Sonia and Others Vs Mukesh Kumar and Others

The present appeal has been preferred against the award dated 13.12.2023 passed in the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 by the learned Motor Accident Claims Tribunal, Jind (for short, 'the Tribunal') for enhancement of compensation granted to the appellant/claimant to the tune of Rs.1,19,83,625/- along with interest at the rate of 9% per annum, on account of death of Samsher Singh in a Motor Vehicular Accident, occurred on 06.07.2021.

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

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

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SUBMISSIONS OF THE LEARNED COUNSELS FOR THE PARTIES

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The learned counsel for the appellants/claimants contends that the compensation 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 compensation be enhanced, as per latest law.

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Per contra , learned counsel for the respondents-Insurance Companies, however, vehemently argue on the lines of the award and contends that the amount of compensation as assessed by the learned Tribunal has rightly been granted. Therefore, they pray for dismissal of the appeal.

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

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SETTLED LAW ON COMPENSATION

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Hon’ble Supreme Court in the case of Sarla Verma Vs. Delhi

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Transport Corporation and Another [(2009) 6 Supreme Court Cases 121] , laid down the law on assessment of compensation and the relevant paras of the same are as under:-

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“ 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,

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and one-fifth (1/5th) where the number of dependent family members exceeds six.

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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.

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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.

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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.

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Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi & Ors. [(2017) 16 SCC 680] has clarified

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the law under Sections 166, 163-A and 168 of the Motor Vehicles Act, 1988,

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on the following aspects:-

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(A) Deduction of personal and living expenses to determine multiplicand;

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

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

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

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

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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. Otherwise, there will be extreme difficulty in determination 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

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to hold so because that will bring in consistency in respect of those heads.

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* * * * *

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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.

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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.

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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.

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59.6. The selection of multiplier shall be as indicated in the Table in Sarla Verma¹ read with para 42 of that judgment.

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59.7 . The age of the deceased should be the basis for applying the multiplier.

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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.”

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Hon’ble Supreme Court in the case of Magma General

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Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram &

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Others [2018(18) SCC 130] after considering Sarla Verma (supra) and Pranay Sethi (Supra) has settled the law regarding consortium. Relevant paras of the same are reproduced as under:-

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“ 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

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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.

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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".

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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".

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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.

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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.

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24 . The amount of compensation to be awarded as consortium will be governed by the principles of

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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.

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A perusal of the award reveals that the deceased was 39 years old and serving as a Constable in BSF Battalion, New Delhi. To establish his income, PW-7 SI Jai Singh, from the office of the Battalion, was examined, who proved his salary slips (Exhibits PW7/A & PW7/B). The salary slips showed his basic pay at Rs.38,600/- and after adding all allowances, his gross monthly remuneration came to Rs.78,051/-. However, the learned Tribunal deducted Dearness Allowance (DA), dress allowance, and soap toilet allowance and assessed his salary at Rs.64,298/-. This approach is no longer tenable in the eyes of law.

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In Vijay Kumar Rastogi v. Uttar Pradesh State Roadways Transport Corporation (2018 SCC OnLine SC 193) , the Apex Court held that for computing “loss of income,” one must reckon the full taxable income, including all money-based benefits and allowances, and not merely basic pay or selected allowances. The relevant portion of the judgment

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passed in Vijay Kumar Rastogi’s case (supra) is reproduced as under:-

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“Strikingly, the High Court noted the taxable income disclosed in tax return of the appellant for the relevant period as Rs.77,480/- (rounded off) and tax deduction of Rs.4,496/-, yet proceeded to hold that the net income of the appellant has been rightly taken into consideration by the Tribunal. It is unfathomable that the High Court, despite having accepted the claim of the appellant founded on his tax return for the relevant period, disclosing the taxable income of the appellant as Rs.77,480/- (rounded off) and deduction of tax of Rs.4,496/-, could have affirmed the conclusion of the Tribunal that the net annual income of the appellant was Rs.44,511/-. It ought to have reckoned the taxable income

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for computing the head towards loss of income. This, in our opinion, is the manifest error committed by the High Court. The appellant is justified in relying upon the decisions of this Court which have taken the view that loss of taxable earning should be reckoned for the purpose of determining just compensation as enunciated in National Insurance Co. Ltd. Vs. Indira Srivastava and Ors.1, which has been followed in Oriental Insurance Company Limited Vs. Jashuben and Ors. 2, and Kavita Vs. Deepak and Ors.3 It has been held that the “income” should include those benefits, either in terms of money or otherwise, which are taken into consideration for the purpose of payment of income tax or professional tax, although some elements thereof may or may not be taxable due to the exemption conferred thereupon under the statute.”

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Moreover, it is trite law that only income tax is to be deducted from the gross salary for determination of the actual salary of the deceased for calculation of loss of income. The Apex Court in Vijay Kumar Rastogi’s case (supra) has categorically held that the income to be considered for determining compensation under the Motor Vehicles Act does not include merely the net salary or take-home pay but the taxable income, inclusive of all allowances and perquisites.

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Accordingly, this Court takes the gross salary i.e. {(basic + all allowances) – income tax} as the proper basis for calculating loss of income, without excluding allowances like DA, dress allowance and soap toilet allowance. Consequently, the income of the deceased for calculation of loss of income is assessed at Rs.72,592/- (Rounded off to Rs.72,600/-) , after deducting income tax.

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A further perusal of the award reveals that the learned Tribunal has awarded meager amount under the heads of loss of estate, funeral

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expenses and loss of consortium. Therefore, requires indulgence of this

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Court.

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RELIEF

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In 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 13.12.2023 is modified accordingly. The appellants/claimants are entitled to the enhanced compensation as per the calculations made here-

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under:-

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Sr. No.	Heads	Compensation Awarded
1	MonthlyIncome	Rs.72,600/-
2	Futureprospects@50%	Rs.36,300/-(50% of 72,600)
3	Deduction towards personal expenditure 1/4	Rs.27,225/- {(72,600 + 36,300) X 1/4}
4	Total Income	Rs.81,625/- (1,08,900 – 27,225)
5	Multiplier	15
6	Annual Dependency	Rs.1,47,01,500/-(81,625 X 12 X 15)
7	Loss of Estate	Rs.18,150/-
8	Funeral Expenses	Rs.18,150/-
9	Loss of Consortium Spousal : Rs. 48,400 x 1 Filial : Rs.48,400 x 3	Rs.1,93,600/-
	Total Compensation	Rs.1,49,31,400/-
	Amount Awarded by the Tribunal	Rs.1,19,83,625/-
	Enhanced amount	Rs.29,47,775/- (Rs. 1,49,31,400 – 1,19,83,625)

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So far as the interest part is concerned, as held by Hon’ble

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Supreme Court in Dara Singh @ Dhara Banjara Vs. Shyam Singh Varma

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2019 ACJ 3176 and R.Valli and Others VS. Tamil Nadu State Transport

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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.

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Respondent No.3-Insurance Company is directed to deposit the enhanced amount of compensation along with interest with the Tribunal within a period of two months from the date of receipt of copy of this judgment. The Tribunal is further directed to disburse the enhanced amount of compensation along with interest in the account of the appellants/claimants as per ratio settled in the award dated 13.12.2023. The appellants/claimants are directed to furnish their bank account details to the Tribunal.

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

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(SUDEEPTI SHARMA) JUDGE

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09.12.2025 Virender

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Whether speaking/non-speaking : Speaking Whether reportable : Yes/No

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Sonia and Others v. Mukesh Kumar and Others

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Sonia and Others v. Mukesh Kumar and Others

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