Partly allowed

Rajan and Ors. v. Prahalad Singh

Rajasthan HC8 Nov 2023CMA/482/2002

Case brief

AI extract

What is this about?

High Court enhanced compensation in a moto accident claim against insurer and owner. Court corrected calculation of annual income, personal expenses, and awarded consortium separately for each of the three children alongside loss of estate and funeral expenses.

What did the court decide?

Compensation enhanced from Rs. 4,88,444/- to Rs. 11,44,825/-. Respondents to pay with interest at 7.5% p.a. within two months.

Rajan and Ors. Vs Prahalad Singh — Motor Accident Claims | Rajasthan HC (2023)

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[2023:RJ-JD:38895]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Misc. Appeal No. 482/2002

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Shri Rajan S/o Ramsahay Indani Maheshwari, aged 37 years, 2. Ms. Tripti D/o Ramsahay Indani Maheshwari, aged 35 years, 3. Ms. Yogita D/o Ramsahay Indani Maheshwari, aged 33 years,

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All resident of Charana, Tehsil Railmagra, District Rajsamand.

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----Appellants/Claimants

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Versus

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Sh. Prahalad Singh S/o Mularam Jat, resident of Bhakri, Tehsil Kotputli, District Jaipur,

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----Owner

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The United India Assurance Company Limited, Bapu Bazar, Udaipur.

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----Respondent

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For Appellant(s)	: Mr.Nikhil Ajmera,Adv.
For Respondent No.2	: Mr.Anil Bachhawat, Adv. with
-Insurance Company	Mr.M.P.Goswami,Adv.

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HON'BLE MR. JUSTICE MUNNURI LAXMAN

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Judgment

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08/11/2023

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The present Civil Miscellaneous Appeal has been directed against the award dated 01.03.2002 passed in Claim Case No.965/1998 on the file of learned Motor Accident Claims Tribunal Judge, Rajsamand, wherein and whereby the claim of the appellants seeking compensation against the respondents was partly allowed holding the respondents jointly and severely liable to pay compensation of Rs.4,88,444/- with interest @ 9% per annum.

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The present appeal is at the instance of the claimants. The challenge in the present appeal is to the quantum of compensation granted by the Tribunal.

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The contention of the learned counsel for the appellants is that the quantum of compensation granted by the Tribunal was on the lower side. The Tribunal has not properly assessed the annual income of the deceased. He further contends that other benefits granted under the conventional heads were also not proper and future prospects were also not taken into consideration. It is also contended that the deduction towards personal expenses was not properly fixed depending on the number of dependents. In these circumstances, he requests for enhancement.

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The learned counsel representing the Insurance Company has contended that the Tribunal has fixed the annual earnings basing on the average income of three Income Tax Returns filed on behalf of the deceased, who was running Rajan Metal Industries, and such fixation does not suffer from any illegality and requires no interference of this Court.

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Heard learned counsel for the appellants as well as learned counsel for the respondent No.2-Insurance Company. Despite service of notice, none appeared for the respondent No.1-owner.

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The evidence on record shows that the deceased was running Rajan Metal Industries, which is a proprietorship concern. The claimants filed three Income Tax Returns of the deceased for

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the Financial Year 1995-96, 1996-97, 1997-98 i.e. relevant to the Assessment year 1996-97, 1997-98, 1998-99 showing his income as Rs. 65,989/-, Rs. 75,914/-, Rs. 91,590/- respectively vide Exhibit-9 to 11. The Tribunal has taken average annual income of the deceased as Rs.72,376/-. According to the learned counsel for the appellants, the approach of the Tribunal is contrary to the principle laid down by the Apex Court in the case of Shashikala & Ors. v. Gangalakshmamma & Anr., reported in 2015 ACJ 1239 , wherein the Apex Court has adopted the Income Tax Return to assess the loss of income of the deceased therein. In the present case, the last annual income of the deceased was Rs.91,590/-. Instead of that income, the Tribunal has taken the average annual income of the three Financial Years- 1995-96, 1996-97 and 199798, which is incorrect and contrary to the aforesaid decision of the Apex Court. Thus, the annual income of the deceased is taken as Rs. 91,590/-.

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The Tribunal has not granted any compensation towards future prospects. The deceased was self-employed and he was 50 years of age. Therefore, there ought to be an addition of 25% of the annual income towards future prospects. 25% of the annual income comes to Rs.22,897/- (91,590 X 25/100=Rs.22,897). Thus, total annual income of the deceased comes to Rs.1,14,787/(Rs.91,590/- + Rs.22,897/-=Rs.1,14,787).

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The learned counsel for the appellants has contended that the appellants-claimants are the children of the deceased. The Tribunal has awarded only Rs.15,000/- towards loss of love &

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affection and loss of consortium, which is contrary to the judgments of the Apex Court rendered in the cases of (i) Magma General Insurance Co. Ltd. Vs. Nanuram alias Chuhru Ram, reported in 2018 ACJ 2782, (ii) United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur, reported in 2020 ACJ 2131, and (iii) New India Assurance Col. Ltd. Vs. Smt. Somwati, reported in 2020 ACJ 2321. He has also relied upon the judgment of this Court rendered in the case of Shri Mathura Devi Vs. Shri Om Prakash (S.B.Civil Misc. Appeal No.472/2003), decided on 26.09.2023. According to him the loss of consortium to the children has to be awarded Rs.40,000/- each.

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Learned counsel representing the Insurance Company has contended that the Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi & Ors., reported in 2017 ACJ 2700 has defined the conventional heads as well as quantum of compensation awarded thereunder. The said judgment was delivered by the Constitution Bench and the judgments subsequently referred to Magma General Insurance Co. Ltd., United India Insurance Co. Ltd. and New India Assurance Co. Ltd. (cited supra) were rendered by lesser Bench Judges and the ratio laid therein is contrary to the principles laid down by the Apex Court in the case of Pranay Sethi (cited supra). According to him, the subsequent judgments are per curiam and are not binding upon this Court. In support of his contention, learned counsel for the Insurance Company relied upon the decisions of the Apex Court rendered in (i) Pranay Sethi’s case [cited supra], (ii) Central Board of Dawoodi Bohra Community & Anr. Vs. State of

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Maharashtra & Anr., reported in 2005 AIR SCW 349 and (iii) Magma General insurance Co. Ltd. (cited above). According to him, in Pranay Sethi’s case, the Apex Court has fixed the amount, which ought to be awarded under Consortium Conventional head, by fixing Rs.40,000/-. It was also held that the principle of revisiting the said head is an acceptable principle, but the re-visit should not be fact-centric or quantum-centric. According to him, even the scope of consortium is extended to cover parental consortium and filial consortium, the amount has to be deducted from such heads from the quantum already fixed by the Constitution Bench in Pranay Sethi’s case (cited supra).

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The Apex Court in Pranay Sethi’s case (cited supra) has brought in consistency with regard to award of compensation under the conventional heads. Three conventional heads have been taken into consideration i.e. (i) Loss of estate, (ii) Loss of consortium, and (iii) Funeral expenses; and each head was fixed as Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. In the aforesaid decision, the Apex Court was only dealing with the Loss of consortium relating to spouse. It has not considered the entitlement of such a consortium by parents, in case of death of child, and children in the case of death of their parents. The Apex Court in the case of Magma General insurance Co. Ltd. (cited supra) had an occasion to consider the scope of word “consortium” by specifically referring to the judgment rendered in Pranay Sethi’s case. The relevant paras of the said judgment are quoted hereunder:-

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“21. A Constitution Bench of this Court in Pranay Sethi (supra) 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 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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Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world over have recognized 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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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

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no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.”

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Subsequently, the Apex Court had followed the principle laid down in Magma General Insurance Co. Ltd. in the cases of Smt. Somwati and Satinder Kaur @ Satwinder Kaur (cited supra). The emphasis of the contention of the learned counsel for the Insurance Company is that the re-visit of thumb rule fixed by the Apex Court in Constitutional Bench decision in Pranay Sethi’s case cannot be fact-centric and quantum-centric. According to learned counsel for the Insurance Company, even the extension of the scope of consortium to the parental consortium and filial consortium, the amount which is fixed under Pranay Sethis’ case by keeping Rs.40,000/- under the consortium has to be divided among the entitlements of spousal consortium, parental consortium and filial consortium. His further contention is that even if such a principle is not accepted, atleast Rs.40,000/- shall be awarded under the extended principle of parental consortium and filial consortium irrespective of number of parents or children; and only Rs.40,000/- shall be granted under each consortium without depending upon the number of parents and children.

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Though the contention is appealing, but cannot be accepted since the Supreme Court has already while referring to the case of Pranay Sethi (cited supra) in paragraph 52 of the said judgment which specifically restricted re-visiting thumb rule fixed under the conventional head by the Apex Court, granted Rs.40,000/-

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towards consortium on individual basis but not on group basis under various categories of consortium.

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In the light of such a decision of the Apex Court in subsequent judgments, this Court cannot ignore such a fact. The contention of the learned counsel for the petitioner is that the judgment in Pranay Sethi’s case is Constitutional Bench judgment and the judgment in Magma General Insurance Co. Ltd. and other subsequent judgments followed such a judgment, are per curiam judgments and are not binding upon this Court. This contention has no merit for the reason that in Pranay Sethi’s case, there was no issue before the Apex Court dealing with the entitlement of parental as well as the filial consortium. Such an extended principle of various consortium for the first time has been taken note by the Apex Court in the case of Magma General insurance Col. Ltd. (cited supra) therefore, it cannot be said that the judgment of the Constitutional Bench in the case of Pranay Sethi makes the other judgments per curiam.

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In the present case, the number of dependents are 5. The Tribunal has deducted 50% i.e. 1/2 of the annual income towards personal expenses, which is incorrect. The appropriate deduction should have been 1/3. After the deduction towards personal expenses, the re-computed annual income comes to Rs.76,525/[Rs.1,14,787 (total annual income) – Rs.38,262 (personal expenses)= Rs.76,525/-].

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The age of the deceased was 50 years. The appropriate multiplier for the age group of 46 to 50 is 13. The Tribunal has adopted the multiplier of 13, which is correct. Accordingly, the loss of annual earnings arrived at is Rs.76,525 X 13= Rs.9,94,825/-.

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In the present case, the Tribunal has granted Rs. 3,000/towards funeral expenses which should be Rs. 15,000/- and accordingly, Rs.15,000/- is granted towards funeral expenses. The Tribunal has granted Rs.15,000/- in all towards loss of love & affection, consortium and loss of guardianship. No loss of estates has been granted by the Tribunal. The present claimants are three children of the deceased. They are entitled for the compensation of Rs.15,000/- towards loss of estate and the consortium for each of the claimant shall be Rs.40,000/- (total compensation towards loss of consortium Rs.40,000/- X 3= Rs.1,20,000/-). The amount granted under the head of love and affection shall be adjusted towards the above compensation. Thus, the rec-computed amount of compensation works out as under:-

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Loss of dependency Rs.9,94,825/-. Added: Loss of Consortium Rs.1,20,000/Added: Funeral Expenses Rs. 15,000/Added: Loss of Estate Rs. 15,000/---------------Total compensation Rs.11,44,825/-

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In the result, the appeal is partly allowed enhancing the compensation from Rs.4,88,444/to Rs.11,44,825/-. The enhanced compensation shall be paid with interest 7.5% per annum. The respondents are liable to pay compensation and the enhanced amount shall be deposited with interest within a period

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of two months from the date of receipt of copy of this judgment. On such deposit, amount shall be apportioned to the claimants in the manner in which the Tribunal has apportioned.

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(MUNNURI LAXMAN),J

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6-mSingh/NK

Rajan and Ors. v. Prahalad Singh

Case brief

What is this about?

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Rajan and Ors. v. Prahalad Singh

Case brief

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