Partly allowed

Smt. Shakuntala Kunwar and Ors. v. Ramfal and Ors.

Rajasthan HC24 Aug 2023CMA/1249/2004

Case brief

AI extract

What is this about?

Appeal against MACT award in motor accident death. HC held that in composite negligence where one tortfeasor is not impleaded, the impleaded insurer bears 100% liability. Loss of consortium awarded to all four dependents. Compensation enhanced.

What did the court decide?

Respondent Insurance Company liable to pay enhanced compensation of Rs. 9,50,675/- along with interest.

Smt. Shakuntala Kunwar and Ors. Vs Ramfal and Ors. — Motor Accident Claims | Rajasthan HC (2023)

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[2023:RJ-JD:26995]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 1249/2004

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Smt. Shakuntala Kunwar w/o Kalyan Singh, Aged 37 years

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Mahendra Singh s/o Kalyan Singh, Aged 16 years

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Jitendra Singh @ Jaswant Singh s/o Kalyan Singh, Aged 14 years

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No. 2 and 3 are minors through their natural guardian mother Smt. Shakuntala Kunwar w/o Kalyan Singh Rajput All R/o Banipuriya, at present R/o 22-B, Nagarpalika Colony, Chittorgarh.

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----Appellants

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Versus

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Ramfal s/o Jograj, R/o Kelram, PS Kalayat, District Kaithal (Haryana)

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Ajay s/o Bhagwandas Singhal, R/o Om Auto carriers, 130Transport Center, Punjabi bagh, Rohtak road, Delhi-36

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The Oriental Insurance Company Limited, through its Branch Manager, Meera Market, Chittorgarh.

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----Respondents

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For Appellant(s)	: Mr. Manish Pitaliya
For Respondent(s)	: Mr. LD Khatri
	Mr. RK Charan

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HON'BLE MR. JUSTICE MADAN GOPAL VYAS

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Judgment

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24/08/2023

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The instant civil miscellaneous appeal is directed against the judgment and award dated 21.08.2003 passed by the learned Motor Accident Claims Tribunal, Chittorgarh (hereinafter referred to as the learned Tribunal) whereby the claim application filed by the claimants-appellants under Section 166 of the Motor Vehicles Act (for short hereinafter called; “MV Act”) was allowed in part

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and they were granted compensation to the tune of Rs. 5,44,200/with interest @ 9% per annum.

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Briefly stated, the facts giving rise to the present appeal are that a claim petition was filed by the appellants before MACT, Chittorgarh for getting compensation for the death of Shri Kalyan Singh, who died in a vehicle accident that occurred between a truck and an RSRTC bus on 17.08.2001. The appellants claimed a sum of Rs. 53,36,000/- under various heads. The learned Tribunal partly allowed the claim petition and awarded compensation to the tune of Rs. 5,44,200/-.

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Mr. Manish Pitaliya, learned counsel for the appellants submitted that while deciding the claim petition, the tribunal has has awarded a meagre compensation of Rs 5,44,200/-. Learned counsel further submitted that the present is a case of composite negligence and the learned Tribunal has committed grave error in determining the liability of respondent-Insurance Company as 50% in absence of impleadment of RSRTC. It was submitted that due to failure of impleadment of all parties (in the present case, RSRTC), the compensation cannot be reduced to the extent of negligence of impleaded party alone. Reliance was placed by the learned counsel on the decision of Hon’ble Apex Court in Khenyei v. New India Assurance Company Limited & Ors , reported in (2015) 1 ACTC 563.

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Learned counsel further submitted that in light of the ratio laid down in the judgment of the Hon’ble Apex Court in the case of

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National Insurance Company Limited V/s Pranay Sethi &

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Ors . reported in (2017) 16 SCC, the compensation deserves to be enhanced.

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It was submitted by the learned counsel that following should be the enhanced amount of compensation in light of Pranay Sethi (supra):

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		Total
Annual income of the deceased + (50%) increase in income + 15 multiplier – deduction (one fourth of the income)	Rs.6350/+ 50% x 12 x 15-1/4	Rs.12,85,875/-
Loss of consortium (44,000 x 4)		Rs.1,76,000/-
Loss of estate		Rs.16,500/-
Funeral expenses		Rs.16,500/-
Total compensation awardable (A)		Rs.14,94,875/-
Compensation already awarded (B)		Rs. 5,44,200/-
Enhanced compensation (A-B)		Rs. 9,50,675/-

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Per contra, learned counsel appearing for the respondentInsurance Company submitted that the learned Tribunal has wrongly passed the impugned order by fastening liability upon the respondent-Insurance Company. It is submitted that at the time of accident, the driver of the truck did not possess any valid driving license and therefore, the respondent-Insurance Company is not liable to indemnify the award amount.

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In so far as the arguments raised by the learned counsel appearing for the claimants-appellants that they are entitled for the enhanced amount of compensation as mentioned in the tabular form above are concerned, learned counsel appearing for

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the respondent-Insurance Company submits that assuming for the sake of argument, without admitting, a consolidated amount of Rs.44,000/- only is to be paid for loss of consortium irrespective of the number of dependents of the claimants as per the ratio laid down in Pranay Sethi (supra) .

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In reply, learned counsel for the appellants-claimants submitted that compensation for loss of consortium is to be awarded to each of the dependants of the deceased. In support of his submissions, learned counsel relied upon the following judgments:

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(I) Rajwati @ Rajjo and Ors v. United India Assurance Company Ltd and Ors reported in 2022 LiveLaw (SC) 1016. (II) Janabai & Ors v. M/s ICICI Lombard Indurance Company Ltd. reported in 2022/INSC/809.

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(III) Fehmida Bano & Ors v. Vikram Nath & Ors., SBCMA No. 394/2022, decided on 23.08.2023, Rajasthan High Court. (IV) Suresh Devi & Ors. v. Pukhraj @ Pukharam & Ors, SBCMA No. 2523/2007, decided on 21.02.2023, Rajasthan High Court.

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Heard learned counsel for the parties and perused the material available on record.

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The learned Tribunal vide impugned judgment and award dated 21.08.2003 held that the claimants were entitled to an amount of Rs. 5,44,200/-, to be recovered from the respondentinsurance company. In para 17 of the impugned judgment, learned Tribunal has concluded that both the driver of the RSRTC bus as well as the driver of the truck were at fault to the extent of

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50% each. However, since the RSRTC driver and owner were not made a party in the claim case, no award could be passed against them. It was therefore held that the respondent-Insurance Company was liable to the extent of 50% negligence and thus, for an amount of Rs. 5,44,200/-.

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In Khenyei (supra), the Hon’ble Apex Court has held in para 18 as under:

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“18…

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What emerges from the aforesaid discussion is as follows :

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(i) In the case of composite negligence, plaintiff/claimant is entitled to sue both or any one of the joint tort feasors and to recover the entire compensation as liability of joint tort feasors is joint and several.

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(ii) In the case of composite negligence, apportionment of compensation between two tort feasors vis a vis the plaintiff/claimant is not permissible. He can recover at his option whole damages from any of them.

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(iii) In case all the joint tort feasors have been impleaded and evidence is sufficient, it is open to the court/tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tort feasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the apportionment/ extent of their negligence has been determined by the court/tribunal, in main case one joint tort feasor can recover the amount from the other in the execution proceedings.

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(iv) It would not be appropriate for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other joint tort feasors. In such a case, impleaded joint tort feasor should be left, in case he so desires, to sue the other joint tort feasor in independent proceedings after passing of the decree or award.”

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(Emphasis supplied)

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Thus, in light of the judgment rendered by the Hon’ble Apex Court in Khenyei (supra), the Hon’ble Supreme Court has

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specifically held that it is not for the court/tribunal to determine the extent of composite negligence of the drivers of two vehicles in the absence of impleadment of other other party. It was further held that in such a case, impleaded party, in case it so desires, can sue the other party in independent proceedings after passing of the decree or award.

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In view of the above, this Court deems it appropriate to hold that the claimants are entitled to the entire award amount of Rs. 10,88,400/-, to be recovered from the respondent-Insurance Company. Since the liability is joint and several, the respondentInsurance Company, if it so desires, can recover the compensation amount from RSRTC by way of separate appropriate legal proceedings.

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At this stage, learned counsel for the respondent-Insurance Company seeks liberty to proceed against the RSRTC for recovering the claim amount, based upon its liability.

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In United India Insurance Company v. Satinder Kaur reported in (2021) 11 SCC 780, the Hon’ble Supreme Court, has held as under:

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“30. In Magma General Insurance Co. Ltd. v. Nanu Ram & Ors., this Court interpreted “consortium” to be a compendious term, which encompasses spousal consortium, parental consortium, as well as 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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The Motor Vehicles Act, 1988 is a beneficial legislation which has been framed with the object of 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

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daughter, the parents are entitled to be awarded loss of consortium under the head of Filial Consortium. Parental Consortium is awarded to the children who lose the care and protection of their parents in motor vehicle accidents. The amount to be awarded for loss consortium will be as per the amount fixed in Pranay Sethi (supra).

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At this stage, we consider it necessary to provide uniformity with respect to the grant of consortium, and loss of love and affection. Several Tribunals and High Courts have been awarding compensation for both loss of consortium and loss of love and affection. The Constitution Bench in Pranay Sethi (supra), has recognized only three conventional heads under which compensation can be awarded viz. loss of estate, loss of consortium and funeral expenses. In Magma General (supra), this Court gave a comprehensive interpretation to consortium to include spousal consortium, parental consortium, as well as filial consortium. Loss of love and affection is comprehended in loss of consortium.

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The Tribunals and High Courts are directed to award compensation for loss of consortium, which is a legitimate conventional head. There is no justification to award compensation towards loss of love and affection as a separate head.”

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Hence, as per law laid down in Satinder Kaur (supra),

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compensation for loss of consortium is to be awarded to all the dependents separately.

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In view of what has been discussed above and looking to the

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age of the deceased at the time of the accident viz. 39.5 years, the following computation appears to be just, proper and reasonable for deciding the quantum of enhanced compensation awardable to the appellants:-

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		Total
Annual income of the deceased + (50%) increase in	Rs.6350/+ 50% x 12 x 15-1/4	Rs.12,85,875/-
income + 15 multiplier –
deduction (one fourth of the income)

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Loss of consortium (44,000*4)	Rs.1,76,000/-
Loss of estate	Rs.16,500/-
Funeral expenses	Rs.16,500/-
Total compensation awardable (A)	Rs.14,94,875/-
Compensation already awarded (B)	Rs. 5,44,200/-
Enhanced compensation (A-B)	Rs. 9,50,675/-

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The total amount of compensation as per above table comes to Rs.14,94,875/-. However, as noted above, the respondentInsurance Company has already paid Rs.5,44,200/-. Therefore, the respondent-Insurance Company is liable to pay the enhanced compensation of Rs.9,50,675/- alongwith 6% interest from the date of filing of the claim petition.

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In view of the law laid down by Hon’ble Supreme Court in Khenyei (supra) and in view of the liberty sought by the learned counsel for the respondent-Insurance Company in para no.13 and 14, the liberty as prayed for, is granted.

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Accordingly, the appeal is partly allowed as indicated above. The impugned judgment and award passed by the learned Judge, M.A.C.T., Chittorgarh is modified and the appellants are held entitled for enhanced compensation amount of Rs.9,50,675/-.

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Office is directed to sent back the record, if any, to the learned tribunal.

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No order as to costs.

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(MADAN GOPAL VYAS),J

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2-CPGoyal/-

Smt. Shakuntala Kunwar and Ors. v. Ramfal and Ors.

Case brief

What is this about?

What did the court decide?

Smt. Shakuntala Kunwar and Ors. v. Ramfal and Ors.

Case brief

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What did the court decide?

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