Seema And ORS v. Parveen Kumar And ORS

      


    

 



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Whether only the operative part of the judgment is pronounced? NO Whether full judgment is pronounced?

YES - 34 

 

 



Present:

Mr. Rajesh Bansal, Advocate for the appellants.

Mr. Anil Dutt, Advocate for respondent No.1 and 2.

Mr. Sanjeev Kodan, Advocate for respondent No.3-Insurance Company.

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  1.

The present appeal has been preferred against the award dated 11.01.2013 passed in the claim petition filed under Section 166 and 140 of the Motor Vehicles Act, 1988 (in short '1988 Act'), by the learned Motor Accident Claims Tribunal, Panipat (for short, 'the Tribunal') for enhancement of compensation granted to the claimants to the tune of Rs.7,26,000/- along with interest @ 7% per annum, on account of death of Sanjay Verma in a Motor Vehicular Accident, occurred on 26.06.2011. 2.

As sole issue for determination in the present appeal is confined to quantum of compensation awarded by the learned Tribunal, a detailed

 narration of the facts of the case is not required to be reproduced here for the sake of brevity.






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3.

The learned counsel for the claimants-appellants contends that the amount assessed by the learned Tribunal is on the lower side and deserves to be enhanced. Therefore, he prays that the present appeal be allowed and amount of compensation be enhanced as per latest law. 4.

Per contra, learned counsel for respondents, however, vehemently argues that the award has rightly been passed and the amount of compensation, as assessed by the learned Tribunal has rightly been granted. Therefore, they pray for dismissal of the appeal. 5.

I have heard learned counsel for the parties and perused the whole record of this case with their able assistance.

4

45    6.

Hon'ble Supreme Court in the case of Sarla Verma Vs. Delhi Transport Corporation and Another 6 2 .

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  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. 7.

Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. 6   .

 .98 has clarified the law under Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988, on the following aspects:- (A) Deduction of personal and living expenses to determine multiplicand;

(B) Selection of multiplier depending on age of deceased;

(C) Age of deceased on basis for applying multiplier;

1 (D) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses, with escalation;

(E) Future prospects for all categories of persons and for different ages: with permanent job; self-employed or fixed salary.

The relevant portion of the judgment is reproduced as under:- "52. 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.

. 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 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."

8.

Hon'ble Supreme Court in the case of #:7# !$!+#"

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9 "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

2 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. 9.

A careful perusal of the award indicates that the age of the deceased was recorded as 35 years (35 years 9 months and 24 days), as reflected in his matriculation certificate, which was duly placed on record. However, the learned Tribunal fell into error in categorizing the deceased within the 36-40 years age bracket for the purpose of applying the multiplier. The said approach is inconsistent with the principles laid down by the Hon'ble Supreme Court in its latest authoritative pronouncements governing the determination of the appropriate multiplier in motor accident compensation cases.

10.

In this regard, reliance is placed on the judgment of the Hon'ble Supreme Court in Shashikala & Ors. v. Gangalakshmamma & Anr., Law Finder Doc Id 658691, wherein the Apex Court emphasized that the age of the deceased, for the purpose of applying the multiplier, must be taken as the age last completed, and not the age including the additional months. The relevant extract of Shashikala's case (supra) is reproduced as under:- "17. Insofar as appropriate multiplier, the date of birth of the deceased as per driving licence was 16.6.1961. On the date of accident i.e. 14.12.2006, the deceased was aged 45 years, 5 months and 28 days and the tribunal has taken the age as 46 years. Since the deceased has completed only 45 years, the High Court has rightly taken the age of the deceased as 45 years and adopted multiplier 14 which is the appropriate multiplier and the same is maintained. Total loss of dependency is calculated at L 16,82,310/- ( L 1,20,165/- x 14)."

  11.

Therefore, in view of the above referred to judgment, multiplier of 16 should be applied on the basis of last completed age (35 years). 12.

A further perusal of the award reveals that the learned Tribunal has committed a manifest error in ignoring the Income Tax Returns (ITRs) (Ex.P-24 and Ex.P-25) placed on record by the claimants/appellants for the purpose of calculating the income of the deceased. The only reason assigned for discarding the said documents is that no official from the Income Tax Department was examined to prove the same. The said reasoning is contrary to the catena of judgments rendered by the Hon'ble Supreme Court. 13.

It is trite law that Income Tax Returns are legally admissible documents, on the basis of which the assessment of the income of the deceased can validly be made. Accordingly, the learned Tribunal erred in law in disregarding the ITRs while determining the income of the deceased. 14.

In the case of Anjali and Ors. Vs. Lokendra Rathod and Ors., Law Finder Doc Id#2081014, the Apex Court emphasized on the relevance of ITRs. The relevant portion of the same is reproduced as under:- "9. The Tribunal and the High Court both committed grave error while estimating the deceased's income by disregarding the Income Tax Return of the Deceased. The appellants had filed the Income Tax Return (2009- 2010) of the deceased, which reflects the deceased's annual income to be Rs.1,18,261/-, approx. Rs.9,855/- per month. This Court in Malarvizhi & Ors. (Supra) has reaffirmed that the Income Tax Return is a statutory document on which reliance be placed, where available, for computation of annual income. In Malarvizhi (Supra), this Court has laid as under:

"10. ...We are in agreement with the High Court that the determination must proceed on the basis of the income tax

  return, where available. The income tax return is a statutory document on which reliance may be placed to determine the annual income of the deceased." Hence, this Court is of the opinion that the deceased's annual income be fixed at Rs.1,18,261/-, approx. Rs.9,855/- per month keeping in mind the deceased's Income Tax Return for the year 20092010." 15.

Further the same principle was reiterated in the judgment of Nidhi Bhargava and ors. Vs. National Insurance Company Ltd. and ors., Law finder Doc Id#2722181. The relevant portion of the same is reproduced as under:- "13. The Income Tax Return is a legally admissible document on which the income assessment of the deceased could be made. This Court in Malarvizhi v. United India Insurance Co. Ltd., (2020) 4 SCC 228 affirmed that the determination of income must proceed on the basis of Income Tax Return(s), when available, being a statutory document. In S Vishnu Ganga v. Oriental Insurance Company Limited, 2025 SCC Online SC 182, we opined: '11. ...It is no longer res integra that Income Tax Returns are reliable evidence to assess the income of a deceased, reference whereof can be made to Amrit Bhanu Shali v. National Insurance Co. Ltd., (2012) 11 SCC 738 [Para 17]; Kalpanaraj v. Tamil Nadu State Transport Corporation, (2015) 2 SCC 764 [Para 7], and K Ramya (supra) [Para 14 of 2022 SCC Online SC 1338].'

(emphasis supplied)

14. In Malarvizhi (supra), the Madras High Court relied upon the Returns 'for Assessment Year 1997-1998 and not 1999-2000 and 2000-2001 which reflected a reduction in the annual income of the deceased' therein."

16.

Therefore, in view of the above, the income of the deceased is to be reassessed by placing reliance on the ITRs placed on record by the claimants-appellants. Thus, income is reassessed as Rs.12,680/-

  17.

A further perusal of the award reveals that the learned Tribunal has erred in adding 30% towards future prospects. Therefore, considering the age of the deceased and settled law on compensation > is to be added as future prospects. Furthermore, the learned Tribunal has rightly deducted 1/3 for personal expenditure of the deceased.

18.

A further perusal of the award reveals that the amount granted for loss of consortium, loss of estate and funeral charges is on lower side. Therefore, the award requires indulgence of this Court. 4  19.

In view of the law laid down by the Hon'ble Supreme Court in the above referred to judgments, the present appeal is allowed. The award dated 11.01.2013 is modified accordingly. The appellants-claimants are entitled to enhanced compensation as per the calculations made hereunder:- Sr.

No.

Heads Compensation Awarded Monthly Income Rs.12680/- Future prospects @ 40% Rs.5072/- (40% of 12680) Deduction towards personal expenditure 1/3 Rs.5917/- (17752 X 1/3) Total Income Rs.11835/- (17752-5917) Multiplier Annual Dependency Rs.2272320/- (11835 X 12 X 16) Loss of Estate Rs.15000/- Funeral Expenses Rs.15000/- Loss of Consortium Parental : 2 x 40,000 Spousal : 1 x 40,000 Rs.1,20,000/- )%#"

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  20.

So far as the interest part is concerned, as held by Hon'ble Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma  2 

. and R.Valli and Others VS. Tamil Nadu State Transport Corporation (2022) 5 Supreme Court Cases 107? the appellants-claimants are granted the interest @ 9% per annum on the enhanced amount from the date of filing of claim petition till the date of its re.alization. 21.

The respondent No.3-Insurance Company is directed to deposit the enhanced amount along with interest at the rate of 9% with the Tribunal within a period of two months from the date of receipt of copy of this judgment. The Tribunal is directed to disburse the same to the appellantsclaimants in their bank accounts. The appellants-claimants are directed to furnish their bank account details to the Tribunal. 22.

Pending application (s), if any, also stand disposed of. 1 .

 

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Whether speaking/non-speaking :

Yes/No Whether reportable :

Yes