Universal Sompo General Insurance Company Ltd vs Amandeep Kaur & Ors

Chander Bhusan Barowalia, J.

The present appeal under Section 173 of the Motor Vehicles Act, 1988, is maintained by the appellant/respondent No.3 (hereinafter referred to as

‘respondent No.3’) for quashing and setting aside the impugned award, dated 27.5.2015, passed by the learned Motor Accident Claims

Tribunal-II, Una, District Una, H.P, in MAC Petition No.33 of 2013.

Brief facts giving rise to the present appeal are that on 15.3.2013, Harpreet Singh (deceased) was on way to his Solrex Pharmaceuticals Company

near village Bhatoli Kalan, Barotiwala, District Solan, while driving motorcycle bearing registration No.HP-20D-9285 and Rajeev Upadhaya, was the

pillion rider. On reaching near Sun City Chowk, around 8:30 AM, tractor bearing No.HP-12A- 6085 came from behind at a high speed and struck

against the motorcycle of the deceased. Consequently, the deceased alongwith pillion rider fell down. Harpreet (deceased) sustained multiple injuries

while tractor driver fled away from the spot and later on, the deceased succumbed to the injuries and his post mortem examination was conducted by

Medical Officer at First Referral Unit, Nalagarh. It is averred that the driver was driving the offending vehicle in a rash and negligent manner and

struck the motorcycle of the deceased from behind. The deceased was hale and hearty having dynamic personality. The petitioners were dependent

upon the income of the deceased. The deceased was loving husband and obedient son. Due to his untimely death, petitioners have suffered irreparable

loss of love and affection.

Respondent No.1, who was driving the offending tractor and caused mishap has denied that the accident had taken place with motorcycle bearing

No.HP-20D-9582 and pleaded that a false story has been cooked up by the petitioners to claim compensation. FIR was registered on a false

statement since no accident had ever taken place. The motorcyclist was hit by one truck and that vehicle was not traced by the police. Respondent

No.3-Insurance Company also contested the petition on the ground that the driver of the motorcycle No.HP-20D-9285, was not holding valid and

effective driving licence and was driving the same in violation of the terms and conditions of the Insurance Policy. The motorcycle was being plied

without valid Registration Certificate.

The accident had taken place on 15.3.2018 at 8:30 AM and time is not covered in the Insurance cover. The driver of the motorcycle was not obeying

traffic and driving rules and was driving the motorcycle negligently.

From the pleadings of parties, the learned Tribunal below framed following issues:

“1. Whether Harpreet Singh died because of the rash and negligent driving of tractor No.HP-12A-6085 by the respondent/driver Sh. Narinder

Kumar, as alleged ? OPP.

If issue No.1 is proved in affirmative whether the petitioners are entitled to compensation as claimed, if so, its quantum and from whom ? OPP.

Whether the driver of vehicle i.e. motorcycle No.HP-20D-9285 involved in the accident was not holding valid and valid effective driving licence to

drive the vehicle ? OPR-3.

Whether the vehicle in question was being plied at the relevant time without valid RC and other relevant documents ? OPR-3.

Whether the vehicle was being driven in violation of the terms and conditions of the Insurance Policy and Motor Vehicles Act, as alleged, if so, its

effect ? OPR-4.

Whether the petition does not disclose any cause of action against respondent No.3 ? OPR-3.

Whether this Tribunal has no jurisdiction to try the petition ? OPR-3.

Relief.â€​

The learned trial Court after deciding Issues No.1, 2 in affirmative, Issues No.3 to 7 in negative, allowed the petition vide impugned award.

Mr. Jagdish Thakur, learned counsel appearing on behalf of the appellant has argued that the learned Tribunal below has passed the impugned

award by making deduction incorrectly and it was required to be given 1/3rd, while assessing the dependency. He has further argued that the amount

given in other heads is also required to be reduced and so, the award passed by the learned Tribunal below may be modified. On the other hand, Mr.

Onkar Jairath, learned counsel appearing on behalf of respondents No.1 and 2 has argued that the amount is required to be increased, as the income

of deceased required to be taken excluding taxes.

To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record of the case carefully.

In order to prove its case, PW-1, Daljeet Singh, has deposed that deceased Harpreet Singh, was her son and on 15.3.2013 around 8:40 AM, while

driving his motorcycle was struck by the tractor being driven by respondent No.1-Narinder Kumar, which came from behind and died in the accident

at Sun City Chowk, Baddi. She further stated that the tractor was being driven by respondent No.1-Narinder Kumar, in a rash and negligent manner,

who failed to keep control over the vehicle due to high speed and struck against the motorcycle. PW-2, Dr. Ajay Negi, who conducted post mortem of

deceased Harpreet Singh, while posted as Medical Officer at F.R.U, Nalagarh, on 15.3.2013. PW-4, Sunil Kumar, Senior Manager, Solrex

Pharmaceuticals Company, proved the salary slip of the deceased. PW-5, Rajeev Upadhaya, deposed that Harpreet Singh-deceased was employed in

Solrex Pharmaceuticals Company and his gross salary was Rs.14,000/- and at the time of his death, his qualification was M. Pharma. The driver of

the tractor respondent No.1-Narinder Kumar appeared in the witness box as RW-1, deposed that he was having a driving licence to drive the vehicle

in question, which was issued by Registering and Licensing Authority, Badaun (U.P).

Hon’ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others, AIR 2017 Supreme Court 5157, has held as under :

“47. In our considered opinion, if the same is followed, it shall subserve the cause of justice and the unnecessary contest before the tribunals and

the courts would be avoided.

[48] Another aspect which has created confusion pertains to grant of loss of estate, loss of consortium and funeral expenses. In Santosh Devi (AIR

2012 SC 2185) (supra), the two-Judge Bench followed the traditional method and granted Rs. 5,000/- for transportation of the body, Rs. 10,000/- as

funeral expenses and Rs. 10,000/- as regards the loss of consortium. In Sarla Verma (AIR 2009 SC 3104), the Court granted Rs. 5,000/- under the

head of loss of estate, Rs. 5,000/- towards funeral expenses and Rs. 10,000/- towards loss of Consortium. In Rajesh, the Court granted Rs. 1,00,000/-

towards loss of consortium and Rs. 25,000/- towards funeral expenses. It also granted Rs. 1,00,000/- towards loss of care and guidance for minor

children. The Court enhanced the same on the principle that a formula framed to achieve uniformity and consistency on a socio-economic issue has to

be contrasted from a legal principle and ought to be periodically revisited as has been held in Santosh Devi (supra). On the principle of revisit, it fixed

different amount on conventional heads. What weighed with the Court is factum of inflation and the price index. It has also been moved by the

concept of loss of consortium. We are inclined to think so, for what it states in that regard. We quote:- ""17. 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 nonpecuniary 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.

[49] Be it noted, Munna Lal Jain (2015 AIR SCW-3105) (supra) did not deal with the same as the notice was confined to the issue of application of

correct multiplier and deduction of the amount.

[50] This aspect needs to be clarified and appositely stated. The conventional sum has been provided in the Second Schedule of the Act. The said

Schedule has been found to be defective as stated by the Court in Trilok Chandra (supra). Recently in Puttamma and others v. K.L. Narayana Reddy

and another, it has been reiterated by stating:- "" we hold that the Second Schedule as was enacted in 1994 has now become redundant, irrational and

unworkable due to changed scenario including the present cost of living and current rate of inflation and increased life expectancy.

[51] As far as multiplier or multiplicand is concerned, the same has been put to rest by the judgments of this Court. Para 3 of the Second Schedule

also provides for General Damages in case of death. It is as follows:-

General Damages (in case of death): The following General Damages shall be payable in addition to compensation outlined above:-

(i) Funeral expenses - Rs. 2,000/-

(ii) Loss of Consortium, if beneficiary is the spouse Rs. 5,000/-

(iii) Loss of Estate - Rs. 2,500/-

(iv) Medical Expenses actual expenses incurred before death supported by bills/vouchers but not exceeding Rs. 15,000/-.

[52] On a perusal of various decisions of this Court, it is manifest that the Second Schedule has not been followed starting from the decision in Trilok

Chandra (supra) and there has been no amendment to the same. The conventional damage amount needs to be appositely determined. As we notice,

in different cases different amounts have been granted. A sum of Rs. 1,00,000/- was granted towards consortium in Rajesh. The justification for grant

of consortium, as we find from Rajesh, is founded on the observation as we have reproduced hereinbefore.

[53] On the aforesaid basis, the Court has revisited the practice of awarding compensation under conventional heads.

[54] As far as the conventional heads are concerned, we find it difficult to agree with the view expressed in Rajesh. It has granted Rs. 25,000/-

towards funeral expenses, Rs. 1,00,000/- loss of consortium and Rs. 1,00,000/- towards loss of care and guidance for minor children. The head relating

to loss of care and minor children does not exist. Though Rajesh refers to Santosh Devi (AIR 2012 SC 2185), it does not seem to follow the same.

The conventional and traditional heads, needless to say, cannot be determined on percentage basis because that would not be an acceptable criterion.

Unlike determination of income, the said heads have to be quantified. Any quantification must have a reasonable foundation. There can be no dispute

over the fact that price index, fall in bank interest, escalation of rates in many a field have to be noticed. The court cannot remain oblivious to the

same. There has been a thumb rule in this aspect. Otherwise, there will be extreme difficulty in determination of the same and unless the thumb rule is

applied, there will be immense variation lacking any kind of consistency as a consequence of which, the orders passed by the tribunals and courts are

likely to be unguided. Therefore, we think it seemly to fix reasonable sums. It seems to us that reasonable figures on conventional heads, namely, loss

of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively. The principle of revisiting the

said heads is an acceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would be condign that the amount

that we have quantified should be enhanced on percentage basis in every three years and the enhancement should be at the rate of 10% in a span of

three years. We are disposed to hold so because that will bring in consistency in respect of those heads.

[55] Presently, we come to the issue of addition of future prospects to determine the multiplicand.

[56] In Santosh Devi (AIR 2012 SC 2185) the Court has not accepted as a principle that a self-employed person remains on a fixed salary throughout

his life. It has taken note of the rise in the cost of living which affects everyone without making any distinction between the rich and the poor.

Emphasis has been laid on the extra efforts made by this category of persons to generate additional income. That apart, judicial notice has been taken

of the fact that the salaries of those who are employed in private sectors also with the passage of time increase manifold. In Rajesh's case, the Court

had added 15% in the case where the victim is between the age group of 15 to 60 years so as to make the compensation just, equitable, fair and

reasonable. This addition has been made in respect of self-employed or engaged on fixed wages.

[57] Section 168 of the Act deals with the concept of ""just compensation"" and the same has to be determined on the foundation of fairness,

reasonableness and equitability on acceptable legal standard because such determination can never be in arithmetical exactitude. It can never be

perfect. The aim is to achieve an acceptable degree of proximity to arithmetical precision on the basis of materials brought on record in an individual

case. The conception of ""just compensation"" has to be viewed through the prism of fairness, reasonableness and non-violation of the principle of

equitability. In a case of death, the legal heirs of the claimants cannot expect a windfall. Simultaneously, the compensation granted cannot be an

apology for compensation. It cannot be a pittance. Though the discretion vested in the tribunal is quite wide, yet it is obligatory on the part of the

tribunal to be guided by the expression, that is, ""just compensation"". The determination has to be on the foundation of evidence brought on record as

regards the age and income of the deceased and thereafter the apposite multiplier to be applied. The formula relating to multiplier has been clearly

stated in Sarla Verma (AIR 2009 SC 3104) (supra) and it has been approved in Reshma Kumari (AIR 2013 SC (supp.) 474) (supra). The age and

income, as stated earlier, have to be established by adducing evidence. The tribunal and the Courts have to bear in mind that the basic principle lies in

pragmatic computation which is in proximity to reality. It is a well accepted norm that money cannot substitute a life lost but an effort has to be made

for grant of just compensation having uniformity of approach. There has to be a balance between the two extremes, that is, a windfall and the pittance,

a bonanza and the modicum. In such an adjudication, the duty of the tribunal and the Courts is difficult and hence, an endeavour has been made by this

Court for standardization which in its ambit includes addition of future prospects on the proven income at present. As far as future prospects are

concerned, there has been standardization keeping in view the principle of certainty, stability and consistency. We approve the principle of

standardization"" so that a specific and certain multiplicand is determined for applying the multiplier on the basis of age.

The seminal issue is the fixation of future prospects in cases of deceased who is self-employed or on a fixed salary. Sarla Verma (AIR 2009 SC

3104) (supra) has carved out an exception permitting the claimants to bring materials on record to get the benefit of addition of future prospects. It has

not, per se, allowed any future prospects in respect of the said category.

[59] Having bestowed our anxious consideration, we are disposed to think when we accept the principle of standardization, there is really no rationale

not to apply the said principle to the self-employed or a person who is on a fixed salary. To follow the doctrine of actual income at the time of death

and not to add any amount with regard to future prospects to the income for the purpose of determination of multiplicand would be unjust. The

determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of

just compensation as postulated under Section 168 of the Act. In case of a deceased who had held a permanent job with inbuilt grant of annual

increment, there is an acceptable certainty. But to state that the legal representatives of a deceased who was on a fixed salary would not be entitled to

the benefit of future prospects for the purpose of computation of compensation would be inapposite. It is because the criterion of distinction between

the two in that event would be certainty on the one hand and staticness on the other. One may perceive that the comparative measure is certainty on

the one hand and uncertainty on the other but such a perception is fallacious. It is because the price rise does affect a self-employed person; and that

apart there is always an incessant effort to enhance one's income for sustenance. The purchasing capacity of a salaried person on permanent job

when increases because of grant of increments and pay revision or for some other change in service conditions, there is always a competing attitude

in the private sector to enhance the salary to get better efficiency from the employees.

Similarly, a person who is self-employed is bound to garner his resources and raise his charges/fees so that he can live with same facilities. To have

the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which

always intends to live with dynamism and move and change with the time. Though it may seem appropriate that there cannot be certainty in addition

of future prospects to the existing income unlike in the case of a person having a permanent job, yet the said perception does not really deserve

acceptance. We are inclined to think that there can be some degree of difference as regards the percentage that is meant for or applied to in respect

of the legal representatives who claim on behalf of the deceased who had a permanent job than a person who is self-employed or on a fixed salary.

But not to apply the principle of standardization on the foundation of perceived lack of certainty would tantamount to remaining oblivious to the

marrows of ground reality. And, therefore, degree-test is imperative. Unless the degree-test is applied and left to the parties to adduce evidence to

establish, it would be unfair and inequitable. The degree-test has to have the inbuilt concept of percentage. Taking into consideration the cumulative

factors, namely, passage of time, the changing society, escalation of price, the change in price index, the human attitude to follow a particular pattern

of life, etc., an addition of 40% of the established income of the deceased towards future prospects and where the deceased was below 40 years an

addition of 25% where the deceased was between the age of 40 to 50 years would be reasonable.

The controversy does not end here. The question still remains whether there should be no addition where the age of the deceased is more than 50

years. Sarla Verma (AIR 2009 SC 3104) thinks it appropriate not to add any amount and the same has been approved in Reshma Kumari (AIR 2013

SC (suppl.) 474). Judicial notice can be taken of the fact that salary does not remain the same. When a person is in a permanent job, there is always

an enhancement due to one reason or the other. To lay down as a thumb rule that there will be no addition after 50 years will be an unacceptable

concept. We are disposed to think, there should be an addition of 15% if the deceased is between the age of 50 to 60 years and there should be no

addition thereafter. Similarly, in case of self employed or person on fixed salary, the addition should be 10% between the age of 50 to 60 years. The

aforesaid yardstick has been fixed so that there can be consistency in the approach by the tribunals and the courts.

[61] In view of the aforesaid analysis, we proceed to record our conclusions:-

(i) The two-Judge Bench in Santosh Devi (AIR 2012 SC 2185) should have been well advised to refer the matter to a larger Bench as it was taking a

different view than what has been stated in Sarla Verma (AIR 2009 SC 3104), a judgment by a coordinate Bench. It is because a coordinate Bench

of the same strength cannot take a contrary view than what has been held by another coordinate Bench.

(ii) As Rajesh has not taken note of the decision in Reshma Kumari (AIR 2013 SC (suppl.) 474), which was delivered at earlier point of time, the

decision in Rajesh is not a binding precedent.

(iii) While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased

had a permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of the deceased was between 40 to

50 years. In case the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less

tax.

(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the

deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the

deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the

income minus the tax component.

(v) For determination of the multiplicand, the deduction for personal and living expenses, the tribunals and the courts shall be guided by paragraphs 30

to 32 of Sarla Verma which we have reproduced hereinbefore.

(vi) The selection of multiplier shall be as indicated in the Table in Sarla Verma read with paragraph 42 of that judgment.

(vii) The age of the deceased should be the basis for applying the multiplier.

(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses should be Rs. 15,000/-, Rs. 40,000/-

and Rs. 15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years.â€​

After going through the entire record, this Court finds that the learned Tribunal below has taken the salary of the deceased-Harpreet Singh at

Rs.12,000/-, which is in accordance with law. There were two dependants upon the deceased and so, in these circumstances, this Court also finds that

the deduction in the salary, which was required to be given 1/3rd for calculating the dependency. So, after giving 40% increase to Rs.12,000/-, which

is required to be given in place of 30%, as given by the learned Tribunal below, the income of the deceased comes to Rs.16,800/-, 1/3rd comes to

Rs.5,600/- and after deducting 1/3rd the dependency for one year comes to Rs.11,200/- x 12 =Rs.1,34,400/-, so the loss of dependency comes to

Rs.1,34,400/- per year. This Court finds that the multiplier of 17 is applied by the learned Tribunal below, is just and reasoned, after taking into

consideration, the age of deceased, which is 25 years and 7 months, so the multiplier of 17 is properly applied. In this way, the loss of dependency

comes to Rs.1,34,400/-x 17 = Rs.22,84,800/-. As far as the compensation awarded, under different heads are concerned, the amount awarded on

account of the funeral charges of Rs.25,000/-, is required to be reduced as Rs.15,000/-, only and the amount of loss of consortium of Rs.1,00,000/-, is

required to be reduced as Rs.40,000/-. The amount as awarded for love and affection by the learned Tribunal below, is not required to be granted, as

per the latest judgment of Hon’ble Apex Court (supra). However, the learned Tribunal below has not awarded loss of estate, which is required to

be given at Rs.15,000/-, after exercising the powers of this Court, under Order 41 Rule 33 CPC. Accordingly, after making deduction as above, the

petitioners are held entitled for an amount of Rs.23,54,800/-. As has been observed above, no amount could be awarded under the head “love and

affectionâ€​ and as such, amount awarded qua the same is quashed and set aside. No other points argued so, needs no consideration.

Consequently, in view of the aforesaid modifications made hereinabove, now the petitioners shall be entitled for compensation as under :

i) Loss of future loss of income Rs.22,84,800/-

ii) Loss of consortium Rs.40,000/-

iii) Just and reasonable funeral compensation awarded  Rs.15,000/-

iv) Loss of estate Rs.15,000/-

 Total = Rs.23,54,800/-

As a result of the above discussion, the petitioners are held entitled for an amount of Rs.23,54,800/- alongwith interest, as awarded by the learned

Tribunal below. However, it is made clear that the compensation be distributed inter se mother and wife in the ratio of 1/3rd and 2/3rd i.e. 2/3rd to the

wife of deceased- Harpreet Singh and 1/3rd to his mother-Daljeet Kaur. No order as to costs. Pending application (s), if any, also stand (s) disposed

of. Cross Objection No.76 of 2018 In view of the observations made hereinabove in FAO No.153 of 2018, the cross-objections also stands disposed

of.