Moti Ram vs Kiran Deep Baweja

,

The claimants i.e. father, mother and two minor children of the deceased Mahendra @ Mahender Singh have filed the present appeal against the",

award dated 01.10.2009 passed by Motor Accidents Claims Tribunal, Gurgaon (hereinafter referred to as 'the Tribunal').",

The grievance raised by the claimants is that the compensation awarded under Section 166 of the Motor Vehicles Act, 1988 (for brevity, 'the Act')",

is on the lower side and deserves enhancement.,

The driver of the car bearing registration No.DL-3C-AP-1239 (for brevity, 'offending vehicle'); owner of the offending vehicle and the ICICI",

Lombard General Insurance Company (insurer of offending vehicle) have been arrayed as respondents No.1 to 3 respectively in the appeal.,

The brief facts emanating from the record are that on 11.10.2008, Mahender Singh, who was going on foot from Udyog Vihar Gurgaon to",

Converges Building, was struck by a rashly and negligently driven offending vehicle. As a result of the accident, Mahender Singh suffered injuries and",

was taken to Army Hospital, Delhi Cantt., where he lost his life on 13.10.2008. FIR No.312 dated 11.10.2008 was registered at Police Station, DLF",

Phase-II, Gurgaon.",

The Tribunal, after considering the facts and on appreciating the evidence produced, held that the accident occurred due to rash and negligent",

driving of the offending vehicle. The age of the deceased was 29 years. He was survived by parents and two minor children. The Tribunal awarded a,

sum of Rs. 12,38,800/- along with interest @ 9% per annum. Owner, driver and insurer of offending vehicle were held jointly and severally liable to",

pay compensation.,

No one had appeared for the appellants on last date, even today, none has appeared for the appellants. Mr. Shashank Sharma, Advocate",

(Enrolment No.4048/2016), who is present in Court, is appointed as amicus curiae. Copy of the paper-book has been handed over to him. He has",

assisted the court after going through the paper book and record.,

Learned amicus curiae argued that the claimants were able to prove that deceased was working in Indian Army and his last drawn salary was,

Rs.16,234/- but the Tribunal wrongly deducted allowances from the last drawn salary and awarded compensation by considering the monthly income",

of the deceased as Rs.9,613/-. No future prospects has been awarded; multiplier of 16 has been applied instead of 17 and only a sum of Rs.10,000/-",

has been awarded for funeral expenses, transportation, loss of estate and consortium.",

Learned counsel for the Insurance Company contended that the claimants failed to prove the salary of the deceased as Rs.16,234/-. She resisted",

any further enhancement.,

The claimants had duly proved the last drawn salary of the deceased by producing the record i.e. salary ledger as Ex.P-7. The Tribunal erred in,

deducting the various allowances from the monthly salary of the deceased. It is only the income tax payable, if any, which is to be deducted from the",

salary. There is nothing on record to establish that during the relevant assessment year, the deceased came within the taxation ambit.",

The Supreme Court in Manasvi Jain vs. Delhi Transport Corporation, 2014(3) SCC 22, has held as under :-",

“This Court in Shyamwati Sharma & Ors. Vs. Karam Singh & Ors. (2010) (3) R.C.R. (Civil) 741 : (2010) 12 SCC 378, while considering the",

issues of deduction of taxes, contributions etc., for arriving at the figure of net monthly income, held that“while ascertaining the income of the",

deceased, any deductions shown in the salary certificate as deductions towards GPF, life insurance premium, repayments of loans etc., should not be",

excluded from the income. The deduction towards income tax/surcharge alone should be considered to arrive at the net income of the deceased.â€​,

Having due regard to the decision of the Supreme Court, the compensation should be awarded considering the salary of the deceased as",

Rs.16,234/-. There is no dispute regarding the age of deceased. Hence, multiplier of 17 is to be applied.",

As per the decision of the Supreme Court in National Insurance Company Ltd. vs. Pranay Sethi and Ors., 2017 AIR (SC) 5157, 50% future",

prospects are to be awarded as the deceased was below 40 years. Further, the claimants are entitled to Rs.15,000/- each for loss of estate and funeral",

expenses.,

It is pertinent to note that in the present case, the widow of deceased was neither a party before the Tribunal nor before this Court.",

The Supreme Court in Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram & Ors., 2018(4) R.C.R. (Civil) 333, considering the",

decision of Constitution Bench in Pranay Sethi's case (supra) has held that loss of consortium is a compendious term which encompasses 'spousal,

consortium', 'parental consortium', and 'filial consortium' and thereafter awarded a sum of Rs.40,000/- each to the father and unmarried sister of the",

deceased. The relevant portion of the Supreme Court decision is reproduced below:-,

“8.7 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. Rajesh and Ors. v. Rajbir Singh and Ors. (2013) 9 SCC 54.",

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, co-operation, affection, and aid of the other in every conjugal relation.""",

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.""",

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.",

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.,

Monthly income,"Rs.16,200/-

50% future prospects,Rs.8100/-

Total income,"Rs.24,300/-

1/3rd deduction for self expenses,Rs.8100/-

Annual Dependency

( 16,200x12)","Rs. 1,94,400/-

Applying multiplier of

( 1,94,400x17)","Rs.33,04,800/-

Funeral expenses,"Rs.15,000/-

Loss of estate,"Rs.15,000/-

Loss of consortium to two minor

children (Rs.40,000/-each)

parental consortium","Rs.80,000/-

Loss of filial consortium to

mother","Rs.40,000/-

Total,"Rs.34,54,800/-