COMPENSATION FOR DEATH IN A MOTOR ACCIDENT DURING VISIT TO INDIA: HOW TO ASSESS, IF THE DECEASED WAS AN INDIAN BUT EMPLOYED IN FOREIGN LAND?

A Three Judges’ Bench of the Supreme Court of India in its recent judgment of 30 June 2020 in Civil Appeals No. 2705 & 2706 of 2020 United India Insurance Company Ltd. Versus Satinder Kaur @ Satwinder Kaur and others has deliberated upon the vexed issue of assessment of compensation payable to the dependants of a person dying in a road accident while on visit to India though otherwise employed in foreign land. The Judgment is progressive and a landmark one, in ways more than one.

The deceased in this case was employed in Doha, Qatar since 1984 and was visiting India in November 1998 when he unfortunately died in a road accident on 18.11.1998. In the resultant claim proceedings under the Motor Vehicles Act, 1988 filed by his widow and three minor children, important question arose as to the assessment of income of the deceased at the time of his death, in other words, as to what was his current salary being paid by the Qatari employer.                      

One of the aspects deliberated upon in this recent judgment is that the income certificate of the foreign employer with respect to the deceased could not be proved as per law before the Claims Tribunal, though it was duly proved that he was employed at Doha, Qatar since the year 1984 till his death in the year 1998.

It is of note that where an employer is based in India, salary of a deceased in such claim cases can be proved by summoning in evidence the officials and the records of the Indian employer. In the present case, however a different procedure needed to be followed. The Supreme Court in this recent judgment, in para 9.1, held that the income certificate had to be proved as per the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (Act No. 41 of 1948). However in the case in hand the said procedure was not followed before the Claims Tribunal and thus the actual income of the deceased could not be proved by the claimants.

In my view, in such cases the simple procedure prescribed by Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948 (Act No. 41 of 1948) [and Section 78(6) of the Indian Evidence Act, 1872] needs to be followed for claimants to get appropriate compensation. This is the first proposition derivable from the recent judgment in Satinder Kaur @ Satwinder Kaur which will act as a guiding light in such cases in future.

Sequentially, the Supreme Court, while holding in this recent judgment that the procedure prescribed by law was not followed at the Tribunal stage, was next faced with the task of assessing the monthly income of the deceased who had admittedly got employment in Doha, Qatar in the year 1984 at a monthly salary of 750 Qatari Riyal, was a frequent traveler to various countries (thus evidently a man of means), admittedly remained employed in Qatar till the year 1998, but his actual salary in the year 1998 as paid by the Qatari employer could not be proved by the claimants. The Supreme Court, to its immense credit, devised a very realistic, just, innovative and scientific formula in these facts and arrived at a deemed salary of the deceased by making 10% increment per annum on cumulative basis from the year 1984 (750 Qatari Riyal) and thus fixed the notional income of the deceased at 2600 Qatari Riyal per month at the time of his death in the year 1998. This, in my opinion, is the second proposition laid down by this judgment and goes a long way in solving the main riddle in such cases.

The other and very important issue dealt by the Three Judges’ Bench in this recent judgment was with respect to compensation payable towards loss of consortium, also known as a component of conventional heads or non-pecuniary damage. The deceased in this case had left behind a widow and three minor children. While in some earlier judgments reported as 2013 (9) SCC 54 Rajesh Vs Rajbir Singh and 2013 (9) SCC 166 Jiju Kuruvila versus Kunjujamma Mohan the Supreme Court had granted Rs.1 lac each to the minor children of the deceased, a Constitution Bench Judgment reported as 2017 (16) SCC 680 National Insurance Co. Ltd. Versus Pranay Sethi and others had held that the head relating to loss of care for minor Children did not exist.

In my very humble opinion the judgment in Pranay Sethi was not very specific about grant of  loss of consortium to minor children (parental consortium), as if to suggest that the same was payable only to the widow (spousal consortium).

In the recent judgment the Supreme Court has now taken a step forward and has clarified, rather authoritatively laid down, that in all claim cases arising out of death due to road accident, parental consortium is to be awarded to minor children who lose their parent, and even filial consortium is to be awarded where a parent has lost a minor child to an accident, apart from well recognized head of spousal consortium. This in my opinion is the third proposition of the recent judgment in Satinder Kaur @ Satwinder Kaur and Others.

In my opinion the Supreme Court of India has taken a very progressive, scientific, just and landmark approach in the recent judgment in Satinder Kaur @ Satwinder Kaur and others, which is certain to fill many existing voids in the law and procedure relating to such cases.

(The author is an Advocate-on-Record practicing in the Supreme Court of India and had appeared and argued in the referred case of United India Insurance Company Ltd. Versus Satinder Kaur @ Satwinder Kaur and others on behalf of the claimants.)

GAGAN GUPTA

ADVOCATE ON RECORD

SUPREME COURT OF INDIA

CC:1569

D-20, GROUND FLOOR,

JANGPURA EXTENSION

NEW DELHI 110014

PHONE: 9868066879, 9811212776

011-43581120