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Judgment
Bhaskar Raj Pradhan, J
An accident occurred on 03.02.2018. The mother (respondent no.2) of the deceased lodged an FIR (Exhibit-1). A vehicle bearing registration no. SK-04-P-2158 (Bolero SLX) (the vehicle) hit the deceased, a ten year old child studying in Class five, as a result of which he died on 07.02.2018. The father (Claimant No.1) and respondent no.2 filed a claim under section
166 of the Motor Vehicles Act, 1988 for compensation on account of death of the deceased against Dipen Rai (the driver of the vehicle / respondent no.3), Abel Gayom Targain (the owner of the vehicle / respondent no.4) and Branch Manager, National Insurance Company Limited (the appellant) seeking a claim of Rs.14,33,739/-. The respondent no.1 substituted his late father i.e. the Claimant No.1 after his death.
In the claim petition, it was asserted by the respondent nos.1 and 2 that the vehicle driven by respondent no.3 while returning from Namthang hit the deceased who was walking on the right side of the road at Nagi near food godown. It was asserted that the respondent no.3 did not look towards the right side and as a result the deceased was crushed, causing injuries to his head. This accident was witnessed by villagers including one Tsheringmit Lepcha of Nagi who screamed on seeing the accident. The claim petition stated that it was only after hearing her scream that the respondent no. 3 stopped the vehicle. The deceased was, thereafter, evacuated to Namchi District Hospital and then to Siliguri at the North Bengal Neuro Centre for four days. The deceased was brought back to Namchi District Hospital. On 07.02.2018 he succumbed to his injuries.
The respondent no.3 filed his written objection on 25. 07.2018. In his written objection, he claimed that it was an accident which transpired when he was about to park the vehicle and the deceased had suddenly run towards it. Although he had exercised due diligence and applied the break the vehicle did not stop. He also asserted that at the relevant time the speed of the vehicle was 10-15 km/hour. The respondent no.3 submitted that the claim was excessive and in view of the fact that the vehicle was validly insured, the appellant was liable.
The respondent no. 4 filed his written objection on 25. 07.2018 and submitted that the claim was excessive. The respondent no.4 asserted that the vehicle was duly insured.
The appellant filed their written objection on 20. 08.2018. According to the appellant, there was neither any statutory liability nor any contractual obligation on their part to pay any compensation either to the claimants or to indemnify the owner of the vehicle. The appellant also denied and disputed the contentions made in the claim petition and raised various legal issues related to the maintainability, etc.
On 14.09.2018 a singular issue i.e. "Whether the claimants are entitled for compensation, if so, who is liable to pay the same?" was framed by the learned Tribunal.
On 05.10.2018, the respondent no.2 filed her evidence on affidavit. She asserted that on 03.02.2018 at Namthang Nagi Road the vehicle driven by the respondent no.3 crushed the deceased walking on the right side of the road. The respondent no.3 had failed to see the deceased. It caused injuries on the head of the deceased. She was cross-examined on 05.10.2018. Neither the respondent no.3 nor the appellant cross-examined her with regard to how the accident occurred.
No other witness for any of the parties was examined except the respondent no.2. The learned Tribunal rendered her judgment on 06.11.2018. The learned Tribunal allowed the claim made by respondent nos.1 and 2 and calculated the same in the following manner:-
"Thus, the total amount of compensation which stands calculated and is found to be "just" by this Tribunal is as follows:-
Loss of earning : Rs 5,40,000/-
Funeral Expenses: Rs 15,000/-
Loss of Estate: Rs 15,000/-
Medical Expenses: Rs 1,18,739/-
Non-pecuniary Damages: Rs 1,00,000/-
Total Rs 7,88,739/-"
The appellant was directed to pay a total compensation amount of Rs.7,88,739/- to the respondent nos.1 and 2 with interest @ of 10% per annum on the said sum from the date of filing of the claim petition i.e. 14.05.2018 till full and final payment. The learned Tribunal also passed an award dated 11.2018 for the said amount. Aggrieved thereby, the appellant preferred the present appeal under section 173 of the Motor Vehicles Act, 1988.
Ms. Kesang Choden Tamang, learned Counsel for the appellant raised two contentions. According to her, negligence on the part of the driver, i.e., the respondent no.3, has not been proved and since it is mandatory to prove negligence in a claim under section 166 of the Motor Vehicles Act, 1988 the impugned judgment is bad and liable to be set aside. The learned Counsel for the appellant also contests the determination of the monthly income of the deceased by the learned Tribunal as Rs.6000/- per month. According to the learned Counsel, the learned Tribunal did not consider the Second Schedule to the Motor Vehicles Act, 1988 which provides that notional income for compensation to those who had no income prior to accident as Rs.15,000/- per annum. The learned Counsel submitted that as admittedly the deceased was a ten year old child he would have no income and therefore, clause 6 of the Second Schedule to the Motor Vehicles Act, 1988 would come into play. Consequently, the learned Tribunal ought to have quantified his notional income at Rs.15,000/- a year and not Rs.6000/- per month.
Mr. Kumar Sharma, learned Counsel for the respondent nos. 1 and 2, per contra, submits that the issue of negligence has been raised for the first time in the appeal and the assertions made by the respondent nos. 1 and 2 in the proceedings before the learned Tribunal was not even contested by the appellant. Besides, Mr. Kumar Sharma points out that there was sufficient evidence before the learned Tribunal to establish that it was a case of rash and negligent driving on the part of the respondent no.3. He pointed out that the evidence on affidavit of respondent no.2 read with the documents exhibited including the FIR and the post mortem report (Exhibit-3) reveals that the respondent no.3 was rash and negligent while driving the vehicle and the appellant, as well as the respondent no.3 failed to lead any evidence contrary to the assertion. With respect to the second contention raised by the appellant, the learned Counsel for the respondent nos.1 and 2 submits that the Second Schedule to the Motor Vehicles Act, 1988 is applicable for those claims preferred under section 163 A and therefore, not applicable to a claim petition under section 166 of the Motor Vehicles Act, 1988. He referred to the judgment of this Court in New India Assurance Company vs. Nakul Gurung1 and submitted that the learned Tribunal was not bound by the Second Schedule, which is, but a guideline to determine the notional income. Mr. Kumar Sharma also relied upon the judgment of the Supreme Court in Magma General Insurance Co. Ltd. vs. Nanu Ram and Others2 to seek for filial consortium in favour of the respondent no.2 due to the accidental death of the child of the deceased.
Mr. Bhupendra Giri, learned Counsel for respondent no.4 submitted that paragraph 7 of the written objection filed by the respondent no.3 makes it clear that the driver was not rash and negligent. He further submits that all the relevant documents required to be maintained by the respondent no.4 were up to date and as such respondent no.4 is not liable.
This Court has examined and perused the impugned judgment and the evidence led before the learned Tribunal, both oral and documentary.
The first contention raised by the appellant that there was no evidence to prove that the respondent no.3, i.e., the driver of the vehicle, had been rash and negligent is taken up first. The learned Tribunal had examined this contention. The learned Tribunal noticed that the respondent no.2 was not an eye witness to the accident but her evidence on affidavit about the accident was not contested either by the respondent no.3 or the appellant. The learned Tribunal examined the evidence before it especially the FIR (Exhibit-1) and the post mortem report (Exhibit-3) which shows the cause of death as "acute sub-dural hematoma and sub-arachnoid haemorrhage" and concluded that the deceased died as he was crushed after being hit by the vehicle driven by the respondent no.3. It is seen that the respondent no.2 had consistently taken this stand before the Tribunal from the time of lodging the FIR (Exhibit-1) till her evidence on affidavit. In spite of such clear assertion neither the respondent no.3 nor the appellant contested the same. The appellant as well as respondent no.3 failed to lead any evidence contrary to the evidence led by respondent nos.1 and 2 with regard to rash and negligent driving by the respondent no.3. In fact, even when an opportunity to cross-examine the respondent no.2 was granted to the appellant and respondent no.3, they did not even attempt a denial of the assertion made by the respondent no. 2. Thus, the first contention of the appellant is rejected.
With regard to the second contention raised by the appellant, the learned Tribunal considered the age of the deceased to be nine plus years at the time of his death. The learned Tribunal also considered the fact that he was studying in class five and thus concluded that he would have earned at least Rs.6000/- (Rupees six thousand) per month. Accordingly, the loss of earning was calculated in the following manner:-
Rs.6000/- x 12 x 15 - ½ = Rs.5,40,000/-. ½ being deducted from the loss of earnings on the assumption that the deceased, being a bachelor, would have utilized the said amount towards his maintenance and upkeep, had he been alive.
In New India Assurance Co. Ltd. vs. Nakul Gurung this Court examined an identical contention regarding the Second Schedule to the Motor Vehicles Act, 1988. This Court held in paragraph 20 as under:-
"20. In so far as the feeble plea of the victim being a non-earning member entitling the claimants compensation of Rs.15,000/- only is concerned, it is to be borne in mind that the claim is made under Section 166 of the Motor Vehicle Act, 1988 and by virtue of Section 168, the Tribunal is vested with the discretion to award just and reasonable compensation against such claim. It is not bound by the second schedule to the Act which may, however, be considered as a guideline while determining the notional income of the deceased. It is a well settled principle of law that in applying a law like the present one which is a piece of social legislation, the Courts shall construe the provision liberally and wherever in a given situation relief may be given in exercise of its discretion, it shall give the optimum possible under the law. In the present case, the claim being under section 166 of the Motor Vehicles Act, the Court has the choice to apply the second schedule as a guideline for computing the compensation and that the schedule leaves it upon the Court to adopt either of the two methods provided therein, i.e., either the multiplier system in Clause 1 or the fixed compensation or under Clause 6 of the second schedule, it shall adopt the one which is more beneficial to the claimant. This appears to have been done in the present case by applying more beneficial multiplier in Clause 1. Therefore, the plea stand rejected as untenable."
In National Insurance Co. Ltd. vs. Pranay Sethi and others, the Supreme Court held as under:-
"50. This aspect needs to be clarified and appositely stated. The conventional sum has been provided in Second Schedule to the Act. The said Schedule has been found to be defective as stated by the court in Trilok Chandra, 1996 ACJ 831 (SC). Recently in Puttamma v. K.L. Narayana Reddy, 2014 ACJ (SC), it has been reiterated by stating:
"... we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.""
Thus, the second contention raised by the learned Counsel for the appellant being squarely covered by the judgment of this Court as quoted above must also be rejected.
This Court shall now examine the contention raised by the learned Counsel for respondent nos.1 and 2 regarding the payment of filial consortium. In Magma General Insurance Company Limited (supra) the Supreme Court observed that its Constitutional Bench in Pranay Sethi3 dealt with various heads under which compensation is to be awarded in a death case and one of these heads is loss of consortium. The Supreme Court after holding that in legal parlance consortium‟ is a compendious term which encompasses spousal consortium‟, parental consortium‟ and filial consortium‟ went on to observe:
"8.7 ..........................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 [Rajesh v. Rajbir Singh, 2013 ACJ 1403 (SC)].
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‟. [Black‟s Law Dictionary: 5th Edn., 1979].
Parental consortium is granted to the child upon the premature death of a parent, for loss parental aid, protection, affection, society, discipline, guidance and training‟.
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. ..................." (emphasis supplied)
In National Insurance Co. Ltd vs. Pranay Sethi and others4, the Supreme Court held:-
"61. .....................................................................
(viii) Reasonable figures under conventional heads, namely, loss to 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 per cent in every three years."
The learned Tribunal has not granted filial consortium to the respondent no.2. The Supreme Court had quantified, for the present, loss of consortium at Rs. 40,000/-. Non-grant of filial consortium would not be just compensation. Accordingly, this Court is of the view that in addition to the compensation awarded by the learned Tribunal an amount of Rs. 40,000/- as loss of filial consortium must also be awarded. It is so ordered.
The appeal fails. The appellant is directed to pay compensation of ₹ 8,28,739/-(Rupees Eight lakhs twenty eight thousand seven hundred and thirty nine only) i.e., (Rs 7,88,739 + Rs 40,000) to the respondent nos.1 and 2 with interest @ 10 per cent per annum on the said sum from the date of filing of the claim petition i.e., 14.05.2018 till full and final payment.