National Insurance Co. Ltd vs Meena Devi And Others
2022 Latest Caselaw 1501 P&H

                                   FAO-782-2022 (O&M)                                                       1

                                   119

                                                 IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                                                                CHANDIGARH

                                                                                     FAO-782-2022 (O&M)
                                                                                     Date of decision : 11.03.2022

                                   National Insurance Company Ltd.                                    ... Appellant(s)
                                                                           Versus
                                   Meena Devi and Others                                             ... Respondent(s)



                                   CORAM : HON'BLE MRS. JUSTICE ALKA SARIN

                                   Present :         Mr. Gopal Mittal, Advocate for the appellant.

                                                     Mr. Rajiv Kumar Saini, Advocate
                                                     for the caveator-respondent Nos.1 to 4.

                                                                 *****


                                   ALKA SARIN, J. (ORAL)

Heard in virtual mode.

The present appeal has been preferred by the Insurance

Company challenging the Award dated 05.10.2021 passed by the Motor

Accident Claims Tribunal, Karnal (in short the 'Tribunal') on the ground that

the Tribunal while assessing the income of the deceased has applied the rates

as prescribed by the Deputy Commissioner, Karnal rather than the rates

prescribed by the Labour Commissioner. Learned counsel for the appellant

has relied upon the judgment of this Court passed in FAO No.3239 of 2016

titled "New India Assurance Company Ltd. Vs. Smt. Surti Devi & Ors."

decided on 29.05.2018.

Appearance has been put in on behalf of the contesting

respondent Nos.1 to 4 by Mr. Rajiv Kumar Saini, Advocate who has

contended that there is no bar in applying the rates prescribed by the Deputy

YOGESH SHARMA 2022.03.14 18:51 Commissioner, Karnal and the minimum wages as per the Minimum Wages I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh

Act, 1948 can at best serve as a yardstick. In order to buttress his

arguments, he has relied upon the judgment passed by this Court in "Shri

Ram General Insurance Company Ltd. & Ors. Vs. Beant Kaur & Ors."

[2019 (3) SCT 684].

Heard.

The sole ground for challenge in the present appeal is that while

assessing the income of the deceased the Tribunal has applied the rates

prescribed by the Deputy Commissioner, Karnal rather than the rates

prescribed as per the Minimum Wages Act, 1948. In the judgment relied

upon by learned counsel for the appellant, no law point has been decided,

however, it has been held in passing that the DC rates ought not to have been

applied since the DC rates are meant for the payment of wages out of the

contingency and the same cannot be a guiding factor for assessment of the

compensation.

In the present case, the brief facts relevant to the present lis are

that eye-witness/complainant, Sohan Lal, disclosed that on 13.07.2019 he

along with his brother-in-law Balwinder son of Raj Kumar were going from

Nigdhu to the house of sister of Balwinder situated at Village Mugal Majra

on motorcycle bearing registration No.HR-05AL-7222. At about 10.00

A.M., when they reached near village Bara Gaon, the complainant saw that

the offending motorcycle, which was being driven rashly and negligently,

come from the front side and hit their motorcycle. As a result of the

accident Balwinder fell from the motorcycle and sustained grievous injuries.

At the General Hospital Karnal, Balwinder Singh was declared brought

dead. On the basis of the said statement, FIR No.196 dated 13.07.2019

under Sections 279, 337 and 304-A of the Indian Penal Code, 1860 was

registered at Police Station Kunjpura. In the claim petition filed by the YOGESH SHARMA 2022.03.14 18:51 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh

claimants/respondent Nos.1 to 4 it was stated that the deceased at the time of

the accident was 27 years of age and he was working as a Mason and

earning 20,000/- per month. It was further stated that the deceased was

contributing his entire income for his family and due to the untimely death

of the deceased the claimants had not only suffered financial depravity but

had also suffered loss of his love and affection. It was further claimed that an

amount of 50,000/- was spent on the last rites of the deceased.

Respondent No.5 herein, the driver and owner of the offending

vehicle, filed his written statement denying that the accident ever took place.

It was further stated that in case it was found that he was liable to pay

compensation, then the Insurance Company should be made liable since the

offending vehicle was insured. The appellant-insurance company filed its

written statement and admitted the insurance policy in respect of the

offending vehicle. However, it was contended that the driver did not have a

valid and effective Driving License. It was further stated that the claim

petition was filed in collusion with the police and driver of the vehicle to

grab the compensation from the insurance company.

On the basis of the evidence and pleadings of the parties, the

Tribunal awarded compensation to the tune of 31,99,360/- along with

interest @ 7% per annum from the date of the petition till realization. The

Tribunal while assessing the income of the deceased applied the rates as

prescribed by the Deputy Commissioner, Karnal at the time of accident i.e.

14,610/-.

The only ground on which the said award is being challenged

by the appellant-insurance company is that instead of assessing the

compensation on the basis of the rates prescribed under the Minimum Wages

YOGESH SHARMA Act, 1948, the income had been assessed on the basis of the rates prescribed 2022.03.14 18:51 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh

by the Deputy Commissioner, Karnal.

In the case of Shri Ram General Insurance Company

Limited's case (supra), 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 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 YOGESH SHARMA 2022.03.14 18:51 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh

evidence on record. This in my considered view, would

be the correct approach to follow in such cases."

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 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 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 YOGESH SHARMA 2022.03.14 18:51 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh

the view that it would be just and reasonable to consider

the appellant's daily wage at 150/- per day ( 4,500/-

per month i.e. 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 51,000/- for a

period of one year and five months. We have to enhance

the same to 76,500/- ( 4,500 X 17 months)."

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 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

YOGESH SHARMA and therefore, we cannot expect him to produce any 2022.03.14 18:51 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh

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 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/-."

Learned counsel for the appellant-insurance company has

vehemently contended that the income has to be assessed, in the absence of

the evidence, on the basis of the rates prescribed under the Minimum Wages

Act, 1948. However, learned counsel for the appellant-insurance company

has not been able to show any law in this respect which makes it mandatory YOGESH SHARMA 2022.03.14 18:51 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh

for the Tribunal to assess the income as per the rates prescribed under the

Minimum Wages Act, 1948.

The wife of the deceased namely, Meena Devi, respondent No.1

herein, stepped into the witness box as PW1 and she in her examination-in-

chief has stated that her husband was a Mason and was earning an amount of

20,000/- per month. Since there was no other evidence besides her oral

testimony, the income of the deceased was assessed as 14,610/- per month

on the basis of the rates as prescribed by the Deputy Commissioner, Karnal.

It is trite that the minimum wage notification is merely a

yardstick and not an absolute factor to be taken to determine the

compensation payable to the claimants. It has been laid down in a plethora

of judgments by Hon'ble the Supreme Court that 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, which would necessarily

intake that the compensation to the extent possible should adequately restore

the claimants to the position prior to the accident. In the present case, the

deceased was a 27 years' old man and the claimants are his widow, mother

and minor children. The minor children are aged 5 and 6 years (respondent

Nos.2 and 3, respectively). The minor children have their whole life ahead,

their formal education, if started at all, would be at the very initial stage. The

compensation cannot in any manner compensate for the loss suffered by the

family of the deceased but it should atleast be sufficient to mitigate the

financial difficulties the family is likely to face.

The learned counsel for the appellant is unable to show to the

Court any reason to doubt the testimony of Meena Devi-PW1 as also the fact

that no judgment has been referred which lays down that the compensation YOGESH SHARMA 2022.03.14 18:51 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh

awarded in the absence of evidence qua the income of the deceased should

be in accordance only with the rates prescribed under the Minimum Wages

Act, 1948. Rather, the judgments referred to by learned counsel for the

respondent Nos.1 to 4 are to the contrary.

Keeping in view the peculiar circumstances, especially the

tender age of the children who have their whole life ahead of them, as also

the fact that there is no mandate of law to only apply the rates as prescribed

under the Minimum Wages Act, 1948 and that it is at best a yardstick, I do

not deem it appropriate to interfere in the award passed by the Tribunal. The

present appeal is accordingly dismissed. Pending applications, if any, also

stand disposed off.

Dismissed.

                                                                                ( ALKA SARIN )
                                   11.03.2022                                        JUDGE
                                   Yogesh Sharma

NOTE : Whether speaking/non-speaking : Speaking Whether reportable : YES/NO

YOGESH SHARMA 2022.03.14 18:51 I attest to the accuracy and integrity of this document Punjab and Haryana High Court at Chandigarh