Poonam and Others vs Rajinder Parshad and Others

Amol Rattan Singh, J.—This appeal seeks enhancement of compensation awarded to the appellant by the learned Motor Accidents Claims Tribunal, Gurgaon, vide Award dated 07.06.2004, on account of the death of Sh. Prem Shankar Shastri in a road accident found to have been caused on account of the negligent driving of respondent No. 1, who was driving an Ambassador car that hit the motor-cycle on which the deceased and appellant No. 1 were riding, on the date of accident.

The appellants are the widow and 2 minor sons of the deceased. The basic facts as taken from the award of the learned Motor Accidents Claims Tribunal, Gurgaon, are detailed hereinafter:-

No appeal having been filed by the respondents against the Award, they have obviously accepted the finding therein and, as such, are now only opposed to the enhancement of the compensation awarded by the Tribunal.

Mr. Mahavir Singh Sandhu, learned counsel for the appellants, at the outset first submits that the deceased was only 38 years of age and was employed as a Sanskrit Teacher in a Government School, and his salary was proved to be Rs. 11,940/- in the month preceding his death and though the Tribunal has obviously accepted that figure while calculating compensation to be awarded, it has erred on two vital issues; viz.,(i) not taking into account the prospects of income to be earned in the future had the deceased not died on account of the accident; (ii) by deducting the family pension being received by appellant No. 1 amounting to Rs. 6,080/- per month.

He further argued that a multiplier of at least 18 should have been applied while calculating the loss of income to the appellant, considering that the deceased was only 38 years of age and in a steady Government Job.

He has further argued that as per law now settled, a sum of Rs. 1 lac should have been awarded to appellant No. 1 for loss of consortium and Rs. 1 lac each should have been awarded to appellants No. 2, 3 and 4, for loss of love and affection of their father.

In this regard he cited the judgments of the Supreme Court in the cases of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 ; Rajesh and Others Vs. Rajbir Singh and Others, (2013) 2 ACC 841 : (2013) ACJ 1403 : (2013) 3 CTC 883 : (2013) 8 JT 288 : (2014) 173 PLR 779 : (2013) 3 RCR(Civil) 170 : (2013) 6 SCALE 563 : (2013) 9 SCC 54 : (2014) 1 SCC(L&S) 149 ; Vimal Kanwar and Others Vs. Kishore Dan and Others, (2013) 2 ACC 752 : (2013) ACJ 1441 : (2013) 6 AD 568 : AIR 2013 SC 3830 : (2013) 259 CTR 420 : (2013) 8 JT 234 : (2013) 171 PLR 776 : (2013) 2 RCR(Civil) 945 : (2013) 6 SCALE 705 : (2013) 7 SCC 476 : (2013) 7 SCC(L&S) 759 : (2013) 216 TAXMAN 300 ; and Lal Dei and Others Vs. Himachal Road Transport, (2007) 8 SCC 319 .

Further, he submitted that Rs. 25,000/- should have been awarded on account of funeral expenses and a sum of at least Rs. 15,000/- should have been awarded on account of transportation of the deceased, first in an injured condition from the site of the accident to the hospital and then on account of transportation of his body from hospital to his home. He also argued that interest @12% should have been granted by the Tribunal on the amount of compensation awarded, from the date of institution of the claim-petition till the date of realization of such compensation, whereas the Tribunal awarded only 9% annual interest.

In all, he submitted, that a total compensation of at least Rs. 50,00,000/- plus interest @ 12% should have been awarded to the appellant, as against the Rs. 7,59,144/- awarded.

Learned counsel appearing for the respondent-Insurance Company, however, submitted that the Tribunal had awarded more than adequate compensation and nothing further, whatsoever, needs to be enhanced under any head whatsoever. He, however, could not deny the position of law, as settled in the judgments cited by learned counsel for the appellants, even while insisting that the amount which would be arrived at, by taking future prospects of income and under other heads in to account, would be highly excessive.

Mr. Sandhu, on the other hand, further argued that the Tribunal wrongly deducted Rs. 6,080/- per month from the last salaried income of the deceased on account of the fact that the appellant No. 1 is receiving family pension of the said amount ( Rs. 6,080/- per month) after the death of the deceased, from his employer, i.e. Government of Haryana.

Towards this contention he has relied upon the judgment of the Supreme Court in Lal Dei''s case (supra) wherein it was held as follows:-

"It is contended by the learned counsel for the appellant that while calculating the dependency, the Motor Accident Claims Tribunal as well as the High Court committed an error in deducting the family pension amount. We find that the submission made by the counsel for the appellant is correct. The Motor Accident Claims Tribunal as well as the High Court could not have deducted the amount of family pension given to the family while calculating the dependency of the claimants. In the case of Mrs. Helen C. Rebellow and other vs. Maharashtra State Road Transport Corpn. And another reported in 1998(4) RCR (Civil) 177: AIR 1998 page 3191 this Court has specifically dealt with this question and said that the family pension is earned by an employee for the benefit of his family in the form of his contribution in the service in terms of the service conditions receivable by the heirs after his death. The heirs receive family pension even otherwise than the accidental death. There is no co-relation between the two and therefore, the family pension amount paid to the family cannot be deducted while calculating the compensation awarded to the claimants. In view of this the appeal is allowed. The order of deduction of the family pension is set aside. Accordingly, the appellants would be entitled for an amount of Rs. 10,27,000/- as compensation with interest at the rate of 9% from the date of the filing of the petition."

He has also relied upon a Division Bench judgment of this Court in National Insurance Co. Ltd. Vs. Renu Bala and Others, (2005) 2 ACC 495 : (2004) 3 ACC 721 : (2005) ACJ 619 : (2004) 138 PLR 320 , and another judgment of the Hon''ble Supreme Court in National Insurance Company Ltd. Vs. Behari Lal and Others, (2000) 2 ACC 463 : (2000) ACJ 1428 : AIR 2000 SC 3053 : (2000) 102 CompCas 104 : (2000) 10 JT 39 : (2000) 6 SCALE 177 : (2000) 7 SCC 137 : (2000) 2 SCR 698 Supp : (2000) 2 UJ 1525 : (2000) AIRSCW 3352 : (2000) 5 Supreme 747 , in this regard.

Thus, the matter having been authoritatively adjudicated upon, in the decision aforesaid of the Hon''ble Apex Court, in Lal Deis'' case, accordingly, family pension that is being received by appellant No. 1 is not allowable to be deducted from the income of the deceased.

After having heard learned counsel for the parties, I am of the opinion that in view of the law settled on the issue as of today, this appeal needs to be at least partly allowed, in view of what is detailed hereinunder.

The Tribunal, while accepting the income as proved by the salary certificate of the deceased, did not add the future prospects of the income of the deceased, as he was likely to earn, had he remained alive. Considering that the loss of future income was considered and given effect to while determining compensation even before a formula/fixed methodology came to be settled in Sarla Verma''s case (supra), as is obvious from a reading of General Manager, Kerala State Road Transport Corporation, Trivandrum Vs. Mrs. Susamma Thomas and others, (1994) ACJ 1 : AIR 1994 SC 1631 : (1994) 107 PLR 1 : (1993) 4 SCALE 643 : (1994) 2 SCC 176 , the Tribunal should have taken the same into account at least in the present case, where the deceased was only 38 years old and was a Sanskrit Teacher in a permanent Government job.

Be that as it may, applying the ratio of the judgment in the case of Rajesh and others (supra), it is held that the deceased, being 38 years of age, 50% of his salary as accepted at the time of his death, should have been added as prospects of future income, while calculating his total income and consequent loss of income to the appellants. As such, the income of the deceased being Rs. 11,940/-, Rs. 5,970/- being 50% of the salary, would need to be added as part of his monthly income after taking into account future prospects of his earning such income, had he remained alive.

As such, his monthly income is to be taken to be Rs. 17,910/- for the purpose of determining compensation to the appellants.

Coming now to the deduction from the above amount, on account of the personal expenses which the deceased would have incurred upon himself, had he remained alive.

As settled in Sarla Verma''s case (supra), the deduction towards personal expenses of the deceased, from his total income, should be 1/4th where the number of dependent family members is 3 to 4, as in the present case, where the claimants, i.e. the present appellants, are his widow and 3 minor children.

Therefore, the Tribunal has erred in applying a cut of 1/3rd to the income of the deceased, as assessed by it, whereas the cut applied should have been 1/4th on the total income of Rs. 17,910/- per month and is so applied now, towards the personal expenses that the deceased would have incurred on himself, had he remained alive. The loss of income to the appellants is, thus, assessed as Rs. 13432.50 paise per month, which is an annual loss of income of Rs. 1,61,190/-.

Coming to the multiplier which is to be applied, to arrive at a final figure under the head of loss of income, that is to be granted as compensation to the appellants. Again going back to Sarla Verma''s case, it is seen that for the age group of 36 to 40 years, a multiplier of 15 has been laid down by the Apex Court.

In the present case, as a matter of fact, the Tribunal had applied a multiplier of 16 to arrive at the total compensation under this head and though there is no appeal by the respondents to this finding, however since this Court is obviously bound to follow the ratio of the law laid down, it would be inappropriate to not reduce the multiplier as has been laid down. As such, a multiplier of 15 is applied to the annual income, assessed. The sum that one consequently comes to is Rs. 1,61,190 x 15 = Rs. 24,17,850/-.

Next, coming to the loss of consortium to be awarded to appellant No. 1, on account of the death of her husband in the accident, the Tribunal awarded a sum of Rs. 5,000/- under this head, which, as per the law presently prevailing, as determined from the ratio of the judgment in Rajesh and others'' case (supra) and Vimal Kanwar and others'' case, is to be enhanced to Rs. 1 lac and is accordingly enhanced.

The Tribunal further awarded Rs. 2,000/- on account of transportation charges and Rs. 2,000/- towards funeral expenses.

Mr. Sandhu has argued that the deceased, before his death, was transported to 3 hospitals and after his death obviously his body was transported to his home. This is also discernible from the facts as narrated in the Award passed by the Tribunal. However, since funeral expenses of Rs. 25,000/- are now being awarded, as per ratio of the judgments of the Supreme Court cited above, no further enhancement of transportation expenses is called for.

Coming next to the loss of love and affection and care and guidance to the 3 minor children of the deceased, Mr. Sandhu submitted that as per the judgment in Vimal Kanwar and others'' (supra), the daughter, in that case, was awarded a sum of Rs. 2 lacs and, in addition to loss of consortium, the widow was also awarded Rs. 2 lacs and the mother of the deceased in that case was awarded Rs. 1 lac.

However, it is seen that in Rajesh and others'' (supra) a sum of Rs. 1 lac was awarded towards loss of care and guidance to minor children. Hence, keeping in view the above, Rs. 1 lac is awarded to each of the 3 minor children, i.e. appellants No. 2 to 4, under the head of loss of love and affection and care and guidance, even though, considering that they would obviously have been very young children keeping in mind the age of the deceased, such sum is per se not wholly adequate. Still, since the compensation on account of loss of income has been enhanced considerably, it is felt appropriate to limit the compensation under this head to a sum of Rs. 1 lac per minor child.

As no specific averment was made before the Tribunal with regard to expenses on account of medicines purchased after the accident and before the death of the deceased, nothing can be awarded under that head. In fact, no such medical bills have been placed on record even before this Court.

Thus the total amount of compensation now awarded comes to Rs. 28,42,850/-; i.e. Rs. 24,17,850/- as loss of income + Rs. 1,00,000/- for loss of consortium + Rs. 25,000/- as funeral expenses + Rs. 1,00,000/- each for loss of love and affection, care and guidance to the three minor children, i.e. appellants No. 2 to 4. The said amount of Rs. 28,42,850/- is Rs. 20,83,706/- over and above the Rs. 7,59,144/- awarded by the Tribunal, and would be payable jointly and severally, by the respondents.

Since the enhancement in compensation is considerable, the interest on the enhanced amount is pegged down to 6% per annum, running from the date of filing of the claim petition, till the date that the judgment of this Court was first delivered, i.e. 09.04.2014, provided the amount is disbursed to the appellants within four months from the date of receipt of a certified copy of this order. If it is not so disbursed, then interest @ 6% per annum would continue to apply and be added, to the sum of Rs. 20,85,706/-, from the date of filing of the claim petition till the date that actual payment is made.

The total amount thus payable to the appellants, would be paid in equal shares to them, initially by way of fixed deposits in a nationalized bank, for a period of 1 year at least.

The appeal is allowed in the above terms, with no order as to costs.

This application seeks rectification of the mistake which has occurred in the judgment of this Court, dated 09.04.2014, by which the compensation to the appellants was enhanced from Rs. 7,59,144/-, as awarded by the Motor Accident Claims Tribunal, Gurgaon, to Rs. 24,76,200/-, for the reasons given in the said judgment.

Mr. Mahavir Singh Sandhu, learned counsel appearing for the appellants-applicants, submits that, somehow, this Court erred in not noticing that the number of dependents on deceased Prem Shankar Shastri, i.e. the number of appellants before this Court, who were claimants before the Tribunal, is four and not three, as has been stated in the aforesaid judgment of this Court.

The appellants-claimants before this Court, as per the memo of parties, as also before the Motor Accident Claims Tribunal, Gurgaon, are as under:-

"i) Smt. Poonam widow of Prem Shankar Shastri, deceased;

ii) Pranav Sharma (minor) son;

iii) Ritik Sharma (minor) son;

iv) Apoorva Sharma (minor shown in the memo of parties before the Tribunal to be a son but shown before this Court to be a daughter of deceased Prem Shankar Shastri)."

Mr. Sandhu has confirmed that Apoorva Sharma is a daughter of deceased Prem Shankar Shastri who, at the time of the accident in question, i.e. on 16.06.2003, was a minor child.

He further submitted that owing to the said error, the entire calculation of compensation awarded to the appellants, has gone awry, as a 1/3rd cut has been applied to the income of the deceased, rather than 1/4th, in terms of the judgment of the Supreme Court, in Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) ACJ 1298 : AIR 2009 SC 3104 : (2009) CLT 1055 : (2009) 6 JT 495 : (2009) 6 SCALE 129 : (2009) 6 SCC 121 : (2009) 5 SCR 1098 : (2009) 5 UJ 2280 : (2009) AIRSCW 4992 : (2009) 3 Supreme 487 .

Further, other than the compensation under the head of loss of income having been reduced by taking the number of claimants-appellants to be three rather than four, the 4th appellant, i.e. Apoorva Sharma, then minor child of deceased Prem Shankar Shastri, has also not been granted compensation of Rs. 1,00,000/- towards loss of love and affection, care and guidance of her father, as has been granted to each of the other children, i.e. appellants No. 2 and 3.

Still further, Mr. Sandhu submitted that though this Court has awarded interest @ 6% per annum on the enhanced amount of compensation, it has omitted to state the period for which the interest shall run.

Hence, Mr. Sandhu submitted that all these errors, being patent on the face of the record, need to be rectified.

Mr. Vinod Chaudhary, learned counsel appearing of respondent No. 3, i.e. the New India Assurance Company Ltd., Gurgaon, the insurer of the "offending vehicle", i.e. car bearing registration No. HR-02-0065, owned by respondent No. 2 and driven by respondent No. 1, submitted that the judgment once having been delivered, cannot be rectified as is sought, by way of this application. However, Mr. Chaudhary, obviously, factually could not deny that this Court has indeed erred in noticing that the number of dependents on deceased Prem Shankar Shastri, was four and not three, i.e. the present four appellants, who were all also claimants before the Tribunal.

Other than what Mr. Sandhu has pointed out, it is further seen that in the third sub para of paragraph 3 of the judgment dated 09.04.2014, only appellants No. 2 and 3 have been referred to for grant of compensation of Rs. 1 lac each, for the loss of love and affection of their father, with no mention of appellant No. 4.

Therefore, as it is not in dispute that the judgment of this Court, dated 09.04.2014, shows the number of dependents on the deceased to be three rather than 4, which is actually the number of the appellants who are before this Court, hence, the error in the judgment needs to be corrected. Correctly, an application for review of the judgement should have been filed; however, since that is only a matter of the form of the application, the technicality is not being insisted upon.

Consequently, this application is to be allowed. The errors in the judgment dated 09.04.2014 are to be rectified by this Court and the compensation awarded to the appellants would now be calculated as is given hereinafter.

First of all, in the third sub-para of para 3 of the judgment, instead of the words "...should have been awarded to appellants No. 2 and 3....", the words "should have been awarded to appellants No. 2, 3 and 4...." shall stand substituted.

Thereafter, in paragraph 8 of the judgment dated 09.04.2014, it has been stated as follows:-

"Coming now to the deduction from the above amount, on account of personal expenses which the deceased would have incurred upon himself had he remained alive.

As settled in Sarla Verma''s case (supra), the deduction towards personal expenses of the deceased, from his total income, should be 1/3rd where the number of dependent family members is 2 to 3, as in the present case, where the claimants, i.e. the present appellants, are his widow and 2 minor sons.

Therefore, the Tribunal had rightly applied a cut of 1/3rd to the income as assessed by it. As such, applying the ratio of Sarla Verma''s case (supra), a 1/3rd deduction on the total income of Rs. 17,910/- per month is applied as the personal expenses that the deceased would have incurred on himself. The loss of income to the appellants is, thus, assessed as Rs. 11,940/-. (Factually, 1/3rd of Rs. 17,910/- is also Rs. 5,970/- as is 50% of Rs. 11,940/-. Therefore, after increasing the deceased''s actual income by 50% on account of future prospects of earning it, and deducting 1/3rd thereof towards his personal living expenses, the figure arrived at as the loss of income to the appellants, is also Rs. 11,940/-, which was the last salary drawn by the deceased)."

However, since the number of dependents on the late Prem Shankar Shastri was four and not three, a cut of 1/4th, rather than 1/3rd, is to be applied to his income, towards his personal living expenses had he remained alive, in terms of the judgment of the hon''ble Supreme Court in Smt. Sarla Verma''s case (supra).

Thus, to his monthly income of Rs. 17,910/-, adduced by this court in paragraph 7 of the said judgment (after adding 50% of his salary to the actual monthly income, by way of prospects of future earning), a cut of 1/4th of the said sum is to be applied, rather than 1/3rd, as already stated above.

Further, obviously, the total compensation, after applying the multiplier, would also change, as the dependent income of the appellants would work out to a higher sum, when the income of Rs. 17,910/- is deducted by 1/4th of that amount, rather than 1/3rd.

Still further, the third child would also have to be granted equal amount of compensation for loss of love and affection, care and guidance of the father, as has been awarded to the other minor children. As can be seen from paragraph 12 of the judgment of this Court, Rs. 1,00,000/- each had been awarded to the other 2 minor children, i.e. appellants No. 2 and 3. Therefore, appellant No. 4 would also have to be awarded Rs. 1,00,000/- as compensation for loss of love and affection, care and guidance of her father, i.e. Prem Shankar Shastri.

In the net result, the total amount of compensation as recorded towards the last part of the judgment of this court, dated 09.04.2014, in paragraph 12 thereof would also change. Thus, paragraphs 8, 9 and 12 would all require amendment/rectification of error. Also, the 3rd sub-para of paragraph 3, of the judgment, would also require to be corrected, as already stated.

Therefore, in place of paragraphs 8, 9 and 12 as they stand in the judgment of this Court, dated 09.04.2014, the said paragraphs shall stand substituted and paragraphs 8 to 13 shall now read as follows:-

"8. Coming now to the deduction from the above amount, on account of the personal expenses which the deceased would have incurred upon himself, had he remained alive.

As settled in Sarla Verma''s case (supra), the deduction towards personal expenses of the deceased, from his total income, should be 1/4th where the number of dependent family members is 3 to 4, as in the present case, where the claimants, i.e. the present appellants, are his widow and 3 minor children.

Therefore, the Tribunal has erred in applying a cut of 1/3rd to the income of the deceased, as assessed by it, whereas the cut applied should have been 1/4th on the total income of Rs. 17,910/- per month and is so applied now, towards the personal expenses that the deceased would have incurred on himself, had he remained alive. The loss of income to the appellants is, thus, assessed as Rs. 13432.50 paise per month, which is an annual loss of income of Rs. 1,61,190/-.

Coming to the multiplier which is to be applied, to arrive at a final figure under the head of loss of income, that is to be granted as compensation to the appellants. Again going back to Sarla Verma''s case, it is seen that for the age group of 36 to 40 years, a multiplier of 15 has been laid down by the Apex Court.

In the present case, as a matter of fact, the Tribunal had applied a multiplier of 16 to arrive at the total compensation under this head and though there is no appeal by the respondents to this finding, however since this Court is obviously bound to follow the ratio of the law laid down, it would be inappropriate to not reduce the multiplier as has been laid down. As such, a multiplier of 15 is applied to the annual income, assessed. The sum that one consequently comes to is Rs. 1,61,190 x 15 = Rs. 24,17,850/-.

Next, coming to the loss of consortium to be awarded to appellant No. 1, on account of the death of her husband in the accident, the Tribunal awarded a sum of Rs. 5,000/- under this head, which, as per the law presently prevailing, as determined from the ratio of the judgment in Rajesh and others'' case (supra) and Vimal Kanwar and others'' case, is to be enhanced to Rs. 1 lac and is accordingly enhanced.

The Tribunal further awarded Rs. 2,000/- on account of transportation charges and Rs. 2,000/- towards funeral expenses.

Mr. Sandhu has argued that the deceased, before his death, was transported to 3 hospitals and after his death obviously his body was transported to his home. This is also discernible from the facts as narrated in the Award passed by the Tribunal. However, since funeral expenses of Rs. 25,000/- are now being awarded, as per ratio of the judgments of the Supreme Court cited above, no further enhancement of transportation expenses is called for.

Coming next to the loss of love and affection and care and guidance to the 3 minor children of the deceased, Mr. Sandhu submitted that as per the judgment in Vimal Kanwar and others'' (supra), the daughter, in that case, was awarded a sum of Rs. 2 lacs and, in addition to loss of consortium, the widow was also awarded Rs. 2 lacs and the mother of the deceased in that case was awarded Rs. 1 lac.

However, it is seen that in Rajesh and others'' (supra) a sum of Rs. 1 lac was awarded towards loss of care and guidance to minor children. Hence, keeping in view the above, Rs. 1 lac is awarded to each of the 3 minor children, i.e. appellants No. 2 to 4, under the head of loss of love and affection and care and guidance, even though, considering that they would obviously have been very young children keeping in mind the age of the deceased, such sum is per se not wholly adequate. Still, since the compensation on account of loss of income has been enhanced considerably, it is felt appropriate to limit the compensation under this head to a sum of Rs. 1 lac per minor child.

As no specific averment was made before the Tribunal with regard to expenses on account of medicines purchased after the accident and before the death of the deceased, nothing can be awarded under that head. In fact, no such medical bills have been placed on record even before this Court.

Thus the total amount of compensation now awarded comes to Rs. 28,42,850/-; i.e. Rs. 24,17,850/- as loss of income + Rs. 1,00,000/- for loss of consortium + Rs. 25,000/- as funeral expenses + Rs. 1,00,000/- each for loss of love and affection, care and guidance to the three minor children, i.e. appellants No. 2 to 4. The said amount of Rs. 28,42,850/- is Rs. 20,83,706/- over and above the Rs. 7,59,144/- awarded by the Tribunal, would be payable jointly and severally, by the respondents.

Since the enhancement in compensation is considerable, the interest on the enhanced amount is pegged down to 6% per annum, running from the date of filing of the claim petition, till the date that the judgment of this Court was delivered, i.e. 09.04.2014, provided the amount is disbursed to the appellants within four months from the date of receipt of a certified copy of this order. If it is not so disbursed, then interest @ 6% per annum would continue to apply and be added, to the sum of Rs. 20,85,706/-, from the date of filing of the claim petition till the date that actual payment is made.

The total amount thus payable to the appellants, would be paid in equal shares to them, initially by way of fixed deposits in a nationalized bank, for a period of 1 year at least.

The appeal is allowed in the above terms, with no order as to costs."

This application having been allowed and the relevant part of the 3rd sub para of paragraph 3, as also the relevant parts of paragraphs No. 8, 9 and 12 having been rectified/amended as given above, with also a renumbering of paragraphs, the corrected judgment of this Court, dated 09.04.2014, is annexed alongwith this order.