High Court of Punjab and HaryanaFAO/1193/2006allowed

Bimla Devi And ANR. v. Khushi Ram And ORS.

2024-09-19Mrs. Justice Sudeepti Sharma18 pages

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1) Whether deceased Shimbu Dayal died in the Motor Vehicle accident which took place due to rash and negligent driving of the Tractor No. HYO%8199? OPP 2) Whether the petitioners are entitled to compensation. If so to what amount and from whom? OPP 3) Whether the driver of the offending vehicle was not holding a valid and effective driving license on the date of the alleged accident ? OPR 4) Relief.

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8 , +#) !Bajaj Allianz General Assurance Co. Ltd vs. Tarun Kaura and others, passed in F.A.O No. 2887"2008, decided on 02.03.2010. * !

5. The contention of the learned counsel for the appellant is, that the liability has been wrongly fastened on the Insurance company, as trailer itself is an independent motor vehicle, in view of the definition contained in the Motor vehicles Act. In absence of a valid driving licence to drive trailer along with the tractor, it was not permissible for the Tribunal, to have fastened the liability to pay compensation on the insurance company. In support of this contention reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Natwar Parikh & Co. Ltd. Vs. State of Karnataka and Others (2005) 7 Supreme Court Cases 364, wherein the Hon'ble Supreme Court has been pleased to lay down as under :%

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(44) "tractor means any vehicle which is not itself constructed to carry any load (other than equipment used for the purpose of propulsion); but excludes a road% r - )))) *+.,

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"8. Ex.PW2/A of is the copy of PMR of Shimbhu Dayal Sh Gobind Ram. Learned Counsel for the to Ex.PW1/A i.e. the copy of son petitioners referred formal FIR No. 99 dated 16.6.2002. as registered at Police Station City Rewari under Sections 279/304% A/283/337 IPC at the instance of petitioner Bhupender Kumar. He has also referred to Ex.P%3. i.e. the copy of the charge%sheet as framed against respondent No.1 Khushi Ram under Sections 279/337/304%A/283 IPC in the criminal case as arising out of above%said FIR and has also referred to Ex.P%4, i.e. the copy of the Order as passed by learned Duty Magistrate. Rewari regarding the release of the vehicle as well as Trolley No. HRU/2702 on superdari and has also drawn the attention of this Tribunal to Ex.P%5 i.e. the copy of release Order of Tractor bearing registration No. HYO%8199 and Trolley No.

HRU/2707. He has also referred to the testimony of PW%1 Bhupender. i.e. the informant on the basis of whose statement, formal FIR Ex.PW1/A was registered and has pointed out that this witness has categorically alleged that the tractor bearing registration No. HYO%8199 alongwith Trolley bearing No.

HRU%2702 was being driven by its driver in a rash and negligent manner and this tractor had hit motor%cycle of his father and his father had died at the spot. He has contended that from the above% discussed oral as well as documentary evidence of the petitioners, it stands duly established on the file that the deceased Shimbhu Dayal had lost his life in the accident in question, as caused by respondent No.1 Khushi Ram by driving above%said Tractor and Trolley in a rash and negligent manner.

9. However, learned counsel for the respondents have argued that neither the respondent No.1 nor the above%said Tractor were ever involved in the alleged accident because their description does not find mention informal FIR EX.PW1/A. wherein only the number. as written on the Trolley ie HRU% 2702, been mentioned. They have also pointed out the charge%sheet Ex.P3 also, number of has that in above%said tractor does not find mention at all and rather, the above mentioned number of the Trolley has been mentioned and they have further pointed out that in Ex.P%4, the registration number of the tractor not find mention and they have further pointed does out that PW%1 Bhupender has categorically admitted during his cross%examination that the accident in question had not been caused by the tractor and rather.

Trolley was pointed out involved in the same. the They have also that Tara Chand, who is stated to accompanying PW%1 Bhupender at the time of in question. has not been examined petitioners to corroborate the be accident by version of Bhupender and they have argued that in light of the PW%1 the afore%discussed facts and circumstances, it becomes explicit that the above% said Tractor was not involved in the accident in question.

10. I. find force in the arguments of learned counsel for respondents because it was entirely the petitioners involvement of to prove the above% said Tractor as well as the respondent No.1 the accident in question. However, a bare perusal for the in of copy of formal FIR No.99, i.e. Ex.PW1/A. reveals that PW%1 Bhupender has alleged therein that the Tractor driver had run away from the spot alongwith the tractor leaving the Trolley there after causing the accident and he has mentioned the number, as written on this Trolley, as HRU/2702. Then, while deposing as PW%1. he has mentioned the registration number of the tractor. allegedly involved in the accident question, to be HYO%8199.

He has failed to forward with any fair and candid explanation introducing the registration number of the tractor for the first time at the time of filing this petition because, he has not disclosed the source getting intimation regarding the this of above%said registration number of the tractor after lodging the FIR Ex. PW1/A. Though, as PW%1, he has deposed that one Tara Chand was also accompany ing him at the time of the accident in question, but the above said Tara Chand has not been examined by the petitioners corroborate the depositions of PW%1 Bhupender. the to Then, version, as given by PW%1 Bhupender in formal FIR Ex.

PW1/A, regarding the tractor driver leaving the Trolley at the spot after causing the accident seems to be highly improbable, because it is a matter of common knowledge that the detachment of any trolley from a tractor takes considerable time and had the tractor driver actually done so at the spot.

police at the time of lodging the FIR Ex.PW1/A, but as discussed above. the registration number of the tractor or the name or the identity of the tractor driver does not find mention in Ex.PW1/A. This fact makes the entire version of PW%1 Bhupender regarding the accident in question highly doubtful.

11. Further. even in the copy of charge%sheet Ex.P%3, above%said registration number of the tractor does not find mention at all. Similarly, in copy of the Order, as passed by learned Duty Magistrate, i.e. Ex.P%4 also, specific registration number of above% said tractor number has not been mentioned at all. In these circumstances, mere mention of the above%said tractor number in release order Ex.P%5 does not suffice at all to link the above%said tractor with the accident in question because as mentioned earlier. the registration number of the tractor not had been mentioned in formal FIR Ex.PW1/A as registered at the instance of P%1 Bhupender. Further. PW%1 Bhupender, during his cross%examination, categorically admitted that the accident had has not been caused by the tractor and rather Trolley Was involved in the same. These depositions clinch the entire matter regarding the alleged involvement of above%said tractor in the accident in question.

12. In the light of the afore%discussed facts and circumstances, it is held that the petitioners have not been able to lead any cogent evidence file to establish that Shimbhu Dayal had on the lost his life in a motor vehicular accident, as caused by respondent No.1 by driving the registration No.HYO/8199 in a the tractor bearing rash and negligent manner. Accordingly, this issue is decided against the petitioners."

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26 ( %/ 8 D+" ) ! Sarla Verma Vs. Delhi Transport Corporation and Another 7

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C30. 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, the general practice is to apply standardised deductions. Having a 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 one%third (1/3rd) where the number of dependent family members is 2 to 3, one%fourth (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 dependant and the mother alone will be considered as a dependant. In the absence of evidence to the contrary, brothers and sisters will not be considered as dependants, 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 d 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 one% third and contribution to the family will be taken as two%third. * * * * * *

42. We therefore hold that the multiplier to be used should be as mentioned in Column (4) of the table above (prepared by applying Susamma Thomas3, Trilok Chandra and Charlie), which starts with an operative multiplier of 18 (for the age groups of 15 to 20 and 21 to 25 years), reduced by one unit for every five years, that is M%17 for 26 to 30 years, M%16 for 31 to 35 years, M%15 for 36 to 40 years, M%14 for 41 to 45 years, and M%13 for 46 to 50 years, then reduced by two units for every five years, that is, M%11 for 51 to 55 years, M%9 for 56 to 60 years, M%7 for 61 to 65 years and M%5 for 66 to 70 years.

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C52. As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh2. It has granted Rs.25,000 towards funeral expenses, Rs 1,00,000 towards loss of consortium and Rs 1,00,000 towards loss of care and guidance for minor children. The head relating to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi, it does not seem to follow the same. The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion. Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed.

The court cannot remain oblivious to the same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are likely to be unguided.

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. We are disposed to hold so because that will bring in consistency in respect of those heads.

* * * * * 59.3. 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.

59.4. 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.

59.5. For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paras 30 to 32 of Sarla Verma4 which we have reproduced hereinbefore.

59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma1 read with para 42 of that judgment.

59.7. The age of the deceased should be the basis for applying the multiplier.

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."

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"21. A Constitution Bench of this Court in Pranay Sethi2 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. 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.

24. 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 Sethi2. 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.

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