Hon'ble Ajit Singh,J.
1. Heard learned counsel for the appellant and Sri Komal Mehrotra, learned counsel for the respondent.
2. This appeal, at the behest of the claimants, challenges the judgment and award dated 23.5.2017 passed by Motor Accident Claims Tribunal/Additional District Judge, Court No.9, Allahabad now Prayagraj (hereinafter referred to as 'Tribunal') in M.A.C.No.356 of 2016 awarding a sum of Rs.4,47,000/- with interest at the rate of 7% as compensation.
3. Facts, in nutshell, as culled out from the record, are that a First Information Report came to be filed being No.046 of 2016 and in the said F.I.R. it is mentioned that on 14.3.2016 at about 8.00 p.m. when the deceased was going to his home from Sahason (name of place) and when he reached Balipur Service Road, a tractor registered as UP 70 DE 8939 which was being driven at an exorbitant speed, dashed with the motorcycle bearing No.UP 70 BZ 5893 driven by deceased which came below the tyres of the said tractor and the deceased died on the spot. The claimants filed the claim petition contending that the deceased was doing carpentry work and was earning Rs.22,000/- per month. The parents of the deceased were aged 39 and 38 years respectively. The deceased was looking after his minor brothers and sisters who were in the age group of 5 to 14 years.
4. The claimants had claimed sum of Rs.91,50,000/-. On service of notice, the owner and driver of the vehicle filed their replies and the owner accepted that he was the owner of the vehicle but denied most of the averments made in the claim petition. The vehicle was insured with National Insurance Company Limited. The documents were produced and were proved. The Tribunal framed about five issues and held all of them in favour of the claimants holding that there was no breach of policy conditions. The license was valid license and in issue No.5, the Tribunal has granted compensation. It is this compensation which has aggrieved the appellants.
5. The owner and the Insurance Company have accepted the findings as far as their liability is concerned. The Tribunal even held that strict trappings of criminal and civil proceedings could not be made applicable to the proceedings under the Motor Vehicles Act, 1988 and relied on the decisions in United India Insurance Co. Ltd. Vs. U.C. Thakur and others, 2006 ACJ 2759 and National Insurance Co. Ltd. Vs. Mahfuja Begum and others, 2002 ACJ 214. There is no dispute as far as the said issue is concerned.
6. The appellants examined witnesses. We do not delve into the same on all other aspects except the aspect of compensation. The deceased was considered to be 19 years of age. Kamal Singh, father of the deceased, has testified that the deceased was a student of B.Sc. Ist year and was also carrying on the business of carpentry. The testimony of P.W.3, Radhey Shyam, revealed that he knew the deceased and the deceased had prepared certain items of furniture for him and the deceased was being paid Rs.600/- as daily labour charges. Unfortunately, no documentary evidence was produced to prove the same. The learned Tribunal has returned the finding of negligence of the driver of the tractor and has also returned the finding that the deceased had proper driving license. The Tribunal, as far as policy is concerned, returned the finding in favour of the claimants and the owner. All those findings have attained finality. The Insurance Company has neither led any evidence nor orally submitted that there was breach of policy condition.
7. The claimants have claimed a sum of Rs.91,50,000/- contending that the deceased was earning Rs.22,000/- per month and have claimed 18% rate of interest. Kamal Singh, P.W.2, has accepted the fact that he does not have any proof about the income of the deceased. He has accepted that the deceased was student but was also doing work during his free time. The learned Tribunal has therefore not accepted the fact that the deceased was earning Rs.22,000/-. If the deceased was earning Rs. 22,000/-, he would be a tax payee. The learned Tribunal has relied on the decision in Laxmi Devi and others Vs. Mohd. Tambar and others, 2008 (2) T.A.C. 394 (SC). According to learned Tribunal the decision in Munna Lal Jain and others Vs. Bipin Kumar Sharma and others, 2015 (3) T.A.C. (SC) which was relied by the claimants would not be applicable to the facts of this case. Learned Tribunal has heavily relied on the decision in Rajesh and others Vs. Rajveer Singh and others, 2013 ACJ 1403 for granting future loss of income.
8. The appellants are the legal heirs of the deceased who are six in number. They are the parents and minor brothers and sisters of the deceased who met with the accident on 14.3.2016. It is not in dispute that he was engaged in work of carpentry namely his employment. The accident is not in dispute. The Insurance Company has not challenged the award and have accepted their liability as no appeal has been preferred by them whereby their liability has been fixed by the Tribunal. The owner, though served with the notice, has absented himself as it appears that the Tribunal had mulcted the liability on the Insurance Company.
9. The Tribunal considered the age of the deceased to be 19 years, considered the income of the deceased to be Rs.3,000/- per month, added 50% of the income as future prospects and deducted half of the amount towards personal expenses of the deceased. The Tribunal has granted multiplier of 16 and a sum of Rs.15,000/- under the head of non pecuniary damages and thereby awarded compensation of Rs.4,47,000/- to the legal heirs of the deceased along with interest at the rate of 7%.
10. Learned counsel for the appellant has submitted that minimum wages in the state of Uttar Pradesh would come to Rs.250/- per day and as the deceased was carpenter by profession, his income should have been considered to be Rs.6,000/- per month. It is further submitted that the deceased was in the age bracket of 15-20 years, hence, the multiplier would be 18 in view of the decision of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121.
11. It is further submitted that the amount awarded by the Tribunal under non-pecuniary heads is on the lower side and requires enhancement in view of the decision of the Apex Court in National Insurance Company Limited Vs. Pranay Sethi and Others, 2017 0 Supreme (SC) 1050. According to learned counsel for the appellants Rs.50,000/- should be paid for filial consortium and Rs.30,000/- for loss of estate of pecuniary expenses. It is submitted that the interest should be 18%.
12. Per contra, Sri Komal Mehrotra, learned counsel for respondent-Insurance Company has vehemently submitted that the claimants have not proved that the deceased was earning member and was doing carpentry work as he was 20 years of age.
13. It is further submitted by learned counsel for Insurance Company that the addition towards future prospects should be 40% and not 50% as awarded by the Tribunal and he has relied on the decision of the Apex Court in Pranay Sethi and Others (Supra) as far as grant of future prospects is concerned.
14. The learned Tribunal while granting interest has relied on the decisions of the Apex Court in Rajesh and others (Supra). The learned Tribunal as far as grant of interest is concerned in the year 2017 is justified is the submission of learned Counsel for the Insurance Company.
15. In recent judgment titled Kirti Vs. Oriental Insurance Co. Ltd., 2021 (1) TAC (1) S.C., principle of assessment even for home maker has been narrated. We can even fall back on the decision of the Apex Court in the case of Anita Sharma and Others Vs. New India Assurance Co. Ltd. and another, (2021) 1 SCC 171.
16. The principles for determining the compensation rather the criteria for assessment of compensation in death cases are: (i) Age of the deceased at the relevant time, (ii) Number of dependants left behind by deceased and (iii) Income of the deceased at the time of death, (iv) Selection of multiplier shall be as indicated in the Table in Sarla Verma's case and (v) Grant of future prospects shall be in view of the decision in Pranay Sethi (Supra).
17. We would not have burdened the judgment with authoritative pronouncements but it appears that the learned Tribunal has not followed the decisions of the Apex Court in Sarla Verma and Pranay Sethi (Supra) while adding 50% towards future prospects and granting '16' as multiplier based on IInd Schedule of the Act, 1988.
18. In that view of the matter, without delving into the factual scenario, as it was proved by P.W.3 that the deceased had undertaken carpentry work and even if we consider him to be a person not being in work, recently the apex court has held that minimum wage would be made applicable which we are considering to be Rs.6,000/- per month.
19. Unfortunately, the Tribunal relied on the IInd Schedule of the Act, 1988 and did not consider the judgment of the Apex Court in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121 which would be applicable now as far as multiplier is concerned.
20. We are constrained to hold that after the decisions on Sarla Verma (Supra) and Pranay Sethi (Supra), the learned Tribunal was under an obligation to follow the said dicta and not the IInd Schedule of the Act, 1988 if the claim petition filed under Section 166 of the Act, 1988. Hence, we are hasten to hold that multiplier of 18 would be just multiplier.
21. As a general rule as held by the Apex Court in catena of decisions, if deceased was a bachelor, the deduction would be 1/2. However, in Pranay Sethi (Supra) it has been held that the Tribunals and the Appellate Court can take different view if there are more persons depending on the deceased. In our case, the deceased had two minor sisters and two minor brothers. According to the evidences led and the depositions of P.W.1 and 2, after the father of the deceased who was earning Rs.4,000/- per month as an attendant, the young boy had to undertake carpentry work so that he could meet with the family needs. Hence, we deduct 1/3rd towards his personal expenses as he would be giving more to the family instead of being extravagant of expending 1/2 on him.
22. We have deducted 1/3rd instead of 1/2 as the deceased was the only major son. The father, no doubt, was having his own income but younger brothers and sisters were also being fed by him which has come in evidence. In that view of the matter, we have placed reliance on the decision in United India Insurance Co. Ltd. Vs. Satinder Kaur @ Satwinder Kaur, 2020 (0) AIJEL-SC 66336.
23. As far as addition of future prospects is concerned, it would be 40% in view of the decision of the Apex Court in Pranay Sethi (Supra) as the deceased was below 40 years of age and was engaged in carpentry work.
24. The parents have lost their son at a very young age, the Tribunal has awarded meagre amount under the head of filial consortium. The Apex Court while awarding filial consortium in Magma General Insurance Co. Ltd. Vs. Nanu Ram Alias Chuhru Ram & Ors (2018) 18 SCC 130 has held as under:
"8.7 A Constitution Bench of this Court in Pranay Sethi (Supra) 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.3 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."4 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."
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 relationship. 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 jurisdiction therefore permit parents to be awarded compensation under the loss of consortium on the death of a child. The amount awarded to the parent is a compensation for loss of the love, affection, care and companionship of the 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 loss their parents in motor vehicle accidents under the Act.
A few High Courts have awarded compensation on this count5. However, there was no clarity with respect to the principles on which compensation could be awarded on loss of consortium 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 Prany 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."
(Emphasis Added)
25. Hence, we award Rs.50,000/- towards filial consortium and Rs.30,000/- under other non-pecuniary heads.
26. Hence, the total compensation payable to the appellants as discussed herein above would be:
i. Income Rs.6,000/-
ii. Percentage towards future prospects : 40% namely Rs.2400/-
iii. Total income : Rs. 6,000 + 2400 = Rs.8,400/-
iv. Income after deduction of 1/3rd : Rs.5600/-
v. Annual income : Rs.5600 x 12 = Rs.67,200/-
vi. Multiplier applicable : 18 vii. Loss of dependency: Rs.67,200 x 18 = Rs.12,09,600/-
viii. Amount towards filial consortium : Rs.50,000/-
ix. Amount towards loss of estate : Rs.30,000/-
x. Total compensation : 12,89,600/-
27. This takes us to the vexed question of grant of interest. The repo rate is declining day in day out. The Rule 220 (6) of Uttar Pradesh Motor Vehicles Rules (11th Amendment), 2011 prescribes 7% rate of interest. We cannot grant interest less than 7% and, therefore, in view of the decision of the Apex Court in National Insurance Co. Ltd. Vs. Mannat Johal and Others, 2019 (2) T.A.C. 705 (S.C.), we consider it just and proper to award 7.5% rate of interest. The interest has to be from the date of filing of the claim petition and we confirm the same.
28. No other grounds are urged orally when the matter was heard.
29. In view of the above, the appeal is partly allowed. Judgment and decree passed by the Tribunal shall stand modified to the aforesaid extent. The respondent-Insurance Company shall deposit the amount within a period of 12 weeks from today with interest at the rate of 7.5% from the date of filing of the claim petition till the amount is deposited. The amount already deposited be deducted from the amount to be deposited.
30. The learned Registrar General is requested to circulate this judgment to the Tribunals so that proper multiplier be awarded by the Tribunals.
Order Date :- 23.2.2021 DKS