Paragraph numbers below are the court’s original numbering, recovered from the source text.
11. Since, the Court in Santosh Devi's case (supra) actually intended to follow the principle in the case of salaried persons as laid in Sar/a Verrna's case (supra) and to make it applicable also to the self-employed and persons on fixed wages, it is clarified that the increai;e in the case of those groups is not 30% always; it will also have a reference to the age. In other words, in the case of self-employed or persons with fixed wages, in case, the deceased victim was below 40 years, there must be an addition of 50% to the actual income of the deceased while computing future. prospects. Needless to say that the actual income should be income after paying the tax, if any. Addition should be 30% in case the deceased was in the age group of 40 to 50 years.
12. In Sar/a Verrna's case (supra), it has been stated that in the case of those above 50 years, there shall be no addition. Having regard to the fact that in the case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only be just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 y.ears so as to make the compensation just, equitable, fair and reasonable. There shall normally be no addition thereafter.
13. Whether the Tribunal is competent to award compensation in excess of what is claimed in the Application under Section 166 ,of the Motor Vehicles Act, 1988, is another issue arising for consideration in this case. At Paragraph 10 of Nagappa's case (supra), it was held as follows:- "10. Thereafter, Section 168 empowers the Claims Tribunal to "make an award determining the amount of compensation which appears to it to be just". Therefore, only requirement for determining the compensation is that it must be 'just'. There is no other limitation or restriction on its power for awarding just compensation."
14. The principle was followed in the later decisions in Oriental Insurance Company Limited vs. Mohd. Nasir and 8 another4 and in Ningamma and another vs. United Indian Insurance Company Limited5.
15. Underlying principle discussed in the above decisions is with regard to the duty of the Court to fix a just compensation and it has now become settled law that the Court should not C succumb to niceties or technicalities, in such matters. Attempt of the Court should be to equate, as far as possible, the misery on account of the accident with the compensation so that the injured/the dependants should not face the vagaries of life on account of the discontinuance of the income earned by the D victim.
16. There is another reason wlly the Court should award proper compensation irrespective of the claim and, if required, even in excess of the claim. After the amendment of the Act by E Act No. 54 of 1994 with effect frollJ 14.11.1994, the Report on motor vehicle accident prepared- by the police officer and forwarded to the Claims Tribunal under sub-Section (6) of Section 158 has to be treated as an Application for Compensation. Section 158 (6) oLthe Act reads as follows: "158. Production of certain certificates, licence and permit in certain cases.- (1) to (5) xxx xxx xxx (6) As soon as any information regarding any accident involving death or bodily injtJry to any person is recorded or report under this section is completed by a police officer, the officer-in-charge of the police station shall forward a 4. AIR 2009 SC 1219. H 5. (2009) 13 sec 110. RAJESH v. RAJBIR SINGH [KURIAN, J.] copy of the same within thirty days from the date of A recording of information or, as the case may be, on completion of such report to the Claims Tribunal having jurisdiction and a copy thereof to the concerned insurer, and, where a copy is made available to the owner, he shall also within thirty days of receipt of such report, forward the same to such Claims Tribunal and insurer."
17. Section 166 (4) of the Act reads as follows: – "166(4) The Claims Tribunal shall treat any report of accidents forwarded to it under sub-section (6) of section C 158 as an application for compensation under this Act."
18. Prior to the amendment in 1994, it was left to the discretion of the Tribunal as to whether the report be treated as an application or not. The pre-amended position under sub- Section (4) of Section 166 of the Act, read as under: "(4) Where a police officer has filed a copy of the report regarding an accident to a Claims Tribunal under this Act, the Claims Tribunal may, if it thinks it necessary so to do, treat the report as if it were an application for E compensation under this Act."
19. In a report on accident, there is no question of any reference to any claim for damages, different heads of damages or such other details. It is the duty of the Tribunal to build on that report and award just, equitable, fair and reasonable compensation with reference to the settled principles on assessment of damages. Thus, on that ground also we hold that the Tribunal/Court has a duty, irrespective of the claims made in the Application, if any, to properly award a just, · G equitable, fair and reasonable compensation, if necessary, ignoring the claim made in the application for compensation.
20. The ratio of a decision of this Court, on a legal issue is a precedent. But an observation made by this Court, mainly -· —· – -.~ ..-.-…. to achieve uniformity and consistency on a socio-economic issue, as contrasted from a legal principle, though a precedent, can be, and in fact ought to be periodically revisited, as observed in Santhosh Devi (supra). We may therefore, revisit the practice of awarding compensation under conventional heads: loss of consortium to the spouse, loss of love, care and guidance to children and funeral expenses. It may be noted that the sum of Rs.2,500/- to Rs.10,000/- in those heads was fixed several decades ago and having regard to inflation factor, the same needs to be increased. In Sarla Verma's case (supra), c it was held that compensation for loss of consortium should be in the range of Rs.5,000/- to Rs.10,000/-. 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 to 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 of America, Australia, etc. English Courts have also recognized the right of a spouse to get compensation 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, protection, 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. G Hence, we are of the view that it would only be just and reasonable that the courts award at least rupees one lakh for loss of consortium.
21. We may also take judicial notice of the fact that the H Tribunals have been quite frugal with regard to award of RAJESH v. RAJBIR SINGH [KURIAN, J.] compensation under the head 'Funeral Expenses'. The 'Price A Index', it is a fact has gone up in that regard also. The head 'Funeral Expenses' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are B several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it wiil be just, fair and equitable, under the head of 'Funeral Expenses', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/ c
22. Petitioners have produced before this Court Annexure- P4 salary certificate of the deceased Bijender Singh which shows that after the revision of the salary by the Sixth Pay Commission with effect from 01.01.2006, the deceased had a D monthly salary of Rs.9,520/-. It is submitted that since the Sixth Pay Commission benefits were announced only subsequently making it to operate retrospectively from 01.01.2006, the salary certificate could not be produced before the Tribunal or the High Court. Applying the principles in Sarla Verma's case (supra) E as explained in Santosh Devi's case, and in the instant case, the compensation has to be re-assessed as follows: SI. HEADS CALCULATION No. (i) Salary Rs.9,520.00 per month. (ii) 50% of (i) above to be [Rs.9,520.00 + Rs.4,760. added as future 00]= prospects= Rs.14,280.00 per montt G (iii) 1/4th of (ii) deducted as [Rs.14,280.00 – personal expenses of the Rs.3,570.00]= deceased= Rs.10,710.00 per montt (iv} Compensation after [Rs.10,710.00 x 12 x 16] multiplier of 16 is applied= =Rs.20,56,320.00 (v} Loss of consortium = Rs.1,00,000.00 (vi} Loss of care and Rs.1,00,000.00 guidance for minor children= (vii} Funeral expenses = Rs.25,000.00 c TOTAL COMPENSATION AWARDED= Rs.22181 1320.00
23. The amount will carry interest@ 7.5% as awarded by the Tribunal from the date of the filing of the petition, viz., D 26.11.2007 till realization.
24. In the result, the Appeal is allowed, the impugned Judgment as also the Award of the Tribunal are set aside. The claimant shall be entitled to a total compensation of Rs. E 22,81,320/- with interest @ 7.5% p.a. from 26.11.2007 till realization. The 3rd Respondent-Insurance Company is directed to pay the 50% of the enhanced compensation by getting prepared a demand draft in her name which shall be delivered at the address given by her in the Claim Petition within three months. Demand drafts for the balance amount in equal proportion, after deducting the amount, if any, already paid, shall be prepared in the name of the three minor children and the mother and the same shall also be delivered to the parties at the respective addresses given in the Claim Petition within three months. The amounts in the share of the minor G children shall be deposited in the nationalized bank where the amounts as awarded by the Tribunal have already been deposited, till they attain majority.
25. There is no order as to costs. H B.B.B. Appeal allowed.