Anisha and others vs Abdul Rahim and

Judgment

1. The instant appeal has been preferre The referred by the claimants/appellants f lants for enhancement of nt of compensation awarded by the the learned Motor Accident Claim Claims Tribunal, Gurgao urgaon (for short, 'the Tribunal') vid vide award dated 01.09.2006 und Section 163-A of of the Motor Vehicles Act, 1988 ( 8 (for short, ‘MACT Act’), whereb whereby the claimants/app /appellants were awarded compensa pensation of Rs.1,25,000/- along wi ng with interest @ 6% per 6% per annum. FACTS NOT IN T IN DISPUTE

2. Brief facts of the case are that on Brief on 04.03.2004, Shehjad alongwi ongwith Unus and Ash M Ash Mohd was going to Nuh from from Taoru on motor cycle bearin bearing registration No R No RJ-02-8-M/6819 being driven by en by him at moderate and slow spee speed. Unus and Ash Mo sh Mohd were pillon riders. At about about 4.30 PM, when they reached ne hed near village Palla, then a, then a tractor trolley bearing registr registration No.HR-27/8528, was foun as found parked in the mi he middle of the road. When they w they were about to overtake the tract e tractor AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh FAO-229-2007 007 (O&M) -2- trolley, a laboure bourer came from the side of the roa he road and tried to cross the road. O . On seeing the labour labourer, Shehjad i.e., driver of the m the motor cycle applied brakes, but a , but an iron plate was pr was protruding out of the trolley and ey and the motor-cycle hit against tractor trolley an ley and also hit the labourer crossing rossing the road. Due to which, Unu Unus, Shehjad and Ash d Ash Mohd, riders of motor cycle cycle fell down and died on the sp the spot whereas Sirajudd irajuddin sustained injuries. The Sad Saddik Khan (owner-cum-driver river of tractor trolley) ha had not taken any precaution to av to avoid the accident and the accide accident solely occurred du rred due to the rash and negligent act o nt act of him.

3. Upon notice of the claim petition, Upon ition, respondents appeared and denie denied the factum of com of compensation. From the pleading of the parties, th From ties, the Tribunal framed the followin llowing

4. issues:- “1. Whether the accident i dent in question took place due to th e to the negligent act of respondent no dent no. 3 Saddiq in parking the tracto e tractor trolley No. HR-27/8528 in the in the middle of the road or on accou account of rash and negligent driving driving of the motor cycle No. RJ- -02- 8M/6819 by Shehjad (since (since deceased) or on account ount of negligence of both the drivers, rivers, as alleged? OPP (2) Whether the petitioners ar ers are entitled to get compensation. ation. If so, to what amount and from w from whom? OPP (3) Whether the respondent S dent Saddiq was not holding valid an alid and effective driving licence and t and that the insured violated the term he terms and conditions of the insur insurance policy, as alleged? OP ? OPR Insurance Company. (4) Relief” AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh FAO-229-2007 007 (O&M) -3-

5. After taking into consideration the After on the pleadings and the evidence o ence on record, the learne learned Tribunal awarded compensa sation of Rs.1,25,000/- along wi ng with interest @ 6% pe 6% per annum. Hence the claimants/a ants/appellants filed the present appe t appeal for enhancement ment of compensation awarded by the by the Tribunal. SUBMISSIONS IONS OF THE COUNSEL FOR TH

R THE PARTIES

6. The learned counsel for the claima The claimants-appellants contended that th that the amount assessed b essed by the learned Tribunal is on the on the lower side. He further contende ntended that the petition w ition was filed under Section 163-A of A of the Motor Vehicles Act, 1988, 1988, in which only accid accident is to be proved and not the ot the negligence of the parties. Thu . Thus, holding of the lia the liability of the Insurance Compan ompany to pay the compensation to th n to the extent of 50% is 0% is not sustainable. He further con er contended that the learned Tribun Tribunal erroneously took took income of the deceased as R d as Rs.2000/- per month. He furth further contended that that the learned Tribunal erroneous neously applied the multiplier of 15 instead of 18 an and no amount has been grante granted for loss of estate. He furth further contended that th that the compensation for loss of cons f consortium and funeral expenses wa ses was also on lower side er side.

7. Per contra, learned for the responden Per c pondent-Insurance Company argues th ues that the learned Tribu Tribunal vide award dated 01.09.200

9.2006 has rightly assessed the amou amount ation. of compensation.

8. I have heard learned counsel for th I hav for the parties and perused the who is case. record of this case

9. A perusal of the award indicates t A pe cates that the claim petition was file as filed under Section 16 ion 163-A of the Motor Vehicles Ac les Act, 1988. Compensation grante granted under this sectio section is determined by a structure ructured forumula, constituting a fin a final award, without r hout requiring proof of negligence b nce by the driver or the owner of r of the vehicle involved olved in the accident. However, th er, the Tribunal erred in applying th ying the AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh FAO-229-2007 007 (O&M) -4- doctrine of contri contributory negligence. It is a well s well settled legal principle, as affirme affirmed by the Hon’ble Su ’ble Supreme Court in United India I ndia Insurance Company Ltd. versu . versus Sunil Kumar, th , that claims under Section 163-A A of the MACT Act are predicate edicated on principle of n e of no fault liability and compensat pensation is to be awarded without th hout the necessity of prov f proving negligence. The relevant ext ant extract of the same is reproduced uced as under:- AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh “8. From the above discu iscussion, it is clear that grant ant of compensation under Section 1 on 163-A of the Act on the basis of th of the structured formula is in the the nature of a final award and th nd the adjudication thereunder is re is required to be made without an ut any requirement of any proof of n of negligence of the driver/owner ner of the vehicle(s) involved in the the accident. This is made explicit b icit by Section 163A(2). Though the the aforesaid section of the Act do t does not specifically exclude a pos possible defence of the Insurer base on the negligence of the clai claimant as contemplated by Sectio ection 140(4), to permit such defenc fence to be introduced by the Insur nsurer and/or to understand the prov provisions of Section 163A of the A he Act to be contemplating any such uch situation would go contrary to th to the very legislative object behind hind introduction of Section 163A 3A of the Act, namely, final compen pensation within a limited time fram on the basis of the structured tured formula to overcome situatio ations where the claims of compensa ensation on the basis of fault liabili ability was taking an unduly long tim g time. In fact, to understand Sectio ection 163A of the Act to permit th it the Insurer to raise the defence nce of negligence would be to bring ring a proceeding under Section 163 163A of the Act at par with the pro proceeding under Section 166 of th of the FAO-229-2007 007 (O&M) -5- Act which would not only be be self-contradictory but also defe defeat on. the very legislative intention.

9. For the aforesaid reasons, w ns, we answer the question arising b ing by holding that in a proceeding u ing under Section 163A of the Act it ct it is not open for the Insurer to ra to raise any defence of negligence o nce on the part of the victim.”

10. In view of the above, the Tribun In v Tribunal’s findings’ qua contributo ributory negligence is here hereby set aside.

11. Further, the Tribunal has assessed Furth sessed the income of the deceased ased at Rs.2000/- per mo er month. However, his income to be e to be assessed as Rs.2250/- per mon r month in accordance wi nce with the minimum wages prescri prescribed for unskilled workers in th s in the State of Haryana aryana. Further the Tribunal applied plied a multiplier of 15, however, th ver, the appropriate multi multiplier should be 17. Furthermore ermore, no amount has been granted f nted for loss of estate and te and the sum awarded for loss of co s of consortium and funeral expenses enses is also on the lower lower side. SETTLED LAW LAW ON COMPENSATION

10. Hon’ble Supreme Court in the ca Hon’ the case of Sarla Verma Vs. Del Delhi Transport Corp orporation and Another [(2009) 6 S 9) 6 Supreme Court Cases 121], la , laid down the law on aw on assessment of compensation an tion and the relevant paras of the sam he same are as under:-

30. Though in some cases the “30 the deduction to be made towar personal and living expenses is c is calculated on the basis of uni indicated in Trilok Chandra, the the general practice is to app standardised deductions. Having a ng a considered several subseque equent decisions of this Court, we are of t of the view that where the decease ceased AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh FAO-229-2007 007 (O&M) -6- was married, the deduction towards ards personal and living expenses ses of the deceased, should be one-third third (1/3rd) where the number ber of dependent family members is 2 to 2 to 3, one-fourth (1/4th) where th re the number of dependent family membe mbers is 4 to 6, and one-fifth (1/5t (1/5th) where the number of dependent fami family members exceeds six.

31. W . Where the deceased was a bac bachelor and the claimants are th re the parents, the deduction follows a d a different principle. In regard ard to chelors, normally, 50% is ded deducted as personal and livin living expenses, because it is assumed tha that a bachelor would tend to spen more on himself. Even otherwise, t se, there is also the possibility of h of his getting married in a short time, in w in which event the contribution to th to the parent(s) and siblings is likely to be to be cut drastically. Further, subje ubject to evidence to the contrary, the fathe to ev father is likely to have his own incom and will not be considered as a dep dependant and the mother alone w e will be considered as a dependant. In be c In the absence of evidence to th to the contrary, brothers and sisters will n ill not be considered as dependant dants, because they will either be indepen ependent and earning, or married, ied, or be dependent on the father. be de

32. Thus even if the deceased is s 32 is survived by parents and sibling blings, only d the mother would be conside nsidered to be a dependant, and 50 d 50% would be treated as the personal an l and living expenses of the bachel chelor and 50% as the contribution to the f the family. However, where the fami family of the bachelor is large and depende of th endent on the income of the decease eased, as in a case where he has a widow as in idowed mother and large number ber of younger non-earning sisters or br r brothers, his personal and livin living AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh FAO-229-2007 007 (O&M) -7- expenses may be restricted to one- -third andcontribution to the fami family will be taken as two-third. * * * * * *

42. We therefore hold that the mu 42. multiplier to be used should be be as mentioned in Column (4) of the ta e table above (prepared by applyin plying Susamma Thomas³, Trilok Chandra Susa ndra and Charlie), which starts wi s with an operative multiplier of 18 (for the an o r the age groups of 15 to 20 and 21 21 to 25 years), reduced by one unit for ev 25 ye or every five years, that is M-17 for 2 for 26 to 30 years, M-16 for 31 to 35 year to 30 years, M-15 for 36 to 40 years, M M-14 for 41 to 45 years, and M-13 for 46 for 4 r 46 to 50 years, then reduced by tw by two units for every five years, that is, M s, M-11 for 51 to 55 years, M-9 for 5 for 56 to 60 years, M-7 for 61 to 65 years a to 60 ars and M-5 for 66 to 70 years.

11. Hon’ble Supreme Court in the case Hon’ case of National Insurance Compa Ltd. Vs. Pranay nay Sethi &Ors. [(2017) 16 SCC SCC 680] has clarified the law und Sections 166, 163 6, 163-A and 168 of the Motor Veh r Vehicles Act, 1988, on the followi ollowing aspects:- (A) Deduction of personal and (A) l and living expenses to determin termine multiplicand; (B) Selection of multiplier depend (B) epending on age of deceased; (C) Age of deceased on basis for a (C) or applying multiplier; (D) Reasonable figures on conv (D) conventional heads, namely, loss o loss of estate, loss of consortium and funera funeral expenses, with escalation; (E) Future prospects for all categ (E) categories of persons and for differe ifferent ages: with permanent job; self-empl ages: employed or fixed salary. The relevant portion of the judgment The gment is reproduced as under:- AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh FAO-229-2007 007 (O&M) -8- “52. As far as the conventio ntional heads are concerned, we fin e find it difficult to agree with the v the view expressed in Rajesh². It ha It has granted Rs.25,000 towards rds funeral expenses, Rs 1,00,00 0,000 towards loss of consortium a um and Rs 1,00,000 towards loss oss of care and guidance for minor c nor children. The head relating to lo to loss of care and minor children do n does not exist. Though Rajesh refe refers to Santosh Devi, it does no s not seem to follow the same. Th e. The conventional and traditional nal heads, needless to say, cannot b not be determined on percentage ba e basis because that would not be a be an acceptable criterion. Unlike d ike determination of income, the sa e said heads have to be quantified. fied. Any quantification must have ave a reasonable foundation. There here can be no dispute over the fa e fact that price index, fall in ban bank interest, escalation of rates tes in many a field have to be no e noticed. The court cannot rema oblivious to the same. There here has been a thumb rule in th in this aspect. Otherwise, will be extreme difficulty determination of the same and and unless the thumb rule is applie plied, there will be immense variatio iation lacking any kind of consisten stency as a consequence of which, th h, the orders passed by the tribuna bunals and courts are likely to be be unguided. Therefore, we think ink it seemly to fix reasonable sum sums. It seems to us that reasonab onable figures on conventional head heads, namely, loss of estate, loss oss of consortium and funeral e l expenses should be Rs.15,00 5,000, Rs.40,000 and Rs.15,000 r 0 respectively. The principle revisiting the said heads is is an acceptable principle. But th ut the revisit should not be fact-cent centric or quantum-centric. We thin AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh FAO-229-2007 007 (O&M) -9- that it would be condign gn that the amount that we ha quantified should be enhance anced on percentage basis in eve three years and the enhancem ncement should be at the rate of 10 f 10% in a span of three years. We We are disposed to hold so becau ecause that will bring in consistency i ncy in respect of those heads. * * * * *

59.3. While determining the the income, an addition of 50% 0% of actual salary to the income ome of the deceased towards futu future prospects, where the decease eased had a permanent job and wa d was below the age of 40 years, sho , should be made. The addition shou should be 30%, if the age of the dece deceased was between 40 to 50 year years. In case the deceased was betw etween the age of 50 to 60 years, th rs, the addition should be 15%. Actua ctual salary should be read as actu actual salary less tax.

59.4. In case the deceased w ed was self-employed (or) on a fixe salary, an addition of 40% of of the established income should b uld be the warrant where the decease ceased was below the age of 40 year years. An addition of 25% where the e the deceased was between the age age of 40 to 50 years and 10% whe where the deceased was between th en the age of 50 to 60 years shoul hould be regarded as the necessa essary method of computation. The The established income means th ns the income minus the tax compone ponent.

59.5. For determination of th of the multiplicand, the deduction fo on for personal and living expenses, ses, the tribunals and the courts sha s shall be guided by paras 30 to 32 o 32 of Sarla Verma⁴ which we ha e have AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh reproduced hereinbefore. FAO-229-2007 007 (O&M) -10-

59.6. The selection of multip ultiplier shall be as indicated in th in the Table in Sarla Verma¹ read wi d with para 42 of that judgment.

59.7. The age of the deceased ased should be the basis for applyin plying themultiplier.

59.8. Reasonable figures on co on conventional heads, namely, loss loss of estate, loss of consortium an and funeral expenses should be R be Rs 15,000, Rs 40,000 and Rs 15 s 15,000 respectively. The aforesa resaid amounts should be enhanced ced at the rate of 10% in every thr years.”

12. Hon’ble Supreme Court in rt in the case of Magma Gener eneral Insurance rance Company Limited Vs. Nan am & . Nanu Ram alias Chuhru Ram & Others [20 rs [2018(18) SCC 130] after consid considering Sarla Verma(supra) an Pranay Se y Sethi (Supra)has settled the law e law regarding consortium. Releva elevant paras of the of the same are reproduced as under: nder:- “21. A Constitution Bench of h of this Court in Pranay Sethi² dea ² dealt with the various heads unde under which compensation is to b to be awarded in a death case. se. One of these heads is loss oss of consortium. In legal parlance ance, "consortium" is a compendio ndious term which encompasses " es "spousal consortium", "parent rental consortium", and "filial cons consortium". The right to consortiu ortium would include the company, any, care, help, comfort, guidanc dance, solace and affection of the the deceased, which is a loss to h to his family. With respect to a s a spouse, it would include sexu relations with the deceased sp d spouse.

21.1. Spousal consortium is generally defined as righ rights AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh pertaining to therelationship ship of a husband-wife which allow allows FAO-229-2007 007 (O&M) -11- compensation to the survivin viving spouse for loss of "compan pany, society, cooperation, affectio ction, and aid of the other in eve conjugal relation".

21.2. Parental consortium is granted to the child upon th on the premature death of a pare parent, for loss of "parental ai l aid, protection, affection, society, discipline, guidance an training".

21.3. Filial consortium is is the right of the parents ts to compensation in the case of a of an accidental death of a child. A ild. An accident leading to the death ath of a child causes great shock an ck and agony to the parents and fam family of the deceased. The greate reatest agony for a parent is to lose lose their child during their lifetim fetime. Children are valued for thei their love, affection, companionsh onship and their role in the family un y unit.

22. Consortium is a special cial prism reflecting changing norm about the status and worth rth of actual relationships. Mode jurisdictions world-over have have recognised that the value of e of a child's consortium far excee ceeds the economic value of th of the compensation awarded in the the case of the death of a child. Mo . Most jurisdictions therefore per permit parents to be awarde compensation under loss of co of consortium on the death of a chil child. The amount awarded to the p he parents is a compensation for lo r loss of the love, affection, care an e and companionship of the decease ceased child.

23. The Motor Vehicles Act is ct is a beneficial legislation aimed ed at AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh providing relief to the victim ictims or their families, in cases ses of FAO-229-2007 007 (O&M) -12- genuine claims. In case whe where a parent has lost their min child, or unmarried son or da r daughter, the parents are entitled tled to be awarded loss of consor nsortium under the head of fili filial consortium. Parental consort sortium is awarded to children wh n who lose their parents in motor ve or vehicle accidents under the Act Act. A few High Courts have award warded compensation on this coun count. However, there was no clarity larity with respect to the principles o les on which compensation could uld be awarded on loss of fili filial consortium.

24. The amount of compensat nsation to be awarded as consortiu ortium will be governed by the prin principles of awarding compensatio sation under "loss of consortium" as " as laid down in Pranay Sethi². In th In the present case, we deem it app appropriate to award the father an er and the sister of the deceased, an , an amount ofRs 40,000 each for lo r loss of filial consortium. ION CONCLUSION

13. In view of the law laid down by th In vi by the Hon’ble Supreme Court in th rt in the above referred to rred to judgments, the present appe t appeal is allowed. The award date d dated

01.09.2006 is m is modified accordingly. The app e appellants-claimants are entitled titled to enhanced compen ompensation as per the calculations ma ons made here-under:- Sr. No. Heads Compensation Awarded 1 Mo Monthly Income Rs.2250/- Deduction 2 De expenditure 3 Total Income Tot towards personal Rs.750/- [1/3 of (2250)] Rs.1500/- (2250-750) AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh FAO-229-2007 007 (O&M)

4. Mu Multiplier 5 An Annual Dependency 6 7 8 Loss of Estate Los Funeral Expenses Fun Los Loss of Consortium Spo Spousal : Rs. 48,000/-x1 Filial : Rs. 48,000/-x2 Fili -13- 17 Rs.3,06,000 /- (1500x12x17) Rs.18,000/- Rs.18,000/- Rs.1,44,000/- 9 To Total Compensation Rs.4,86,000/- 10 Am Amount Awarded by the Tribuna ribunal Rs.1,25,000/- 11 En Enhanced amount Rs.3,61,000/-

14. So far as the interest part is concern So fa oncerned, as held by Hon’ble Suprem upreme Court in Dara Sin a Singh @ Dhara Banjara Vs. Shya Shyam Singh Varma 2019 ACJ 317 J 3176 and R.Valli and O and Others VS. Tamil Nandu State tate Transport Corporation (2022) 2022) 5 Supreme Court ourt Cases 107, the appellant-claim claimant is granted the interest @ 9% per annum on the on the enhanced amount from the date he date of filing of claim petition till th n till the date of its realizat ealization.

15. The Insurance Company is directed t The ected to deposit the enhanced amount ount of compensation alo along with interest with the Tribun Tribunal within a period of two month months from today. The The Tribunal is further directed to ed to disburse the enhanced amount ount of compensation alo on along with interest in the accounts counts of all the claimants/appellants llants as per ratio settled ettled in the award dated 01.09.200 .09.2006. The claimants/appellants a ants are directed to furnish furnish the bank account details to the to the Tribunal.

16. Pending applications, if any, also sta Pend lso stand disposed of. October 01, 2024 A.Kaundal , 2024 SUDEEPTI SHARMA) (SUD JUDGE Whether sp Whether re eaking ther speaking/non-speaking : Speaking ther reportable : Yes/No AMIT KAUNDAL 2024.10.03 19:00 I attest to the accuracy and integrity of this document Chandigarh