Smt. Kamlesh and Others vs Kallu and Others

M.K. Mudgal, J.—This is an appeal filed by the claimants u/s 173(1) of the Motor Vehicles Act against an award dated 27.2.2013 passed by VII MACT Gwalior, in Claim case No. 28 of 2012. By the impugned award, the Claims Tribunal has awarded a total sum of Rs. 5,55,000/- with interest to the claimants for the death of one Barjor Singh about 28 years of Age who died in vehicle accident on 7.12.2011. According to claimants, the compensation awarded is on lower side and hence, needs to be enhanced. It is for the enhancement of Rs. 2,00,000/- in the compensation awarded by the Tribunal, the claimants have filed this appeal, so the question that arises for consideration is whether any case for enhancement in compensation awarded by the Tribunal on facts/evidence adduced is made out in the compensation awarded and if so to what extent? It is not necessary to narrate the entire facts in detail, such as how the accident occurred, who was negligent in driving the offending vehicle, who is liable for paying compensation etc. It is for the reason that firstly all these findings are recorded in favour of claimants by the Tribunal. Secondly, none of these findings though recorded in claimants'' favour are under challenge at the instance of any of the respondents such as owner/driver or insurance company either by way of cross appeal or cross objection. In this view of the matter, there is no justification to burden the judgment by detailing facts on all these issues.

As observed supra, it is a death case. One Barjor Singh about 28 years of Age who died in vehicle accident on 7.12.2011 with Tractor bearing No. M.P. 07 HA 6269 while he was returning to his house after handing over his pet to his brother Jagdish in his field near Jakhaudi giving rise to the filing of claim petition by legal representatives (appellants herein) out of which this appeal arises seeking enhancement of compensation for his death. The case was contested by the respondents. Parties adduced evidence. The Claims Tribunal after assessing income of deceased at Rs. 4000/- per month and applying the multiplier of 15 and holding that he was spending 1/4th on himself as personal expenses by impugned award partly allowed the claim petition filed by the claimants as stated supra and awarded a sum of Rs. 5,55,000/- breakup of which is as under:-

Rs. 5,40,000/- Towards loss of dependency.

Rs. 15000/-. Towards loss of consortium, funeral expenses and loss of love and affection.

Learned counsel for the appellants submits that the deceased was husband of appellant no. 1, father of appellant no. 2, 3,4, 5 and Son of appellant no. 6. Due to his death, the family suffered great monetary loss. He used to earn money and spend the same on the family. Learned counsel for the appellants has further submitted that the learned Tribunal assessed the monthly income at Rs. 4000/- per month (Rs. 48,000/- per annum) which is on the lower side. Opposing the submissions made by appellants'' counsel, learned counsel for the respondent submits that the monthly income of the deceased assessed by the claims Tribunal is appropriate as the deceased being labourer, had no fixed income.

Considered the arguments.

The deceased comes under labour class. Monthly income of Rs. 6500/- per month has been claimed in the claim petition. In this regard, the appellants/claimants have produced statements of Smt. Kamlesh (PW1), Kok Singh (PW2) and Jagdish (PW3), yet the statements of said witnesses are not based on any concrete facts. Learned Tribunal having considered the statements of aforesaid witnesses in para 16 to 19 has determined monthly income at the rate of Rs. 4000/- per month which appears to be appropriate as in the year 2011, income of a labour was not more than Rs. 4000/- per month. Besides, no document for proving the exact income of the deceased has been produced on record. The oral evidence may be easily fabricated for fetching more compensation in the claim cases. Thus, the income of the deceased to be Rs. 4000/- per month is found justified.

Learned counsel for the appellants submits that the Claims Tribunal applied multiplier of 15 in assessing the compensation which is not correct as held by Hon''ble Apex Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, . The counsel further urged that looking to the said judgment, multiplier of 17 ought to have been applied as the age of the deceased was 28 years at the time of his death. Considering the age of the deceased being 28 years and the aforesaid judgment, the contention of the learned counsel for the appellants is accepted. Hence, multiplier of 17 is applied in this case.

Learned counsel further submits that learned Tribunal has deducted 1/4th of the income of the deceased for his personal expenses whereas, number of dependents being 5, personal expenses of the deceased should have been estimated at 1/6th of his total income. The said contention does not appear to be correct. Considering the judgment in Sarla Verma Vs. Delhi State Road Transport Corporation (Supra) case, wherein, it has been held by the Apex Court that if the number of dependents is up to 5, the income of deceased should be deducted at the rate of 1/4th of his income towards personal expenses.

Appellants'' counsel further submits that learned Tribunal has not awarded any specific amount towards the loss of consortium. Total amount of Rs. 15,000/- has been awarded towards consortium, funeral expenses and loss of estate. The said amount is also on the lower side. Learned counsel placing reliance on the Hon''ble Apex Court''s judgment in Rajesh and Others Vs. Rajbir Singh and Others, has contended that the age of the appellant no. 1 Kamlesh, widow of the deceased, is 25 years. Considering her age, and the Apex Court Judgment Rs. 1 lac should be awarded for consortium. The Hon''ble Apex Court has held in para 20 of the judgment 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., which 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 recognized 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 Rs. 1,00,000 towards loss of consortium.

Opposing the submissions made on behalf of the appellants, the learned counsel for respondent No. 3, placing reliance on the Hon''ble Supreme Court''s judgments Reshma Kumari and Others Vs. Madan Mohan and Another, and Jayakodi and others Vs. Branch Manager, National Insurance Co. Ltd. And another 2010 ACJ 697 has submitted that the amount awarded by learned Tribunal towards the loss of consortium is just and proper and does not deserve any enhancement.

Arguments were considered. Both the cited judgments on behalf of the respondents are not related to the issue of consortium. However, the contention of appellant''s counsel does not appear to be acceptable in toto. Since said appellant no. 1 Kamlesh has claimed only Rs. 30,000/- in her claim petition for loss of consortium, hence, Rs. 30,000/- is being awarded towards the loss of consortium to the appellant no. 1 Kamlesh.

Learned counsel for the appellants further submitted that no amount for love and affection has been awarded by learned Tribunal whereas, the appellants no. 2, 3, 4 and 5 being of tender age are deprived of the love and affection of their father. Learned counsel placing reliance of on the judgment of Hon''ble Supreme Court in Jiju Kuruvila and Others Vs. Kunjujamma Mohan and Others, has contended that Rs. 100,000/- should be awarded for the loss of love and affection. On perusal of impugned award, it is evident that no amount has been awarded for loss of love and affection. Hence, considering the age and number of children of the deceased and aforesaid cited judgment, Rs. 60,000/- has been awarded towards the loss of love and affection as the claimants have claimed only that much amount in their claim petition in para 12 (E). With regard to para 12 (EE) of the claim petition, no compensation is being awarded as the mother of the deceased Smt. Ramshree Bai has not deposed any statement in this regard. Pleadings itself are not sufficient for awarding compensation. On the other hand, it should be proved by the cogent evidence. Moreover, there is no provision for awarding the compensation for the loss of love and affection suffered by mother.

Keeping in view the above, assessing the monthly income of deceased at Rs. 4000/- per month and also making 1/4th deduction towards the personal expenses and considering the age of deceased being 28 years, the multiplier of 17 would be appropriate. Hence, the claimants are entitled to the following amounts:

Rs. 6,12,000/-

Loss of dependency,

Rs. 15000/-.

Funeral expenses and loss of estate;

Rs. 30000/-

Loss of consortium.

Rs. 60000/-.

Loss of love and affection.

Total:

Rs. 7,17,000/-

Thus, the appellants are entitled to receive Rs. 7,17,000/- instead of Rs. 5,55,000/-. The enhanced amount of Rs. 1,62,000/- shall carry interest @ 6% p.a. from the date of application.

The amount awarded shall be deposited by the Insurance Company with the learned Tribunal and the learned tribunal is directed to disburse it to the appellants equally. Compensation for the minors shall be deposited in fixed deposit in nationalized bank till they attained majority, however, interest of the fixed deposit may be granted to the appellant no. 1 Kamlesh who is being mother, natural guardian of the appellants no. 2 to 5.

With the aforesaid modification the appeal stands disposed of. Cost of the appeal shall be borne by the respondents to the appellants.