JANTABI MAHABOOB BETAGERI, ORS. vs PUSHPAK FREIGHT CARRIER & ANR.

Having lost the sole bread earner of the family, Mahaboob, in an accident on 01.02.2012, having been awarded a compensation of Rs.10,36,000/- along with interest at the rate of 9% p.a. from the date of filing of the petition till the date of realisation, the appellants have challenged the award dated 22.09.2014, passed by the Presiding Officer, FTC-III Court at Belgaum, before this Court.

Briefly the facts of the case are that on 01.02.2012, at 2.20 PM, Mahaboob was driving a Tata Magic Van on the BilagiBagalkot Road. When he reached near Anagwadi Bus Stand, a truck, bearing registration No. MH-20/AT-1201, being driven in a rash and negligent manner, came from the wrong side of the road, and dashed against the vehicle being driven by Mahaboob. Consequently, Mahaboob suffered grievous injuries. Immediately, he was taken to the Kerudi Hospital, Bagalkot. However, six days

later, on 07.02.2012, he succumbed to his injuries. With his death, the appellant No.1-Smt.Janatbi, appellant No.2-Shanoor Mahaboob, appellant No.3-Kousar Mahaboob and appellant No.Heena Mahaboob, were left to fend for themselves. Therefore, they filed a claim petition before the learned Tribunal.

In order to buttress their case, the appellants examined two witnesses, and submitted fifteen documents. Although the Insurance Company did not examine any witness, but it did submit a single document. After appreciating the evidence, the learned Tribunal granted the compensation as aforementioned. Hence, this appeal before this Court.

The learned counsel for the appellants, Mr. Vitthal S. Teli, has raised the following contentions before this Court:- Firstly, despite the fact that Mahaboob was working as a driver of a heavy motor vehicle, despite the fact that the appellants claimed that he was earning Rs.15,000/- per month, still the learned Tribunal has not granted any compensation "for the loss of future income". Relying on the case of Sarla Verma & Others Vs. Delhi Transport Corporation & Another (2009) 6 SCC 121, the learned counsel has pleaded that, since Mahaboob was 46 years old at the time of his death, at least 30% of his annual income should have been considered for calculating the loss of future income.

Secondly, despite the fact that, at the time of her husband''s death, the appellant No.1 was merely 38 years old and had her entire life before her, still for the loss of consortium, only an amount of Rs.10,000/- has been granted.

Thirdly, although Mahaboob had left one minor son, and one major son and daughter, still the children have been granted merely Rs.15,000/- for loss of love and affection.

Lastly, although Mahaboob had expired in 2012, the bereaved family had been granted merely Rs.10,000/- for funeral expenses. Hence, the compensation in the said category deserves to be enhanced by this Court.

On the other hand, Sri S.S. Koliwad, the learned counsel for the Insurance Company, has strenuously contended that, a compensation award is not meant to be a bonanza. Since the appellants had been compensated fairly and justly, the impugned award does not deserves to be interfered with by this Court.

Heard the learned counsel for the parties and perused the impugned award.

In the case of Sarla Verma (supra), the Hon''ble Supreme Court has opined that, 30% of the annual income should be taken if the deceased happens to be between the ages of 40 to 50 years. In the present case, Mahaboob was aged 46 years. Therefore, 30% of his annual income needs to be taken as "the loss of future income". The learned Tribunal has taken his income as Rs.8,000/- per month. Therefore, his annual income is Rs. 12,48,000/- (8,000/- x 12 x 13). If 1/4 of the same is deducted towards personal expenses, it comes out to be Rs.9,36,000/-. 30% of the said amount is to be added towards the loss of future income, the same comes to be Rs.2,80,800/-. Hence, the total loss of dependency is re-calculated as Rs.9,36,000/- + Rs/2,80,800/- = Rs.12,16,800/-.

In the case of R Rajesh and Ors. V. Rajbir Singh & Ors [(2013) 9 SCC 54], the Hon''ble Supreme Court has extensively dealt with the concept of "consortium" as under:

"In legal parlance, "consortium" is the right of the spouse to the company, care, help, comfort, guidance, society, solace, affection and sexual relations with his or her mate. That non-pecuniary head of damages has not been properly understood by our courts. The loss of companionship, love, care and protection etc., the spouse is entitled to get, has to be compensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of the major heads of award of compensation in other parts of the world more particularly in the United States of America, Australia, etc. English courts have also recognised the right of a spouse to get compensation even during the period of temporary disablement. By loss of consortium, the courts have made an attempt to compensate the loss of spouse''s affection, comfort, solace, companionship, society, assistance, protection, care and sexual relations during the future years. Unlike the compensation awarded in other countries and other jurisdictions, since the legal heirs are otherwise adequately compensated for the pecuniary loss, it would not be proper to award a major amount under this head. Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium."

Therefore, this Court enhances the compensation in the category of "loss of consortium" from Rs.10,000/- to Rs.1,00,000/-.

The deceased had left behind him three children. Although the loss of a father cannot be compensated completely through monetary compensation, but nonetheless an endeavour has to be made by the Court to compensate the children for the loss of love and affection of their father. An award of merely Rs.15,000/- is on the conservative side. Therefore, this Court grants Rs.50,000/- under the category of "loss of love and affection".

Death may be inexpensive, but funerals are not. The funeral expenses do not include the amount spent by the family on the cremation/ burial of the deceased, but would also include last rites to be performed for the departed soul in accordance with the rites and customs of the community to which the deceased belonged to. The rites and customs for a Hindu person happened to be rather elaborate in most part of the Country. Therefore, an award of merely Rs.10,000/- for the year 2012 seems to be an unjust one. Hence, this Court enhances the compensation under the said category to Rs.30,000/-.

For the reasons stated above, this appeal is hereby allowed and the impugned award is hereby modified as under:

Sl. No. Particulars Amount (Rs.)

Loss of dependency 12,16,800.00

Medical expenses, attendant charges, conveyance & incidental charges 62,000.00

Loss of consortium 1,00,000.00

Loss of love and affection 50,000.00

Loss of estate 2,500.00

Towards funeral expenses 30,000.00

Total 14,61,300.00

Therefore the compensation is enhanced from Rs.10,35,500/- to Rs.14,61,300/-.

The enhanced amount of Rs.4,25,800/- shall carry an interest at the rate of 9% p.a. from the date of filing of the petition till the date of realisation.

The Insurance Company is directed to deposit the enhanced compensation amount within a period of three weeks from the date of receipt of the certified copy of this judgment.

The amount so deposited shall be disbursed to the appellants. Since the children have also become major by now, no amount needs to be kept in a fixed deposit in a Nationalized Bank, the same shall be disbursed to the children in accordance with the proportion laid down by the learned Tribunal in the impugned award.

The appeal is, hereby, allowed.