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Judgment
Gita Gopi, J
[1] The challenge is given to the judgment and award dated 30.11.2022 passed by the MACT, City Civil Court, Ahmedabad City in MACP no.34/2019.
[2] The ground raised in the appeal inter-alia is to the effect that the income has not been assessed in accordance to the evidence on record and the dependency loss is on the lower side and further consortium loss has not been granted to all the dependents.
[3] Advocate Mr. Bharat Shah submits that the deceased was supporting the family of 6 and was a driver with Dev Tours and Travels and on the date of the accident too, he was driving Maruti Swift Desire car bearing registration no. GJ-01 DX-5770 and was going from Shamlaji to Gambhoi on National Highway no.8 following the traffic rules and at that time, a luxury bus bearing registration no. RJ-14 PC-2651 driven by opponent no.2 came in a full speed in a rash and negligent manner and dashed the motor car and because of that the motor car got dragged for about 200 ft. and the luxury bus ran over Maruti car, the car was totally in damaged condition and the deceased was on the driver seat and because of grievous injuries, he died.
[4] Advocate Mr. Shah submits that father of the deceased had given his evidence at Exh.47 and the deposition of Kishorbhai Bhudarbhai was recorded at Exh.91. The income certificate was produced at Exh.64 which was dated 24.6.2016. Inspite of that, the learned Tribunal has failed to appreciate the same and as per the evidence, he was earning about Rs.18,000/- per month while the evidence of the witness– Kishorbhai Bhudarbhai proved that in total, the deceased by way of driving was earning about Rs.36,000/- per month.
[5] While countering the arguments, learned advocates Mr. Rathin Raval as well as Ms. Kirti Pathak submit that the evidence of the witness-Kishorbhai Bhudarbhai could not be believed since he had not produced any documents to support the oral evidence of paying monthly income of Rs.36,000/-. Advocates for the insurance companies submit that without any documentary evidence to show the income, the learned Tribunal has rightly considered the notional income which should be considered as just and proper.
[6] Admittedly though the evidence of Kishorbhai Bhudarbhai was noted at Exh.91 and the income certificate was produced at Exh.64 wherein he had stated about paying monthly income of Rs.36,000/- to the deceased for the driving purpose, but no documents in the form of bank statement or books of accounts were produced to substantiate the fact, but the assessment of notional income of Rs.6,000/- by the Tribunal would be on a lower side since the admitted fact is that the deceased was a driver. Hence, taking into consideration the date of accident as 15.8.2018 in view of the minimum wages schedule, the income of the deceased could be considered as Rs.8,118/-. The age of the deceased was 22 years at the time of the accident and since was having a private job, following the judgment in the case of National Insurance Company Limited Vs. Pranay Sethi & Ors. reported in (2017) 16 SCC 680, 40% prospective rise can be considered. Hence, the income would come to Rs.3,247/- and thus, total comes to Rs.11,365/-. The dependents are 6 in number. Hence, under the personal expenses, one-fourth amount gets deducted which comes to Rs.2,841/-. Hence, the monthly dependency would be Rs.8,524/-. Applying the multiplier of 18, and considering annual loss, the dependency loss would come to Rs.18,41,184/-.
[7] As per the decision in the case of Pranay Sethi (supra), under the head of loss to estate and funeral expenses, under each head Rs.15,000/- is to be granted.
[8] In the case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Ors., reported in (2018) 18 SCC 130, it has been observed as under:-
“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. vs. Rajbir Singh and Ors. (2013) 9 SCC 54) Spousal consortium is generally defined as rights pertaining to th 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.” BLACK'S LAW DICTIONARY (5th ed. 1979) 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. 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.”
[9] Here the deceased had left behind him the widow, minor aged 3 years and parents. Thus, all the four would be entitled for the consortium loss of Rs.40,000/- each. The computation of income is as under:-
Dependency loss
Rs.18,41,184/-
Loss of consortium
Rs. 1,60,000/-
Loss to estate
Rs. 15,000/-
Funeral expenses
Rs. 15,000/-
Total compensation
= Rs.20,31,184/-
[10] As the Tribunal has granted compensation of Rs.12,79,600/- with interest at the rate of 9% per annum, the claimants would be entitled t the enhanced amount of compensation of Rs.7,51,584/- with interest at the rate of 7.5% per annum from the date of filing of the claim petition till its realization.
[11] The negligence has been attributed in the ratio of 75:25. The claimants are entitled to recover the amount from all the opponents and accordingly, the insurance companies are directed to deposit the amount within eight weeks from the date of receipt of writ of this Court in view of the proportion of the liability laid down. The learned Tribunal has not permitted any amount to be granted to the parents. However, this Court is of the opinion that since the parents have lost their son and the family was dependent on him, it would be necessary that the parents are also sufficiently compensated for the loss sustained.
[12] Out of the amount so deposited, the disbursement of amount is as under:-
[i] Widow of the deceased would be entitled to get 50% of the amount. Out of the said amount, 40% of the amount be invested in a Fixed Deposit with any nationalized Bank for a period of 3 years. After 3 years, the FDR amount be paid to her without reference to this Court. Insofar as the remaining 60% of the amount coming in the share of the widow of the deceased is concerned, the same shall be disbursed in her favour after proper verification. Periodic interest on such Fixed Deposit shall be paid.
[ii] Minor child of the deceased would be entitled to get 30% of the amount. The said amount be invested in a Fixed Deposit with any nationalized Bank initially for a period of 5 years, which will be renewable from time to time. After attaining majority, the FDR amount be paid to the minor child of the deceased without reference to this Court. Periodic interest on such Fixed Deposit shall be paid to the mother of the minor for the maintenance and education.
[iii]Father and mother of the deceased each would be entitled to get 10% of the amount. Out of the said amount, 20% of the amount be invested in a Fixed Deposit with any nationalized Bank for a period of 3 years. After 3 years, the FDR amount be paid to them without reference to this Court. Insofar as the remaining 80% of the amount coming in the share of the mother and father of the deceased is concerned, the same shall be disbursed in their favour after proper verification. Periodic interest on such Fixed Deposit shall be paid.
[iv] The original Fixed Deposit Receipt in the name of the claimants shall be kept in the custody of the Nazir of the Court/Tribunal. No any advance, loan or encashment against the Fixed Deposits be permitted by anyone.
[13] The impugned judgment and award be modified accordingly. The appeal is partly allowed. Registry is directed to send the record and proceedings back to the Tribunal, if received.