Babita And ORS v. Iffco Tokio General Insurance Company Ltd And ORS

FAO-4922-201 8 (O&M) E HIGH COURT OF PUNJ JAB AND HARYANA ARH IN THE AT CHANDIGA FAO-4922-2018 (O&

Reserved on: 18.07.2

Pronounced on: 08.08.2 &M) OTHERS

Versus

GENERAL INSURANCE CO BABITA AND O ......Appellants IFFCO TOKIO CORAM: HO OMPANY AND ORS.

... Respondents s N'BLE MR. JUSTICE HARKE ESH MANUJA Present:- Mr.

Gurasis Singh, Advocate for Mr.

Saurabh Dalal, Advocate for the appellants.

Mr.

for Ajay Singla, Advocate IFFCO Tokio Gen. Ins. Co.

**** ANUJA, J.

HARKESH MA 1.

The e present appeal lays ch allenge to an award dat ed 10.01.2017 pas ssed by the learned Motor Ac ccident Claims Tribunal, Jhajj jar (in brevity, "the e Tribunal"), whereby compe ensation of Rs.14,18,400/- w was awarded to the appellants/claimants along w with interest @ 9% per annum .

2.

The e appellants/claimants being dependents of deceased, fil ed claim petition b before the Tribunal praying fo or grant of compensation to t the tune of Rs.30,0 00,000/- on account of death h of Balkar Singh in a vehicu lar accident which took place on 11.03.2013 wh hile alleging rash and neglige ent driving of respo ondent No.1-driver.

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3.

Learned Tribunal held that accident occurred due to rash and negligent driving of respondent No.1/ driver and after assessing income of the deceased while working as labourer at Rs.6,000/- per month, awarded compensation in the following manner:- S.No Heads of Claim Amount (in Rs) 1.

Loss of dependency Rs. 11,93,400/- 2.

Funeral Charges Rs. 25,000/- 3.

Loss of consortium (qua petitioner no.

1) Rs. 50,000/- 4.

Loss of love and affection (qua petitioners no. 2 and 3) Rs. 50,000 each.

Rs. 1,00,000/- 5.

Loss of old age support Rs. 50,000/- Total Rs.14,18,400/- 4.

Being aggrieved against the award dated 10.01.2017, the present appeal has been preferred by the appellants/claimants for enhancement of compensation. Facts as specified in the claim petition and the issue regarding negligence of the driver been recorded in the favour of appellants, therefore, for the sake of brevity, those are not being repeated here.

5.

Learned counsel for the appellants/claimants assailed the award while submitting that earning of the deceased, was to the tune of Rs. 30,000/-per month as he was working as a repairer of diesel pumps at Yash Diesel Service. It was further submitted that the above fact was not rebutted by the respondents by leading any evidence and therefore, Ld. Tribunal wrongly assessed monthly income as Rs.6000/- only and the same was thus liable to be enhanced. He further contended that learned

-3Tribunal deducted 1/4th from the salary of deceased as his personal expenses which was also on the higher side as the entire family was totally dependent upon him and in such circumstances same should have been therefore at the most 1/5th. He concluded his argument by submitting that compensation granted against future prospect and other heads were also on the lower side.

6.

On the other hand, learned counsel representing the respondent-insurance company submitted that there was no basis to assess the income of the deceased as Rs. 30,000/- per month as no evidence except the bare statement of PW-2 namely Babita was produced before the Tribunal in support. He thus submits that the Tribunal, therefore, rightly assessed notional income on the basis of the income schedule prepared by the State Legal Services Authority or as per Workmen's Compensation Act. He further pointed out that the learned Tribunal rightly deducted 1/4th as personal expenses in view of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009 (3) RCR (Civil) 77, wherein it was held that in case the number of dependent family members were 4 to 6, 1/4th would be deducted as personal expenses from the total income.

Relevant para of the judgment is culled out as under:- "30. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra [(1996) 4 SCC 362], the general practice is to apply standardized deductions.

-4and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-fourth (1/4th) where the number of dependent family members is 4 to 6, and one-fifth (1/5th) where the number of dependent family members exceeds six."

7.

Ld. Counsel further submitted that in the facts and circumstances of the case, appellants-claimants were adequately compensated and thus the present appeal was liable to be dismissed. 8.

I have heard learned counsel for the parties and perused paper-book of the case. I find force in the arguments advanced by learned counsel for the appellants/claimants.

9.

In the present case, it was argued that the deceased was working as a repairer of diesel pumps at Yash Diesel Service in view of the statement of PW-2, although no documentary evidence to support this was placed before the learned Tribunal in this regard. This Court is of the view that though the deceased was working in an un-organized sector yet earning his livelihood as an expert mechanic, minimum wages could not be taken as an absolute criterion to assess his even though no documentary evidence regarding income was available. It was held by Hon'ble Apex Court in "Zakir Hussein vs. Sabir and others" reported as 2015(2) RCR(Civil) 141 that notification of minimum wages is only a yardstick for assessing the income of the person but it is not an absolute factor to be taken into consideration, as at times it fails to meet the requirements that are needed to maintain the basic quality of life. Relevant para from this judgment is reproduced hereunder:

-5- "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 L 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 L 128/- per day, however the wage rate as per the minimum wage notification is only a yardstick and not an absolute 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 L 150/- per day ( L 4,500/- per month i.e. L 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 L 51,000/- for a period of one year and five months. We have to enhance the same to L 76,500/- ( L 4,500 X 17 months)."

10.

In "Kubrabibi v. Oriental Insurance Co. Ltd.", reported as 2023(3) Apex Court Judgments (SC) 23, Hon'ble Apex Court held that in the absence of definite proof of the income, the social status of the deceased is to be kept in perspective where such persons are employed in unorganized sector. Relevant para from this judgment is reproduced here under:

"7. In a matter of the present nature where the compensation is sought and even in the absence of definite proof of the income, the social status of the deceased is to be kept in perspective where such persons are employed in unorganized sector and the notional income in any event is required to be taken into consideration. The fact that the deceased had three dependents to be cared for and had claimed that he was working as a mechanic, the amount payable to an unskilled labour, cannot be the basis and in that circumstance when he was a skilled person, the daily income at Rs.200/- per day in any event could have been taken even if the

-6income from jeep transport business was discarded for want of documents. More so in a circumstance, where the MACT had referred to the evidence available on record and then arrived at its conclusion, the re-appreciation of evidence by the High Court is without being sensitive to nature of lis before it." 11.

Learned Tribunal rejected the claim of claimants/appellants regarding the income of the deceased by observing that in the absence of any cogent documentary evidence regarding his salary, it cannot be held to be conclusively proved. However, Ld. Tribunal, while doing so, failed to consider that Motor Vehicles Act, 1988 being a beneficial piece of legislation, strict rules of evidence as applicable in a civil or criminal trial, are not applicable in motor accident compensation cases. Reliance in this regard can be placed upon the judgment of Hon'ble Apex Court in "Rajwati @ Rajjo v. United India Insurance Company Ltd.", reported as 2023(3) Apex Court Judgments (SC) 684, relevant paras from which are reproduced hereunder:

"18. Similarly, in the case of Kusum Lata & Ors. v. Satbir & Ors. (2011) 3 SCC 646, this Court observed that it is well known that in a case relating to motor accident claims, the claimants are not required to prove the case as it is required to be done in a criminal trial. The Court must keep this distinction in mind.

19. It is well settled that Motor Vehicles Act, 1988 is a beneficial piece of legislation and as such, while dealing with compensation cases, once the actual occurrence of the accident has been established, the Tribunal's role would be to award just and fair compensation. As held by this Court in Sunita (Supra) and Kusum Lata (Supra), strict rules of evidence as applicable in a criminal trial, are not applicable in motor accident compensation cases, i.e., to say, "the standard of proof to be borne in mind must be of preponderance of probability and not the strict standard of proof beyond all reasonable doubt which is followed in criminal cases" 12.

In the present case, wife of the deceased Babita while deposing as PW-2 stated on affidavit that her husband was working as a repairer of

-7diesel pumps at Yash Diesel Service and drawing salary of Rs. 30,000/- per month. It cannot be denied that apart from maintaining his family including two minor children, he was also taking care of his old age mother being the only bread winner of his family. In such circumstances, assessing the income of the deceased as Rs. 6,000/- per month on the basis of minimum wages of unskilled labour would not be appropriate. Even his salary as Rs.30,000/- as claimed by his wife is not completely taken into consideration, in the given facts and would be appropriate in case the income of the deceased is assessed as Rs. 12,000/- per month when he was working as an expert mechanic.

13.

Coming to the next argument that deduction towards personal expenses as 1/4thof the income was on higher side and the same should have been deducted as 1/5thdoes not find any substance in view of Sarla Verma's case (supra).

14.

In view of judgment of the Hon'ble Apex Court in Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, 2009

(3) RCR (Civil) 77, National Insurance Company Ltd. Vs. Pranay Sethi and others, 2017(4) RCR (Civil) 1009, and Satwinder Kaur's case (supra) compensation awarded under conventional heads is also required to be reassessed. Claimants are held entitled to Rs.18,000/- as compensation under the head of funeral expenses and Rs.18,000/- towards loss of estate by applying 10% increase under the conventional heads. Loss of consortium is to be awarded to the tune of Rs.48,000/- x 4 (Rs.1,92,000)as appellants/claimants being spouse and children of deceased are also

-8entitled for spousal and parental consortium; but simultaneously, appellants/claimants are not entitled for compensation on account of loss of love and affection.

12.

Further, Ld. Tribunal had awarded 30% against future prospect, but in view of Pranay Sethi's case (supra), it should have been 25% as the deceased was 40 years at the time of accident. Therefore, the award in lieu of future prospect will be considered as 25%. 13.

In view of the discussion made above, the appellants/claimants shall be entitled for the grant of following compensation:- Sr.No. Nature Amount in Rupees 1.

Annual Income of deceased Rs.1,44,000/- 2.

Add 25% of Future prospects Rs.36,000/- Total Income (Rs.1,44,000/- + Rs.36,000) Rs1,80,000 /- 4.

Deduction (1/4) Rs.45,000/- 5.

Loss of Income after applying multiplier of 15 as per age of 40 years(Rs.1,35,500/- X 15) Rs.20,25,000/- 7.

Funeral Expenses Rs.18,000/- 8.

Loss of Consortium (Rs.48000x4) Rs.1,92,000/- 9.

Loss of Estate Rs.18,000/- Total Compensation Rs.22,53,000/- Amount Awarded by the Tribunal Rs.14,18,400/- Enhanced Amount Rs.8,34,600/- 14.

The grant of interest @ 9% per annum in view of the facts and circumstances of the present case is just and fair therefore, requires no

-9interference. Needless to mention here that the amount of compensation already paid to the claimants shall be deducted from the enhanced compensation.

15.

Disposed off in the above terms.

16.

Pending miscellaneous application(s), if any, shall also stand disposed of.

08.08.2024 ( HARKESH MANUJA ) Tejwinder JUDGE Whether speaking/reasoned Yes/No Whether Reportable Yes/No