JANABAI WD/O DINKARRAO GHORPADE & ORS VS M/S. I.C.I.C.I. LAMBORD INSURANCE COMPANY LTD.

JANABAI WD/O DINKARRAO GHORPADE & ORS VS M/S. I.C.I.C.I. LAMBORD INSURANCE COMPANY LTD.

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.___________OF 2022
(ARISING OUT OF SLP (CIVIL) NO. 21077 of 2019)
JANABAI WD/O DINKARRAO GHORPADE &
ORS. .....APPELLANT(S)
M/S. I.C.I.C.I. LAMBORD INSURANCE
COMPANY LTD.

.....RESPONDENT(S)
J U D G M E N T
HEMANT GUPTA, J.
1. The legal heirs of deceased Dinkar Shankarrao Ghorpade are in appeal
against an order passed by the High Court of Judicature at Bombay on
14.12.2018 whereby, the award passed by the Motor Accident Claims
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-1777 came from
the opposite direction and dashed into the motorcycle of the deceased
as per the appellants. The deceased and appellant No. 1 received
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serious injuries. The deceased was thus admitted in a Government
Hospital (Ghati Hospital). On 2.6.2007, the deceased was shifted to
Kamal Nayan Bajaj Hospital but he died on 25.6.2007. The cause of
death was head injury.
3. Appellant No. 1 lodged a complaint on 2.7.2007 where an FIR was
registered against unknown vehicle and unknown driver. It was on
20.8.2007, the registration of the offending vehicle and the names of
the driver and the owner of the vehicle were informed. Thereafter, the
Police started its investigation and charge sheeted the driver Sanjay
S/o Ramesh Sonwane.
4. On account of death of the deceased, an application under Section 166
of the Motor Vehicles Act, 1988 for grant of compensation was filed on
8.5.2009. The owner of the vehicle denied the accident. It was stated
by the owner in his written statement that the driver - Sanjay was
never engaged by him and there is no relation of employer and
employee between them. The driver neither filed written statement nor
appeared as 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 learned Tribunal, in
the absence of any salary certificate, assessed the income of the
deceased as Rs.10,000/- and after deducting 1/3rd salary towards
personal expenses, assessed the monthly expenses as Rs.6,670/-. The
2
multiplier 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 estate was awarded, thus, a total sum of Rs.8,90,000/- was
assessed as compensation. The learned Tribunal held that the accident
occurred by the vehicle owned by the owner, when the following
finding was recorded:
“…He admitted that, Cr. No. 58/2007 was registered against
driver of his car and charge-sheet was filed against respondent
No.3 Sanjay. Police has seized his car and it was returned as per
the order of the Court. He admitted that, he had not filed any
proceeding to quash the FIR against Sanjay. He further deposed
that he had taken bail of Sanjay in the said crime. The Bail
Application 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
Patil has stated that he is not concerned with respondent No.3
and respondent No.3 was not serving as a driver with him.
However, the bail application form at Exh.68 shows that,
Chudaman Patil i.e. respondent No.1 remained surety for
respondent No.3 Sanjay Sonavane and it is mentioned that
accused is the driver of the surety's vehicle. It clearly shows
that, respondent No.1 deposed falsely before the Court that, he
was not concerned with respondent No.3. It is also to be noted
that, neither respondent No.3 nor respondent No. 1 had filed any
petition for quashing the FIR. Police carried out the investigation
and thereafter filed the charge-sheet against respondent No.3.
So, it clearly shows that, Maruti Car bearing No.MH-41/C-1777
was involved in the accident and gave dash 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, the High Court
did not accept the findings that the accident was caused by the car
owned by the owner and the negligent driving on the part of the driver.
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The High Court, inter alia, held that the appellants have not examined
the Investigating Officer in respect of the source of information
disclosing registration number of the offending car as the Appellant No.
1 had given the registration number of the offending car to the Police
in a supplementary statement. Therefore, it cannot be said that link is
established in between the accident and the offending car by the
appellants.
7. The High Court noticed the fact that neither the owner of the offending
car nor the Insurance Company has examined the driver to prove that
the offending car was not involved in the accident. It was further held
that appellant No. 1 - the injured pillion rider has lodged report against
unknown car driver on 2.7.2007 i.e., after one month from the date of
incident. In the FIR, there is no mention that her injured husband was
taken to hospital in Maruti-800 bearing Registration No. MH-41/C-1777
but the said vehicle was involved in the accident was not disclosed. It
was also found that the married daughters of the deceased were not
made party to the claim petition, doubting the bona fides of the
appellants. Thus, doubting the statement of appellant No. 1 regarding
the accident, the appeal filed by the Insurance Company was allowed
and the claim petition was dismissed.
8. We have heard learned counsel for the parties and find that the order
of the High Court is unsustainable. Appellant No. 1 and her husband
had received injuries in an accident which took place on 1.6.2007. She
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lost her husband on 25.6.2007. The primary concern of appellant No. 1
or other relatives at the time of incident was to take care of the
deceased in his critical condition. The health and well-being of her
husband was her priority rather than to lodge an FIR. The High Court
has proceeded primarily on the basis of information to the Police
regarding non-disclosure of the name of the driver of the car in the FIR.
Appellant No.1 has filed her examination-in-chief on 1.8.2011
disclosing the car number of the offending vehicle. The owner and the
Insurance Company had the opportunity to cross-examine the witness
in support of their stand that the vehicle number given by her was not
involved in the accident. In cross examination, she deposed that she
was brought to the hospital in the vehicle which dashed into their
vehicle. She deposed that she was mentally disturbed and hospitalized,
therefore, she filed the complaint late.
9. On the other hand, the owner has appeared as a witness. He admitted
that he had taken the vehicle on superdari and that he has not filed
any proceedings to quash FIR against Sanjay, driver of the Car. He
admitted that bail application form and surety bond (Ex.68, 69 and 70)
show that he has stood surety for the driver wherein he has mentioned
the accused as driver of his vehicle. It has also come on record that
the owner has not made any complaint in respect of false implication
of his vehicle or the driver.
10. We find that the rule of evidence to prove charges in a criminal trial
5
cannot be used while deciding an application under Section 166 of the
Motor Vehicles Act, 1988 which is summary in nature. There is no
reason to doubt the veracity of the statement of appellant No. 1 who
suffered injuries in the accident. The application under the Act has to
be decided on the basis of evidence led before it and not on the basis
of evidence which should have been or could have been led in a
criminal trial. We find that the entire approach of the High Court is
clearly not sustainable.
11. If the daughters of the deceased have not been impleaded as
claimants, it is immaterial as the amount of compensation payable by
the tortfeasor will not get enhanced because of the daughters being
party to the claim application. It is since the daughters are married, the
mother has not impleaded, the daughters as the claimants. It is not
really of any consequence as held by the High Court.
12. The appellants have not filed any appeal seeking enhancement of
compensation awarded by the Tribunal before the High Court. The
Constitution Bench judgment in National Insurance Company
Limited v. Pranay Sethi & Ors.
1
, was rendered when the appeal was
pending before the High Court but since the appeal filed by the
Insurance Company was accepted, there was no occasion for the High
Court to examine the question of enhancement of compensation. We
find that the appellants are entitled to enhanced compensation
1 (2017) 16 SCC 680
6
particularly in respect of future prospects and other damages in terms
of the judgment of this Court in Pranay Sethi. Therefore, in exercise
of powers conferred under Article 142 of the Constitution, we have
decided to recompute the amount of compensation to be in tune with
the constitution Bench Judgment.
13. The appellant has claimed compensation on account of love and
affection as well on account of spousal consortium for wife and for the
parental consortium for the children in the calculation given to this
Court but in view of three Judge Bench judgment reported as United
India Insurance Company Limited v. Satinder Kaur & Ors.
2
, the
compensation under the head on account of loss of love and affection
is not permissible but compensation on account of spousal consortium
for wife and for the parental consortium for children is admissible. This
Court held as under:
“30. In Magma General Insurance Co. Ltd. v. Nanu Ram [Magma
General Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC 130 :
(2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri) 153] this Court
interpreted “consortium” to be a compendious term, which
encompasses spousal consortium, parental consortium, as well
as 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.
31. 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
2 (2021) 11 SCC 780
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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 and affection, and their role in the family unit.
32. Modern jurisdictions world over have recognised 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 permit parents to be awarded compensation
under the loss of consortium on the death of a child. The amount
awarded to 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 which
has been framed with the object of 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 the children who lose the care and
protection of their parents in motor vehicle accidents. The
amount to be awarded for loss consortium will be as per the
amount fixed in Pranay Sethi [National Insurance Co.
Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ)
248 : (2018) 2 SCC (Cri) 205] .
34. At this stage, we consider it necessary to provide uniformity
with respect to the grant of consortium, and loss of love and
affection. Several Tribunals and the High Courts have been
awarding compensation for both loss of consortium and loss of
love 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
recognised only three conventional heads under which
compensation can be awarded viz. loss of estate, loss of
consortium and funeral expenses. 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 comprehensive interpretation to consortium to include spousal
consortium, parental consortium, as well as filial consortium.
Loss of love and affection is comprehended in loss of consortium.
35. The Tribunals and the High Courts are directed to award
compensation for loss of consortium, which is a legitimate
8
conventional head. There is no justification to award
compensation towards loss of love and affection as a separate
head.”
14. The evidence of appellant No. 1 on affidavit is that her husband was
getting salary of Rs.12,450/- and that he was over 50 years of age.
The learned Tribunal assessed monthly income of the deceased as
Rs.10,000/- in the absence of proof of salary. Therefore, keeping in
view the income and the age and the future prospects in terms of
judgment of this Court in Pranay Sethi, the compensation is assessed
as follows:
Head Amount
A Loss of earnings @ monthly
salary @ 10,000/- and future
prospects @ 15%
(6,670/- + 1000 x 12 x11)
Rs. 10,12,440.00
B Loss of Estate Rs. 15000.00
C Spousal consortium for wife
Parental consortium for two
children (Appellant Nos. 2 & 3)
@ Rs.40,000/- each
Rs.40,000/-
Rs. 80000.00
D Funeral Expenses Rs. 15000.00
Total
Rounded off
Rs. 11,62,440.00
Rs. 11,63,000.00
15. Hence, the compensation comes out to be Rs. 11,63,000/- along with
interest @ 7% p.a. as awarded by learned Tribunal from the date of
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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.............................................J.
(HEMANT GUPTA)
.............................................J.
(VIKRAM NATH)
NEW DELHI;
AUGUST 10, 2022.
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