Momataz Begum & Ors. vs The IFFCO Tokio General Insurance Co. Ltd.

The instant application under Section 173 of the Motor Vehicles Act, 1988, has been preferred against the judgment & order dated 06.10.2023, passed by the learned Member, Motor Accident Claims Tribunal, Barpeta, in MAC Case No. 368/2021, praying for enhancement of the award.

Heard Mr. R. Ali, learned counsel for the appellants and Mr. T Kalita, learned counsel for the respondent No. 3/IFFCO TOKIO General Insurance Co.Ltd.

The appellants, herein, are the claimants in MAC Case No. 368/2021, which was disposed of vide judgment & order dated 06.10.2023, passed by the learned Member, MACT, Barpeta.

It is the case of the appellants that at the time of death of the deceased in the motor vehicle accident, which occurred on 12.03.2021, the deceased left behind the claimants, i.e., his wife, two daughters and two sons.

Notices were issued to the opposite parties, including the Insurer of the vehicle, the owner and the driver of the vehicle. All the respondents filed their respective written statements.

The appellants examined their witnesses and they were cross-examined by the opposite parties, however, the opposite parties did not adduce any evidence.

The learned Tribunal, after hearing the parties, passed the impugned judgment & order on 06.10.2023, whereby, an amount of Rs.20,30,616/-(Rupees Twenty Lakhs Thirty Thousand Six Hundred Sixteen) was awarded to the claimants/appellants as compensation.

Being aggrieved, the claimants/appellants are before this Court, praying for enhancement of the award on the ground that:-

The appellants also state that there were 5 (five) dependents of the 1 deceased. However, the learned Tribunal has deducted / from the income as 3 personal expenditure of the deceased, which is not permissible in the eye of law.

The appellants state that they are entitled to an amount of Rs.16,500/-against loss of estate and Rs.44,000/- against spousal consortium for wife and Rs.44,000/- each, as parental consortium for the children and Rs.16,500/- as funeral expenses as per the principle laid down by the Hon’ble Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi, reported in (2017) 16 SCC 680. Therefore, the awarded amount against such heads should have been Rs.2,53,000/- (Rupees Two Lakhs Fifty Three Thousand).

Learned counsel for the appellants prays that the impugned judgment may be modified and enhanced by this court in accordance with law. In support of his submissions, learned counsel has relied on the cases of (i) Janabai W D/O Dinkarrao Ghorpade and Others Vs. ICICI Lambord Insurance Company Limited, reported in (2022) 10 SCC 512 and (ii) Magma General Insurance Company Limited Vs. Nanu Ram and Others, reported in (2018) 18 SCC 130.

Per contra, the learned counsel for the respondent Insurance Company submits that the Annexure-5 in the instant appeal memo showing the monthly family pension received by the appellant as Rs.36,625/- was never exhibited before the Tribunal. Moreover, the accident occurred on 12.03.2021 and admittedly, the amount of Rs.36,625/- has been received only w.e.f. 01.01.2023. Therefore, the Tribunal has rightly taken the monthly income as Rs.35,011/- as this was the monthly income on the date of the accident. Further, the learned counsel also submits that the married son and married daughter cannot be termed as dependents of the deceased as they have their own families and their 1 own income. Therefore, the Tribunal has rightly deducted / towards personal 3 expenses as the dependents were only the wife and one minor son and one unmarried daughter.

Learned counsel for the respondent Insurance Company further submits that in the case of Pranay Sethi (supra), the Hon’ble Supreme Court has categorically held that there will be no future prospect in respect of permanent salaried employee above the age of 60 years. Therefore, the Tribunal has not awarded any future prospect as the deceased was 60 years at the time of the accident.

With regard to the loss of consortium, the learned counsel for the respondent Insurance Company submits that the judgment in Pranay Sethi’s case is of a five Judge Bench, wherein, it has not been specifically laid down that each claimant is entitled to loss of consortium. The Hon’ble Supreme Court has only held that the claimant is entitled to Rs.40,000/- as loss of consortium. Therefore, the Tribunal could not have awarded loss of consortium for the two children. However, learned counsel has fairly submitted that the claimants are entitled to 10% interest on the loss of consortium as well as on loss of estate and funeral expenses and the Tribunal should not have awarded a lump sum amount of Rs.70,000/-.

Learned counsel submits that the principles in Pranay Sethi’s case shall prevail over that of Magma General Insurance Company Limited (supra).

The counsel for the respondent Insurance relies on the case of Shri Ram General Insurance Co. Ltd. Vs. Bhagat Singh Rawat and Others decided th on 27 March 2023 in Civil Appeal No. 2410-2412/2023, submitting that the Hon’ble Supreme Court in the cited case had held that applying Pranay Sethi Rs.40,000/- should be the amount under the head of loss of consortium rather than awarding Rs.40,000/- separately to every claimant. Learned counsel, therefore, prays that the loss of Consortium should be applicable only to the wife of the deceased.

I have duly considered the submissions made by the learned counsel for the parties and perused the Trial Court records as well as the judgments relied upon by the parties.

A constitution Bench of the Supreme Court in the case of Pranay Sethi (supra) has laid down standardized computation of compensation in motor accident claim cases. The principle rule laid down in the said case is that future prospects are to be added in case of permanent salaried employees, i.e., below 40 years 50% addition, 42 to 50 years 30% addition and 50 to 60 years 15% addition. However, there is no provision for future prospects after the age of 60. The deduction towards personal expenses is also to be made according to Sarala Varma vs. Delhi Transport Corporation, (2009) 6 SCC 121, 1 ordinarily deduction of / where there are 2-3 dependents. 3

In the instant case, one daughter and one son of the deceased are already married and having their own families and therefore, they cannot be said to be dependents of the deceased. This Court does not find any error in the 1 Tribunal’s computation of deducting / as personal expenses. 3

As far as the monthly income is concerned, the appellant/claimants had produced the PPO of the deceased and exhibited the same before the Trial Court. In the PPO, the monthly pension of the deceased is shown as Rs.35,001/-. As rightly pointed out by the learned counsel for the respondent Insurance Company, the monthly income has to be calculated according to the income as on the date of the accident and not on a future date.

It is an admitted fact that the accident occurred on 12.03.2021. The appellant has also admitted in their pleadings that the amount of Rs.36,625/- as family pension was received only from 01.01.2023. Therefore, this Court is of the view that the monthly income has also been rightly calculated.

With regard to the lump sum amount of Rs.70,000/- towards loss of estate, loss of consortium and funeral expenses, this Court is of the view that same needs to be interfered with. As per Pranay Sethi there is no provision for future prospects after the age of 60.

The Hon’ble Supreme Court through a three judge bench in the case of United India Insurance Company Limited Vs. Satinder Kaur @ Satwinder Kaur, reported in (2021) 11 SCC 780 and also in the case of Magma General Insurance Company Limited (supra), has clarified the principle of ‘loss of consortium’ and held that there are three forms of consortium – spousal consortium, payable to the surviving spouse; parental consortium, payable to the children of the deceased and filial consortium, payable to the parents for loss of a child. Therefore, where the deceased leaves behind a wife and two children, all three are separately entitled to consortium; the wife is entitled to spousal consortium of Rs.40,000/- and each child is entitled to parental consortium of Rs.40,000/- each.

There is an apparent conflict between the case of Bhagat Singh Rawat (supra), which is a two judge Bench decision as opposed to the case of Satinder Kaur (supra), which was a three judge Bench decision.

The legal position may be summarized as follows:

The Constitution bench in Pranay Sethi fixed the conventional amount for consortium as Rs.40,000/- subject to 10% enhancement every three years. It did not decide whether this amount was payable once or to each eligible claimant.

The two judge bench in Magma General Insurance held that consortium is a compensation for loss of relationship. It recognized spousal, parental and filial consortium. And awarded consortium to each eligible claimant separately.

The three judge bench in Satinder Kaur approved Magma General and held that consortium includes spousal, parental and filial consortium and is payable to the respective eligible claimants. It clarified that ‘loss of love and affection” is not a separate head.

The two judge bench in Bhagat Singh Rawat (supra) reduced the award under consortium to a single amount in the facts of that case. It did not discuss or overrule the three judge Bench decision in Satinder Kaur. Several High Courts have subsequently observed that Satinder Kaur was apparently not brought to the notice of the two judge Bench in Bhagat Singh Rawat.

Applying the doctrine of precedent this Court is of the view that a bench of lesser strength cannot depart from the decision of a larger Bench and therefore the ratio of Satinder Kaur is binding and has to be followed. Therefore, if there is any inconsistency Satinder Kaur must prevail. Bhagat Singh Rawat cannot be read as impliedly overruling Satinder Kaur.

Thus, in accordance with Satinder Kaur (supra) and Magma General Insurance Company Limited (supra), the calculation under loss of consortium would be Rs.40,000/- X 3 = Rs.1,20,000/-, rather than Rs.40,000/-collectively. Pranay Sethi (supra) has also fixed Rs.15,000/- as loss of estate and Rs.15,000/- as funeral expenses with 10% enhancement every three years for all these three conventional heads.

In view of the observations and findings arrived at hereinabove, the impugned judgment & order dated 06.10.2023, is interfered with and modified as under:

(rupees twenty one lakhs twenty five thousand six hundred and sixteen) only.

The learned counsel for the appellants submits that the claimants have not received any amount of the award till date.

In the impugned judgment & order, the Tribunal has directed that the awarded amount shall be deposited in the account of the Tribunal. The respondent IFFCO Tokio General Insurance Company Limited is therefore directed to deposit the modified awarded amount before the Tribunal within 6 (six) weeks from today and thereafter, the Tribunal shall disburse the cheque with necessary orders regarding ‘protection and distribution’ of the awarded amount. However, for immediate relief and expenses, the Tribunal shall release Rs.10,00,000/- (rupees ten lakhs) only out of the awarded amount to the claimant No. 1.

With the above modifications and observations, the appeal stands disposed of.

The Registry shall send back the Trial Court records expeditiously.