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Judgment
[1] This appeal is filed by the insurance company to challenge an award dated 05.07.2019 passed by the Motor Accident Claims Tribunal, West Tripura, Agartala in Case No. T.S.(MAC) 44 of 2017.
[2] Brief facts are as under :
On 08.05.2016 at about 8 p.m one Swapna Rani Shil aged about 45 years was proceeding towards her residence when she was knocked down by a motorcycle causing serious injuries. She was first taken to IGM hospital. Since the injuries were serious, she was referred to GBP hospital at Agartala where her condition deteriorated. She was taken for further treatment to ILS hospital where she was treated up to 10.05.2016 till she succumbed to the injuries at about 9 o'clock in the morning. Her two sons filed the claim petition seeking compensation of Rs.42,85,000/- from the driver, owner and insurer of the vehicle involved in the accident. The Claims Tribunal by the impugned award held that the motorcyclist was solely negligent for causing the accident.
[3] Regarding compensation, the claimants had claimed that the deceased was engaged in selling milk from which she would earn Rs.15,000/- every month. They also claimed compensation for medical expenses. The Claims Tribunal noted that there was no documentary evidence of the income of the deceased. Her income was assessed at Rs.9,000/- per month. The Tribunal granted a 40% increase for future rise in income. The Tribunal awarded total compensation of Rs.17,06,200/-under following different heads :
Sl. No.
Heads
Calculation
1.
Wages
Rs.9,000/-
2.
40 percent added as future prospect and after calculation yearly loss of income comes
(Rs.9,000/- + Rs.9,000/- x 40% x 12) = Rs.1,51,200/-
3.
1/3rd has been deducted for her personal and leaving expenses and yearly it comes
(Rs.1,51,200/- minus Rs.1,51,200 x 1/3) = Rs.1,00,800/-
4.
Compensation applied multiplier 14 considering the age of the deceased was 45 years at the time of accident
Rs.1,00,800/ x 14) = Rs.14,11,200/-
5.
Miscellaneous/conveyance
Nil.
6.
Cost of medicine and transportation
Rs.30,000/-
7.
Loss of Estate
Rs.50,000/
8.
Loss of consortium
Rs.40,000/
9.
Funeral Expenses
Rs.25,000/-
10.
Loss of care and guidance
Rs.50,000/-
11.
Love and affection
Rs.1,00,000/-
12.
Total compensation
Rs.17,06,200/
[4] The insurance company has challenged this award only on the quantum of compensation. Learned counsel for the insurance company submitted that in absence of any evidence the assessment of income of Rs.9,000/- per month was excessive. Giving 40% rise for future income was not in consonance with the decision of the Supreme Court in case of National Insurance Company Limited versus Pranay Sethi and others reported in (2017) 16 SCC 680. He lastly submitted that various other amounts awarded were not as per the decisions of the Supreme Court.
[5] On the other hand, learned counsel for the claimants opposed the appeal contending that the Claims Tribunal has awarded a just compensation. No interference is necessary. He pointed out that the deceased was treated at different hospitals for a few days after the accident.
[6] Though the claimants contended that the deceased was engaged in milk selling and was earning Rs.15,000/- per month, no evidence except for oral deposition is produced on record. It is understandable that a small cattle breeder selling milk to sundry customers, may not have kept meticulous accounts. Nor is it reasonable to expect such a person to produce documentary proof of precise income. However, when the claimants claimed that the income of the deceased was as sizable as Rs.15,000/- per month from milk selling, at least some document of purchase of the milk by shop owner, a diary or an individual engaged in milk collection could have been produced. Considering the period of accident, as also the fact that there is no evidence other than oral deposition of the claimants about the occupation and income of the deceased, one may assess the income of the deceased at Rs.7,500/- per month. As an able bodied adult, she can be expected to engage herself in some or the other gainful occupation. Hence, this assessment. To this one may grant 25% rise for future income as provided by the Supreme Court in case of Pranay Sethi (supra). Her prospective income would therefore come to Rs.9,375/- (i.e. Rs.7,500 + 1,875/-) per month i.e. Rs.1,12,500/-per annum. 1/3rd i.e. Rs.37,500/- thereof would be deducted for the personal expenditure of the deceased, leaving a net of Rs.75,000/- per annum. Applying a multiplier of 14 it would come to Rs.10,50,000/- by way of loss of dependency benefits.
[7] The Claims Tribunal has awarded Rs.30,000/- for medical expenditure which is left undisturbed. The deceased survived for over two days. She died during treatment. There would be an award for pain, shock and suffering which may be quantified at Rs.50,000/-. To this, one may add Rs.15,000/- for loss of estate and Rs.15,000/- by way of funeral expenses as provided by the Supreme Court in case of Pranay Sethi (supra).
[8] In a recent judgment in case of Magma General Insurance Company Limited versus Nanu Ram alias Chuhru Ram and others reported in (2018) 18 SCC 130, the Supreme Court has discussed at length the concept of consortium of different kinds which need to be awarded in the motor accident claim cases. In the said judgment the Supreme Court has also awarded compensation for loss of consortium per claimant. In the said judgment following observations were made:
MACT as well as the High Court have not awarded any compensation with respect to Loss of Consortium and loss of estate, which are the other conventional heads under which compensation is awarded in the event of death as recognized by the Constitution Bench in Pranay Sethi. The Motor Vehicles Act is beneficial and welfare legislation. The Court is duty-bound and entitled to award "just compensation", irrespective of whether any plea in that behalf was raised by the Claimant. In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs. 15,000 towards Loss of Estate to Respondent Nos. 1 and 2.
A Constitution Bench of this Court in Pranay Sethi 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.
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, co-operation, affection, and aid of the other in every conjugal relation."
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."
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.
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.
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 no clarity with respect to the principles on which compensation could be awarded on loss of Filial Consortium.
The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under Loss of Consortium‟ as laid down in Pranay Sethi. In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs.40,000 each for loss of Filial Consortium.
25..In light of the above mentioned discussion, Respondent Nos.1 and 2 are entitled to the following amounts :
Head Compensation awarded
i. Income: Rs. 6,000
ii. Future Prospects: Rs.2,400 (i.e. 40% of the income)
iii. Deduction towards personal expenditure Rs.2,800 i.e. 1/3rd of (Rs.6,000 + Rs.2,400)
iv. Total Income: Rs.5,600 i.e. 2/3rd of (Rs.6,000 + Rs.2,400)
v. Multiplier 18
vi. Loss of future income: Rs.12,09,600 (Rs.5,600 x 12 x18)
vii. Loss of love and affection: Rs. 1,00,000 (Rs. 50,000 each)
viii. Funeral expenses: Rs. 15,000
ix. Loss of estate: Rs. 15,000
x. Loss of Filial consortium Rs.80,000 (Rs.40,000 payable to each of Respondents 1 and 2)
Total compensation awarded: Rs.14,25,600/- along with Interest @ 12% p.a. from the date of filing of the Claim petition till payment.
Out of the amount awarded, respondent 1 is entitled to 60% while Respondent 2 shall be granted 40% along with interest as specified above.
The Insurance Company and Respondent No.3 are held jointly and severally liable to pay the compensation awarded. The Appellant - Insurance Company will pay the full amount of compensation awarded hereinabove to Respondents 1 and 2 and can recover 50% of the amount from Respondent No. 3."
[9] Under the circumstances, there will be an award of Rs.40,000/- each for two sons towards loss of consortium. The total compensation payable to the claimants, therefore, can be worked out as under :
Loss of dependency benefits
Rs.10,50,000/-
Medical expenses
Rs.30,000/
Pain, shock and suffering
Rs.50,000/-
Loss of estate
Rs.15,000/-
Funeral charges
Rs.15,000/-
Loss of consortium for two sons
Rs.80,000/-
Total compensation
Rs.12,40,000/-
[10] At this stage, I come to a very disturbing feature of this matter. As noted the accident occurred on 08.05.2016. Two sons of the deceased lady filed the claim petition seeking compensation for the tragic loss of their mother in an unfortunate vehicular accident. The Claim petition was filed on or around 28.02.2017. The award was passed by the Claims Tribunal on 05.07.2019. More than a year has passed since then but the insurance company has not deposited any amount before the Claims Tribunal as per the award except perhaps depositing a sum of Rs.25,000/- which is a mandatory requirement for filing appeal. This appeal is confined to the quantum of compensation. In other words, the insurance company does not dispute either the accident or the insurance policy. Thus, the insurance company does not dispute its liability to satisfy the award. Only dispute is what is the appropriate compensation which should be awarded? In the process for over one year after passing of the award by the Claims Tribunal the insurance company has deposited no amount whatsoever and thereby deprived the claimants from receiving any compensation whatsoever more than four years after the accident.
[11] On a question why the insurance company has not deposited even part of the compensation awarded by the Claims Tribunal learned counsel for the insurance company stated that the insurance company had filed this appeal. Along with the appeal one stay petition has been filed. In such a stay petition no direction is issued for depositing any amount. The stand taken by the insurance company is thoroughly misconceived. Once the award is passed, it is the duty of the insurance company to satisfy the same within a reasonable period if no time limit is provided. Merely filing an appeal would not permit the insurance company to avoid satisfying the award. Even pendency of a stay petition in such appeal is not sufficient defence on part of the insurance company to refuse to deposit before the Claims Tribunal the amount of compensation awarded. The contention that there is no direction for depositing the amount issued by this Court in the stay petition is also misconceived. It is only when stay is granted in favour of the insurance company with or without condition that the insurance company can legitimately avoid depositing the compensation awarded. If the insurance company desired that to protect its interest pending appeal a portion of the compensation that the insurance company may deposit, may be invested in fixed deposit, the insurance company should have pressed further stay petition. Ordinarily, unless it is shown that the compensation awarded by the Claims Tribunal is grossly excessive or that the insurance company has a strong prima facie argument of altogether avoiding its liability to satisfy the award, the courts in motor accident claim appeals insist on the entire amount of compensation being deposited before the Claims Tribunal upon which a portion thereof may be ordered to be invested in a fixed deposit pending appeal or for a fixed period even if the appeal is eventually disposed of. Investment in the fixed deposit pending appeal has dual purpose of protecting the interest of the insurance company if eventually appeal were to be allowed in part as also to protect the interest of the claimants by guarding them against waste of money if a sizable sum is put in the hands of the claimants in one go.
[12] The insurance company which never pressed for hearing of the stay petition cannot argue that since the appeal was pending and since in the stay petition the High Court did not require the insurance company to deposit full or part of the compensation, the insurance company was free to avoid satisfying the award together. Under the circumstances, by way of cost the insurance company shall pay a sum of Rs.25,000/- to the claimants over and above the reduced compensation as per this judgment.
[13] In the result, the appeal is disposed of with the following directions:
(i) In substitution and in modification of the award of the Claims Tribunal, the claimants would receive a total compensation of Rs.12,40,000/- with interest at the same rate as provided in the award from the date of the claim petition till actual payment.
(ii) The insurance company shall pay a cost of Rs.25,000/- to the claimants.
(iii) The above amount i.e. the awarded amount with interest and proportionate cost as well as the cost of Rs.25,000/- would be deposited before the Claims Tribunal within a period of two months from today.
(iv) Upon such deposit the Claims Tribunal shall deposit 75% thereof in any Nationalized Bank in a fixed deposit for a period of five years. Remaining amount shall be paid over to the claimants in equal proportion through account payee cheques. The claimants would receive periodic interest on fixed deposits in equal proportion. At the end of the period of fixed deposit the amount would be released in favour of both the claimants equally through account payee cheques.
[14] The appeal is allowed in part and disposed of accordingly. Pending application(s), if any, also stands disposed of. Records may be transmitted to the court below.