High Court of Punjab and HaryanaFAO/2511/2006allowed

Somwati And ORS v. Arrrvind Kumar Yadav And ORS

2024-11-05Mrs. Justice Sudeepti Sharma16 pages

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1) Whether accident in question was caused by respondent No.2 and 5 by driving vehicle Nos.RJ02G5672 and KA03 A4272 in a rash and negligent manner?OPP

2) If issue No.1 is proved, whether claimants are entitled to any compensation and if so, to what extent and from whom? OPP 3)Whether respondents No.2 and 5 were not having valid and effective driving licences on the date of accident?OPR 3 & 6.

4) Whether terms and conditions of the Insurance Policy have been violated?OPR3 and 6

5) Whether petition is bad for misjoinder and nonjoinder of necessary parties?OPR 3&6.

6)Relief".

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The learned counsel for the appellants-claimants contends that the claim petition was dismissed on the ground that in the claim petition, the income of Bhup Singh (since deceased) was stated to be Rs.15,000/- per month. He further contends that initially the claim petition was filed under Section 166 of the Motor Vehicles Act, 1988, however, the claimants/appellants moved an application to treat the claim petition under Section 163-A of Motor Vehicles Act, 1988 and the Tribunal vide order dated 02.12.2003, allowed the said application for amendment of the claim petition. Subsequently, the claim petition was converted into Section 163-A of Motor Vehicles Act, 1988. 7.

Learned counsel for the appellants contends that by moving application under Section 163-A of Motor Vehicles Act, 1988, the claimants restricted their claim under a structured formula as per statute and the Tribunal ought to have assessed the compensation payable to the claimants/appellants. Therefore, he prays that present appeal be allowed. Per contra! 3# !("!" 7 *3 *7/ /7 /3 )!

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, "ISSUE NO.2:

10. In the claim petition pleas has been taken that monthly income of the deceased was Rs.15,000/. It mentioned that the claiming his annual income is 45 40,000/ per annum keeping in view of the previsions of Section 163A of the M.V.Act. The claimants adduced evidence to prove monthly income of the deceased. PW1 Somwati stated that her husband was having 50% partnership in truck bearing registration No.RJ032G 1188 and the income of her husband from this truck Rs.15,000/ per month. From the circumstances mentioned above, it is clear that annual income of the deceased was more than Rs.40,000/, Learned counsel for the respondents argued that the compensation amount can not be awarded in favour of the claimants and the claim petition is not maintainable under Section 163A of the M.V.Act as monthly income of the deceased was more than Rs.

40,000/. Under Section 163A only those persons can claim compensation amount if the annual income of the deceased on the injured was less than Rs.40.000/. This contention of learned counsel for the respondents finds support from a full bench decision of the Hon'ble Supreme Court in case law PLR 2004 (1) page 271 in case Deepal Girishbai Soni United India Insurance Co. Ltd.

11. I have closely perused the above cited case law. In the case law referred to above, it was held that only those whose annual income is upto Rs.40,000/ can take the benefit of the provisions of Section 163A of the M.V.Act. Other claimants are

determined required to be in terms of Section XII of the Act. Cited case law fully supports the version of the respondents. On the the ather side, on this point learned counsel for claimants placed his reliance upon case law 2005 ACJ, 705 A.Lakshmi and others v Arjun Associated Pvt. Ltd. I have closed perused the above cited case law. The case law referred above is of not much help to the claimants. In case law referred above, it was held that section 163A would be applicable if the annual Income of the deceased is more than Rs.40,000/ also. Keeping in view the latest decision of a Full Bench of Hon'ble Supreme Court referred above, the case referred above 2005 ADJ, 704 can not Resultantly, deceased it is be held that as the income the law fallowed. of the WAS more than Rs.

40,000/ per annum at the time of accident, the claimants are not entitled to receive the compensation as claimed in this case under Section 163A of the M.V.Act. The claim petition under Section 163A of the M.V.Act is not maintainable. There is no need to give findings regarding entitlement of the amount in favour of the claimants as findings have been given that the claim petition under Section 163A of the M.V.Act is not maintainable. With these findings issue No.2 is decided against the claimants."

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7 ( # 3 .,,#Motor Vehicles Act, 1988, however, subsequently, the claimants moved an application before the learned Tribunal to convert the claim petition under Section 163-A of Motor Vehicles Act, 1988 by restricting their claim under a structured formula as per statute.

12.

A perusal of the award further reveals that the Tribunal has dismissed the claim petition only on the ground that the income of the deceased was Rs.40000/- per annum and held that if the income exceeds Rs.40,000/- per annum, the present claim petition is not maintainable under Section 163-A of Motor Vehicles Act, 1988.

13.

This Court already dealt with the similar issue in %4@0?4100,! Satpal Vs. Daljit Singh and others, decided on 17.05.2024, ( 833 "13 The claim petitions are drafted by the Advocates and it is standard practice to state the maximum earnings and amount of compensation in the pleadings. The Court/Tribunal should appreciate the evidence led on oath, rather than strictly adhering to the pleadings. The present claim petition was dismissed solely on the stated earning of Rs.6,000/ in the pleadings, completely discarding the evidence presented. This indicates a manifest failure to apply judicial mind. Therefore, the present appeal is allowed. The appellant/claimant is granted compensation under Section 163A by taking his income to be Rs.3,000/ per month." .@

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)B/ 3 83 # Sarla Verma Vs. Delhi Transport Corporation and Another 56

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$$ 9! (( # " # 3 D30. 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 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 onefifth (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 nonearning sisters or brothers, his personal and living expenses may be restricted to onethird and contribution to the family will be taken as twothird.

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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 M17 for 26 to 30 years, M16 for 31 to 35 years, M15 for 36 to 40 years, M14 for 41 to 45 years, and M13 for 46 to 50 years, then reduced by two units for every five years, that is, M11 for 51 to 55 years, M 9 for 56 to 60 years, M7 for 61 to 65 years and M5 for 66 to 70 years.

)B/ 3 83 # National Insurance Company Ltd. Vs. Pranay Sethi & Ors. 53

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/# *3 " ! 7!# !# 3 #3E !( F :G< %33 # * # # ## * ( '/F#4 7# E7 " #'3* 3 3 D52. 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. 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 factcentric or quantumcentric.

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 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.

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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# 3 3 "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 husbandwife 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

2 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 worldover 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.

# * #3/ '3* #)B/ E83 #Kurvan Ansari alias Kurvan Ali & Anr. vs. Shyam Kishore Murmu & Anr., (Arising out of Special Leave Petition (C) No.5311 of 2019), decided on 16.11.2021( / #3 .,+4 #

!.566! /*3 " " #'3* 3 "16. In view of the above, we deem it appropriate to take notional income of the deceased at Rs.25,000/ (Rupees twenty five thousand only) per annum. Accordingly, when the notional income is multiplied with applicable multiplier '15', as prescribed in ScheduleII for the claims under 1"

# % 2 of the Motor Vehicles Act 1988, it comes to Rs.3,75,000/ (Rs.25,000/ x Multiplier 15) towards loss of dependency. The appellants are also entitled to a sum of Rs.40,000/ each towards filial consortium and Rs.15,000/ towards funeral expenses.

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