Usha Thakur And Others vs Vikram Thakur And Another

Virender Singh, J

The above titled appeals are being disposed of by the common judgment, as both, these appeals, have been preferred by the appellant(s) against the award dated 08.08.2013 passed by the learned Motor Accident Claims Tribunal, Shimla (hereinafter, referred to as the ‘learned Tribunal’), in MACT No. 2-S/2 of 2012 titled as Usha Thakur and others vs. Vikram Thakur and another.

The parties to the present lis are hereinafter referred to, in the same manner, as were, referred to, by the learned Tribunal.

While passing the award, the learned Tribunal has partly allowed the petition filed by the petitioners by awarding a sum of Rs. 26,65,060/- in favour of the petitioners and against the respondents along-with interest @ 9% per annum. The ultimate liability to pay the amount has been fastened upon the Insurance Company i.e. respondent No.2.

Brief facts, leading to the filing of present appeals, before this Court, may be summed up as under:-

4.1. The petitioners being the wife, minor son, minor daughter and mother of deceased Shubh Ranjan Thakur had filed petition under Section 166 of the Motor Vehicles Act (hereinafter referred to as the ‘M.V. Act’) against the respondents, seeking compensation on account of death of Sh. Shubh Ranjan Thakur, in the motor vehicle accident, involving vehicle No. HP-02A-0505 (hereinafter referred to as the ‘offending vehicle’). According to the petitioners, the accident in question had taken place on 10.10.2011 near Food Plaza, Shoghi Bazaar, Shimla at about 8.55 a.m.

4.2. Elaborating their stand, it is the case of the petitioners that the accident in question had taken place due to rash and negligent driving of respondent No.2, who is owner-cum-Driver of the offending vehicle. After the accident, the injured was taken to IGMC, Shimla, however, on the way, he had succumbed to the injuries. The information regarding his death was given to the Police Station West, Shimla, where, FIR No. 236 dated 10.10.2011 was registered against respondent No.1.

4.3. According to the petitioners, Sh. Shubh Ranjan Thakur, at the time of his death, was about 43 years of age and was serving as Manager Activity in Tarangan Developers Private Limited and was getting Rs. 22,000/- per month as salary. It is the further case of the petitioners that Sh. Shubh Ranjan Thakur was going on his motorcycle No. CH-04B-1244 from Shoghi to Shimla and at about 8.55 a.m,, when, he reached near Food Plaza Restaurant, then, respondent No.1 came there, driving the offending vehicle, in a rash and negligent manner and hit the motorcycle being driven by Shubh Ranjan Thakur resulted into the fatal injuries to Sh. Shubh Ranjan Thakur.

4.4. The petitioners have also pleaded about their bright past and bleak future.

4.5. On the basis of above facts, a prayer has been made to pay the compensation to the petitioners.

When put to notice, the claim petition has been contested by the respondents.

Respondent No.1, in his separate reply, has taken the preliminary objections that the claim petition is bad for non-joinder of necessary parties, because the owner and the Insurance Company of the motorcycle No. CH-04B-1244 have not been arrayed as party. It has also been pleaded in the preliminary objections that petitioner Shubh Ranjan Thakur was preparing himself for participating in the Himalayan Raid De Bike Rally, 2011, however, the vehicle, which he was driving, was unfit for rally. At the time of accident, deceased was driving his motorcycle in a rash and negligent manner and all of a sudden, struck against the vehicle of replying respondent.

6.1. On merits, the contents of the claim petition have been denied, mainly, for want of knowledge. Para regarding the factum of registration of FIR, has not been contested by pleading that the relevant paragraph needs no reply.

6.2. In a nut-shell, it is his further case that the accident had taken place due to rash and negligent driving of the deceased himself.

The Insurance Company has filed its separate reply by taking the preliminary objections that the petition is not maintainable, the driver of the offending vehicle was not having a valid and effective driving licence to drive the vehicle, the offending vehicle was being plied in violation of the terms and conditions of the insurance policy, the petitioners are estopped from filing the present petition on account of their act and conduct and they have not approached the Court with clean hands, as, they have suppressed the material facts. On merits, the contents of the petition have been denied mainly for want of knowledge.

On the basis of above facts, a prayer has been made by the respondents to dismiss the claim petition.

The petitioners have filed rejoinder(s) to the replies filed by the respondents, by denying the preliminary objections, as well as, by reiterating the contents of the petition.

On the pleadings of the parties, the following issues were framed by the learned Tribunal vide order dated 17.10.2012:-

Whether deceased had died due to rash and negligent driving of vehicle having registration No. HP- 02A-0505 as alleged? OPP.

If issue No.1 is proved in affirmative to what amount of compensation petitioners are entitled and against whom as alleged ? OPP.

Whether driver of vehicle No. HP-02A-0505 did not hold a valid and effective driving licence as alleged? OPR-2.

Whether vehicle was driven in violence of terms and conditions of insurance policy as alleged? OPR-2.

Whether petitioners are estopped from filing the present petition due to their own act, omissions, commissions and acquiescences as alleged?OPR-2.

Whether petitioners have no cause of action as alleged? OPR1&2.

Whether petitioners have suppressed material facts from the Tribunal as alleged? OPR 1 & 2.

Whether petition is bad for non-joinder of necessary parties as alleged? OPR 1 & 2.

Relief.

Thereafter, the parties to the lis were directed to adduce evidence and after the closure of evidence, the learned Tribunal has awarded the compensation, as mentioned above.

Feeling aggrieved from the said award, the Insurance Company has preferred the FAO No. 4226 of 2013, in which, the award has been assailed mainly on the ground that the findings of the learned Tribunal on issue No.1 are not tenable in the eyes of law, as, the petitioners themselves have relied upon the case FIR No. 236 of 2011, which has been proved by them as Ext. PW-7/A. In the said FIR, it has been mentioned that in the accident, two vehicles i.e. motorcycle No. CH-04B- 1244 and offending vehicle were found to be involved. The FIR was registered at the instance of Rajesh Kumar, driver of tipper No. HP-51B-4233. The person, who has lodged the FIR i.e. Rajesh Kumar, although leveled the allegations of rash and negligent driving against respondent No.1, but, the said witness has not been examined to prove the FIR. Even PW-7 was also not associated in the investigation of the case.

It is the further case of the Insurance Company, that Vikram Thakur, has categorically denied the allegations of rash and negligent driving. The award is also stated to be bad on account of non-consideration of the question of composite negligence. The learned Tribunal is stated to have wrongly applied the multiplier, in this case and the mandate of Sarla Verma’s case has not been complied with.

On the basis of above facts, Dr. Lalit K. Sharma, Advocate appearing for the Insurance Company, has prayed that appeal may kindly be accepted and the impugned award be set aside by dismissing the petition filed by the petitioners.

On the other hand, the petitioners have also preferred FAO No. 4203 of 2013. According to them, the compensation, which has been awarded, does not fall within the definition of ‘just compensation’. According to the appellants, the learned Tribunal has not given any compensation, on account of loss of love and affection to the petitioners.

Similarly, the award has been sought to be modified on the ground that the addition of the amount, on account of future prospects of the deceased, has also not been added, while computing the monthly contribution of Sh. Shubh Ranjan Thakur, during his lifetime, towards his family.

On the basis of above facts, a prayer has been made to modify the award by awarding them “just compensation”.

The proceedings under the M.V. Act, are meant to award just compensation to the claimants. The remedy under the M.V. Act is tortuous in nature, where the liability can be fastened upon the respondents, in case, the petitioners are able to probabilise their case on the principle of preponderance of the probability. It is sort of an inquiry and the summary proceedings.

It is admitted fact, in this case, that the accident in question had taken place on 10.10.2011, in which, Sh. Shubh Ranjan Thakur has expired. Regarding the accident, FIR No. 236 dated 10.10.2011 was registered against respondent No.1 with Police Station, West Shimla, District Shimla, H.P.

Respondent No.1 has admitted this fact in the reply, however, he has taken the plea that deceased himself was rash and negligent. As such, he has taken the plea to shift the allegations of rash and negligent driving upon the deceased. The FIR is on the record as Ext. PW-7/A. The said FIR has been registered at the instance of one Rajesh Kumar, in which, he has leveled the specific allegations of rash and negligent driving against respondent No.1. In this background, the evidence adduced by the parties is required to be discussed.

After framing of issues, the petitioners have examined PW-1 Khub Ram Sharma, Licence Clerk SDM (Urban) Shimla, who has proved the copy of driving licence of deceased as Ext. PW-1/A. This witness has admitted that he has not seen the original record of the document Ext. PW-1/A, but according to him, as per register brought by him, Ext. PW-1/A is the copy of licence and the same was valid till 5th October, 1998.

PW- 2 Dr. Peeyush Kapila has conducted the post mortem on the dead body of deceased Shubh Ranjan Thakur.

PW- 3 Manohar Thakur, Secretary Panchayat has proved the copy of parivar register Ext. PW-3/A.

Petitioner No.1 has appeared in the witness box as PW-4 and has filed the affidavit in her examination-in-chief, which is based upon the assertions as made in the petition. In the cross-examination, this witness has admitted that her husband had a diploma in mountaineering. This witness was not present at the time of accident, however, her husband used to take part in the Himalayan rally. She has admitted that, at the relevant time, her husband was doing practice for participating in the rally. The bike rally was to be started one day, after the accident. She has denied the suggestion, that road where, the accident had taken place, was not fit for doing practice for bike rally.

PW-5 Abhishek Sharma has proved the salary slip of Shubh Ranjan Thakur as Ext. PW-5/A. He has proved the TDS certificate as Ext. PW-5/B.

PW-6 Anil Sharma has proved the fact that the driving licence of deceased was issued by the RLA, Shimla and proved the same as Ext. PW-6/A.

PW- 7 HC Nikka Ram has proved the copy of FIR Ext. PW-7/A.

To rebut this evidence, the Insurance Company has examined RW-1 R.L. Sharma, Assistant Manager of Insurance Company. He has proved the policy as Ext. RW-1/A and the terms and conditions of the same as Ext. RW-2/B. The vehicle was covered with the comprehensive insurance policy, which includes own damages to the third party liability also.

Respondent No.1 has appeared in the witness box as RW-2. According to him, he is the owner and driver of the offending vehicle. He has proved the copy of RC Ext. RW-2/A, Insurance Ext. RW-2/B and copy of driving licence Ext. RW-2/C. According to him, on the day of accident, he was driving the vehicle and was on the way from Shimla to Chandigarh. He was driving the vehicle in a slow speed and cautiously. In the meanwhile, from the opposite side, one person driving the motorcycle at a fast speed and in a negligent manner, came there and due to this fact, he could not control the vehicle and struck against the motorcycle. The accident had taken place due to the fact that the deceased wanted to overtake the offending vehicle. As per his opinion, the motorcycle was not fit for rally. Lastly, he has deposed that he was not at fault and the accident had taken place due to the rash and negligent driving of deceased.

29.1. In cross-examination, this witness has admitted that he has submitted own damages claim with respondent No.2, which he had received. He has further admitted that he is facing trial in a criminal case under Section 279 and 304A IPC, which is pending adjudication in the Court of learned Chief Judicial Magistrate, Shimla. Rest, he has denied, all the suggestions, put to him, by learned counsel appearing for the petitioners.

The factum of registration of FIR under Sections 279 and 304A IPC has not been denied by respondent No.1 in his pleadings, as well as, in the cross-examination. Registration of FIR is a prima-facie proof of rash and negligent driving of respondent No.1.

So far as the version of respondent No.1 qua the fact that the motorcycle being driven by respondent No.1 was not fit to use in the motorcycle rally is concerned, there is nothing on the file to probabilise the said plea. The best evidence in this regard, could be the mechanical examination report of the vehicle being driven by the deceased. Nothing of the sort has been produced by the respondents to probilise the said plea.

Merely taking the stand qua the rash and negligent driving of the deceased for the first time in the reply, as well as, while appearing in the witness box as RW-2 is not sufficient. Had a false case been registered against respondent No.1, then, in the ordinary course of events, he would have approached the police or the higher authorities qua the wrong registration of FIR. Nothing of the sort has been done by respondent No.1 in this regard.

As such, the plea, which has been taken by respondent No.1, does not fall within the definition of ‘genuine plea’ although, the same falls within the definition of ‘after thought story’. Registration of FIR against respondent No.1 is a prima-facie proof of rash and negligent driving against him.

When the copy of FIR Ext. PW-7/A was exhibited by the person, who has brought the record, then, the same has been exhibited without any objection. Even, no suggestion has been given to the said witness that a false case has been registered against respondent No.1. The person, who has lodged the FIR is neither related to the petitioners nor any animosity with respondent No.1, then, the initial version given by him, in his statement, under Section 154 Cr.P.C., which has resulted into registration of FIR, cannot be doubted. Hence, the findings of learned Tribunal on issue No.1 do not require any interference by this Court.

Coming to the next question, as to whether the amount, which has been awarded by the learned Tribunal, falls within the definition of ‘just compensation’.

The learned Tribunal has assessed the gross income of deceased as Rs.22,000/- per month and deducted 1/3rd amount on account of personal expenses, had he been alive.

Thus, the contribution of deceased Shubh Ranjan Thakur towards his family has been assessed as Rs.14,667/-.

Incidentally, the learned Tribunal has not added any amount, in the contribution of Shubh Ranjan Thakur, towards his family, on account of his future prospects. The multiplier of 15 has been applied by the learned Tribunal. These findings have specifically been assailed by the petitioners by filing the appeal.

The age of the deceased has been pleaded as 43 years in the petition. In the driving licence, copy of which is placed on record as Ext. PW-1/A, the date of birth of deceased Shubh Ranjan Thakur has been mentioned as 16.03.1968. In the post-mortem report Ext. PW-2/A, the age of Shubh Ranjan Thakur has been mentioned as 43 years. In the absence of evidence contrary to the said fact, this Court has no hesitation to hold that Shubh Ranjan Thakur was 43 years of age, at the time of his death. In such a situation, the learned Tribunal has rightly applied the multiplier of 15, in this case.

The salary slip of Shubh Ranjan Thakur has been placed on record as Ext. PW-5/B. The salary of the Shubh Ranjan Thakur, during his lifetime, as per salary slip, was Rs. 22,000/- per month. Therefore, Shubh Ranjan Thakur was earning Rs.22,000x12=Rs.2,64,000/- per annum.

Sh. Shubh Ranjan Thakur was working in the private organized sector. Thus, being guided by the decision of the Hon’ble Apex Court in National Insurance Company Limited vs. Pranay Sethi and others, (2017) 16 SCC 680, 30% increase is liable to be given in the income on account of future prospects. Thus, his annual income comes to Rs.2,64,000/-+30% of Rs.2,64,000/- i.e. Rs.2,64,000/- + RS.79,200/- = Rs.3,43,200/- .

The Income Tax Return of Shubh Ranjan Thakur is also on the record as Ext. PW-5/B. Taking into consideration the said Income Tax Return and the tax liability of Shubh Ranjan Thakur, at the relevant time, a sum of Rs.13,862/- is liable to be deducted from his income towards income tax. Therefore, the actual income of Shubh Ranjan Thakur, after deducting the income tax, comes to Rs.3,43,200- Rs.13,862/- =Rs.3,29,338/- per annum.

The learned Tribunal has deducted 1/3rd amount, out of the earnings of deceased, on account of his personal expenses, had he been alive. The learned Tribunal has fallen into error, as, the deduction is to be made in view of the number of dependents. The mother of Shubh Ranjan Thakur is also one of the claimants and she falls within the definition of dependent. As such, 1/4th is to be deducted towards his personal expenses, as has been held by the Hon’ble Apex Court in Sarla Verma (Smt) & others versus Delhi Transport Corporation & another, reported in (2009) 6 Supreme Court Cases 121. Relevant para-30 of the judgment is reproduced as under:

“30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent deductions of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceed six.”

Therefore, after deducting 1/4th towards his personal expenses, the annual contribution of the deceased towards his family comes to Rs. 3,29,338- Rs.82,335= Rs.2,47,003/-.

Applying the multiplier of ‘15’ on the amount of contribution, towards the family, the entitlement is adjudicated as under:-

Loss of dependency = Rs.2,47,003X15=Rs.37,05,045/-

Loss of estate = Rs.15,000/-

Funeral expenses = Rs.15,000/-

In view of the decision of the Hon’ble Apex Court in Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others, (2018) 18 SCC 130, the claimants are held entitled for compensation under the heads ‘spousal consortium’, ‘parental consortium’ and ‘filial consortium’. The relevant paras 21 to 24 of the judgment are reproduced as under:-

“21. A Constitution Bench of this Court in Pranay Sethi 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:

21.1. Spousal consortium is generally defined as rights pertaining to the 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”.

21.2. 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."

21.3. 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. A few High Courts have awarded compensation on this count. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium.

The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under `loss of consortium' as laid down in Pranay Sethi (supra). In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs. 40,000 each for loss of Filial Consortium.”

Thus, the claimants are entitled for consortium as under:

Loss of consortium = Rs.40,000x4=Rs.1,60,000/-

In view of the discussion made above, the award passed by the learned MACT is liable to be modified and the same is modified accordingly and the compensation, for which the petitioners are held entitled, is assessed as under:-

Loss of dependency = Rs.2,47,003X15=37,05,045/-

Loss of estate = Rs.15,000/-

Funeral expenses = Rs.15,000/-

Loss of consortium = Rs.40,000x4=Rs.1,60,000/-

As such, the petitioners are held entitled for the compensation to the tune of Rs. 37,05,045+Rs.15,000 +Rs.15,000+Rs.1,60,000=Rs.38,95,045/-.

In view of the discussion made above, the appeal filed by the Insurance-Company is dismissed, whereas the appeal filed by the petitioners is allowed and the petitioners are held entitled for a sum of Rs. 38,95,045/- along-with interest @ 9 % from the date of filing of petition till the realization of amount with interest from the respondents.

Considering the relationship inter se of the parties, it would be just and appropriate for this Court to apportion the awarded amount, amongst the petitioners as under:-

Claimant No.1 = 30%

Petitioners No. 2 & 3 = 30% each.

Claimant No.4 = 10%

No other point has been urged or argued.

In view of the discussion made above, FAO No. 4203 of 2013 is allowed by enhancing the awarded amount from Rs.26,65,060/- to Rs.38,95,045/-, along-with interest @9% per annum, to the petitioners, against the respondents. However, the ultimate liability, to pay the amount of compensation, along-with up-to-date interest, is upon respondent No.2 i.e. Insurance-Company of the offending vehicle. The amount falling in the share of petitioner Deep Onkar, being minor, is ordered to be invested, in the shape of FDR in some nationalized bank, co-terminus with the majority of petitioner Deep Onkar, whereas FAO No. 4226 of 2013 is ordered to be dismissed. However, in both the appeals, there shall be no order as to costs.

Record be sent down.