Allahabad High Court
Neha Devi Awasthi And 3 Ors. vs The New India Insurance Co. Ltd. And 2 ... on 15 January, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:6729
Court No. - 36
Case :- FIRST APPEAL FROM ORDER No. - 1201 of 2014
Appellant :- Neha Devi Awasthi And 3 Ors.
Respondent :- The New India Insurance Co. Ltd. And 2 Ors.
Counsel for Appellant :- Amrendra Nath Rai,Sanjay Singh
Counsel for Respondent :- Brijesh Chandra Naik,Devesh Pratap Singh Chauhan
Hon'ble Kshitij Shailendra,J.
1. Heard Sri Sanjay Singh, learned counsel for the claimants-appellants and Sri B.C. Naik, learned counsel for respondent no. 1. Other respondents are also represented by Sri Devesh Pratap Singh Chauhan, Advocate who is not present.
2. The instant appeal was admitted by a Division Bench on 23.04.2014. Record of the Tribunal has already been received. Therefore, the Court proceeds to hear and decide the appeal finally.
3. The appellants are dependents of one Aditya Kumar Awasthi, who died in a road accident that took place on 15.06.2012. The offending truck was insured by respondent no. 1 insurance company. The Tribunal, after contest, awarded a compensation of Rs. 6,27,000/- along with 7% interest per annum with certain directions to deposit the compensation awarded in fixed deposit.
4. Claiming enhancement of compensation awarded and seeking modification of the award, learned counsel for the appellants submits that deceased was working as Supervisor in Mohit Enterprises Rohini, Delhi and his last drawn wages were Rs. 10,500/- per month. However, the Tribunal has erred in presuming the income as Rs. 150/- per day i.e. Rs. 4,500/- per month and has awarded compensation, which is on lesser side. Further submission is that the Tribunal has not awarded amount towards future prospects which the claimants are entitled to receive as per the Constitution Bench Judgment of Hon'ble Supreme Court in National Insurance Company Limited vs. Pranay Sethi & Ors., AIR 2017 SC 5157 and has also erred in deducting 1/3rd personal expenses, although number of dependents being 4, deduction should have been made to the extent of 1/4th.
5. Per Contra, Sri Naik submits that the appellants failed to prove the income of the deceased and the Tribunal has recorded a correct finding that the proprietor of firm Mohit Enterprises, namely, Sri S.N. Awasthi was not produced and from the oral testimony of P.W.-3 Deepak, the income of the deceased was not proved. He further submits that though, in the facts of the case, the deceased should have been treated as an unskilled labourer earning Rs. 100/- per day, the Tribunal was kind enough in treating his income as Rs. 150/- per day and, hence, the award does not call for any interference.
6. Having heard learned counsel for the parties, I find that insofar as the income of the deceased is concerned, the Tribunal has discussed two documents; one being paper No. 28-Kha that was a certificate issued by proprietor of Mohit Enterprises certifying the monthly wages of the deceased as Rs. 10,500/- per month and his working as a Supervisor in that firm. The other document, being paper No. 34-Kha, is an attendance register. The Tribunal has discarded the paper No. 28-Kha for want of production of the proprietor of the firm and has discarded the attendance register 34-kha treating the same as not an evidence of income of the deceased.
7. The aforesaid documents as well as the oral testimony of P.W.-3 would reveal that though the proprietor was not produced to prove the documents, certainly one Deepak, who was working as a Field Officer in the Mohit Enterprises, was produced as P.W.-3. In his cross-examination, he stated that the deceased was earning Rs. 10,500/- per month and even the attendance register was also proved with reference to signatures etc. The attendance register 34-Kha mentions names of dozens of workers in Mohit Enterprises having an address of D-32, 2nd Floor, Awantika, Sector 1, Rohini, Delhi. As far as the deceased is concerned, his name and attendance is mentioned therein with his designation as Supervisor. The entry of "Supervisor" mentioned as against his name, when compared with the entry of "workers" mentioned as against other persons and comparative analysis of their salary/wages earned by all the workers including the deceased, it stands established that whereas other workers were earning much lesser wages in comparison to the deceased, the deceased was earning more than Rs. 10,500/- per month.
8. Though it is true that no Income Tax Return was brought on record, considering the judgment of the Supreme Court as cited by learned counsel for the appellants in Rajwati @ Rajjo & Ors. vs. United India Insurance Company Ltd. & Ors.; 2022 (12) JT 211, this Court is of the view that Papers No. 28-Kha and 34-Kha could not have been discarded by the Tribunal merely because the proprietor of the firm was not produced or that the document 34Kha was copy of an attendance register. The Supreme Court in Rajwati (supra) has laid down the following proposition of law in paragraph nos. 19 and 20 of the report, which read as under:-
"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".
20. In view of the above, we do not agree with the view taken by the High Court while rejecting the salary certificate (Exhibit 19) and pay slip (Exhibit 20) of the deceased merely on the ground that the person issuing the two aforementioned documents was not examined before the Learned Tribunal. The said documents are conclusive proof of the income of the deceased and were also corroborated by the statements of the deceased's wife (Appellant No. 1 herein) and his co-workers. As such, the High Court was not justified in assessing the income of the deceased at Rs.4,836/- per month on the basis of minimum wages fixed by the State at the relevant time. Resultantly, we affirm the findings of the Learned Tribunal so far as they relate to assessing the deceased's income at Rs.11,225/- per month on the basis of aforementioned two documents. Annual income of the deceased, therefore, amounts to, Rs.11,225/- x 12 = Rs.1,34,700/-."
9. In the case of Rajwati (supra), the High Court had discarded the salary certificate and pay slip of the deceased merely on the ground that the person issuing the two documents was not examined. The Supreme Court reversed the decision of the High Court and held that strict rules of evidence, as applicable in a criminal trial, are not applicable in motor accident claim compensation cases and 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.
10. In view of the above discussion, I find that the Tribunal has not carefully perused the aforesaid two documents and conclusion drawn to the effect that Rs. 10,500/- per month income was not proved suffers from perversity.
11. In view of the above, income of the deceased is held to be Rs. 10,500/- per month on the date of accident.
12. As regards future prospects, the Supreme Court in Pranay Sethi (supra) has held that the dependents are entitled to get future prospects at the rate of 50% or 40% of the established income when the deceased was below the age of 50 years. In the instant case, appointment of deceased does not appear to be permanent in nature and, hence, instead of future prospects to the extent of 50% of the income, this Court deems it appropriate to award 40% future prospects.
13. As far as deduction of personal expenses is concerned, Tribunal appears to have not seen the array of parties of the claim petition. There were four dependents of the deceased, the claimant no. 1 being widow aged 23 years, claimant no. 2 being minor son aged 6 months, mother of the deceased aged 45 years and father of the deceased aged 50 years, no finding has been recorded as to why deduction of 1/4 is not permissible. Consequently, the Court is of the view that the deduction towards personal expenses to the extent of 1/4 should be made instead of 1/3.
14. Further the Court finds that the Tribunal has awarded only Rs. 5000/- for cremation expenses, Rs. 5,000/- for loss of consortium and Rs. 5,000/- towards loss of love and affection. A lump sum amount of Rs. 1,00,000/- is awarded towards these heads by this Court and that amount shall be added to the compensation as per the directions of this Court.
15. In view of the above, the appeal is partly allowed.
16. The impugned award dated 10.01.2024 passed by learned Additional District Judge/M.A.C.T. Court No. 21, Shahjahanpur in Motor Accident Claim Petition No. 334 of 2012 (Neha Devi Awasthi and others vs. The New India Insurance Company Ltd. and others) stands modified with the following directions:-
(a) The appellants shall file a certified copy of this order before the concerned Tribunal within three weeks from today.
(b) The Tribunal shall recompute the award in terms of the directions contained and findings recorded by this Court in this order within next one month with the assistance of claimants' counsel and counsel for the insurance company.
(c) The insurance company shall pay the amount so computed to the claimants within a period of two months thereafter.
(d) The fixed deposits prepared pursuant to the impugned award shall be released in favour of the claimants within the same period of time.
(e) The maturity amount of the fixed deposits shall be adjusted in the amount of compensation to be received in furtherance of directions of this Court.
(f) In case insurance company fails to satisfy the modified award within the time fixed by this Court, the award shall be executed in accordance with law and execution proceedings shall be finalized within next two months.
(g) No interest shall be paid on future prospects.
17. The record of the Tribunal shall be remitted back to the concerned Tribunal.
Order Date :- 15.1.2025
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