Gayatri Devi and Others Vs Ashwani Kumar and Others

The present appeal has been preferred for setting aside the award dated 05.09.2006 passed in the claim petition filed under Section 166 of the Motor Vehicles Act, 1988, by the learned Motor Accident Claims Tribunal, Narnaul (for short, 'the Tribunal'), whereby claim petition filed by the appellants/claimants, was dismissed.

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FACTS NOT IN DISPUTE

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The brief facts of the case are that on 10.12.2004, Kuldeep (since deceased) was on his way to Ganesh Colony to visit his sister. While returning, when he reached near Panchayat Bhawan on Court Road, a Qualis bearing registration No.HR-35B-6645 came from the court side at a high speed, being driven by respondent No.1 rashly and negligently and in a zigzag manner. The vehicle hit Kuldeep’s scooter, causing him to fall and suffer multiple injuries. Unfortunately, on 21.12.2004, Kuldeep succumbed to his

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injuries. It is claimed that the accident occurred due to the rash and negligent driving of the Qualis bearing registration No.HR-35B-6645 by respondent No.1.

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Upon notice of the claim petition, the respondents appeared and filed their separate replies denying the factum of accident/compensation.

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From the pleadings of the parties, the learned Tribunal framed the following issues:-

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“1) Whether death of Kuldeep was caused in a vehicular accident on 10.12.2004 within the area of Court Road near Panchayat Bhawan, Narnaul on account of rash and negligent driving of Qualis Jeep No. HR-35B-6645 being driven by respondent No.1 ? OPP 2) Whether the petitioners are entitled to any compensation, if so to what amount and from whom? OPP.

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3) Whether the respondent No.3 is not liable to make payment of the amount of compensation on the grounds alleged in the preliminary objections of its written statement? OPR3

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4) Relief.”

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After taking into consideration the pleadings and the evidence on record, the learned Tribunal dismissed the claim petition. Hence, the present appeal.

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SUBMISSIONS OF LEARNED COUNSEL FOR THE PARTIES

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Learned counsel for the appellants/claimants contends:-

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(i) that the learned Tribunal dismissed the claim petition on the ground that there was a delay of 45 days in lodging the FIR;

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(ii) that the ruqa was not sent by the doctors of General Hospital, Narnaul;

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(iii) that PW-5 Ashok Kumar did not come forward to report

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the matter in the police station.

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Therefore, she prays for setting aside of the impugned award passed by the learned Tribunal.

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Per contra , learned counsel for respondent No.3-Insurance Company, however, vehemently argue on the lines of the award dated 05.09.2006 and submit that the award has rightly been dismissed by the learned Tribunal. Therefore, he prays for dismissal of the present appeal.

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

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The relevant portion of the award reads as under:-

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“11. The first version of the accident is found in FIR (Ex.PW4/B) which was recorded on 4.2.2005 at 1.10 P.M. The informant is Chhaju Ram (father of deceased). He is not an eye witness. As per his version, the deceased had gone to Ganesh Colony to meet his sister and on return journey. When he had reached near Panchayat Bhawan near Court Road, in the meanwhile a Qualis No.HR-35B6645 being driven by respondent No.l rashly and at a very high speed as also negligently and in a zig-zag manner, coming from the court side, had hit the scooter of Kuldeep Singh (since deceased) on account of which Kuldeep Singh had fallen down and had received multiple injuries. On 21.12.2004, Kuldeep Singh had succumbed to the injuries in S.M.S. Hospital Jaipur. 12. Informant Chhaju Ram has been examined as PW1. He has deposed that after the accident, his son (Kuldeep Singh) was brought to the hospital by his nephew Ashok Kumar and finding the condition to be serious, the treating doctor had referred the patient to the S.M.S. Hospital, Jaipur.

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13. In his pointed cross-examination, this witness has stated that the police had recorded his statement first of

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all on 4.2.2005. He has further stated that he did not know whether statement of Ashok Kumar was recorded by the police or not. He has admitted in his crossexamination that he himself had gone to the Police Station, Naraul for registration of the case. As per version of the informant Chhaju Ram PW at the time of admission in the Hospital, firstly the doctor had sent a ruka to the police station regarding injuries to the patient but neither the doctor of General Hospital, Narnaul nor of S.M.S. Hospital, Jaipur had been examined on this count. The claimants have not examined any of the treating doctors to explain why they had not sent the ruqa in the police station. Version of Chhaju Ram PW does not find support from any other material that it was a case of accident with Qualis bearing No.HR-35B-6645 and ruqa was sent.

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14. The FIR was lodged after a gap of about 1-1/2 months. HC Sajjan Singh (PW7) in his pointed crossexamination has deposed that he did not know whether any ruqa was received in Police Station City Narnaul from General Hospital Narnaul or not? This witness has further deposed that he did not take into possession MLR of the deceased. Claimants had not tendered postmortem examination report of the deceased. Without Postmortem examination report, cause of death has not been established.

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15. From the totality of facts and circumstances, it is clear that Qualis bearing No.HR-35B-6645 was not involved but had been introduced merely to get compensation. Statements of Chhaju Ram and Ashok Kumar PWs (who are close relatives of the deceased) reveal that they are introduced witnesses. Their crossexamination reveals that they are hollow in standing as witnesses. The Investigating Offices HC Sajjan Kumar (PW7) had taken the Qualis in possession only on 12.2.2005. When cross-examination became grilling on him, he admitted that he had not recorded statement of any eye-witness except Ashok Kumar nephew of the deceased. No explanation has come forth from the claimants as to why the alleged eye witness Ashok Kumar had not come forward to report the matter to the police immediately after the accident. The Investigating Officer HC Sajjan Singh (PW7) has also not given any explanation as to why he did not join the independent eye witnesses from the vicinity. There is nothing in evidence to show that Ashoh Kumar claimed to be an eye witness had accompanied the injured to the hospital and had been attending on him even in S.M.S. Hospital, Jaipur. In

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view of authority reported as Kewal Krishan Sharma and others Versus Pepsu Road Transport Corporation and another 1986 A.C.J 787 it is very unsafe to rely upon statement of Ashok Kumar PW as investigations are lop-sided and highly interested; there are conducted by HC Sajjan Singh (PW7).

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16. The claimants have badly failed to establish that death of Kuldeep Singh, was caused by negligent driving of the Qualis No.HR-35B-6645. Thus this issue is answered against the petitioner.”

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ANALYSIS OF RECORD

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A perusal of the impugned award reveals that the learned Tribunal erred in dismissing the claim petition on the ground that there was a delay of 45 days in lodging the FIR.

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At the outset, it is trite law that proceedings before the Motor Accident Claims Tribunal (MACT) are governed by the doctrine of preponderance of probabilities, as opposed to the strict standard of proof applicable in criminal trials. Reference at this stage can be made to the judgment of Hon’ble the Supreme Court passed in Anita Sharma v. New India Assurance Co. Ltd., 2021(1) SCC(Cri) 475 , wherein it is held by Hon’ble the Supreme Court that standard of proof in motor accident matters is one of preponderance of probabilities rather than beyond reasonable doubt and strict principles of evidence and standards of proof like in criminal trial are inapplicable in the MACT claim cases. The relevant extract of the Anita Sharma’s case (supra) is reproduced as under:-

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22. Equally, we are concerned over the failure of the High Court to be cognizant of the fact that strict principles of evidence and standards of proof like in a criminal trial are inapplicable in MACT claim cases. The standard of proof in such like matters is one of preponderance of probabilities, rather than beyond reasonable doubt. One needs to be mindful that the approach and role of Courts while examining evidence

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in accident claim cases ought not to be to find fault with nonexamination of some best eyewitnesses, as may happen in a criminal trial; but, instead should be only to analyze the material placed on record by the parties to ascertain whether the claimant’s version is more likely than not true. A somewhat similar situation arose in Dulcina Fernandes v.Joaquim Xavier Cruz (2013) 10 SCC 646 . wherein this Court reiterated that:

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“7. It would hardly need a mention that the plea of negligence on the part of the first respondent who was driving the pickup van as set up by the claimants was required to be decided by the learned Tribunal on the touchstone of preponderance of probabilities and certainly not on the basis of proof beyond reasonable doubt. ( Bimla Devi v. Himachal RTC [(2009) 13 SCC 530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri) 1101] )

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(emphasis supplied)”

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The learned Tribunal, however, adopted an unduly rigid

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approach by treating procedural lapses as fatal to the claim, rather than assessing the overall evidence on record. The testimony of PW5-Ashok Kumar, Eye-witness, assumes great significance. He categorically deposed before the learned Tribunal regarding the sequence of events leading to the accident and attributed the accident to the rash and negligent driving of respondent No.1. He was subjected to cross-examination, and his testimony remained unimpeached, thereby inspiring confidence in the veracity of his statement. Furthermore, he furnished a reasonable and plausible explanation for not lodging the FIR immediately, stating that his priority was to transport the injured to the hospital and to ensure that he received medical attention. The learned Tribunal failed to appreciate this explanation, in light of the circumstances which reflects misapplication of legal principles. It is well settled that in cases of motor accidents, medical exigencies often take

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precedence over immediate legal formalities, thus, delay in lodging the FIR cannot be a ground for disbelieving an otherwise credible witness.

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Moreover, it is a settled preposition of law that delay in lodging

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the FIR cannot be deemed fatal to motor claim proceedings, provided the claimant satisfactorily explain the delay with cogent and reasonable grounds. Reference at this stage can be made to the case of Ravi Vs. Badrinarayan

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and others, 2011(4) SCC 693, wherein Hon’ble the Apex Court has held as

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under:-

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“20. It is well-settled that delay in lodging FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the Police Station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the Police Station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the Police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. In cases of delay, the courts are required to examine the evidence with a closer scrutiny and in doing so; the contents of the FIR should also be scrutinised more carefully. If court finds that there is no indication of fabrication or it has not been concocted or engineered to implicate innocent persons then, even if there is a delay in lodging the FIR, the claim case cannot be dismissed merely on that ground.

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21. The purpose of lodging the FIR in such type of cases is primarily to intimate the police to initiate investigation of criminal offences. Lodging of FIR certainly proves factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be variety of reasons in genuine cases for delayed lodgment of FIR. Unless kith and kin of the victim are able to regain a certain level of

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tranquility of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.”

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Furthermore, PW3-Raja Ram, Criminal Ahlmad to the CJM, Narnaul, testified that a challan had been duly presented in FIR No. 27 dated 4.2.2005 against Respondent No.1 and the charges were already framed under Sections 279 and 304-A IPC. Jurisprudence in motor accident cases unequivocally holds that once the FIR has been registered and a charge sheet has been filed, it constitutes prima facie evidence of the fact that the accident occurred due to the negligent driving of the accused. The learned Tribunal, however, erroneously disregarded this crucial piece of documentary evidence, which lends substantial credence to the case of the appellants/claimants.

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Additionally, the findings of the learned Tribunal that no ruqa was sent by the doctor is legally flawed. The obligation to send a ruqa lies with the treating doctor, not with the injured or his family. The failure of the doctor to send a ruqa cannot be held against the claimants, particularly when other evidence on record supports the occurrence of the accident and the involvement of the offending vehicle.

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In view of the above, it is evident that the learned Tribunal has erroneously dismissed the claim petition. The findings recorded by the learned Tribunal are, therefore, legally unsustainable and warrant interference. Accordingly, the award rendered by the learned Tribunal is set aside and claimants/appellants are held entitled to compensation.

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With respect to determination of compensation, the record contains evidence of hospital admission, the deceased-Kuldeep Singh’s earning and expenses incurred for medical treatment and hospitalization. Consequently, this Court shall adjudicate the compensation in accordance with the documented evidence on the record.

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A perusal of the award reveals that the deceased-Kuldeep Singh was stated to be working as Manager in Brick Kiln and his monthly income was asserted to be Rs.10,000/-, however, no document has been produced in this regard. Consequently, his income is to be assessed as Rs.2740/- per month in accordance with minimum wages prescribed for skilled labour in the State of Haryana.

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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

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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 onethird (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.

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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

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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

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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, 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:-

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

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59.3 . While determining the income, an addition of 50% of actual salary to the income of the deceased towards

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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 & Others [2018(18) SCC 130] after considering Sarla Verma (supra) and

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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 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

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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.

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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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RELIEF

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In view of the law laid down by the Hon’ble Supreme Court in

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the above referred to judgments, the present appeal is allowed and the award

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dated 05.09.2006 is set aside. The appellants/claimants are held entitled to

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the compensation as per the calculations made here-under:-

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Sr. No.	Heads	Compensation Awarded
1	MonthlyIncome	Rs.2,740/-
2	Futureprospects@40%	Rs.1,096/-(40% of 2,740)
3	Deduction towards personal expenditure 1/4	Rs.959/- {(2,740 + 1,096) X 1/4}
4	Total Income	Rs.2,877/- (3,836 – 959)
5	Multiplier	17
6	Annual Dependency	Rs.5,86,908/-(2,877 X 12 X 17)
7	Medical Expenses	Rs.29,307/-
8	Loss of Estate	Rs.18,000/-
9	Funeral Expenses	Rs.18,000/-
10	Loss of Consortium Spousal : Rs. 48,000 x 1 Parental : Rs. 48,000 x 2 Filial : Rs. 48,000 x 1	Rs.1,92,000/-
	Total Compensation	Rs.8,44,215/-

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So far as Issue No.3 i.e. whether respondent No.1 was not holding a valid and effective driving licence on the date of alleged accident,

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is concerned, the learned Tribunal has decided the issue in favour of the

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driver of the offending vehicle i.e. respondent No.1 and against the

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Insurance Company. Meaning thereby, the Insurance Company is held liable to pay the compensation.

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So 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 amount of compensation from the date of filing of claim petition till the date of its realization.

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Respondent No.3 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 amount of compensation along with interest equally in the accounts of the claimants/appellants. The claimants/appellants are directed to furnish their bank account details to the Tribunal.

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Respondent No.3-Insurance Company is hereby directed to disburse the current scheduled fees to Mr. Satpal Dhamija, Advocate, within a period of 20 days from the date of receipt of the copy of this judgment, in view of the order dated 18.07.2024 passed in FAO No.1682 of 2007 by this

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Court.

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Pending applications, if any, also stand disposed of.

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(SUDEEPTI SHARMA) JUDGE

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21.03.2025 Virrendra

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

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Gayatri Devi and Others v. Ashwani Kumar and Others

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Gayatri Devi and Others v. Ashwani Kumar and Others

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