Punjab-Haryana High Court

The New India Assurance Company Ltd vs Pinki And Others on 1 April, 2024

Author: Alka Sarin

Bench: Alka Sarin

                                Neutral Citation No:=2024:PHHC:042505


                                                            2024:PHHC:042505
FAO-1176-2024                                                      [1]


      IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                     CHANDIGARH

                                                  FAO-1176-2024 (O&M)
                                                  Reserved on : 18.03.2024
                                                  Date of Decision : 01.04.2024

The New India Assurance Company Limited                             ....Appellant


                                         Versus

Pinki and Others                                                 ....Respondents

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 appellant-

Insurance 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 Rs.21,476/- (15340 + 6136) future prospects

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."