Harpreet Kaur & Ors v. Mohinder Yadav & Ors.

S. RAVINDRA BHAT, J. 1. Leave granted. With consent of counsel for the parties, the appeal was heard finally. 2. The appellants are aggrieved by the final judgment1 of the High Court of Punjab & Haryana at Chandigarh, which partly allowed their first appeal, enhancing the compensation awarded to the pet itioners from 6,60,000 (with 6% interest) to 17,66,000 (with 7.5% interest). The appellants’ grievance is that the High Court erred in computation of compensation for loss of income, and failed to award any amount under the head of “loss of love and affection”, while computing the final compensation under the Motor Vehicles Act, 1988 (hereafter, “MV Act”). Facts 3. On 29.09.2004, the deceased, late Jagjit Singh was returning from Chandigarh in a car with two other passengers, when a negligently driven truck collided with their car. Grievously injured, he was transferred to the hospital for medical attention, but succumbed to his injuries. The claimant-petitioners instituted a claim before the Motor Accident Claim Tribunal (hereafter, “MACT”) under Section 166 of the MV Act, on 23.02.2005. 4. It is an admitted fact (before both forums) that the deceased, who was primarily a farmer/agriculturist, was 35 years old at the time of the incident and was survived by his wife, two minor children, and his mother (4 claimants). The MACT concluded that Jagjit Singh had died in the accident due to rash and negligent driving, and partly allowed the claim with a lumpsum award of 6,60,000.2 Aggrieved, the petitioners preferred an appeal before the High Court in 2007, on the groun d that the MACT had only considered the sauni crops, and not the rabi/harri crops which were also cultivated on the lands. The High Court by the impugned judgment, partly allowed the first appeal and enhanced t he total compensation to Rs. 17,66,000 (with 7.5% interest). While all three 1 Final judgment dated 18.03.2019 in FAO No. 2228/20 07 (O&M) passed by the Punjab and Haryana High Court. 2 Order dated 25.01.2007 in MAC No. 2 of 23.02.2005. HARPREET KAUR & ORS. v. MOHINDER YADAV & ORS. ` ` ` respondents (driver, owner of truck and insurer) were held to b e joint and severally liable, since the truck was duly insured by t he third respondent, the latter was held liable to pay the e ntire assessed compensation. 5. The calculation undertaken and determination of compensation by the MACT and High Court, are summarised in tabular format below: Contentions 6. It was argued before this court, that the deceased was a farmer who cultivated approximately 66.95 acres (546 kanals and 13 marlas). Of this total, his wife (the first appellant) and he owned 113 kanals 9 marlas, and 24 kanals 1 marlas, respectively. The rest of the land was owned by members of his family (each of his parents, his bro ther, and 3 Note: the MACT had concluded that income from agricultural land was Rs. 95,000 of which 1/3rd was deducted as expenditure; ¹ 65,000 was the tot al income. Of this, 1/3 rd was further deducted as personal expenditure, to arrive at the final income/contribution to the claimants being ¹ 43,000 p.a. 59 sister-in-law). By a written agreement, since 2003, all these lands were cultivated by the deceased who retained 1/3 rd of the yield, as payment for his labour/effort. It was also urged that the dec eased was the lambadaar of the village, and undertook various responsibilities related to this role. A man of enterprise, it was reiterated before this court, that he was young, well educated, and progressive farmer who emp loyed modern farming techniques, and was instrumental in increasi ng the income from the lands. It was argued that the deceased was ce ntral to the income generating activity, and the steady rise in h is income was testimony to his dynamic approach. It was submitted that his death affected the income generating capacity, and therefore , the loss of dependency on that score was vital. 7. The first two respondents did not enter appearance and contest the proceedings, despite service of notice. The third respon dent urged that since the business is a running one, in fact there is no loss of dependency. It was submitted that the business was on acco unt of the agricultural lands, and since the petitioners, as heirs of the deceased, own and occupy the lands, there is no real fall in the income. Analysis and conclusion 8. The evidence led before the tribunal, in this case, was both oral and documentary. The petitioner has deposed, and stated that the deceased earned ¹ 1,00,000/- per month. The documentary evidence included the forms filled and submitted to the Agricultural Produce Market Committee. Besides, the documents included the agreement between the deceased, his parents, and brother, whereby he was permitted to cultivate the lands owned by them, and entitled to 1/3 of the value of the produce. It is an uncontroverted fact that he was also a lambardar of the village, and a graduate. The total extent of land he cultivated was 66 acres. He owned 12 acres. The tribunal arrived at a lump sum amount of 9 5,000/- per annum, and deducted 1/3rd from that sum, on the ground that it constituted expenditure, and made a further deduction of 1/3rd amount towards the deceased’s living expenses. The High Court added 38,000/- towards the sum of 95,000/-, towards future prospects (@ 40%) and deducted 1/4th towards expenses of the deceased, thus resulting in re-computation of income at 99,750/- per annum. It applied a multiplier of 16 and added other elements to arrive at the final figure of 17, 66,000/- with interest @ 7.5% per annum. HARPREET KAUR & ORS. v. MOHINDER YADAV & ORS. [S. RAVINDRA BHAT, J.] ` ` ` ` ` 9. This court is of the opinion that even while the High C ourt increased the level of income, it did not address the issue in the correct perspective. The documentary evidence on record showed that the deceased was cultivating 66 acres, and was entitled to a third of the value of produce from income of those agricultural lands. In addition, he owned and was getting over 12 acres cultivated. The admitted re turns were to the tune of 95,000/-. According to the first appella nt (the deceased’s wife) the deceased’s income was 1,00,000/- per month; the claim was for an extent of 1 crore. Whilst there is no evidence for the latter amount, the documentary evidence supported the appellant’s case in regard to cultivation of extensive lands. Having regard to these facts, the assessment of income @ 95,000/- appears to be on the lower end, and insufficient. It would in the circumstances of the case, be appropriate that the actual income should be computed @ 1,50,000/- per annum. Applying 40% towards future prospects, the total an nual income ( 1,50,000 + 60,000) amounts to 2,10,000. With a 1/4th deduction (4 dependents), the annual loss of dependency ( 2,10,000 - 52,500) would be 1,57,500. Applying a multiplier of 16, total loss of dependency (i.e., 1,57,500 x 16) is Rs. 25,20,000. 10. The appellants had urged that the amount towards loss of consortium awarded – especially in favour of the fourth petitioner, is too low. A sum of 40,000/- was awarded towards spousal consortium and 1,00,000/- towards filial and parental consortium. 11. On the issue of consortium, this court had observed, in Rajesh v. Rajbir Singh4, that: “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 t o 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 o f 4 (2013) 9 SCC 54 ` ` ` ` ` ``` ` ` ` ` ` 61 America, Australia, etc. English courts have also recognised the right of a spouse to get compensatio n 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, protectio n, 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 on e lakh for loss of consortium.” 12. The judgment in Rajesh v. Rajbir was followed in other decisions. However, the approach in these decisions, was disapproved by a five-judge bench decision in National Insurance Co. v. Pranay Sethi5, where this court indicated what should be the correct approac h in awarding amounts towards consortium: “52. […] 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 b e 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….” Applying this principle, in Magma General Insurance Co. v. Nanu Ram6 this court held as follows: “20. MACT as well as the High Court have not awarded any compensation with respect to loss of consortium and 5 (2017) 16 SCC 680 6 (2018) 18 SCC 130 HARPREET KAUR & ORS. v. MOHINDER YADAV & ORS. [S. RAVINDRA BHAT, J.] loss of estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognised by the Constitution Bench in Pranay Sethi. The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty-bound an d entitled to award “just compensation”, irrespective of whether any plea in that behalf was raised by the claimant. In exercise of our power under Article 142 , and in the interests of justice, we deem it appropriate to award an amount of Rs 15,000 towards loss of estate to Respondents 1 and 2. 21. A Constitution Bench of this Court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] 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 parlanc e, “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 : [Rajesh v. Rajbir Singh, (2013) 9 SCC 54]. 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, cooperation, affection, and aid of the other in every conjugal relation”. [Black’s Law Dictionary (5th Edn., 1979).] 21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of “parenta l aid, protection, affection, society, discipline, guid ance and training”. 21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a 63 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 los e their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. 22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child’s consortium f ar exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarde d 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 a nd companionship of the deceased child. 23. The Motor Vehicles Act is a beneficial legislat ion aimed at providing relief to the victims or their famili es, 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. 7 However, there was no clarity with respect to the principles on whi ch compensation could be awarded on loss of filial consortium.” 13. On an application of the principles indicated in Magma General Insurance Co., this court is of the opinion that the filial and parental consortium have to be increased. Each of the children, and the mother 7 Rajasthan High Court in Jagmala Ram v. Sohi Ram, 2017 SCC OnLine Raj 3848 : (2017) 4 RLW 3368; Uttarakhand High Court in Rita Rana v. Pradeep Kumar, 2013 SCC OnLine Utt 2435 : (2014) 3 UC 1687; Karnataka H igh Court in Lakshman v. Susheela Chand Choudhary, 1996 SCC OnLine Kar 74 : (1996) 3 Kant LJ 570. HARPREET KAUR & ORS. v. MOHINDER YADAV & ORS. [S. RAVINDRA BHAT, J.] of the deceased, is entitled to 40,000/-. Thus, the total amount payable towards filial and parental consortium is 1,20,000/-. 14. In view of the above findings, the appeal deserves to be allowed. The appellants are entitled to 25,20,000/- towards loss of dependency; and the three appellants being the children and mother of the deceased, are entitled to 40,000/- each towards filial and parental co nsortium. The impugned judgment is modified to the above extent; the rate of interest, and the other components, directed to be payab le, are left undisturbed. The appeal is allowed in these terms, without order on costs. Devika Gujral and Anurag Bhaskar Appeal allowed. (Assisted by : Pragya Samal, LCRA) ` ` ` `