Bharti Axa General Insurance Company ... vs Pooja And Others
2024 Latest Caselaw 13282 P&H

Punjab-Haryana High Court

Bharti Axa General Insurance Company ... vs Pooja And Others on 1 August, 2024

Author: Alka Sarin

Bench: Alka Sarin

                         IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH


                        128                                          FAO-848-2024 (O&M)
                                                                     Date of Decision : 01.08.2024


                        Bharti AXA General Insurance Company Ltd (now                    ....Petitioner
                        known as ICICI Lombard General Insurance Company)

                                                         VERSUS

                        Pooja and Others                                             ....Respondents


                        CORAM : HON'BLE MRS. JUSTICE ALKA SARIN


                        Present :    Mr. Sachin Ohri, Advocate for the appellant.


                        ALKA SARIN, J. (Oral)

CM-3284-CII-2024

1. This is an application for condonation of delay of 09 days in

filing the present appeal.

2. For the reasons stated in the application, the same is allowed.

The delay of 09 days in filing the present appeal is condoned.

FAO-848-2024 (O&M)

3. The present appeal has been preferred by the Insurance

Company challenging the award dated 18.10.2023 passed by the Motor

Accident Claims Tribunal, Gurugram (hereinafter referred to as the

'Tribunal') whereby an amount of Rs.33,44,452/- has been awarded as

compensation.

4. The only argument raised by learned counsel for the appellant-

Insurance Company is that the Tribunal has wrongly assessed the income of

the deceased as Rs.14,727/- per month as per DC rates as notified by the

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Deputy Commissioner, Gurugram for the year 2019-20. He has further

contended that at the time of accident i.e. 02.01.2020 the minimum wages in

the State of Haryana for an unskilled worker were Rs.9,319/- per month and

hence the Tribunal while calculating the compensation should have

considered the minimum wages instead of applying the DC rates.

5. Heard.

6. The argument of the learned counsel for the Insurance

Company that the income ought to have been assessed as per the Minimum

Wages Act, 1948 and not as per the DC rates deserves to be rejected. 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

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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 evidence on

record. This in my considered view, would be the

correct approach to follow in such cases."

7. 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

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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 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)."

8. In the case of Ramachandrappa Vs. Manager, Royal

Sundaram Alliance Insurance Company Limited [2011(13) SCC 236]

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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

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

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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/-."

9. In the present case, the deceased was 28 years of age and was

employed with Truck Operators Transport Association, NH-8 IMT Manesar,

Gurugram. He was survived by his widow aged 28 years, two minor children

of 7 and 6 years of age and a 57 years old mother. The minor children have

their whole life ahead of them and their education as well as future expenses

all have to be borne by the widow. Thus, there is no error in the impugned

award passed by the Tribunal inasmuch as the minimum wages notified by

the Deputy Commissioner, Gurugram at the relevant point of time were

Rs.14,727/-. Further still, the Hon'ble Supreme Court in the case of

Chandra @ Chanda @ Chandraram & Anr. vs. Mukesh Kumar Yadav

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& 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

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

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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

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

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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

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."

10. No other argument has been raised.

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11. In view of the above, no ground is made out to interfere with

the impugned award passed by the Tribunal and hence the present appeal is

dismissed. The statutory amount deposited by the appellant at the time of

filing of the present appeal be remitted to the Tribunal concerned for dealing

with the same towards satisfaction of the award. Pending applications, if

any, also stand disposed off.

( ALKA SARIN ) 01.08.2024 JUDGE jk

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

integrity of this order/judgment