HARPREET KAUR & ORS versus MOHINDER YADAV & ORS. on 15 December 2022

1. Leave granted. With consent of counsel for the parties, theappeal was heard finally.

2. The appellants are aggrieved by the final judgment[1] of the HighCourt of Punjab & Haryana at Chandigarh, which partly allowed theirfirst appeal, enhancing the compensation awarded to the petitionersfrom 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 ofcompensation for loss of income, and failed to award any amount underthe head of “loss of love and affection”, while computing the finalcompensation under the Motor Vehicles Act, 1988 (hereafter, “MV Act”).

Facts

3. On 29.09.2004, the deceased, late Jagjit Singh was returningfrom Chandigarh in a car with two other passengers, when a negligentlydriven truck collided with their car. Grievously injured, he was transferredto the hospital for medical attention, but succumbed to his injuries. Theclaimant-petitioners instituted a claim before the Motor Accident ClaimTribunal (hereafter, “MACT”) under Section 166 of the MV Act, on23.02.2005.

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 ofthe incident and was survived by his wife, two minor children, and hismother (4 claimants). The MACT concluded that Jagjit Singh had diedin the accident due to rash and negligent driving, and partly allowed theclaim with a lumpsum award of 6,60,000.`[2] Aggrieved, the petitionerspreferred an appeal before the High Court in 2007, on the ground thatthe MACT had only considered the sauni crops, and not the rabi/harricrops which were also cultivated on the lands. The High Court by theimpugned judgment, partly allowed the first appeal and enhanced thetotal compensation to Rs. 17,66,000 (with 7.5% interest). While all three 1 Final judgment dated 18.03.2019 in FAO No. 2228/2007 (O&M) passed by thePunjab and Haryana High Court.

2 Order dated 25.01.2007 in MAC No. 2 of 23.02.2005.

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Arespondents (driver, owner of truck and insurer) were held to be jointand severally liable, since the truck was duly insured by the thirdrespondent, the latter was held liable to pay the entire assessedcompensation.

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5. The calculation undertaken and determination of compensation Fby the MACT and High Court, are summarised in tabular format below:

Contentions

6. It was argued before this court, that the deceased was a farmerwho cultivated approximately 66.95 acres (546 kanals and 13 marlas).Of this total, his wife (the first appellant) and he owned 113 kanals 9Gmarlas, and 24 kanals 1 marlas, respectively. The rest of the land wasowned by members of his family(each of his parents, his brother, and 3 Note: the MACT had concluded that income from agricultural land was Rs. 95,000 ofwhich 1/3[rd] was deducted as expenditure; ¹ 65,000 was the total income. Of this, 1/3[rd]was further deducted as personal expenditure, to arrive at the final income/contributionto the claimants being ¹ 43,000 p.a.H

sister-in-law). By a written agreement, since 2003, all these lands werecultivated by the deceased who retained 1/3[rd] of the yield, as paymentfor his labour/effort. It was also urged that the deceased was thelambadaar of the village, and undertook various responsibilities relatedto this role. A man of enterprise, it was reiterated before this court, thathe was young, well educated, and progressive farmer who employedmodern farming techniques, and was instrumental in increasing theincome from the lands. It was argued that the deceased was central tothe income generating activity, and the steady rise in his income wastestimony to his dynamic approach. It was submitted that his deathaffected the income generating capacity, and therefore, the loss ofdependency on that score was vital.

7. The first two respondents did not enter appearance and contestthe proceedings, despite service of notice. The third respondent urgedthat since the business is a running one, in fact there is no loss ofdependency. It was submitted that the business was on account of theagricultural 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 oraland documentary. The petitioner has deposed, and stated that the deceasedearned ¹ 1,00,000/- per month. The documentary evidence included theforms 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 landsowned by them, and entitled to 1/3 of the value of the produce. It is anuncontroverted fact that he was also a lambardar of the village, and agraduate. The total extent of land he cultivated was 66 acres. He owned12 acres. The tribunal arrived at a lump sum amount of 95,000/- per`annum, and deducted 1/3[rd] from that sum, on the ground that it constitutedexpenditure, and made a further deduction of 1/3[rd] amount towards thedeceased’s living expenses. The High Court added 38,000/- towards`the sum of 95,000/-, towards future prospects (@ 40%) and deducted`1/4[th] towards expenses of the deceased, thus resulting in re-computationof 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.

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A9. This court is of the opinion that even while the High Courtincreased the level of income, it did not address the issue in the correctperspective. The documentary evidence on record showed that thedeceased was cultivating 66 acres, and was entitled to a third of thevalue of produce from income of those agricultural lands. In addition, heowned and was getting over 12 acres cultivated. The admitted returnsBwere to the tune of 95,000/-. According to the first appellant (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 casein regard to cultivation of extensive lands. Having regard to these facts,Cthe assessment of income @ 95,000/- appears to be on the lower end,`and insufficient. It would in the circumstances of the case, be appropriatethat the actual income should be computed @ 1,50,000/- per annum.`Applying 40% towards future prospects, the total annual 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)``Dwould 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 ofconsortium awarded – especially in favour of the fourth petitioner, is toolow. A sum of 40,000/- was awarded towards spousal consortium`Eand 1,00,000/- towards filial and parental consortium.`

11. On the issue of consortium, this court had observed, in Rajeshv. Rajbir Singh[4], that:

“17. ... In legal parlance, “consortium” is the right ofFthe spouse to the company, care, help, comfort,guidance, society, solace, affection and sexual relationswith his or her mate. That non-pecuniary head ofdamages has not been properly understood by ourcourts. The loss of companionship, love, care andprotection, etc., the spouse is entitled to get, has to beGcompensated appropriately. The concept of non-pecuniary damage for loss of consortium is one of themajor heads of award of compensation in other partsof the world more particularly in the United States of America, Australia, etc. English courts have alsorecognised the right of a spouse to get compensationeven during the period of temporary disablement. Byloss of consortium, the courts have made an attempt tocompensate the loss of spouse’s affection, comfort,solace, companionship, society, assistance, protection,care and sexual relations during the future years. Unlikethe compensation awarded in other countries and otherjurisdictions, since the legal heirs are otherwiseadequately compensated for the pecuniary loss, it wouldnot be proper to award a major amount under this head.Hence, we are of the view that it would only be just andreasonable that the courts award at least rupees onelakh for loss of consortium.”

12. The judgment in Rajesh v. Rajbir was followed in otherdecisions. However, the approach in these decisions, was disapprovedby a five-judge bench decision in National Insurance Co. v. PranaySethi[5], where this court indicated what should be the correct approachin awarding amounts towards consortium:

“52. […] Therefore, we think it seemly to fix reasonablesums. It seems to us that reasonable figures onconventional heads, namely, loss of estate,loss of consortium and funeral expenses should beRs. 15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.The principle of revisiting the said heads is anacceptable principle. But the revisit should not be fact-centric or quantum-centric. We think that it would becondign that the amount that we have quantified shouldbe enhanced on percentage basis in every three yearsand the enhancement should be at the rate of 10% in aspan of three years….”

Applying this principle, in Magma General Insurance Co. v. NanuRam[6] 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

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loss of estate, which are the other conventional headsunder which compensation is awarded in the event ofdeath, as recognised by the Constitution Benchin Pranay Sethi. The Motor Vehicles Act is a beneficialand welfare legislation. The Court is duty-bound andentitled to award “just compensation”, irrespective ofwhether any plea in that behalf was raised by theclaimant. In exercise of our power under Article 142,and in the interests of justice, we deem it appropriate toaward an amount of Rs 15,000 towards loss of estate toRespondents 1 and 2.

21. A Constitution Bench of this Court in PranaySethi [National Insurance Co. Ltd. v. Pranay Sethi,(2017) 16 SCC 680: (2018) 3 SCC (Civ) 248 : (2018) 2SCC (Cri) 205] dealt with the various heads under whichcompensation is to be awarded in a death case. One ofthese heads is loss of consortium. In legal parlance, “consortium” is a compendious term whichencompasses “spousal consortium”, “parentalconsortium”, and “filial consortium”. The right toconsortium 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, itwould include sexual relations with the deceased spouse: [Rajesh v. Rajbir Singh, (2013) 9 SCC 54].

21.1. Spousal consortium is generally defined as rightspertaining to the relationship of a husband-wife whichallows compensation to the surviving spouse for loss of“company, society, cooperation, affection, and aid ofthe other in every conjugal relation”. [Black’s LawDictionary (5th Edn., 1979).]

21.2. Parental consortium is granted to the child uponthe premature death of a parent, for loss of “parentalaid, protection, affection, society, discipline, guidanceand training”.

21.3. Filial consortium is the right of the parents tocompensation in the case of an accidental death of a child. An accident leading to the death of a child causesgreat shock and agony to the parents and family of thedeceased. The greatest agony for a parent is to losetheir child during their lifetime. Children are valued fortheir love, affection, companionship and their role inthe family unit.

22. Consortium is a special prism reflecting changingnorms about the status and worth of actualrelationships. Modern jurisdictions world-over haverecognised that the value of a child’s consortium farexceeds the economic value of the compensationawarded in the case of the death of a child. Mostjurisdictions therefore permit parents to be awardedcompensation under loss of consortium on the death ofa child. The amount awarded to the parents is acompensation for loss of the love, affection, care andcompanionship of the deceased child.

23. The Motor Vehicles Act is a beneficial legislationaimed at providing relief to the victims or their families,in cases of genuine claims. In case where a parent haslost their minor child, or unmarried son or daughter,the parents are entitled to be awarded loss of consortiumunder the head of filial consortium. Parental consortiumis awarded to children who lose their parents in motorvehicle accidents under the Act. A few High Courts haveawarded compensation on this count.[7] However, therewas no clarity with respect to the principles on whichcompensation could be awarded on loss of filialconsortium.”

13. On an application of the principles indicated in Magma GeneralInsurance Co., this court is of the opinion that the filial and parentalconsortium 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, 2013SCC OnLine Utt 2435 : (2014) 3 UC 1687; Karnataka High Court inLakshman v. Susheela Chand Choudhary, 1996 SCC OnLine Kar 74 : (1996) 3 Kant LJ570.

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Aof 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,Bare entitled to 40,000/- each towards filial and parental consortium.`The impugned judgment is modified to the above extent; the rate ofinterest, and the other components, directed to be payable, are leftundisturbed. The appeal is allowed in these terms, without order on costs.

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Devika Gujral and Anurag Bhaskar

(Assisted by : Pragya Samal, LCRA)

Appeal allowed.

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