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2023 DIGILAW 920 (GUJ)

Pushpaben Manojbhai Joshi Wd/O Manojbhai Vishanjibhai Joshi v. Khengar Ramji Avadia

2023-08-03

GITA GOPI

body2023
JUDGMENT : 1. The claimants have challenged the judgment and award passed on 31.08.2018, passe by the Motor Accident Claims Tribunal (Auxiliary-IV), Kachchh at Bhuj in Motor Accident Claim Petition No. 451 of 2002. 2. Learned advocate Mr. Bhalodi for the appellants submitted that though the employer of deceased, namely Narotambhai Amrutlal Joshi was examined to prove that the deceased was his driver on the vehicle and was earning Rs.6,000/- per month, the learned Tribunal has failed to consider the same and thus, stated that the monthly income of the deceased has not been assessed in accordance with the evidence on record and further stated that the claimants are the widow and two minors. It is submitted that claimant No. 3 was, at the relevant time, aged about 1 year and 6 months, who lost her father even before she could attain the age of recognizing the parents and another minor was only 8 and thus, stated that the consortium loss has not been granted as per the decision of the Hon’ble Supreme Court Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram & Ors., (2018) 18 SCC 130 . 3. The facts of the case suggest that on 21.03.2002, the deceased was proceeding from Bhachau to Anjar in Tata Sumo car bearing registration No. GJ-12-K-8444. He was driving the vehicle in moderate speed and on the correct side of the road. At about 20:00 hours, when the deceased reached opposite to Bhimasar railway station; 1.5 kms away from Bhimasar on Bhachau – Anjar highway, at that time, respondent No. 1 came driving Truck No. GJ-12-U- 8714 rashly and in negligent manner and in excessive speed, on the wrong side of the road and dashed the Tata Sumo, as a result, the deceased suffered fatal injuries and eventually, succumbed to death. 4. The learned Tribunal, after appreciating the evidence on record by way of FIR, Panchnama, PM Report etc. has concluded the total negligence of the truck driver and nothing contrary has been brought on record for this Court to take any adverse view. 5. The claimants had examined Narotambhai Amrutlal Joshi as a witness to prove the income of the deceased and he had placed on record a Certificate, exh. 34 to certify that he was paying Rs.6,000/- per month to the deceased driver. 5. The claimants had examined Narotambhai Amrutlal Joshi as a witness to prove the income of the deceased and he had placed on record a Certificate, exh. 34 to certify that he was paying Rs.6,000/- per month to the deceased driver. However, the income could not be proved by way of any salary slip or any books of accounts or any bank statement but the admitted fact is, on the date of accident, the deceased was a driver in Tata Sumo car. The monthly income of Rs.6,000/- cannot be considered in absence of any supporting evidence but considering the fact that the deceased was a driver and being a skilled person, his income to be considered is Rs.4,000/- per month. At the time of death, the deceased was aged 34 years. Considering the same, 40% prospective rise in income can be considered as per the decision of the Hon’ble Supreme Court in National Insurance Company Limited v. Pranay Sethi & Ors., (2017) 16 SCC 680 . The dependents are three in number and accordingly, deducting 1/3rd from the said amount towards personal expenses and applying multiplier of 16, the total dependency loss would come to Rs.7,16,928/- (Rs.4,000/- + 40% = 5,600 – 1,866 = 3,734 x 12 x 16). 5.1 In Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram & Ors., (2018) 18 SCC 130 , the Hon’ble Supreme Court has laid down the concept of consortium loss as under: “8.4 The Insurance Company has submitted that the father and the sister of the deceased could not be treated as dependents, and it is only a mother who can be dependent of her son. This contention deserves to be repelled. The deceased was a bachelor, whose mother had pre-deceased him. The deceased s father was about 65 years old, and an unmarried sister. The deceased was contributing a part of his meagre income to the family for their sustenance and survival. Hence, they would be entitled to compensation as his dependents. 8.5 The Insurance Company has contended that the High Court had wrongly awarded Rs. 1,00,000 towards loss of love and affection, and Rs. 25,000 towards funeral expenses. 8.5.1 The judgment of this Court in Pranay Sethi (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. 8.5 The Insurance Company has contended that the High Court had wrongly awarded Rs. 1,00,000 towards loss of love and affection, and Rs. 25,000 towards funeral expenses. 8.5.1 The judgment of this Court in Pranay Sethi (supra) has set out the various amounts to be awarded as compensation under the conventional heads in case of death. The relevant extract of the judgment is reproduced herein below: Therefore, we think it seemly to fix reasonable sums. It seems to us that 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 principle of revisiting the said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount that we have quantified 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. (Emphasis supplied) 8.5.2 As per the afore-said judgment, the compensation of Rs. 25,000 towards funeral expenses is decreased to Rs.15,000. 8.5.3 The amount awarded by the High Court towards loss of love and affection is, however, maintained. 8.6 The MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and Loss of Estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognized by the Constitution Bench in Pranay Sethi (supra). 8.6.1 The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty bound and entitled to award just compensation , irrespective of whether any plea in that behalf was raised by the Claimant. 8.6.2 In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2. 8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. 8.7.1 In legal parlance, consortium is a compendious term which encompasses spousal consortium , parental consortium , and filial consortium. 1 and 2. 8.7 A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. 8.7.1 In legal parlance, consortium is a compendious term which encompasses spousal consortium , parental consortium , and filial consortium. 8.7.2.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 (Rajesh and Ors. v. Rajbir Singh and Ors. [JT 2013 (8) SC 288]). 8.7.3 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. 8.7.4 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. 8.7.5 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. 8.7.6 Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognized 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. 8.7.7 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. 8.7.7 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. 8.7.8 Parental Consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. 8.7.9 A few High Courts have awarded compensation on this count (Rajasthan High Court in Jagmala Ram @ Jagmal Singh & Ors. v. Sohi Ram & Ors. [2017 (4) RLW 3368 (Raj)]; Uttarakhand High Court in Smt. Rita Rana & Anr. v. Pradeep Kumar & 6 Ors. [2014 (3) UC 1687]; Karnataka High Court in Lakshman and Ors. v. Susheela Chand Choudhary & Ors. [1996 (3) Kant LJ 570 (DB)]). However, there was no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium. 8.7.10 The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under Loss of Consortium as laid down in Pranay Sethi (supra). 8.7.11 In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium.” 5.2 Here, in this case, the claimants are the widow and two minors, thus, each would be entitled to Rs.40,000/- towards loss of consortium, making total to Rs.1,20,000/- under the said head. 5.3 As per Pranay Sethi (supra), under the heads of funeral expenses and loss of estate, Rs.15,000/- each is to be granted. 5.4 Thus, the computation of compensation would be as under: Head Amount (Rs.) Dependency Loss 7,16,928/- Loss of Consortium 1,20,000/- Funeral Expenses 15,000/- Loss of Estate 15,000/- Total 8,66,928/- Award of Tribunal 6,07,600/- Difference (Enhancement) 2,59,328/- 6. In view of the above, the appeal succeeds and is accordingly allowed in part. The impugned judgment and award of the Tribunal is modified to the aforesaid extent. The difference amount shall be deposited within a period of 06 (six) weeks. The appellants – claimants shall be entitled to interest at the rate of 7.5% per annum on such enhanced amount of compensation, from the date of petition till realization. The impugned judgment and award of the Tribunal is modified to the aforesaid extent. The difference amount shall be deposited within a period of 06 (six) weeks. The appellants – claimants shall be entitled to interest at the rate of 7.5% per annum on such enhanced amount of compensation, from the date of petition till realization. 6.1 Out of the compensation amount, 50% amount is directed to be disbursed in favour of the claimants and rest 50% be invested in cumulative fixed deposit, with any Nationalized Bank in the name of the claimant(s), for a period three years. The FDR shall be kept in the custody of the Nazir of the Tribunal concerned. No encumbrance, whatsoever, shall be permissible on such FDR. On expiry of such period, the amount be disbursed to the claimants on proper verification. 6.2 R&P, if received, be sent back forthwith.