JANABAI WD/O DINKARRAO GHORPADE & ORS. versus M/S. I.C.I.C.I. LAMBORD INSURANCE COMPANY LTD on 10 August 2022

1. The legal heirs of deceased Dinkar Shankarrao Ghorpade arein appeal against an order passed by the High Court of Judicature atBombay on 14.12.2018 whereby, the award passed by the Motor AccidentBClaims Tribunal awarding a sum of Rs.8,90,000/- along with interest @7%p.a. was set aside.

2. The deceased was driving motorcycle bearing No. MH-20/AD-956 on 1.6.2007 when Maruti-800 Car bearing No. MH-41/C-1777came from the opposite direction and dashed into the motorcycle of theCdeceased as per the appellants. The deceased and appellant No. 1 receivedserious injuries. The deceased was thus admitted in a GovernmentHospital (Ghati Hospital). On 2.6.2007, the deceased was shifted toKamal Nayan Bajaj Hospital but he died on 25.6.2007. The cause ofdeath was head injury.D

3. Appellant No. 1 lodged a complaint on 2.7.2007 where an FIRwas registered against unknown vehicle and unknown driver. It was on20.8.2007, the registration of the offending vehicle and the names ofthe driver and the owner of the vehicle were informed. Thereafter, thePolice started its investigation and charge sheeted the driver SanjayES/o Ramesh Sonwane.

4. On account of death of the deceased, an application under Section166 of the Motor Vehicles Act, 1988 for grant of compensation was filedon 8.5.2009. The owner of the vehicle denied the accident. It was statedby the owner in his written statement that the driver - Sanjay was neverFengaged by him and there is no relation of employer and employeebetween them. The driver neither filed written statement nor appearedas witness. The Insurance Company did not lead any evidence.

5. After considering the evidence of appellant No. 1, Janabai (PW-1) and the statement of owner - Chudaman Vanji Patil, the learnedGTribunal, in the absence of any salary certificate, assessed the income ofthe deceased as Rs.10,000/- and after deducting 1/3[rd] salary towardspersonal expenses, assessed the monthly expenses as Rs.6,670/-. Themultiplier of 11 was applied. A sum of Rs.2,000/- towards funeral expenses,Rs.5,000/- towards loss of consortium, Rs.2,500/- towards loss of estateHwas awarded, thus, a total sum of Rs.8,90,000/- was assessed as JANABAI WD/O DINKARRAO GHORPADE v. M/S. I.C.I.C.I.LAMBORD INSURANCE COMPANY LTD. [HEMANT GUPTA, J.]

compensation. The learned Tribunal held that the accident occurred bythe vehicle owned by the owner, when the following finding was recorded:

“…He admitted that, Cr. No. 58/2007 was registered against driverof his car and charge-sheet was filed against respondent No.3Sanjay. Police has seized his car and it was returned as per theorder of the Court. He admitted that, he had not filed anyproceeding to quash the FIR against Sanjay. He further deposedthat he had taken bail of Sanjay in the said crime. The BailApplication and surety and 7/12 extract are at Exhs.68, 69 and 70.It is to be noted that, in the examination-in-chief, Chudaman Patilhas stated that he is not concerned with respondent No.3 andrespondent No.3 was not serving as a driver with him. However,the bail application form at Exh.68 shows that, Chudaman Patili.e. respondent No.1 remained surety for respondent No.3 SanjaySonavane and it is mentioned that accused is the driver of thesurety’s vehicle. It clearly shows that, respondent No.1 deposedfalsely before the Court that, he was not concerned with respondentNo.3. It is also to be noted that, neither respondent No.3 norrespondent No. 1 had filed any petition for quashing the FIR. Policecarried out the investigation and thereafter filed the charge-sheetagainst respondent No.3. So, it clearly shows that, Maruti Carbearing No.MH-41/C-1777 was involved in the accident and gavedash to the motorcycle of deceased and caused the accident.Respondent No.3 drove the Maruti Car rashly and negligently….”

6. However, in an appeal filed by the Insurance Company, theHigh Court did not accept the findings that the accident was caused bythe car owned by the owner and the negligent driving on the part of thedriver.

The High Court, inter alia, held that the appellants have notexamined the Investigating Officer in respect of the source of informationdisclosing registration number of the offending car as the Appellant No.1 had given the registration number of the offending car to the Police ina supplementary statement. Therefore, it cannot be said that link isestablished in between the accident and the offending car by theappellants.

7. The High Court noticed the fact that neither the owner of theoffending car nor the Insurance Company has examined the driver to A

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Aprove that the offending car was not involved in the accident. It wasfurther held that appellant No. 1 - the injured pillion rider has lodgedreport against unknown car driver on 2.7.2007 i.e., after one month fromthe date of incident. In the FIR, there is no mention that her injuredhusband was taken to hospital in Maruti-800 bearing Registration No.MH-41/C-1777 but the said vehicle was involved in the accident wasBnot disclosed. It was also found that the married daughters of the deceasedwere not made party to the claim petition, doubting the bona fides of theappellants. Thus, doubting the statement of appellant No. 1 regardingthe accident, the appeal filed by the Insurance Company was allowedand the claim petition was dismissed.C

8. We have heard learned counsel for the parties and find thatthe order of the High Court is unsustainable. Appellant No. 1 and herhusband had received injuries in an accident which took place on 1.6.2007.She lost her husband on 25.6.2007. The primary concern of appellantNo. 1 or other relatives at the time of incident was to take care of theDdeceased in his critical condition. The health and well-being of her husbandwas her priority rather than to lodge an FIR. The High Court hasproceeded primarily on the basis of information to the Police regardingnon-disclosure of the name of the driver of the car in the FIR. AppellantNo.1 has filed her examination-in-chief on 1.8.2011 disclosing the carEnumber of the offending vehicle. The owner and the Insurance Companyhad the opportunity to cross-examine the witness in support of theirstand that the vehicle number given by her was not involved in theaccident. In cross examination, she deposed that she was brought to thehospital in the vehicle which dashed into their vehicle. She deposed thatshe was mentally disturbed and hospitalized, therefore, she filed theFcomplaint late.

9. On the other hand, the owner has appeared as a witness. Headmitted that he had taken the vehicle on superdari and that he has notfiled any proceedings to quash FIR against Sanjay, driver of the Car. Headmitted that bail application form and surety bond (Ex.68, 69 and 70)Gshow that he has stood surety for the driver wherein he has mentionedthe accused as driver of his vehicle. It has also come on record that theowner has not made any complaint in respect of false implication of hisvehicle or the driver.

10. We find that the rule of evidence to prove charges in a criminaltrial cannot be used while deciding an application under Section 166 ofthe Motor Vehicles Act, 1988 which is summary in nature. There is noreason to doubt the veracity of the statement of appellant No. 1 whosuffered injuries in the accident. The application under the Act has to bedecided on the basis of evidence led before it and not on the basis ofevidence which should have been or could have been led in a criminaltrial. We find that the entire approach of the High Court is clearly notsustainable.

11. If the daughters of the deceased have not been impleaded asclaimants, it is immaterial as the amount of compensation payable by thetortfeasor will not get enhanced because of the daughters being party tothe claim application. It is since the daughters are married, the motherhas not impleaded, the daughters as the claimants. It is not really of anyconsequence as held by the High Court.

12. The appellants have not filed any appeal seeking enhancementof compensation awarded by the Tribunal before the High Court. TheConstitution Bench judgment in National Insurance Company Limitedv. Pranay Sethi & Ors.[1], was rendered when the appeal was pendingbefore the High Court but since the appeal filed by the Insurance Companywas accepted, there was no occasion for the High Court to examine thequestion of enhancement of compensation. We find that the appellantsare entitled to enhanced compensation particularly in respect of futureprospects and other damages in terms of the judgment of this Court inPranay Sethi. Therefore, in exercise of powers conferred under Article142 of the Constitution, we have decided to recompute the amount ofcompensation to be in tune with the constitution Bench Judgment.

13. The appellant has claimed compensation on account of loveand affection as well on account of spousal consortium for wife and forthe parental consortium for the children in the calculation given to thisCourt but in view of three Judge Bench judgment reported as UnitedIndia Insurance Company Limited v. Satinder Kaur & Ors.[2], thecompensation under the head on account of loss of love and affectionis not permissible but compensation on account of spousal consortiumfor wife and for the parental consortium for children is admissible. ThisCourt held as under:

1 (2017) 16 SCC 680

2 (2021) 11 SCC 780

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“30. In Magma General Insurance Co. Ltd. v. Nanu Ram [MagmaGeneral Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 :(2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] this Courtinterpreted “consortium” to be a compendious term, whichencompasses spousal consortium, parental consortium, as well asfilial consortium. The right to consortium would include thecompany, care, help, comfort, guidance, solace and affection ofthe deceased, which is a loss to his family. With respect to aspouse, it would include sexual relations with the deceased spouse.

31. Parental consortium is granted to the child upon the prematuredeath of a parent, for loss of parental aid, protection, affection,society, discipline, guidance and training. Filial consortium is theright of the parents to compensation in the case of an accidentaldeath of a child. An accident leading to the death of a child causesgreat shock and agony to the parents and family of the deceased.The greatest agony for a parent is to lose their child during theirlifetime. Children are valued for their love and affection, and theirrole in the family unit.

32. Modern jurisdictions world over have recognised that the valueof a child’s consortium far exceeds the economic value of thecompensation awarded in the case of the death of a child. Mostjurisdictions permit parents to be awarded compensation underthe loss of consortium on the death of a child. The amount awardedto the parents is the compensation for loss of love and affection,care and companionship of the deceased child.

33. The Motor Vehicles Act, 1988 is a beneficial legislation whichhas been framed with the object of providing relief to the victims,or their families, in cases of genuine claims. In case where aparent has lost their minor child, or unmarried son or daughter, theparents are entitled to be awarded loss of consortium under thehead of filial consortium. Parental consortium is awarded to thechildren who lose the care and protection of their parents in motorvehicle accidents. The amount to be awarded for loss consortiumwill be as per the amount fixed in Pranay Sethi [NationalInsurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3SCC (Civ) 248 : (2018) 2 SCC (Cri) 205].

34. At this stage, we consider it necessary to provide uniformitywith respect to the grant of consortium, and loss of love andaffection. Several Tribunals and the High Courts have beenawarding compensation for both loss of consortium and loss oflove and affection. The Constitution Bench in Pranay Sethi[National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680: (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] , has recognisedonly three conventional heads under which compensation can beawarded viz. loss of estate, loss of consortium and funeralexpenses. In Magma General [Magma General Insurance Co.Ltd. v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3 SCC (Civ) 146: (2019) 3 SCC (Cri) 153], this Court gave a comprehensiveinterpretation to consortium to include spousal consortium, parentalconsortium, as well as filial consortium. Loss of love and affectionis comprehended in loss of consortium.

35. The Tribunals and the High Courts are directed to awardcompensation for loss of consortium, which is a legitimateconventional head. There is no justification to award compensationtowards loss of love and affection as a separate head.”

14. The evidence of appellant No. 1 on affidavit is that her husbandwas getting salary of Rs.12,450/- and that he was over 50 years of age.The learned Tribunal assessed monthly income of the deceased asRs.10,000/- in the absence of proof of salary. Therefore, keeping in viewthe income and the age and the future prospects in terms of judgment ofthis Court in Pranay Sethi, the compensation is assessed as follows:

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A15. Hence, the compensation comes out to be Rs. 11,63,000/- alongwith interest @ 7% p.a. as awarded by learned Tribunal from the dateof filing of the claim application till realization.

16. Consequently, the order passed by the High Court is set aside.The appeal thus stands allowed.

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Ankit Gyan

Appeal allowed.

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