Present: Mr. Atul Yadav Advocate Vs. Rama Nand and Others .... Appellants - Court Judgment

SooperKanoon Citationsooperkanoon.com/1063992
CourtPunjab and Haryana High Court
Decided OnJul-22-2013
AppellantPresent: Mr. Atul Yadav Advocate
RespondentRama Nand and Others .... Appellants
Excerpt:
in the high court of punjab and haryana at chandigarh fao no.3819 of 2012. date of decision:22. 7.2013. rama nand and others .... appellants versus bane singh and others .... respondents coram: hon'ble mr. justice nawab singh present: mr. atul yadav, advocate, for the appellants. mr. suman jain, advocate, for the insurance company-respondent no.3. nawab singh.j (oral) this claimants' appeal is directed against the th judgment-cum-award dated march 16 , 2012 passed by the motor accident claims tribunal (for short “the tribunal”.), gurgaon. th 2. on april 29 , 2010 sushila, aged 35-36 years, along with her three children, was travelling in jeep not hr-20-d- 0904 from tosham to bhiwani. when they reached in the area of village biran, a canter bearing not hr-69-a-2662 driven by ravinder in a rash and negligent manner, came from opposite direction, at a fast speed and dashed into the jeep. sushila and one ranjit suffered multiple injuries and died on the spot. fir no.186 (exhibit p-1) under section 304-a ipc was registered in police station sadar, district bhiwani against driver of the canter.3. the claim application was filed under section 166 of the motor vehicles act by husband, eight daughters and one son of the deceased. it was pleaded that the deceased was earning rs.10,000/- per month by selling milk and doing job in a private school.4. the tribunal considering the deceased to be unskilled labourer, held her income at rs.4000/-per month rejecting the claim of the claimants. it was so held because there was no sanjay 2013.07.30 11:54 i attest to the accuracy and integrity of this document punjab and haryana high court fao no.3819 of 2012 (2) evidence led by the claimants that she was working in a private school and was earning rs.10,000/- per month by selling milk except the bald statement of husband of the deceased. out of the th income assessed, deduction of 1/5 was made for her personal and living expenses. the amount was calculated at rs.38,400/- per year. she was 35/36 years old, so, multiplier of 15 was applied. the amount of dependency was assessed at rs.5,76,000/-. besides this, a sum of rs.5000/- was awarded for funeral expenses and transportation of dead body. rs.10,000/- were awarded for loss of consortium. in all, compensation of rs.5,91,000/- was awarded to the claimants along with interest at the rate of 7.5% per annum from the date of filing of claim application till its realization.5. learned counsel for the appellants has th contended that the tribunal should not have deducted 1/5 for her personal and living expenses because the family comprised her husband and nine children. out of them, eight were daughters. it was also argued that the amount of rs.10,000/- awarded for loss of consortium was also on lower side.6. a division bench of this court in paramjit singh and another vs. dilbagh singh alias bagga and others fao no.3310 of 2012 (decided on may 16th, 2013) held that in case the deceased is a house-wife, there should not be any deduction towards personal and living expenses. the division bench referred to the judgment passed by a three judge bench of the hon'ble supreme court in lata wadhwa and others vs. state of bihar and others 2001(4) rcr (civil) 673 in which the hon'ble supreme court held as under:- 10. so far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation, on the basis of services rendered by them to the house. on the basis of the age group of the housewives, appropriate multiplier has been applied, but the sanjay 2013.07.30 11:54 i attest to the accuracy and integrity of this document punjab and haryana high court fao no.3819 of 2012 (3) estimation of the value of services rendered to the house by the housewives, which has been arrived at rs. 12,000/- per annum in case of some and rs. 10,000/- for others, appears to us to be grossly low. it is true that the claimants, who ought to have given datas for determination of compensation, did not assist in any manner by providing the datas for estimating the value of services rendered by such housewives. but even in the absence of such datas and taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be rs. 3000/- per month and rs. 36,000/- per annum. this would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. the compensation awarded, therefore, should be re- calculated, taking the value of services rendered per annum to be rs. 36,000/- and thereafter applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be rs. 50,000/- instead of rs. 25,000/- given under the report. so far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at rs. 10,000/- per annum and multiplier applied is eight. though, the multiplier applied is correct, but the value of services rendered at rs. 10,000/- per annum, cannot be held to be just and, we therefore, enhance the same to rs. 20,000/- per annum. in their case, therefore, the total amount of compensation should be re-determined, taking the value of services rendered at rs. 20,000/- per annum and then after applying the multiplier, as already applied and thereafter adding rs. 50,000/- towards the conventional figure. sanjay 2013.07.30 11:54 i attest to the accuracy and integrity of this document punjab and haryana high court fao no.3819 of 2012 (4) 7. in view of this, the dependency is assessed at rs.4000/-, that is, 48,000/- per year. applying multiplier of 15, the amount of compensation comes to 7,20,000/- (48000x15). amount awarded for funeral expenses and transportation of dead body is enhanced from rs.5000/- to rs.10,000/-. the claimants are husband and nine children of the deceased. in rajesh and others vs. rajbir singh and others 2013 acj 140.a full bench of the supreme court commented upon the meaning of consortium and awarded rs.1 lac to the wife on account of death of her husband who was 33 years of age. for ready reference, paragraph no.20 of the judgment is reproduced as under:- “the ratio of a decision of this court on a legal issue is a predecent. but an observation made by this court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be, periodically revisited, as observed in santosh devi, 2012 acj 142.(sc). we may, therefore, revisit the practice of awarding compensation under conventional heads: (i) loss of consortium to the spouse; (ii) loss of love, care and guidance to children; and (iii) funeral expenses. it may be noted that the sum of rs.2500/- to rs.10000/- under those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. in sarla verma's case, 2009 acj 129.(sc), it was held that compensation for loss of consortium should be in the range of rs.5000 to rs.10000/-. in legal parlance, `consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with sanjay his or her mate. that non-pecuniary head of 2013.07.30 11:54 i attest to the accuracy and integrity of this document punjab and haryana high court fao no.3819 of 2012 (5) damages has not been properly understood by our courts. the loss of companionship, love, care and protection, etc., which the spouse is entitled to get, has to be compensated appropriately. the concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world, more particularly in the united states of america, australia, etc. english courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. by loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. hence, we are of the view that it would be only be just and reasonable that the courts award at least rs.1,00,000/- towards loss of consortium.”8. since the deceased was 35/36 years old and keeping in view the concept of consortium referred to above, the amount for loss of consortium is enhanced to rs.1 lac.9. in view of above, the award of the tribunal is modified to the extent that the appellants are held entitled to total compensation of rs.8,30,000/-. the interest on the enhanced amount of rs.2,39,000/- shall be paid from the date of filing claim application till the amount was deposited by the insurance company under the impugned award at the same rate of interest as was awarded by the tribunal. 22.7.2013 (nawab singh) sn judge whether refer to reporter : yes sanjay 2013.07.30 11:54 i attest to the accuracy and integrity of this document punjab and haryana high court
Judgment:

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH FAO No.3819 of 2012. Date of Decision:

22. 7.2013. Rama Nand and others .... Appellants Versus Bane Singh and others .... Respondents CORAM: HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Atul Yadav, Advocate, for the appellants. Mr. Suman Jain, Advocate, for the insurance company-respondent No.3. NAWAB SINGH.J (ORAL) This claimants' appeal is directed against the th judgment-cum-Award dated March 16 , 2012 passed by the Motor Accident Claims Tribunal (for short “the Tribunal”.), Gurgaon. th 2. On April 29 , 2010 Sushila, aged 35-36 years, along with her three children, was travelling in jeep not HR-20-D- 0904 from Tosham to Bhiwani. When they reached in the area of village Biran, a canter bearing not HR-69-A-2662 driven by Ravinder in a rash and negligent manner, came from opposite direction, at a fast speed and dashed into the jeep. Sushila and one Ranjit suffered multiple injuries and died on the spot. FIR No.186 (Exhibit P-1) under Section 304-A IPC was registered in Police Station Sadar, District Bhiwani against driver of the canter.

3. The claim application was filed under Section 166 of the Motor Vehicles Act by husband, eight daughters and one son of the deceased. It was pleaded that the deceased was earning Rs.10,000/- per month by selling milk and doing job in a private school.

4. The Tribunal considering the deceased to be unskilled labourer, held her income at Rs.4000/-per month rejecting the claim of the claimants. It was so held because there was no Sanjay 2013.07.30 11:54 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.3819 of 2012 (2) evidence led by the claimants that she was working in a private school and was earning Rs.10,000/- per month by selling milk except the bald statement of husband of the deceased. Out of the th income assessed, deduction of 1/5 was made for her personal and living expenses. The amount was calculated at Rs.38,400/- per year. She was 35/36 years old, so, multiplier of 15 was applied. The amount of dependency was assessed at Rs.5,76,000/-. Besides this, a sum of Rs.5000/- was awarded for funeral expenses and transportation of dead body. Rs.10,000/- were awarded for loss of consortium. In all, compensation of Rs.5,91,000/- was awarded to the claimants along with interest at the rate of 7.5% per annum from the date of filing of claim application till its realization.

5. Learned counsel for the appellants has th contended that the Tribunal should not have deducted 1/5 for her personal and living expenses because the family comprised her husband and nine children. Out of them, eight were daughters. It was also argued that the amount of Rs.10,000/- awarded for loss of consortium was also on lower side.

6. A Division Bench of this Court in Paramjit Singh and another vs. Dilbagh Singh alias Bagga and others FAO No.3310 of 2012 (decided on May 16th, 2013) held that in case the deceased is a house-wife, there should not be any deduction towards personal and living expenses. The Division Bench referred to the judgment passed by a three Judge Bench of the Hon'ble Supreme Court in Lata Wadhwa and others vs. State of Bihar and others 2001(4) RCR (Civil) 673 in which the Hon'ble Supreme Court held as under:- 10. So far as the deceased housewives are concerned, in the absence of any data and as the housewives were not earning any income, attempt has been made to determine the compensation, on the basis of services rendered by them to the house. On the basis of the age group of the housewives, appropriate multiplier has been applied, but the Sanjay 2013.07.30 11:54 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.3819 of 2012 (3) estimation of the value of services rendered to the house by the housewives, which has been arrived at Rs. 12,000/- per annum in case of some and Rs. 10,000/- for others, appears to us to be grossly low. It is true that the claimants, who ought to have given datas for determination of compensation, did not assist in any manner by providing the datas for estimating the value of services rendered by such housewives. But even in the absence of such datas and taking into consideration the multifarious services rendered by the housewives for managing the entire family, even on a modest estimation, should be Rs. 3000/- per month and Rs. 36,000/- per annum. This would apply to all those housewives between the age group of 34 to 59 and as such who were active in life. The compensation awarded, therefore, should be re- calculated, taking the value of services rendered per annum to be Rs. 36,000/- and thereafter applying the multiplier, as has been applied already, and so far as the conventional amount is concerned, the same should be Rs. 50,000/- instead of Rs. 25,000/- given under the Report. So far as the elderly ladies are concerned, in the age group of 62 to 72, the value of services rendered has been taken at Rs. 10,000/- per annum and multiplier applied is eight. Though, the multiplier applied is correct, but the value of services rendered at Rs. 10,000/- per annum, cannot be held to be just and, we therefore, enhance the same to Rs. 20,000/- per annum. In their case, therefore, the total amount of compensation should be re-determined, taking the value of services rendered at Rs. 20,000/- per annum and then after applying the multiplier, as already applied and thereafter adding Rs. 50,000/- towards the conventional figure. Sanjay 2013.07.30 11:54 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.3819 of 2012 (4) 7. In view of this, the dependency is assessed at Rs.4000/-, that is, 48,000/- per year. Applying multiplier of 15, the amount of compensation comes to 7,20,000/- (48000x15). Amount awarded for funeral expenses and transportation of dead body is enhanced from Rs.5000/- to Rs.10,000/-. The claimants are husband and nine children of the deceased. In Rajesh and others vs. Rajbir Singh and others 2013 ACJ 140.a full Bench of the Supreme Court commented upon the meaning of consortium and awarded Rs.1 lac to the wife on account of death of her husband who was 33 years of age. For ready reference, paragraph No.20 of the judgment is reproduced as under:- “The ratio of a decision of this Court on a legal issue is a predecent. But an observation made by this Court, mainly to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be, periodically revisited, as observed in Santosh Devi, 2012 ACJ 142.(SC). We may, therefore, revisit the practice of awarding compensation under conventional heads: (i) loss of consortium to the spouse; (ii) loss of love, care and guidance to children; and (iii) funeral expenses. It may be noted that the sum of Rs.2500/- to Rs.10000/- under those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case, 2009 ACJ 129.(SC), it was held that compensation for loss of consortium should be in the range of Rs.5000 to Rs.10000/-. In legal parlance, `consortium' is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with Sanjay his or her mate. That non-pecuniary head of 2013.07.30 11:54 I attest to the accuracy and integrity of this document Punjab and Haryana High Court FAO No.3819 of 2012 (5) damages has not been properly understood by our courts. The loss of companionship, love, care and protection, etc., which the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world, more particularly in the United States of America, Australia, etc. English courts have also recognized the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse's affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would be only be just and reasonable that the courts award at least Rs.1,00,000/- towards loss of consortium.”

8. Since the deceased was 35/36 years old and keeping in view the concept of consortium referred to above, the amount for loss of consortium is enhanced to Rs.1 lac.

9. In view of above, the Award of the Tribunal is modified to the extent that the appellants are held entitled to total compensation of Rs.8,30,000/-. The interest on the enhanced amount of Rs.2,39,000/- shall be paid from the date of filing claim application till the amount was deposited by the insurance company under the impugned Award at the same rate of interest as was awarded by the Tribunal. 22.7.2013 (NAWAB SINGH) SN JUDGE Whether refer to reporter : Yes Sanjay 2013.07.30 11:54 I attest to the accuracy and integrity of this document Punjab and Haryana High Court