HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 6 / Reserved Case :- FIRST APPEAL FROM ORDER No. - 1349 of 2010 Appellant :- [ENTITY] Thru Regional Manager Respondent :- Smt. [ENTITY] W/O Late [ENTITY] & Ors. Counsel for Appellant :- [ENTITY] Counsel for Respondent :- [ENTITY],[ENTITY],[ENTITY] AND Case :- CROSS OBJECTION No. - 1 of 2016 Objector :- Smt [ENTITY] And Ors. 1349(Fafo)2010 Respondent :- [ENTITY]Thru Its [ENTITY]. Anr. Counsel for Objector :- [ENTITY] Counsel for Respondent :- [ENTITY] Hon'ble [ENTITY],J.
1. Heard, Shri [ENTITY], learned counsel for the appellant and respondent no.1 in Cross-Objection, Shri [ENTITY], learned counsel for the respondents no.1 to 8, Shri [ENTITY], learned counsel for the respondent no.9 and respondent no.2 in Cross-Objection and Shri [ENTITY], learned counsel for the cross objectors.
2. The [CASE NUMBER] has been filed by the [ENTITY] challenging the judgment and award dated 08.07.2010 passed in [CASE NUMBER] (Smt. Saisa @ Saida & Others Vs. [ENTITY] & Another) by the Motor Accident Claims Tribunal / Additional District Judge, Court No.7, Sitapur by means of which the claim petition has been partly allowed and an amount of Rs.2,66,000/- has been awarded as compensation alongwith interest @ 6% per annum which is to be paid by the appellant insurance company as per the apportionment made in the impugned judgment and order.
3. The [CASE NUMBER] has been filed by the claimants for modification of the award dated 08.07.2010 and enhancement of the compensation.
4. The brief facts of the case for adjudication of the present appeal and cross-objection are that the husband of the claimant no.1- Smt. [ENTITY], [ENTITY], when alive, had gone to Maholi on 29.03.2009 with his friend [ENTITY]. As no transport was available therefore he alongwith his friend [ENTITY] was coming on foot towards the Sitapur at 5:45 PM. As they reached near Shahamholi plant, the driver of the Jeep No.U.P 31 D-2851, driving rashly and negligently, came from the backside and hit [ENTITY] and [ENTITY]. [ENTITY] died on the spot but the [ENTITY] was injured and he died while he was being taken to the district hospital. The driver alongwith jeep ran away. An F.I.R of the accident was lodged at the Police Station- Kotwali, District- Sitapur.
5. It was further stated in the claim petition that the age of the deceased at the time of accident was 35 years. He used to sell Dari after making and earning Rs.10,000/- per month. The wife of the deceased i.e. claimant no.1 and his children i.e. claimants no.2 to 8 were dependent on him. With the aforesaid allegations the claim petition was filed claiming compensation.
6. The respondent no.1 / Shri [ENTITY], owner and driver of the vehicle, has filed his written statement denying the accident and stating that he himself was driving the vehicle. He has valid and effective driving license and the vehicle in question was ensured with the respondent no.2 / insurance company which was valid w.e.f. 04.01.2009 to 23.01.2010. The permit of the vehicle was also valid. The vehicle was being driven in accordance with the terms and conditions of the insurance policy therefore he is not liable to make the payment of any compensation.
7. The respondent no.2 i.e. the appellant in [CASE NUMBER] / the [ENTITY] filed a written statement denying the allegations made in the claim petition. It was also stated that the vehicle in question was being used in contravention of the insurance policy. Even then if the tribunal comes to the conclusion that the insurance company is liable to make the payment of compensation then it would be payable in accordance with the terms and conditions of the insurance policy.
8. After considering the pleadings of the parties four issues were framed. The claimant no.1- Smt. [ENTITY] as PW-1, [ENTITY] as PW-2 and [ENTITY] as PW-3 were got examined on behalf of the claimants. In the documentary evidence the copy of the F.I.R, postmortem report, charge-sheet and bail order were filed. The respondent no.1- [ENTITY] i.e. the owner and driver of the vehicle got himself examined as OPW-1. In the documentary evidence he filed the registration certificate, insurance policy, license, permit and fitness of the vehicle in question. After considering the pleadings of the parties and evidence adduced before it, the learned tribunal came to the conclusion that the accident in question had occurred due to rash and negligent driving of the driver of jeep involved in the accident on account of which the deceased [ENTITY] and his friend [ENTITY] got injuries and died.
9. It has further been held that the vehicle was being driven in accordance with law which was insured with the [ENTITY] and was being driven in accordance with the terms and conditions of the insurance policy. The driver was having valid and effective driving license. Permit and fitness of the vehicle in question were valid at the time of accident and accordingly allowed the compensation.
10. The first submission of the learned counsel for the appellant was that the accident has not been proved because the alleged accident had occurred on 29.03.2009 and a delayed F.I.R was lodged on 04.04.2009, mentioning the vehicle No.UP-30-A-4964. It was also stated in the F.I.R that [ENTITY] S/o [ENTITY] and [ENTITY] S/o [ENTITY] had seen the accident and number of the vehicle and informed to the informant by telephone. The F.I.R was lodged by the elder brother of the deceased [ENTITY] S/o [ENTITY]. Subsequently, an application was moved for correction of the vehicle number and accordingly the claim petition was filed alleging that the accident had occurred from the vehicle having Registration No. UP-31-D-2851. Therefore, the accident was not proved and a false case was set up to claim the compensation.
11. [ENTITY] was got examined by the claimants as PW-2 who had stated in his statement that while he was going alongwith his friend [ENTITY] on the date of accident on 29.03.2009, he had seen that the deceased [ENTITY] and [ENTITY] were going towards Sitapur on foot near Shahamholi when the driver of the Jeep No. UP-31-D-2851, driving rashly and negligently, hit them. In the accident [ENTITY] died and [ENTITY] died while he was being taken to the hospital. He had also stated that he had informed to [ENTITY], brother of deceased [ENTITY] about the accident and the vehicle number. The appellant insurance company had cross examined the PW-2 but he could elicit nothing which could create any doubt about his testimony. The brother of the deceased [ENTITY], who had lodged the FIR was examined as PW-3. He has stated in his evidence that he was very much perturbed with the death of the brother [ENTITY] on account of which he had wrongly written the number of the jeep. When he came to know about it he gave an application and the correct number of the Jeep No. UP-31-D-2851. He was also cross examined by the insurance company but nothing could be elicit which could create any doubt about his testimony. Therefore, even if, the number of vehicle is recorded in their statement under [SECTION] [ACT] as it was in the F.I.R the same can not be considered to be a substantive piece of evidence, therefore this court is of the view that the learned tribunal has rightly considered the pleadings and recorded a categorical finding that the accident had occurred due to rash and negligent driving of the jeep in question which is based on the material and cogent evidence.
12. The second submission of the learned counsel for the appellant was that the permit of the vehicle was for Lakhimpur region which was being driven in the district Sitapur, therefore there was violation of permit and terms and conditions of insurance policy so the insurance company is not liable to make the payment of compensation.
13. Learned counsel for the respondents submitted that this plea was not raised before the learned tribunal. The learned counsel for the respondent no.9 i.e. the owner and driver of the vehicle in question had stated that the vehicle was being driven as per the permit granted to it. It was for Lakhimpur region which was valid at the place where the accident had occurred.
14. The perusal of the record indicates that this plea was not taken before the learned tribunal. Thehe learned tribunal, after considering the pleadings and evidence, has recorded a finding that the permit and fitness of the vehicle in question was valid at the time of accident alongwith license of the driver. The permit issued to the vehicle in question and the form 54 filed by the insurance company indicates that the permit was valid w.e.f. 13.01.2009 to 12.01.2014, and it was valid for Lakhimpur region and nothing has been brought either before the tribunal or before this Court to indicate that the vehicle was being driven out of the permit area. Therefore, the contention of he learned counsel for the appellant is repelled.
15. In view of above, this court is of the considered opinion that the learned tribunal has rightly decided the issues nos.1, 2 and 3 in accordance with law and held that the insurance company is liable for making the payment of the compensation.
16. Learned counsel for the cross-objector had submitted that the deceased was doing the work of selling Dari after making but that has not been accepted in absence of any documentary proof. But it has been accepted that the deceased was a healthy man and used to earn so much on which his wife and children were dependent. But wrongly the learned tribunal assessed the income as Rs.2,000/- per month and Rs.24,000/- per year while it should have been at least Rs.3,000/- per month and Rs.36,000/- per year in view of the judgment of the Hon'ble Apex Court in the case of [PRECEDENT].
17. He further submitted that the deduction of 1/3rd has wrongly been made towards the personal expenses while it should have been 1/5th as claimants are eight. He also submitted that no future prospects has been awarded while in view of [SECTION] of the [ACT] (here-in-after referred as Rules of 1998), 50% should have been awarded towards future prospects and lesser amount has been awarded towards conventional heads which is also liable to be enhanced alongwith interest which is also on the lesser side.
18. The Hon'ble Apex Court in the case of [PRECEDENT] (Supra) has approved the income of Rs.3,000/- per month in regard to the deceased who was working and it was no body's case that he was not working at all. Therefore, the Hon'ble Apex Court has held that even if we ignore the exaggeration figure arrived at by the High Court, Rs.3,000/- per month appears to be correct. In the present case learned tribunal has recorded a finding that the deceased was earning so much that his wife and children were dependent on it. Therefore, this Court is of the view that the learned tribunal has wrongly assessed the income of the deceased as Rs.2,000/- per month and Rs.24,000/- per year while it should be Rs.3,000/- per month and Rs.36,000/- per year.
19. It has been provided in [SECTION] of the Rules of 1998 that the deduction towards personal and living expenses of a married person deceased shall be 1/4th where the dependent family members are 4 to 6. As per [SECTION] for the purpose of calculation of number of family members in question (ii) a minor dependent will be counted as half. In the present case there are seven minor children and one widow therefore the number of dependents would come 4.5 and accordingly the deduction of 1/4th is to be made therefore learned tribunal has wrongly made the deduction of 1/3rd towards personal and living expenses which should be 1/4th.
20. A Constitution Bench of the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. [ENTITY] and Others; (2017) 16 SCC 680, after considering several judgments, recorded its conclusion in Paragraph no. 59 regarding determination of the compensation which is reproduced as under:-
"59. In view of the aforesaid analysis, we proceed to record our conclusions:-
59.1. The two-Judge Bench in [ENTITY] should have been well advised to refer the matter to a larger Bench as it was taking a different view than what has been stated in [ENTITY], a judgment by a coordinate Bench. It is because a coordinate Bench of the same strength cannot take a contrary view than what has been held by another coordinate Bench.
59.2. As [ENTITY] has not taken note of the decision in [ENTITY], which was delivered at earlier point of time, the decision in [ENTITY] is not a binding precedent.
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 wasbetween 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 paragraphs 30 to 32 of [ENTITY] which we have reproduced hereinbefore.
59.6.The selection of multiplier shall be as indicated in the Table in [ENTITY] read with paragraph 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."
21. Perusal of the impugned judgment and award of learned Tribunal indicates that the learned Tribunal has allowed nothing towards the future prospects whereas the Hon'ble Apex Court in the case of National Insurance Company Limited Vs. [ENTITY] and Others (supra) has held in paragraph 59.4 that 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. The Hon'ble Apex Court, in the case of [PRECEDENT], has held that there can not be distinction where there is positive evidence of income and where minimum income is determined on guesswork in the facts and circumstances of the case and both the situations stand at the same footing. Accordingly, this court is of the view that the appellants / claimants are entitled for addition of 40% towards the future prospects.
22. Perusal of the impugned judgment and award indicates that Rs. 5,000/- has been awarded towards loss of consortium and Rs.2,000/- towards funeral expenses and Rs.3,000/- for the loss of estate while in Paragraph 59.7 of National Insurance Company Limited Vs. [ENTITY] and Others (Supra), the Hon'ble Apex Court has held that the requisite figures of conventional heads namely loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs.40,000/- and 15,000/- respectively with a future enhancement at the rate of 10% in every three years. Therefore, this Court is of the view that the appellants / claimants are entitled for Rs. 15,000/- and Rs. 15,000/- towards loss of estate and funeral expenses respectively in place of Rs. 3000/- for the funeral expenses.
23. In addition to above this Court is of the view that the claimants / respondents no.1 to 8 are also entitled to Rs.40,000/- each under the loss of consortium in view of paragraph 59.7 of the aforesaid Constitution Bench judgment in [ENTITY] (Supra) read with [PRECEDENT] of Hon'ble Supreme Court. The relevant paragraphs 19 to 24 of which are reproduced as under:-
19.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. The judgment of this Court in[ENTITY][National Insurance Co. Ltd.v.[ENTITY], (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] 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: (SCC p. 711, para 52) "52. 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 @ 10% in a span of three years."
(emphasis supplied) As per the aforesaid judgment, the compensation of Rs 25,000 towards funeral expenses is decreased to Rs 15,000. The amount awarded by the High Court towards loss of love and affection is, however, maintained.
20.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 recognised by the Constitution Bench in[ENTITY][National Insurance Co. Ltd.v.[ENTITY], (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . The [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. In exercise of our power under [SECTION], and in the interests of justice, we deem it appropriate to award an amount of Rs 15,000 towards loss of estate to Respondents 1 and 2.
21.A Constitution Bench of this Court in[ENTITY][National Insurance Co. Ltd.v.[ENTITY], (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] 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: [[ENTITY], [PRECEDENT]] 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. 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 [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 [ Rajasthan High Court [PRECEDENT]; Uttarakhand High Court [PRECEDENT]; Karnataka High Court [PRECEDENT] . 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[ENTITY][National Insurance Co. Ltd.v.[ENTITY], (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . 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.
24. The learned Tribunal has allowed the simple interest @ 6% per annum which this court finds on the lesser side and the adequate interest would be 9 % per annum which has been allowed by three judge bench of Hon'ble Supreme Court in the case of [PRECEDENT]. Thus, the rate of interest is modified to 9% per annum in place of 6 % per annum.
25. In view of above, this court is of the considered opinion that the appeal filed by the insurance company is liable to be dismissed and the cross-objection is liable to be partly allowed and the judgment and award passed by the learned Tribunal is liable to be modified and the claimants-respondents / objectors are held entitled to a compensation, which is calculated as follows:-
Income (Yearly) Rs.36,000/-
2. After deduction @ 1/4th Rs.27,000/-
3. Multiplier; (16) 27,000/-x 16 Rs.4,32,000/-
4. Future Prospects (40%) Rs.1,72,800/-
5. Loss of Estate Rs.15,000/-
6. Loss of Consortium (40,000X8) Rs.3,20,000/-
6. Funeral expenses Rs.15,000/-
Total (3+4+5+6+7) Rs. 9,54,000/-
26. Thus, the [CASE NUMBER] is dismissed and [CASE NUMBER] is partly allowed. The judgment and award dated 08.07.2010 passed in [CASE NUMBER] (Smt. Saisa @ Saida & Others Vs. [ENTITY] & Others) by the Motor Accident Claims Tribunal / Additional District Judge, Court No.7, Sitapur is modified and the appellant / respondent i.e [ENTITY] is directed to make the payment of Rs.9,54,000/- alongwith interest @ 9% per annum from the date of filing the claim-petition after adjusting the amount already deposited / paid, if any. The remaining amount shall be deposited by the Insurance Company within a period of six weeks from today with the Claims Tribunal which shall be released to the claimants-respondents forthwith. No order as to costs.
27. The lower court record and amount deposited before this Court, if any, alongwith the statutory deposit shall be remitted to the Claims Tribunal within a period of four weeks from today.
([ENTITY],J.) Order Date :- 24.10.2019 Haseen U.