violated the terms and conditions of insurance policy at the time of accident? (vii) Is the claimant entitled to get compensation if so what extent? (viii) To what other relief or relieves if any the claimants entitled? 8. On analysing the materials on record and evidences adduced by the parties, learned tribunal has held that the informant-driver himself said that he asked the Khalasi to remove the obstacle kept behind the rear side of the wheel. In the meantime, while removing the obstacle by the Khalasi, namely, Tribhuwan Singh @ Tribhuwan Kumar, the said truck accidentally ran over him by the driver and he was brought to MGM hospital but he succumbed to the injury. In the meantime, while removing the obstacle by the Khalasi, namely, Tribhuwan Singh @ Tribhuwan Kumar, the said truck accidentally ran over him by the driver and he was brought to MGM hospital but he succumbed to the injury. As per the postmortem report (exhibit ‘3’), the cause of death of the deceased was by hard and blunt substance. On the basis of postmortem report, the learned Tribunal assessed the age of the deceased as 30 years. Due to no documentary evidence filed with regard to earning of the deceased, learned Tribunal had fixed his income as Rs. 4,000/- (Four thousand only) per month. While calculating the total loss of dependency, no future prospect was added to arrive at the correct multiplication. Learned Tribunal allowed only Rs. 2,000/- for funeral expenses and Rs. 5,000/- for loss of consortium. Learned Tribunal further deducted 1/3rd of the income towards personal living expenses of the deceased and also allowed only Rs. 2,500/- for loss of estate. 9. In the aforesaid manner, the total claimed amount was calculated at Rs. 5,85,500/- only and the respondent no. 3 was directed to pay interest thereon @ 6% per annum from the date of filing of the application till the date of payment. 10. Learned counsel for the appellants has challenged the quantum of awarded amount on various grounds. He submits that the deceased left behind his widow, one minor daughter, one minor son and old parents. It is further submitted that the learned Tribunal has failed to accept the statement of witnesses regarding the earning of the deceased. In the present case, the deceased was an Assistant Driver/Khalasi of the offending truck and was earning Rs. 6,000/- per month and Rs. 75/- as food allowance (khuraki) per day. Learned Tribunal discarded the evidence of the appellant only on the basis of that no document was filed by the appellants to prove the salary of the deceased as well as food allowances. Learned Tribunal ought to have considered the future prospect of the deceased while computing compensation and ought to have added additional 50% on actual income in the monthly income of the deceased and then computed compensation which is just compensation as envisaged under Section 158 of the Act. He has relied upon the judgment of the Hon’ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi & Ors. He has relied upon the judgment of the Hon’ble Supreme Court in case of National Insurance Company Limited vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680 . 11. It is further submitted that the Tribunal could not appreciate that the deceased had at least three dependents upon him and in such circumstances, he could not have spent 1/3rd of his income of his own, The correct approach would have been to deduct 1/4th of his income as personal expenses. The Tribunal has also failed to follow the judgment of Hon’ble Supreme Court in case of Sarla Verma (Smt.) & Ors. vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121 . As regards the payments of claims on conventional heads, referring to the judgment of the Hon’ble Constitution Bench of the Supreme Court of India in the case of Pranay Sethi (supra), learned counsel submits that the appellants are entitled to get claim on account of funeral expenses at Rs. 15,000/-, estate loss at Rs. 15,000/-, spousal consortium at Rs. 40,000/- to appellant no. 1 and parental consortium at the rate of Rs. 40,000/- to each of the two minor children. 12. Learned counsel for the appellants further submits that since the age of the deceased was found to be 30 years, in his case, the multiplier of ‘17’ would be applicable. The Tribunal has wrongly multiplied by ‘18’. The table of multiplier drawn by the Hon’ble Supreme Court in the case of Sarla Verma (supra) applies in the case of claim filed under Section 166 of the Act of 1988. The Hon’ble Constitution Bench in the case of Pranay Sethi (supra) has approved the table read with paragraph ‘42’ of Sarla Verma (supra). It is submitted that the claimants would be entitled for interest on enhanced amount payable to the claimants. 13. Learned counsel for the appellants has relied on the judgment of the Hon’ble Apex Court in case of Chandra @ Chanda @ Chandraram & Anr. vs. Mukesh Kumar Yadav & Ors. reported in (2022) 1 SCC 198 [: 2022 (1) BLJ 194 (SC)] to submit that in the said case, the Hon’ble Apex Court has relied upon the judgments in the case of Sarla Verma (supra) and Magma General Insurance Company Ltd. vs. Nanu Ram @ Chuhru Ram and Ors. vs. Mukesh Kumar Yadav & Ors. reported in (2022) 1 SCC 198 [: 2022 (1) BLJ 194 (SC)] to submit that in the said case, the Hon’ble Apex Court has relied upon the judgments in the case of Sarla Verma (supra) and Magma General Insurance Company Ltd. vs. Nanu Ram @ Chuhru Ram and Ors. reported in (2018) 18 SCC 130 to hold that the appellants were entitled for parental consortium of Rs. 40,000/- each. It is submitted that in terms of the judgment in the case of Pranay Sethi (supra), 10% increase is to be provided on the conventional heads. Therefore, in this case, the claims on the conventional heads be allowed with an increase of 10%. 14. Mr. Durgesh Kumar Singh, learned counsel for the Insurance Company has raised objection on certain grounds. He has referred the judgment of the Hon’ble Guwahati High Court in case of Oriental Insurance Company Ltd. vs. Smiti Rumi Barman & Ors. (Case No.MACApp./77/2017) decided on 11.02.2021 to submit that in the said case, the amount paid under the head of future prospect shall not carry further interest of 6%. 15. The Constitution Bench of Hon’ble Supreme Court in Pranay Sethi (supra) has 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 has been denied in a case of Harpreet Kaur & Ors. vs. Mohinder Yadav & Ors. reported in 2022 SCC Online SC 1723 [: 2023 (1) BLJ 232 (SC)] [Rajesh vs. Rajbir Singh, (2013) 9 SCC 54 ] which reads as under: – “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". [Black's Law Dictionary (5th Edn., 1979).] 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. The greatest agony for a parent is to lose their child during their lifetime. 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.” 16. Having heard counsel for the appellants as well as counsel for the respondents and perusal of the records as also the judgments of the Hon’ble Apex Court, this Court finds that there is no dispute on applying multiplier of ‘17’ in the instant case (age of the deceased-30 years). Further, there is no dispute on providing future prospects and claims on conventional heads. With regard to living expenses to be calculated as 1/4th of the income of the deceased and that the claimants are entitled for spousal consortium and parental consortium at the enhanced amount is concerned, the monthly income of the deceased in the instant case is not in dispute that the deceased was aged about 30 years working as a khalasi/Assistant driver and has earning Rs. 6,000/- per month at the time of accident along with Rs. 75/- per day food allowance. The said claim is reduced by the Tribunal to a sum of Rs. 4,000/- only per month without any legal basis. There was no reason for the Tribunal to reduce this claim of the claimants and determined monthly earning to be a sum of Rs. 4,000/- per month. Secondly, the deceased was working as khalasi/Assistant driver and therefore, this court cannot accept claimant to produce any documentary evidence to substantiate their claim. In the absence of any other evidence contrary to the claim made by the claimant in the facts of the present case, the Tribunal should have accepted the claim of the claimant. The learned Tribunal in its judgment in paragraph 11 has stated that the claimant witness no. 1, namely, Ram Kumar Singh and claimant witness no. 2, namely, Mamta Devi (widow of the deceased) has supported the case and earning of the deceased in their evidence. The claim of the appellants with regard to monthly salary including Rs. 75/- for food allowances per day which comes to Rs. 8,250/- (6,000 + (75 X30) = 6000 + 2250 = 8250/-) should have been accepted by the Tribunal. 17. On adding the future prospect, in view of the judgment of the Hon’ble Apex Court in Pranay Sethi (supra), this Court has no doubt that in this case 40% of the salary amount of the deceased would be entitled to be added while calculating total loss of dependency. Paragraph ‘57’ & ‘59.4’ of the Hon’ble Apex Court Judgment in Pranay Sethi (supra) reads as under: – “57. Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardisation, there is really no rationale not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act….” 59.4. The determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Act….” 59.4. In case the deceased was selfemployed 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.” 18. So far deduction of living expenses in Sarla Verma (supra), the Hon’ble Apex Court has observed in paragraphs 30, 31 & 32, which reads as under: – “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 [ (1996) 4 SCC 362 ], the general practice is to apply standardised 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 onethird (1/3rd) where the number of dependent family members is 2 to 3, onefourth (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 exceeds six. 31. Where the deceased was a bachelor and the claimants are the parents, the deduction follows a different principle. In regard to bachelors, normally, 50% is deducted as personal and living expenses, because it is assumed that a bachelor would tend to spend more on himself. Even otherwise, there is also the possibility of his getting married in a short time, in which event the contribution to the parent(s) and siblings is likely to be cut drastically. Further, subject to evidence to the contrary, the father is likely to have his own income and will not be considered as a dependent and the mother alone will be considered as a dependent. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. 32. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependents, because they will either be independent and earning, or married, or be dependent on the father. 32. Thus even if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant, and 50% would be treated as the personal and living expenses of the bachelor and 50% as the contribution to the family. However, where the family of the bachelor is large and dependent on the income of the deceased, as in a case where he has a widowed mother and large number of younger non-earning sisters or brothers, his personal and living expenses may be restricted to onethird and contribution to the family will be taken as two-third." 19. Considering the number of dependents,, it cannot be said that he would have been in a position to spend 1/3rd of his income upon himself. I am of the opinion that the deduction of 1/4th of the income on account of personal expenses would be appropriate. With regard to conventional heads, in Pranay Sethi (supra), the Hon’ble Apex Court has held in paragraph ‘48’, which reads as under: – “This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule to the Act. The said Schedule has been found to be defective as stated by Court in Trilok Chandra Recently, in Puttamma vs. K.L. Narayana Reddy it has been reiterated by stating: (SCC p. 80, para54) “54…. we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.” 20. In Pranay Sethi (supra), the Hon’ble Apex Court has recognised three categories of conventional heads- (i) funeral expenses at 15,000/-, (ii) Estate loss at 15,000/- (iii) loss of consortium at Rs. 40,000/-. While discussing the meaning of word ‘consortium’, the Hon’ble Supreme court in the case of Pranay Sethi (supra) though did not approve the principles laid down in Rajesh vs. Rajbir Singh (2013) 9 SCC 54 but revisited the principles on fixation of conventional heads, after quoting paragraph 17 of Rajesh vs. Rajbir Singh, which reads as under: – "17... 40,000/-. While discussing the meaning of word ‘consortium’, the Hon’ble Supreme court in the case of Pranay Sethi (supra) though did not approve the principles laid down in Rajesh vs. Rajbir Singh (2013) 9 SCC 54 but revisited the principles on fixation of conventional heads, after quoting paragraph 17 of Rajesh vs. Rajbir Singh, which reads as under: – "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 nonpecuniary 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." 21. It is well settled by the judicial pronouncements that the widow of the deceased would be entitled for a spousal consortium and the minor children would get parental consortium. In case of the parents if dependent on the deceased, they would be entitled for filial consortium. In the case of Janabai WD/O Dinkarrao Ghorpade & Ors. vs. ICICI Lombard Insurance Company Ltd. reported in 2022 (10) SCC 512 wherein the Hon’ble Apex Court has awarded Rs. 40,000/- each on account of the spousal and parental consortium. In the present case, the widow (appellant no. 1) would be entitled for Rs. 40,000/- as spousal consortium whereas appellant nos. 2 & 3 would be entitled for Rs. 40,000/- each on account of parental consortium and respondent no. 40,000/- each on account of the spousal and parental consortium. In the present case, the widow (appellant no. 1) would be entitled for Rs. 40,000/- as spousal consortium whereas appellant nos. 2 & 3 would be entitled for Rs. 40,000/- each on account of parental consortium and respondent no. 5 (mother of the deceased) would be entitled for 40,000/- on account of filial consortium. They would also be entitled for the claim on account of funeral expenses at Rs. 15,000/- and Estate loss at Rs. 15,000/-. 22. On the point of future prospect if it is added as per the judgment of the Hon’ble Apex Court while calculating the total loss of dependency, in absence of there being any mandate of the Hon’ble Apex Court on this point, ratio has been applied in the present case where the deceased was below 40 years an additional 40% of the established income of the deceased should be awarded towards future prospect which has been elaborated in paragraph ‘59.4’ of Pranay Sethi (supra) case. 23. In result, this appeal is allowed. The claimants are found entitled for the following amounts: – NAME Tribhuwan Singh AGE 30 Years MONTHLY INCOME 6,000/- ADDITION TO INCOME TO FUTURE PROSPECT (@ 40% DECEASED BEING LESS THAN 40 YEARS) 8,400/- (6000+2400) ANNUAL INCOME (8400X12) 1,00800 /- DEDUCTION TOWARDS PERSONAL & LIVING EXPENSES(1/4) 75,600/- (100800-25200) MULTIPLIER BASED ON AGE OF 30 YEARS 17 AMOUNT OF COMPENSATION 12,85,200/- (75600X17) LOSS OF ESTATE 15,000/- LOSS OF SPOUSAL CONSORTIUM 40,000/- LOSS OF PARENTAL CONSORTIUM 40,000X2=80,000/- LOSS OF FILIAL CONSORTIUM (MOTHER) Rs. 40,000/- FUNERAL EXPENSES 15,000/- TOTAL AMOUNT OF COMPENSATION 14,75,200/- AMOUNT PAID 5,85,500/- PAYABLE AMOUNT Rs. 8,89,700/- 24. The amount of compensation as awarded by the learned Tribunal is modified from Rs. 5,85,500/- to Rs. 8,89,700/- the modified amount shall carry the interest at the rate of 6% per annum from the date of claim petition till realization, the due amount be paid by the Manager, Reliance General Insurance Company Ltd. within a period of three months from today. 25. The Insurance Company will be at liberty to recover the awarded amount from the owner of the offending vehicle after the payment.