Himachal Pradesh High Court
Shriram General Insurance ... vs Vijay Laxmi And Others on 24 February, 2021
Bench: Vivek Singh Thakur
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
FAO No. 379 of 2015
Judgment Reserved on 23.02.2021
Date of Decision 24th February,2021
________________________________________________________
Shriram General Insurance Company Ltd.
...Appellant.
Versus
Vijay Laxmi and others ....Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1 Yes
______________________________________________________________
For the Appellant: Mr. Jagdish Thakur, Advocate.
For the Respondents: Ms Kamlesh Shandil and Mr.Rakesh
Chauhan, Advocates, for
respondent No.1.
Mr. Malay Kaushal, Advocate, for
respondent No.2.
Respondent No. 3 already ex-parte.
__________________________________________________________________
Vivek Singh Thakur, J.
This appeal has been preferred by Insurance
Company against award passed by Motor Accident Claims
Tribunal, Shimla (in short 'MACT'), whereby MACT has awarded
compensation for a sum of Rs.13,38,500/- along with interest
Whether Reporters of Local Papers may be allowed to see the judgment? Yes
thereon @ 7.5% per annum from the date of filing of claim
petition till realization of whole amount, to be payable by
.
appellant/Insurance Company to respondent No.1 and her
children as apportioned in the impugned award.
2 I have heard learned counsel for contesting parties
and have also gone through record.
3 First issue raised by learned counsel for appellant is
that addition of 15% of income of deceased in his income for the
purpose of determining amount of compensation is wrong
particularly in view of ratio of pronouncement of Apex Court in
National Insurance Company Limited vs. Pranay Sethi, reported
in 2017(4) ACJ 2700: AIR 2017 SC 5157: (2017)16SCC 680,
reiterated in Civil Appeal No 2705 of 2020 titled United India
Insurance Co. Ltd. vs. Satinder Kaur and others decided on 30 th
June, 2020. It is contended that in view of above referred
judgments of the Supreme Court coupled with facts of present
case, only 10% of the income could have been added for the
purpose of calculation of amount of compensation payable.
4 On aforesaid issue, the Supreme Court in Pranay
Sethi's case has concluded as under:-
"59. In view of the aforesaid analysis, we proceed to
record our conclusions:-
................
59.3 While determining the income, an addition of
50% of actual salary to the income of the deceased
towards future prospects, where the deceased had a
.
permanent job and was below the age of 40 years,
should be made. The addition should be 30%, if the
age of deceased was between 40 to 50 years. In
case, the deceased was between the age of 50 to 60
years, the addition should be 15%. Actual salary
should be read as actual salary less tax.
59.4 In case the deceased was self-employed or on
a fixed salary, an addition of 40% of the established
income should be the warrant where the deceased
was below the age of 40 years. An addition of 25%
where the deceased was between the age of 40 to
50 years and 10% where the deceased was between
the age of 50 to 60 years should be regarded as the
necessary method of computation. The established
income means the income minus the tax
component...."
5 In present case age of deceased in claim petition has
been mentioned as 51 years. PW1 claimant/respondent No.1, in
her statement, has stated the age of her husband as 50 years,
whereas in postmortem report, age of deceased has been
recorded as 52 years. In driving licence of deceased, his date of
birth has been recorded as 3.11.1960. Accident had taken place
on 2.11.2012. Therefore, on the day of accident, according to
date of birth recorded in driving licence, deceased had 11 days
short to complete 52 years. In any case, age of deceased was
above 50 which is in the age group of 50 to 60 years.
.
6 It has come in evidence of PW3 Narender Singh that
except for some period in the year 2011, he had engaged the
deceased in casual manner and it is also proved on record by
claimant/respondent No.1 that deceased was earning his
livelihood as a driver as well as tourist guide. Therefore,
deceased was not having permanent job, but, was self employed
and during his regular engagement as driver, his employer was
giving him a fixed salary.
7 In aforesaid facts and circumstances, applying
dictum of para 59.4 of Pranay Sethi's case supra, only 10% of
established income should be added in income of deceased for
computation of compensation. Therefore, on this count,
impugned award deserves to be modified.
8 Second issue raised on behalf of appellant is that
award of Rs.50,000/- each for loss of estate and funeral expenses
and award of Rs.1 lac for loss of consortium to claimant is also
contrary to pronouncements of the Supreme Court in cases of
Pranay Sethi and Satinder Kaur (referred supra). It is contended
that in view of these pronouncements, respondent No.1/claimant
is entitled for Rs.15,000/- each for loss of estate and funeral
expenses and Rs.40,000/- for loss of consortium and therefore,
amount awarded against these heads also deserves to be
interfered with and modified.
.
9 On this issue, the conclusion of Constitutional Bench
of Supreme Court in Pranay Sethi's case is as under:-
"59.8 Reasonable figures on conventional head,
namely loss of estate, loss of consortium and funeral
expenses should be Rs.15,000/-, Rs.40,000/- and
Rs.15,000/- respectively. The aforesaid amounts
should be enhanced at the rate of 10% in every
three years."
10 As evident, in para 59.8 of Pranay Sethi's case,
quantum of amount for loss of estate, loss of consortium and
funeral expenses was determined as Rs.15,000/-, Rs.40,000/-
and Rs.15,000/- with observations that it should be enhanced at
the rate of 10% after every three years. Judgment in Pranay
Sethi's case was pronounced on 31 st October, 2017. Therefore,
amount against the heads of loss of estate, loss of consortium
and funeral expenses is to be enhanced at the rate of 10% after
31st October, 2020. As such, today, the claimant/respondent No.1
is entitled for loss of estate, loss of consortium and funeral
expenses at the rate of Rs.16,500/-, Rs.44,000/- and Rs.16,500/-
respectively and award deserves to be modified accordingly on
this count.
11 Third point agitated on behalf of appellant is that in
absence of any documentary proof of income of deceased, the
.
income is to be taken on the basis of minimum wages prevalent
at the time of accident. In support of this contention,
pronouncement of Apex Court in Govind Yadav vs. New Indian
Assurance Company Limited reported in 2012(1) ACJ 28, 2008(2),
Pappi Devi vs. Kali Ram and others reported in Latest HLJ 1440
(HP) along with judgments of this High Court dated 4.5.2017 in
FAO No. 488 of 2016 titled Mast Ram vs. Yogesh Azta and others,
dated 23.4.2018 in FAO No. 43 of 2018 titled Reliance General
Insurance Company Limited vs. Ishwar Singh and dated
30.5.2019 in FAO No. 9 of 2019 in FAO No. 9 of 2019 titled ICICI
Lombard vs. Kala Devi and others have been referred and during
course of arguments, learned counsel for appellant has also
produced a print out of downloaded notification of minimum
wages in Himachal Pradesh as notified w.e.f. September 01, 2012
and has submitted that in present case, there is no documentary
proof on record to establish the income of deceased and claimant
as well as employer PW3 Narender Singh have failed to produce
any document on record including income tax returns of PW3 to
establish the payment of wages to the deceased at the rate of
Rs.8000/- per month plus expenses Rs.100/- per day. It is
canvassed that for absence of any documentary proof of income
of deceased, in view of above referred pronouncements of
Courts, income of deceased is to be taken on basis of notification
.
specifying the minimum wages at the relevant time and as per
notification produced by him, for employee in Public Motor
Transport, maximum daily wages for highly skilled employee was
Rs.212.22 and thus, even by taking lenient view, the highest
wages of deceased can be taken as 212.22X30 per month and it
is also contended that in spite of aforesaid, MACT has taken
minimum wages of deceased at Rs.10,000/-, which deserves to
be interfered with and amount of compensation deserves to be
calculated on the basis of minimum wages as notified for
relevant time, referred supra.
12 The Supreme Court in a recent judgment, in
Mohammed Siddique and another vs. National Insurance
Company Limited and others reported in (2020)3 SCC 57 has
held as under:-
"14. The second issue on which the High Court
reversed the finding of the Tribunal, related to the
employment of the deceased and the monthly
income earned by him. According to the claimants,
the deceased was aged 23 years at the time of the
accident and he was not even a matriculate. But he
was stated to have been employed in a proprietary
concern named M/s Chandra Apparels on a monthly
salary of Rs.9600/-. The sole proprietor of the
concern was examined as PW2 and the salary
certificate was marked as Ext.PW1/8. The Tribunal
which had the benefit of recording the evidence and
which consequently had the benefit of observing the
.
demeanour of the witness , specifically recorded a
finding that there was no reason to discard the
testimony of PW2.
15. But unfortunately the High Court through that the
employer should have produced salary vouchers and
other records including income tax returns, to
substantiate the nature of employment and monthly
income. On the ground that in the absence of other
records, the salary certificate and the oral testimony
of the employer could not be accepted, the High
Court proceeded to take the minimum wages paid for
the unskilled workers at the relevant point of time as
the benchmark.
16. But we do not think that the approach adopted by
the High Court could be approved. To a specific
question in cross examination, calling upon PW2 to
produce the salary vouchers, he seems to have
replied that his business establishment had been
wound up and that the records are not available. This
cannot be a ground for the High Court to hold that
the testimony of PW2 is unacceptable.
17. The High Court ought to have appreciated that
the court of first instance was in a better position to
appreciate the oral testimony. So long as the oral
testimony of PW2 remained unshaken and hence
believed by the Court of first instance, the High Court
ought not to have rejected his evidence. After all,
there was no allegation that PW2 was set up for the
purposes of this case. There were also no
contradictions in his testimony. As against the
testimony of an employer supported by a certificate
.
issued by him, the High Court ought not to have
chosen a theoretical presumption relating to the
minimum wages fixed for unskilled employment.
Therefore, the interference made by the High Court
with the findings of the Tribunal with regard to the
monthly income of deceased, was uncalled for."
In present case, in support of pleadings that income
of deceased was Rs.10,000/-, claimant/respondent No.1 has
deposed on oath as PW1 that deceased was earning Rs.8,000 to
10,000/- per month from his profession of driver and tourist
guide and on account of employment with M/s Guleria and
Company Kasumpti. Proprietor of M/s Guleria and Company
namely Narinder Singh has appeared in witness box as PW3 and
in his affidavit filed in examination-in-chief, he has stated that he
had paid Rs.8000/- per month plus expenses @ Rs.100/- per day
to deceased, who engaged him as a driver for four months
during July to October, 2011 and in his cross examination, he has
stated that deceased remained with him as a driver on regular
basis for three months and otherwise he was engaging the
deceased on need basis as deceased was not his permanent
driver. He has also stated that he did not use to maintain any
register regarding payment of salary to deceased nor he used to
issue salary certificate nor he maintained any attendance
register. This witness, PW3 Narender Kumar, appears to be a
.
genuine witness as he has deposed in natural manner narrating
true facts. Had he been procured witness, he would have claimed
that deceased was his permanent driver or he would have stated
that deceased was engaged by him in the year 2012,
immediately before accident, but he has deposed true facts
without caring for effect thereof. Therefore, his statement, being
cogent and reliable, can be considered to substantiate the
quantum of income of deceased, even in absence of production
of any document.
14 The MACT has discussed the evidence in this regard
in impugned award and has arrived at a conclusion that
deceased was earning Rs.10,000/- per month. For nature of
employment of deceased with PW3 Narinder Singh and also
keeping in view the nature of occupation of deceased i.e. driver
as well as tourist guide, as claimed by claimant/respondent No.1,
for earning his livelihood, there would be least possibility of
availability of any documentary proof with respect to earnings of
deceased.
15 Deceased was driver and tourist guide by profession
and there is positive evidence on record in statements of PW1
and PW3 with respect to probable earnings of deceased. There is
nothing on record to negate it by establishing that in the year
2012, driver could not have earned Rs.8,000/- to 10,000/- per
.
month. Considering the entire facts and circumstances and also
latest pronouncement of Apex Court in Mohammed Siddique's
case supra, even taking monthly income of deceased on lower
side, it would be appropriate to consider it as Rs.8000/- per
month. Therefore, plea of appellant that in absence of
documentary proof, income of deceased is to be taken on the
basis of minimum wages, prevalent at the time of accident, is
rejected as case in hand is not a case of no evidence at all,
rather credibility of PW1 and PW3 with respect to quantum of
earnings of deceased has not been impeached in any manner.
16 In Govind Yadav's case, relied upon by appellants,
ratio of judgment is that in absence of other cogent evidence,
Court should have determined the amount of compensation in
lieu of loss of earning by taking minimum wages payable to a
worker at the relevant time as notional income. In Pappi Devi's
case also, there was no other evidence with respect to income of
deceased except the statement of claimant. In given facts on
record coupled with pronouncement of Apex Court in Mohammed
Siddique's case and for discussion herein before, the judgments
referred on behalf of appellant are not strictly applicable in
present case for determining the quantum of income of the
deceased.
.
17 No other point raised or urged.
18 In the impugned award, the MACT has observed that
claimant, while appearing in witness box as PW1, has admitted in
cross examination that she has two married daughters and one
son, who have not been impleaded as claimants or proforma-
respondents in claim petition. The MACT, referring the proviso of
Section 166 of MV Act, has considered her two daughters and
one son as legal representatives of deceased and has held that
claimant/respondent No.1 as well as her two daughters and one
son are entitled for compensation and the MACT has apportioned
the compensation amongst the claimant and her daughters and
one son whereby claimant/respondent No.1 has been held
entitled for 70% of compensation amount whereas her three
children are held entitled for remaining 30% of compensation
amount in equal shares. There is no challenge in this regard by
either party.
19 In view of pronouncement of Supreme Court in
Magma General Insurance Co.Ltd vs. Nanu Ram and others,
reported in (2018)18 SCC 130, where wife is entitled for loss of
spousal consortium, there each child is also entitled for separate
loss of parental consortium. The children may be entitled for
compensation but they have not approached the Court for any
compensation. Therefore, though some percentage of the
.
compensation, as awarded by the MACT, is being made payable
to them, however, no amount on account of consortium is
awarded.
20 In view of above discussion, amount of compensation
is modified as under:-
i) Income Rs.8000/- per month
ii) Annual income Rs.96,000/- per annum
(8000 X 12)
iii) Future Prospects
(Addition of 10%) (+) Rs.9,600/-
iv) Amount with addition
of future prospects
Rs.9600/-+Rs.96,000/- Rs.1,05,600/-
iv) Deduction towards
personal expenses Rs.1,05,600 - Rs.35,200
(1/3rd) Rs.70,400/-
v) Multiplicand Rs.70,400/-
vi) Multiplier (Age between
vii) Loss of Dependency Rs.7,74,400/-
viii) Loss of Estate payable
to wife Rs. 16,500/-
ix) Funeral expenses payable
to wife Rs. 16,500/-
x) Loss of spousal Consortium Rs. 44,000/-
payable to wife/
respondent No.1/claimant
Total compensation Rs.8,51,400/-
.
21 Amount of compensation is modified in aforesaid
terms and now, claimant as well as her two daughters and one
son are entitled for a sum of Rs.8,51,400/- along with interest at
the rate of 7.5% per annum from the date of filing of claim
petition till realization of whole amount with interest from
appellant/Insurance Company as held by MACT. This amount of
compensation is inclusive of any amount paid under Section 140
of MV Act.
22 In the aforesaid compensation, amount payable for
loss of estate, funeral expenses and loss of spousal consortium
shall be paid to wife i.e. claimant/respondent No.1. Remaining
compensation amount shall be apportioned amongst claimants
and her three children as awarded by the MACT.
The appeal is partly allowed in aforesaid terms along
with pending miscellaneous application(s), if any.
February 24, 2021 (Vivek Singh Thakur)
(ms) Judge
