CORAM : HON’BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Deepak Suri, Advocate for the appellant.
Mr. Parveen Sharma, Advocate
for the caveator-respondent No.1.
ALKA SARIN, J.
CM-4693-2024
For the reasons mentioned in the application, the same is
allowed. The delay of 70 days in refiling the appeal is condoned. CM stands
disposed off.
FAO-1176-2024
1. The present appeal has been preferred by the Insurance
Company aggrieved by the award dated 28.08.2023 passed by the Motor
Accident Claims Tribunal, Karnal (hereinafter referred to as ‘Tribunal’.
2. The brief facts relevant to the present case are that on the night
of 23.06.2020 a medical ruqa was received from the Police Post, Kalpana
Chawla Govt. Medical College and Hospital, Karnal regarding the admission
of Ajay son of Pappy and Parveen son of Prabhu, both residents of village
Ganjo Garhi, due to the injuries received in a roadside accident. On
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24.06.2020 ASI Parveen Kumar alongwith Constable Pawan Kumar
reached the Police Post KCGMCH, Karnal and collected the medical ruqa.
Parveen Kumar was opined to be fit make a statement. The complainant,
Parveen Kumar, disclosed that on 23.06.2020 he and his cousin Ajay son of
Pappy were going to village Ganjo Garhi on a motorcycle bearing
registration No.HR-05-AB-6637 Bajaj CD 100, the rider of which was Ajay
who was riding the motorcycle on the left side of the road at a moderate
speed at about 7:00 PM. When they reached near Dera Buta Singh at
Ranwar-Ganjo Garhi Road, a Tractor attached with a bull-cart (Buggi),
which was being driven in a rash and negligent manner, came from the
opposite side and hit the motorcycle. As a result of the accident, Ajay fell on
the road and received multiple and grievous injuries. The driver of the
offending Tractor stopped and came near them, however, since lot of people
gathered, he fled from the spot alongwith the tractor. The number of the
offending Tractor was noted as HR-05-BB-9002 and it was stated that he
could also identify the driver of the offending Tractor. Ajay succumbed to
his injuries in the hospital. On the basis of his statement, FIR No.171 dated
24.06.2020 was registered under Sections 279, 304-A, 337 IPC at Police
Station Madhuban, Karnal. On the basis of the same set of allegations a
claim petition was filed by the legal representatives of Ajay. Notice of the
petition was issued. The driver of the offending vehicle denied the factum of
the accident and submitted that a false FIR had been registered against him.
The owner of the offending Tractor filed a separate written statement and
stated that he had falsely been implicated in the case. The appellantInsurance Company filed a written statement admitting the fact of issuance
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of the insurance policy, however, it denied the factum of the accident and
took the plea of mis-joinder and non-joinder of necessary parties as well as
the plea of violation of terms and conditions of the insurance policy on the
ground that the driver of the offending vehicle did not have a valid and
effective driving licence. On the basis of the pleadings the following issues
were framed :
“1. Whether the accident in question resulting into the
death of Ajay took place due to rash and negligent
driving of offending vehicle bearing No.HR-05-BB-9002
by its driver, as alleged ? OPP
2 If issue No.1 is proved in affirmative, what amount
of compensation, petitioners are entitled to and from
whom ? OPP
3 Whether the vehicle in question was being driven in
violation of the terms and conditions of the Insurance
Policy and/or provisions of the Motor Vehicle Act ?
OPR(3)
4 Relief.”
3. The Tribunal awarded the following compensation:
Sr.No. Heads Calculation
1. Income Rs.15,340/-
2. 40% of income to be added as
future prospects
Rs.21,476/- (15340 + 6136)
3. Deduction – 1/4th Rs.16,107/- (21476 – 5369)
4. Annual income Rs.1,93,284/- (16107 x 12)
5. Multiplier – 18 Rs.34,79,112/- (193284 x 18)
6. Loss of estate Rs.15,000/-
7. Loss of consortium for widow Rs.40,000/-
8. Funeral expenses Rs.15,000/-
Total Compensation Rs.35,49,112/-
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4. Aggrieved by the same, the present appeal has been preferred
by the appellant-Insurance Company.
5. Learned counsel appearing on behalf of the appellant-Insurance
Company would contend that the present was a case of contributory
negligence and that the accident occurred in the middle of the road. It is
further the contention that while assessing the income of the deceased the
same has been done as per the Deputy Commissioner rate in the area for the
year 2020. It is further the contention that the same ought to have been
assessed as per the minimum wages fixed by the State Government.
6. I have heard the learned counsel for the parties.
7. In the present case though an argument has been raised
regarding contributory negligence, however, a perusal of the award reveals
that the said plea was not raised before the Tribunal nor was any argument
raised regarding the factum of contributory negligence. For the first time the
issue of contributory negligence has been raised before this Court. In view of
the fact that neither the plea was raised before the Tribunal nor any evidence
was led qua the same, the said argument is rejected. The second argument of
the learned counsel that the income of the deceased ought to have been
assessed as per the minimum wages and not as per the Deputy
Commissioner rate also deserves to be rejected. The Tribunal while passing
the award had relied upon the judgment of this Court in National Insurance
Company Limited vs. Meena Devi & Ors. [FAO-782-2022 decided on
11.03.2022] wherein the income was assessed on the basis of the DC rates
rather than the minimum wages. The said judgement dated 11.03.2022 was
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challenged by the Insurance Company before the Hon’ble Supreme Court by
filing SLP No.12963 of 2022. The said SLP was dismissed vide order dated
04.08.2022 by the Hon’ble Supreme Court.
8. In the case of Shri Ram General Insurance Company Ltd. &
Ors. vs. Beant Kaur & Ors. [2019 (3) SCT 684] a detailed discussion has
been made on the applicability of the minimum wages prescribed as per the
Minimum Wages Act, 1948 as well as the case law applicable thereto. In
para 15 it has been held as under :
“15. It has been held in a plethora of judgements by
the Hon’ble Supreme Court that it is the duty of the
tribunal/Court to award ‘just compensation’. Motor
Vehicles Act is admittedly a beneficial legislation,
therefore to circumscribe the scope of assessment of
income of the deceased/injured to the minimum wages
as may be notified under the Minimum Wages Act
would not be justified. Needless to say, assessment of
income in cases where no specific documentary
evidence is led in support of the claim, such assessment
would be dependent upon the facts and circumstances
of each case. There may be instances where oral
evidence alongwith other supporting evidence on
record may inspire confidence. There has to be a
sound evaluation of the oral evidence and supporting
circumstances in the factual matrix of each particular
case. The Tribunal/Court while keeping in view the
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minimum wage fixed under the Minimum Wages Act as
the basic criterion at the outset would proceed to
determine whether income of the deceased/injured is to
be assessed at any higher level keeping in view the
evidence on record. This in my considered view, would
be the correct approach to follow in such cases.”
9. Hon’ble Supreme Court in the case of Jakir Hussein vs. Sabir
& Ors. [(2015) 7 SCC 252] has held as under :
“14. We have carefully examined the facts of the case
and material evidence on record in the light of the
rival legal contentions urged before us by both the
learned counsel on behalf of the parties to find out as
to whether the appellant is entitled for further
enhancement of compensation? We have perused the
impugned judgment and order of the High Court and
the award of the Tribunal. After careful examination of
the facts and legal evidence on record, it is not in
dispute that the appellant was working as a driver at
the time of the accident and no doubt, he could be
earning Rs.4,500/- per month. As per the notification
issued by the State Government of Madhya Pradesh
under Section 3 of the Minimum Wages Act, 1948, a
person employed as a driver earns Rs.128/- per day,
however the wage rate as per the minimum wage
notification is only a yardstick and not an absolute
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factor to be taken to determine the compensation under
the future loss of income. Minimum wage, as per State
Government Notification alone may at times fail to
meet the requirements that are needed to maintain the
basic quality of life since it is not inclusive of factors of
cost of living index. Therefore, we are of the view that
it would be just and reasonable to consider the
appellant’s daily wage at Rs.150/- per day (Rs.4,500/-
per month i.e. Rs.54,000/- per annum) as he was a
driver of the motor vehicle which is a skilled job.
Further, the Tribunal has wrongly determined the loss
of income during the course of his treatment at
Rs.51,000/- for a period of one year and five months.
We have to enhance the same to Rs.76,500/- (Rs.4,500
X 17 months).”
10. In the case of Ramachandrappa vs. Manager, Royal
Sundaram Alliance Insurance Company Limited [(2011) 13 SCC 236]
Hon’ble Supreme Court has held as under :
“14. In the instant case, it is not in dispute that the
appellant was aged about 35 years and was working as
a Coolie and was earning Rs.4500/- per month at the
time of accident. This claim is reduced by the Tribunal
to a sum of Rs.3000/- only on the assumption that
wages of the labourer during the relevant period viz. in
the year 2004, was Rs.100/- per day. This assumption
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in our view has no basis. Before the Tribunal, though
Insurance Company was served, it did not choose to
appear before the Court nor did it repudiated the claim
of the claimant. Therefore, there was no reason for the
Tribunal to have reduced the claim of the claimant and
determined the monthly earning a sum of Rs.3000/- per
month. Secondly, the appellant was working as a
Coolie and therefore, we cannot expect him to produce
any documentary evidence to substantiate his claim. In
the absence of any other evidence contrary to the claim
made by the claimant, in our view, in the facts of the
present case, the Tribunal should have accepted the
claim of the claimant. We hasten to add that in all
cases and in all circumstances, the Tribunal need not
accept the claim of the claimant in the absence of
supporting material. It depends on the facts of each
case. In a given case, if the claim made is so exorbitant
or if the claim made is contrary to ground realities, the
Tribunal may not accept the claim and may proceed to
determine the possible income by resorting to some
guess work, which may include the ground realities
prevailing at the relevant point of time. In the present
case, appellant was working as a Coolie and in and
around the date of the accident, the wage of the
labourer was between Rs.100/- to 150/- per day or
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Rs.4500/- per month. In our view, the claim was honest
and bonafide and, therefore, there was no reason for
the Tribunal to have reduced the monthly earning of
the appellant from Rs.4500/- to Rs.3000/- per month.
We, therefore, accept his statement that his monthly
earning was Rs.4500/-.”
11. In the present case the deceased was 23 years of age. The
widow is also 23 years old with two minor children. The deceased also left
behind his parents. The wife of the deceased had stepped into the witness
box and had specifically stated that her husband was working as a Mason.
The Hon’ble Supreme Court in the case of Chandra @ Chanda @
Chandraram & Anr. vs. Mukesh Kumar Yadav & Ors. [2021(4) RCR
(Civil) 492] has held that a certain amount of guesswork can be done in
motor accident claim cases while assessing the income when there is no
definite proof regarding income. Para 10 of the said judgment reads as
under:
“10. It is the specific case of the claimants that the
deceased was possessing heavy vehicle driving licence
and was earning Rs.15000/- per month. Possessing
such licence and driving of heavy vehicle on the date of
accident is proved from the evidence on record.
Though the wife of the deceased has categorically
deposed as AW-1 that her husband Shivpal was
earning Rs.15000/- per month, same was not
considered only on the ground that salary certificate
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was not filed. The Tribunal has fixed the monthly
income of the deceased by adopting minimum wage
notified for the skilled labour in the year 2016. In
absence of salary certificate the minimum wage
notification can be a yardstick but at the same time
cannot be an absolute one to fix the income of the
deceased. In absence of documentary evidence on
record some amount of guesswork is required to be
done. But at the same time the guesswork for assessing
the income of the deceased should not be totally
detached from reality. Merely because claimants were
unable to produce documentary evidence to show the
monthly income of Shivpal, same does not justify
adoption of lowest tier of minimum wage while
computing the income. There is no reason to discard
the oral evidence of the wife of the deceased who has
deposed that late Shivpal was earning around
Rs.15000/- per month. In the case of Minu Rout & Anr.
v. Satya Pradyumna Mohapatra & Ors., (2013) 10
SCC 695 this Court while dealing with the claim
relating to an accident which occurred on 08.11.2004
has taken the salary of the driver of light motor vehicle
at Rs.6000/- per month. In this case the accident was
on 27.02.2016 and it is clearly proved that the
deceased was in possession of heavy vehicle driving
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licence and was driving such vehicle on the day of
accident. Keeping in mind the enormous growth of
vehicle population and demand for good drivers and
by considering oral evidence on record we may take
the income of the deceased at Rs.8000/- per month for
the purpose of loss of dependency. Deceased was aged
about 32 years on the date of the accident and as he
was on fixed salary, 40% enhancement is to be made
towards loss of future prospects. At the same time
deduction of 1/3rd is to be made from the income of the
deceased towards his personal expenses. Accordingly
the income of the deceased can be arrived at Rs.7467/-
per month. By applying the multiplier of ’16’ the
claimants are entitled for compensation of
Rs.14,33,664/-. As an amount of Rs.10,99,700/- is
already paid towards the loss of dependency the
appellant-parents are entitled for differential
compensation of Rs.3,33,964/-. Further in view of the
judgment of this Court in the case of Magma General
Insurance Company Limited v. Nanu Ram @ Chuhru
Ram & Ors., 2018 SCC OnLine SC 1546 = (2018) 18
SCC 130 the appellants are also entitled for parental
consortium of Rs.40,000/-each. The finding of the
Tribunal that parents cannot be treated as dependents
runs contrary to the judgment of this Court in the case
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of Sarla Verma (Smt). & Ors. v. Delhi Transport
Corporation & Anr., (2009) 6 SCC 121. The judgment
in the case of Kirti & Anr. v. Oriental Insurance
Company Limited, (2021) 2 SCC 166 relied on by the
counsel for the respondent would not render any
assistance in support of his case having regard to facts
of the case and the evidence on record.”
12. No doubt minimum wages notification is a yardstick which is
often used, however, the same cannot be the only factor to determine the
compensation payable to the claimants. The Courts must strike a balance
between inflated and unreasonable demands of the victim and the equally
untenable claim of the opposite party saying that nothing is payable.
However, at the same time, the award must be just so as to ensure that the
claimants are adequately restored to the position prior to the accident. The
young widow of the deceased is 23 years of age and the minor children have
their whole life ahead of them, their formal education, if started at all, would
be at the very initial stage. The compensation cannot in any manner
compensate them for the loss suffered by them because of the untimely
death of the deceased, however, the amount should be adequate to mitigate
the financial difficulties the family is likely to face.
13. Keeping in view of the peculiar circumstances, especially the
fact that the widow is herself 23 years old and the children are at a very
tender age with their whole life ahead of them, as also that there is no
mandate of law to only apply the rates as prescribed under the Minimum
Wages Act, 1948 and at best it can be only used as a yardstick, this Court
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does not deem it appropriate to interfere in the award passed by the Tribunal.
The present appeal being devoid of any merit is accordingly dismissed.
Pending miscellaneous applications, if any, also stand disposed off.
( ALKA SARIN )
01.04.2024 JUDGE
Ankur