Raj Singh and Ors v. Dharambir and Ors

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 225-A FAO-2416-2007 (O&M) Date of Decision: November 07, 2024 Raj Singh and others ......Appellants Vs. Dharambir and others ......Respondents CORAM: HON'BLE MRS. JUSTICE SUDEEPTI SHARMA Present: Mr.Rakesh Nehra, Sr. Advocate with Ms.Rupinder Hooda, Advocate and Mr.O.S. Potlia, Advocate for the appellants Ms. Shamsher Kaur, Advocate for respondent No.3-Insurance Company ---- S UDEEPTI SHARMA J. (ORAL)

¶1The present appeal has been preferred against the award dated

08.01.2007 passed in the claim petition filed under Section 163-A of the Motor Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Jhajjar (for short, 'the Tribunal') for enhancement of compensation, granted to the claimants/appellants to the tune of Rs.1,59,000/- alongwith interest at the rate of 7.5% per annum, on account of death of Raj Bala in a Motor Vehicular Accident, occurred on 17.11.2003.

¶2As 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 reproduced and is skipped herein for the sake of SUBMISSIONS OF THE COUNSELS FOR THE PARTIES

¶3The learned counsel for the claimants-appellants contends that the amount assessed by the learned Tribunal is on the lower side. He further contends

i) That the multiplier of 16 should be applied instead of 15.

ii) That no amount was granted loss of estate and loss of consortium.

iii) That the amount awarded for funeral expenses is also on lower side. Therefore, he prays that the present appeal be allowed and compensation should be enhanced as per latest law.

¶4Per contra, learned counsel for the respondent, however, vehemently argues on the lines of the award and contends that the amount of compensation as assessed by the learned Tribunal has rightly been granted.

¶5I have heard learned counsel for the parties and perused the whole record of this case.

¶6A perusal of the award further shows that the deceased was household lady and the Ld. Tribunal has erred in taking her notional income as Rs.1250/- p.m. The deceased being a housewife, her notional income should be more than of a highly skilled labour since the claim petition was filed under Section 163-A of the Act and there is statutory bar that the income of the injured/deceased should not be more than Rs.40,000/- p.a. In view of the same, the income of the deceased being a housewife is taken to be Rs.3300/- p.m.

ii) Further, the Ld. Trial Court has erred while applying multiplier of 15 instead of 16.

iii) Further no amount was granted for loss of estate and loss of iv6 Moreover, the a"ount awarded !or !unera e<penses is a so on ower side. *here!ore, it re;uires indu ,ence o! this 'ourt. .ETT7ED 7A9 ON COMPEN.ATION .. Hon?+ e Ape< 'ourt in :;,)a' A'&a,% A4%a& :;,)a' A4% )& .0<a* :%&0",! M;,*;= >2022 (1) .CC 817? he d as under :% "12. In the judgment in the case of Puttamma & Ors.1, this Court has observed that the Central Government was bestowed with the duties to amend Schedule!II in view of Section 163!A(3) of the Motor Vehicles Act 1988, but it failed to do so. In view of the same, specific directions were issued to the Central Government to make appropriate amendments to Schedule!II keeping in mind the present cost of living. In the said judgment, till such amendments are made, directions were issued for award of compensation by fixing a sum of Rs.1,00,000/! (Rupees one lakh only) towards compensation for the non!earning children up to the age of 5 (five) years old and a sum of Rs.1,50,000/! (Rupees one lakh fifty thousand only) for the non! earning persons of more than 5 (five) years old.

¶13In the case of R.K. Malik & Anr.2 also, this Court has observed that the notional income fixed under Section 163!A of the Motor Vehicles Act, 1988 as Rs.15,000/! per annum should be enhanced and increased as the same continued to exist without any amendment since 14.11.1994. In the case of Kishan Gopal & Anr.3 where the deceased was a ten years old child, this Court has fixed his notional income at Rs.30,000/! per annum.

¶14In this case, it is to be noted that the accident was on

06.09.2004. In spite of repeated directions, Schedule!II is not yet amended. Therefore, fixing notional income at Rs.15,000/! per annum for non! earning members is not just and reasonable.

¶15In view of the judgments in the cases in Puttamma & Ors.1, R.K. Malik & Anr.2 and Kishan Gopal & Anr.3, we are of the view that it is a fit case to increase the notional income by taking into account the inflation, devaluation of the rupee and cost of living. In view of the same, the judgment in the case of Rajendra Singh & Ors.4 relied on by the learned counsel for respondent No.2! Insurance Company would not render any assistance to the case of the insurance company.

¶16In 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 Schedule!II for the claims under Section 163!A 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. Thus, the appellants are 2024.12.02 08:58 entitled to the following amounts towards compensation:

(a) Loss of Dependency : Rs. 3,75,000!00

(b) Filial Consortium : Rs. 80,000!00 (Rs.40,000/! x 2)

(c) Funeral Expenses : Rs. 15,000!00 !!!!!!!!!!!!!!!! Total : Rs. 4,70,000!00" -. Hon?+ e Supre"e 'ourt in the case o! Sarla Verma Vs. Delhi Transport Corporation and Another >(200@) 6 .;3,!*! C";, Ca&!& 121?, aid down the aw on assess"ent o! co"pensation and the re evant paras o! the sa"e are as under:% @30. 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.

¶31Where 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.

¶32Thus 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 2024.12.02 08:58 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. * * * * * *

¶42We 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.

¶1Hon?+ e Supre"e 'ourt in the case o! National Insurance Company Ltd. Vs. Pranay Sethi & Ors. >(2017) 16 .CC 6A0? has c ari!ied the aw under Sections )//, )/$%A and )/- o! the Motor 0ehic es Act, )1--, on the !o owin, aspects:% 4A6 Aeduction o! persona and ivin, e<penses to deter"ine "u tip icandB 4:6 Se ection o! "u tip ier dependin, on a,e o! deceasedB 4'6 A,e o! deceased on +asis !or app (in, "u tip ierB 4A6 Reasona+ e !i,ures on conventiona heads, na"e (, oss o! estate, oss o! consortiu" and !unera e<penses, with esca ationB 4C6 >uture prospects !or a cate,ories o! persons and !or di!!erent a,es: with per"anent 3o+B se !%e"p o(ed or !i<ed sa ar(. *he re evant portion o! the 3ud,"ent 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. Otherwise, there will be extreme difficulty in determination Sonia Arora 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 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." )0. Hon?+ e Supre"e 'ourt in the case o! Ma/*a G!'!,a4 I'&;,a'$! C"*3a'< 7%*% !1 5&2 Na'; Ra* a4%a& C0;0,; Ra* & O 0!,& >201A(1A) .CC 180? a!ter considerin, .a,4a 5!,*a (&;3,a) and P,a'a< .! 0% (.;3,a) has sett ed the aw re,ardin, consortiu". Re evant paras o! the sa"e are reproduced as under:% "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.

¶22Consortium 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.

¶23The 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 2024.12.02 08:58 of filial consortium.

¶24The 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. RELIEF

¶11In view of the law laid down by the Hon'ble Supreme Court in the above referred to judgments, the present appeal is allowed and the award dated

08.01.2007 is modified accordingly. The appellants-claimants are entitled to the enhanced compensation as per the calculations made here-under:- 1 Monthly Income Rs.3300/- 2 Deduction towards personal Rs.1100/-(1/3rd of 3300) expenditure 1/3

¶3Total Income Rs.26,400 (2200x12) 4 Multiplier 16 5 Annual Dependency Rs.4,22,400 (26,400x12) 6 Loss of Estate Rs.18,000/-7 Funeral Expenses Rs.18,000/-8 Loss of Consortium Rs.1,44,000/-Parental : Rs. 48,000/-x 2 Spousal : Rs. 48,000/-x 1 Filial : Rs. 48,000/-x 9 Total Compensation Rs.6,02,400/-10 Amount Awarded by the Rs.1,59,500/-Tribunal 11 Enhanced amount Rs.4,42,900/-

¶12So far as the interest part is concerned, as held by Hon'ble Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma 2019 ACJ 3176 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 realization.

¶13The respondents No.3 is directed to deposit the enhanced amount of compensation alongwith interest with the Tribunal within a period of two months from today. The Tribunal is further directed to disburse the enhanced amount of compensation alongwith interest in the accounts of the claimants/appellants as per the Award dated 08.01.2007. The claimants/appellants are directed to furnish their bank account details to the Tribunal.

¶14However, respondent No.3-Insurance Company is directed to deposit the compensation in the first instance with the liberty to recover the same from respondents No.1 and 2.

¶15The Insurance Company is hereby directed to disburse the current scheduled fees to Ms. Shamsher Kaur, Advocate, within a period of ten days from the date of receipt of the copy of this judgment.

¶16Disposed off accordingly.

¶17Pending applications, if any, also stand disposed of. (SUDEEPTI SHARMA) JUDGE November 07, 2024 sonia arora Whether speaking/non-speaking : Speaking