Hon'ble Rajnish Kumar,J.
(Delivered by Hon'ble Rajnish Kumar,J.) The instant appeal has been preferred by the appellants for enhancement of the amount of award/compensation rendered by the Motor Accident Claims Tribunal/Additional District Judge, Lucknow on 30.04.2010 in Claim Petition No.214 of 2006;Smt.Vishuna Devi and others Versus Vinay Kumar Agarwal and others.
The claimant/appellant no.2 Shri Jodhey Lal Rathore was coming back from Rajghat to his house on his Motor Cycle No.UP-34-E-8882 on 15.12.2005. While he was coming back near village Meura, Police Station Bilgram, the Mini Bus No.UP-30A-6144, which was being driven rashly and negligently by its driver came from the opposite side and dashed the Motorcycle. In the incident Km.Meera Devi Rathore was seriously injured. She died on the spot. The First Information Report of the incident was lodged by the appellant at the Police Station. Km. Meera Devi was a student of Class-VIII. On account of untimely death of the daughter, the claimants who are the father and mother of the deceased filed the claim petition No.214 of 2006 before the Motor Accident Claims Tribunal claiming compensation to the tune of Rs.13 lakhs.
On exchange of pleadings and on the basis of the pleadings five issues were framed. During trial the appellant no.2 was examined as P.W.1. On behalf of respondents, respondent no.2 the owner of the vehicle Vinay Kumar Agarwal was examined as D.W.1. After considering the pleadings of the parties and the evidence the claim petition was allowed and an amount of Rs.90,000/- has been awarded as compensation, which is to be paid by the respondent no.1 i.e. National Insurance Company Limited.
Heard Shri M.G.Tripathi, learned counsel for the appellants, Shri Hari Prakash Srivastava, learned counsel for the Insurance Company-opposite party no.1 and Shri Anurag Shukla, learned counsel for opposite party no.2.
Learned counsel for the appellants submitted that the accident had occurred due to rash and negligent driving of the driver of the Mini Bus No.UP-30A-6144, which was coming from the opposite side while the appellant no.2 was going with his daughter to his house from Rajghat on his motorcycle. The driver of the Mini Bus came to his right side of road and dashed the motorcycle from the front side while the appellant no.2 was going on his left side. The Mini Bus had come to its wrong side therefore there was no negligence by the appellant no.2. On account of the said accident the daughter of the appellants had died.
It has further been submitted that the learned Tribunal without any basis has wrongly recorded a finding regarding the contributory negligence of the appellant no.2 in the accident while there was no negligence on the part of the appellant no.2 as he was going slowly on the left side of the road. Accordingly, the learned Tribunal has erred in deducting 50% of the amount of compensation on the ground of contributory negligence, which cannot be deducted and the appellants are entitled for full compensation.
It has further been submitted that no payments have been allowed towards conventional heads i.e. for expenditure incurred towards cremation, loss of estate, loss of consortium and future prospects etc., which are also liable to be allowed as the appellants are entitled for the same. On the basis of above learned counsel for the appellants submitted that the judgment and award dated 30.04.2010 passed in Motor Accident Claims Petition No.214 of 2006 is liable to be modified and the appeal filed by the appellants deserves to be allowed.
Shri Hari Prakash Srivastava, learned counsel for the respondent no.1 submitted that there was head on collision between the Motorcycle of the appellant no.2 and the Mini Bus involved in the accident, therefore, there was contributory negligence on the part of the appellant no.2 also. Accordingly the learned Tribunal has rightly deducted 50% of the amount. He further submitted that the compensation has rightly been calculated and awarded by the Tribunal as the deceased was a student of class-VIII and she has no income. Accordingly the judgment and award passed by the learned Tribunal is in accordance with law and has been passed on the correct appreciation of the pleadings and the evidence. However, he could not dispute that nothing has been awarded towards the conventional heads.
Shri Anurag Shukla, learned counsel for opposite party no.2, owner of the vehicle also submitted that the accident was an outcome of the head on collision between the Mini Bus and the Motorcycle of the appellant no.2, therefore, there was contributory negligence on the part of the appellant. Accordingly the learned Tribunal has rightly deducted 50% of the amount. He further submitted that in any case the amount awarded has to be paid by the opposite party no.1 as the vehicle of the opposite party no.2 was ensured with the opposite party no.1.
We have considered the submissions of the parties and perused the record.
In regard to the submission of the learned counsel for the respondents regarding contributory negligence, we have perused the site plan of the accident, which is numbered as C-20/9,10. The site plan indicates that the appellant no.2 was going on his Motorcycle with his daughter on the left side of the road from south to north. The Mini Bus involved in the accident was coming from the opposite side i.e. from the north and it came on the wrong side i.e. on his right side of the road and after hitting the motorcycle of the appellant no.2 from front went ahead towards the left side. After perusing site plan we are of the considered view that it cannot be said that it is a case of contributory negligence as the appellant no.2 was going on the left side, rather the accident was the outcome of the rash and negligent driving of the Mini Bus, therefore, the findings recorded by the learned Tribunal regarding contributory negligence is against the records and perverse. Learned Tribunal has also not recorded any finding for arriving at the conclusion of the contributory negligence. Therefore, the same is not sustainable and is hereby set aside.
Accordingly the deduction of 50% made by the learned Tribunal on the ground of contributory negligence is not sustainable and the appellants are entitled for full compensation.
Now coming to the question of the award of compensation towards conventional heads, we have found that nothing has been awarded towards the conventional heads. In a recent judgment of National Insurance Company Limited Versus Pranay Shethi and Others;(2017) 16 SCC 680/AIR 2017 SC 5157 the Hon'ble Apex Court has held in paragraph 61 as under:-
"61. In view of the aforesaid analysis, we proceed to record our conclusions:-
(i) The two-Judge Bench in Santosh Devi 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, 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, 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."
One of the conventional heads in the aforesaid judgment of Pranay Shethi (Supra) is loss of consortium. The right of consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to the family of the deceased. The consortium is a compendious term which encompasses 'spousal consortium', 'parental consortium', and 'filial consortium'. The deceased was a child in the present case, therefore, there was a loss of filial consortium to the parents of the deceased i.e. the appellants, who have lost their child, her company and affection for the rest of their life. To whom they have brought up with care, comfort and guidance and she would have of great help in their old age. Therefore we are of the view that the appellants would be entitled for loss of consortium also.
The Hon'ble Supreme Court has also considered the aforesaid aspect in the case of Magma General Insurance Co.Ltd. Versus Nanu Ram Alias Chuhru Ram & Others; Civil Appeal No.9581 of 2018 (Arising out of SLP (Civil) No.3192 of 2018) and held that the parents are entitled to be awarded the loss of consortium in the head of filial consortium. The relevant portion of which is reproduced as under:-
"8.7 A Constitution Bench ofthis Courtin 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 3 Rajesh and Ors. vs. Rajbir Singh and Ors. (2013) 9 SCC 54 4 BLACK'S LAW DICTIONARY (5th ed.1979) 11 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."
In view of above, the appellants are entitled for loss of estate, loss of consortium and funeral expenses to the tune of Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively towards the conventional heads in view of the judgment of the Hon'ble Apex Court.
Learned counsel for appellant, relying on the case of Kishan Gopal and another Vs. Lala and others;(2014) 1 SCC 244 had submitted that the appellants are also entitled for the future prospects. In the said case the claimants were held entitled for the future prospects, as the deceased, who was 10 years old, was indisputably assisting the appellants in their agricultural occupation relying on the case of Lata Wadhwa and others Versus State of Bihar and others; (2001) 8 SCC 197. In the case of Lata Wadhwa, the future prospects were allowed because in the said case children were employees of TISCO and TISCO had a tradition that every employee can get one of children employed in Company. In the present case there is no such pleading, rather it has been admitted in para 7 of the application that the deceased had no income and only this much has been stated in paragraph 23 that the deceased was a student of Class-VIII and she was good in studies and after education she would have earned at least Rs.5000/- per month without any evidence.
So we are of the considered view that the appellants are not entitled for any enhancement towards future prospects. Paragraphs 10 to 13 of New India Assurance Co.Ltd. Versus Satender and others; 2007(1) T.A.C.11(SC) is relevant in this regard, which are reproduced as under:-
"10.In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's life-time. But this will not necessarily bar the parent's claim and prospective loss will find a valid claim provided that the parents' establish that they had a reasonable expectation of pecuniary benefit if the child had lived. This principle was laid down by the House of lords in the famous case of Taff Vale Rly. v. Jenkins, (1913) A.C.1, and Lords Atkinson said thus:
"....all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my emphatic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence, but they are only pieces of evidence; and the necessary inference can I think, be drawn from circumstances other than and different from them.: (See Lata Wadhwa and Ors. v. State of Bihar and Ors., 2001 (8) S.C.C. 197: 2002 (1) T.A.C. 138 (S.C.).
11. This Court in Lata Wadhwa's case (supra) while computing compensation made distinction between deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years.
12. In cases of young children of tender age, in view of uncertainties about, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so may that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation.
13. Applying the principles indicated in Jasbir Kaur's case (supra) to the facts of the present case we think award of a sum of Rs.1,80,000/- would meet the ends of justice. The same shall carry interest at the rate of 7.5% from the date of filing of petition till payment is made. Payment shall be made within a period of three months from today. Amounts, if any, already paid shall be adjusted from the aforesaid amount of Rs.1,80,000/-."
In view of above, the compensation of Rs.1,80,000/- assessed by the learned Tribunal is the just compensation which does not require any interference by this Court.
Accordingly, the judgment and award dated 30.04.2010, passed by the learned Tribunal is liable to be modified to the extent that the appellants would be entitled for the compensation to the tune of Rs.1,80,000/- plus Rs.15,000/- towards loss of estate, plus Rs.40,000/- towards loss of consortium and Rs.15,000/- towards the funeral expenses. Accordingly, the appellants would be entitled for compensation to the tune of Rs.2,50,000/- alongwith interest as awarded by the learned Tribunal.
The appeal is allowed in part. The judgment and order dated 30.04.2010, passed by the Motor Accident Claims Tribunal/Additional District Judge, Lucknow in Claim Petition No.214 of 2006;Smt. Vishuna Devi and others Versus Vinay Kumar Agarwal and others stands modified to the above extent.
The Record shall be remitted to the learned Tribunal forthwith.