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

                        [2022] 6 S.C.R. 1041                             1041


      JANABAI WD/O DINKARRAO GHORPADE & ORS.                             A
                                  v.
   M/S. I.C.I.C.I. LAMBORD INSURANCE COMPANY LTD.
                   (Civil Appeal No. 5220 of 2022)
                         AUGUST 10, 2022                                 B

        [HEMANT GUPTA AND VIKRAM NATH, JJ.]
       Motor Vehicle Act, 1988 – s.166 – Motor Accident claim –
Grant of compensation - The victim-deceased was driving motorcycle
when a car came from the opposite direction and dashed into the          C
motorcycle of the victim – Victim died and his appellant-wife received
injuries – FIR was registered and charge-sheet was filed against
the driver of the vehicle – An application u/s. 166 of the 1988 Act
was filed for grant of compensation – A total sum of Rs.8,90,000/-
was assessed as compensation by the Tribunal and it was held that
the accident occurred by the car owned by the owner – However,           D
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 – 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     E
in the accident – Thus, doubting the statement of appellant regarding
the accident, the appeal filed by the Insurance Company was allowed
and the claim petition was dismissed – On appeal, held: Rule of
evidence to prove charges in a criminal trial cannot be used while
deciding an application u/s. 166 of the Motor Vehicles Act, 1988         F
which is summary in nature – 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 – There is no reason to doubt the veracity of the
statement of appellant who suffered injuries in the accident – The
entire approach of the High Court is clearly not sustainable –           G
Appellants have not filed any appeal seeking enhancement of
compensation awarded by the Tribunal before the High Court –
Appellants entitled to enhanced compensation – Therefore, in
exercise of powers conferred u/Art. 142 of the Constitution, this
Court decides to recompute the amount of compensation to be in           H
                                 1041
1042            SUPREME COURT REPORTS                      [2022] 6 S.C.R.


 A     tune with the Constitution Bench Judgment (National Insurance
       Company Limited v. Pranay Sethi & Ors. (2017) 16 SCC 680: [2017]
       13 SCR 100 ) – Hence, the compensation comes out to be Rs.
       11,63,000/- along with interest @ 7% p.a. – Consequently, the order
       passed by the High Court is set aside - Constitution of India – Art.
 B     142.
             Allowing the appeal, this Court
              HELD: 1. The rule of evidence to prove charges in a
       criminal trial cannot be used while deciding an application under
       Section 166 of the Motor Vehicles Act, 1988 which is summary
 C     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
 D     find that the entire approach of the High Court is clearly not
       sustainable. 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,
 E     the daughters as the claimants. It is not really of any consequence
       as held by the High Court. [Paras 10 & 11][1047-A-C]
              2. The appellants have not filed any appeal seeking
       enhancement of compensation awarded by the Tribunal before
       the High Court. The appellants are entitled to enhanced
 F     compensation 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, this Court decides to recompute the
       amount of compensation to be in tune with the constitution Bench
 G     Judgment. 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
 H
    JANABAI WD/O DINKARRAO GHORPADE v. M/S. I.C.I.C.I.                    1043
          LAMBORD INSURANCE COMPANY LTD.

v. Satinder Kaur & Ors., the compensation under the head on               A
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. [Paras 12 &
13][1047-D-H]
       3. The evidence of appellant No. 1 on affidavit is that her        B
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, the compensation is assessed as: a) Loss of earnings           C
as Rs.10,12,440; b) Loss of Estate as Rs.15000/-; c) Spousal
consortium for wife Rs.40,000/-, Parental consortium for two
children Rs.80,000/-; d) Funeral Expenses Rs.15000. Hence, the
total compensation comes out to be Rs. 11,63,000/- along with
interest @ 7% p.a. as awarded by Tribunal from the date of
filing of the claim application till realization. [Paras 14 & 15][1049-   D
E-G; 1050-A]
      National Insurance Company Limited v. Pranay Sethi
      & Ors. (2017) 16 SCC 680 : [2017] 13 SCR 100 –
      followed.
                                                                          E
      United India Insurance Company Limited v. Satinder
      Kaur & Ors. (2021) 11 SCC 780 – relied on.
                       Case Law Reference
[2017] 13 SCR 100               followed            Para 12
                                                                          F
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 5220
of 2022.
      From the Judgment and Order dated 14.12.2018 of the High Court
of Judicature at Bombay Bench at Aurangabad in First Appeal No. 3333
of 2015.                                                                  G
      Atul Babasaheb Dakh, Adv. for the Appellants.
      Vishnu Mehra, Ms. Sakshi Mittal, Advs. for the Respondent.


                                                                          H
1044            SUPREME COURT REPORTS                           [2022] 6 S.C.R.


 A           The Judgment of the Court was delivered by
             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
 B
       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
 C
       deceased as per the appellants. The deceased and appellant No. 1 received
       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.
 D
              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
 E     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
 F     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
 G     Tribunal, in the absence of any salary certificate, assessed the income of
       the deceased as Rs.10,000/- and after deducting 1/3 rd salary towards
       personal expenses, assessed the monthly expenses as Rs.6,670/-. The
       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
 H     was 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.                       1045
  LAMBORD INSURANCE COMPANY LTD. [HEMANT GUPTA, J.]

compensation. The learned Tribunal held that the accident occurred by        A
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             B
      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           C
      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    D
      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          E
      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      F
driver.
      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    G
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           H
1046             SUPREME COURT REPORTS                           [2022] 6 S.C.R.


 A     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.
 B     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.
 C
             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 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
 D     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
 E     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
 F
       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)
 G
       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.

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       JANABAI WD/O DINKARRAO GHORPADE v. M/S. I.C.I.C.I.                      1047
     LAMBORD INSURANCE COMPANY LTD. [HEMANT GUPTA, J.]

        10. We find that the rule of evidence to prove charges in a criminal   A
trial 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         B
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
                                                                               C
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             D
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           E
are entitled to enhanced compensation 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.
                                                                               F
        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           G
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:
1
    (2017) 16 SCC 680
2
    (2021) 11 SCC 780                                                          H
1048      SUPREME COURT REPORTS                           [2022] 6 S.C.R.


 A     “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
 B     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
 C     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 family of the deceased.
       The greatest agony for a parent is to lose their child during their
 D     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
 E     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
 F     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
 G     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].
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    JANABAI WD/O DINKARRAO GHORPADE v. M/S. I.C.I.C.I.                        1049
  LAMBORD INSURANCE COMPANY LTD. [HEMANT GUPTA, J.]

      34. At this stage, we consider it necessary to provide uniformity       A
      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         B
      : (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              C
      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              D
      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               E
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:

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                                                                              G




                                                                              H
1050                SUPREME COURT REPORTS                      [2022] 6 S.C.R.


 A             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.
 B

       Ankit Gyan                                                 Appeal allowed.




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