1) Whether the accident resulting into death of Sushil Kumar
and Manisha, took place on 23.2.2016 on account of rash and
negligent driving of respondent No.1 Baljeet Singh while driving
authenticity of this order/judgment.
5. The Tribunal vide the impugned award dated 02.09.2019 had
8. Per contra learned counsel for the claimants would contend that
in the present case the brother of the deceased Sushil Kumar, who appeared
in the witness box as PW1, was following him on the date of accident i.e.
23.02.2016 on his three-wheeler as the son of the deceased Sushil Kumar was
admitted in Arun Gupta Hospital, Yamuna Nagar. The said witness clearly
deposed that he reached the accident site within five minutes of the accident
and despite the cross-examination, nothing could be elicited from the said
witness. Learned counsel has further pointed out to the site plan which has
been appended by the Insurance Company as Annexure A1/T which was
produced in the criminal case wherein it was clearly shown that the
motorcycle on which the deceased were travelling was found under the
offending truck. Learned counsel has further contended that in the present case
it is the offending truck which came from the wrong side of the road and in
any case, in the absence of any evidence having been led to show that this was
a case of contributory negligence and in the absence of any issue having been
authenticity of this order/judgment.
framed, it cannot be said that it was a case of contributory negligence. Learned
counsel has further contended that the issue of the driving licence was dealt
with by the Tribunal and it was found that Rakesh Kumar - Surveyor, who
appeared in the witness box as RW1, stated that he had never visited the RTA
office Nagaland and also admitted that the driving licence had been renewed
from the RTA Patiala. Learned counsel for the claimants has further
contended that though no appeal has been preferred by the claimants however
this Court under Order XLI Rule 33 of the Code of Civil Procedure, 1908 is
empowered to make or pass any such order as required notwithstanding that
an appeal or cross-objections have not been preferred by the claimants.
Learned counsel for the claimants states that in the claim petition filed on
account of death of Manisha, the income of the deceased - Manisha - has been
assessed on the lower side inasmuch as she was a homemaker and her income
ought to have been assessed as ₹9,233/- per month which was the minimum
wage for a skilled worker at the time of the accident. In support of his
contentions, he has relied upon the judgment of the Hon'ble Supreme Court
in the case of Kirti & Anr. vs. Oriental Insurance Company Ltd. [2021(1)
RCR (Civil) 478]. It has further been contended that the compensation
awarded to the parents and minor child on account of death of Sushil Kumar
and to the minor child on account of death of Manisha under the conventional
heads as well as under the head 'loss of consortium' is not in accordance with
the law laid down by the Hon'ble Supreme Court in the cases of National
Insurance Company Ltd. vs. Pranay Sethi & Ors. [(2017) 16 SCC 680], Magma
General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram & Ors.
[(2018) 18 SCC 130] and N. Jayasree & Ors. vs. Cholamandalam M.S General
Insurance Company Ltd. [2021(4) RCR (Civil) 642].
authenticity of this order/judgment.
9. I have heard the learned counsel for the parties.
10. In the present case the argument of the learned counsel for the
Insurance Company that no eyewitness had appeared and that PW1 who had
appeared was not an eyewitness as he reached the spot after five minutes of
the accident, cannot be accepted. The offending truck was found at the spot
and the motorcycle was stuck under the truck. It is a case of res ipsa loquitur
i.e. the thing speaks for itself. Even otherwise, PW1 had clearly stated that he
was following the deceased on his three-wheeler and had reached the accident
site within a period of five minutes of the accident having taken place.
Moreover, the approach in examining the evidence in accident claim cases is
not to find fault with non-examination of best eyewitness in the case but to
analyze the evidence on record to ascertain whether that is sufficient to answer
the happening of the accident on the touchstone of preponderance of
probabilities. Reliance can be placed upon the judgment of the Hon'ble
Supreme Court in the case of Rama Murti vs. National Insurance Company
Ltd. [Civil Appeal No.4612 of 2017 decided on 30.03.2017]. Accordingly,
the argument of the learned counsel for the Insurance Company stands
rejected.
11. The argument of the learned counsel for the Insurance Company
that it was a case of contributory negligence also deserves to be rejected
inasmuch as no such plea was raised by the Insurance and neither any issue
qua contributory negligence was framed nor any evidence was led by it before
the Tribunal to even remotely suggest that it was a case of contributory
negligence. Further, PW1 - Parvesh Kumar - who had appeared on behalf of
the claimants, was not even given a suggestion by the Insurance Company that
the deceased - Sushil Kumar - while riding the motorcycle was at fault in any
authenticity of this order/judgment.
manner. Hon'ble Supreme Court in the case of M. Nithya & Ors. vs. SBI
General Insurance Company Limited [SLP (Civil) Nos.833-834 of 2023
decided on 03.01.2025] has held that in the absence of any specific issue
having been framed regarding the contributory negligence, any finding qua
the same could not have been returned. Para 7 of the said judgment reads as
under :
"7. It is pertinent to observe that the Tribunal noted that
the Insurance Company in their Counter contend that
contributary negligence of the part of the deceased has to
be fixed. However, the Tribunal did not frame any specific
issue in that regard for determination. The Tribunal
clearly finds negligence only on part of the driver of the
lorry and therefore, the owner of the lorry and the
Insurance Company which insured the said lorry are
jointly and severally found liable to pay compensation.
Therefore, when the Tribunal did not even frame an issue
on contributary negligence, the High Court ought not to
have considered that argument in order to reduce the
compensation awarded. Even otherwise the Insurance
Company did not lead any evidence on this aspect nor
insisted for framing an issue. Merely making a bald
assertion in their Counter Affidavit cannot derive any
advantage. Hence, we are in agreement with the findings
of the Tribunal that the accident took place only due to the
negligence of the driver of the lorry and therefore, the
contributary negligence awarded on part of the deceased
by the High Court suffers from an error and cannot be
sustained."
12. In view of the law laid down by the Hon'ble Supreme Court and
in the absence of any evidence and an issue qua contributory negligence, the
authenticity of this order/judgment.
argument of the learned counsel for the Insurance Company qua contributory
negligence is accordingly rejected.
13. The argument of the learned counsel for the Insurance Company
qua the driving licence being fake also deserves to be rejected on the ground
that the Insurance Company failed to examine any witness to prove the letter
which is alleged to have been received from RTA Nagaland. Infact, it is an
admitted case that the driving licence had been renewed by the RTA Patiala.
RW1 - Rakesh Kumar - Surveyor had categorically admitted that the licence
could not have been renewed by the RTA Patiala without obtaining a no
objection from the RTA Nagaland. In view thereof, it cannot be said that the
driving licence was fake. Accordingly, in the absence of any cogent evidence
having been led by the Insurance Company, the argument as regards fake
licence also stands rejected.
14. The argument of the learned counsel for the claimants that
despite there being no appeal, this Court is empowered under Order 41 Rule
33 CPC to pass any order as may be required, deserves to be accepted. Hon'ble
Supreme Court in the case of Surekha & Ors. vs. Santosh & Ors. [2021(1)
PLR 795] has held as under :
"3. By now, it is well-settled that in the matter of insurance
claim compensation in reference to the motor accident, the
court should not take hyper technical approach and ensure
that just compensation is awarded to the affected person
or the claimants".
15. In view of the order in the case of Surekha (supra) and especially
in the present case where a minor child lost both his parents in the accident,
though no appeal has been preferred by the claimants, however, in order to
complete justice to the claimants, this Court deems it appropriate to invoke
authenticity of this order/judgment.
the provisions of Order 41 Rule 33 CPC to enhance the compensation.
The argument of the learned counsel for the claimants that the income of the
deceased - Manisha - has been assessed on the lower side deserves to be
accepted. In the present case the Tribunal has assessed the income of the
deceased, who was admittedly a homemaker, as ₹7,996/- per month. A
homemaker does much more than a single person can do. Infact, a homemaker
performs multiple functions in the house i.e. cooking for the family, cleaning
the house, washing clothes and utensils, the list is endless. A homemaker is
also a caretaker of her children as well as all the members of the house. In the
case of Kirti (supra), Hon'ble Supreme Court while emphasizing upon the
contribution made by a homemaker and the services rendered by a woman in
a household observed that there can be no exact calculation or formula that
can ascertain the actual value provided by a homemaker gratuitously. In order
to streamline the calculation of notional income for homemakers and the grant
of future prospects with respect to them for the purposes of assessing the
compensation, the following principles were laid by Hon'ble Supreme Court
in the case of Kirti (supra) :
"42. Therefore, on the basis of the above, certain general
observations can be made regarding the issue of
calculation of notional income for homemakers and the
grant of future prospects with respect to them, for the
purposes of grant of compensation which can be
summarized as follows:
a. Grant of compensation, on a pecuniary basis,
with respect to a homemaker, is a settled
proposition of law.
b. Taking into account the gendered nature of
housework, with an overwhelming percentage of
authenticity of this order/judgment.
women being engaged in the same as compared to
men, the fixing of notional income of a homemaker
attains special significance. It becomes a
recognition of the work, labour and sacrifices of
homemakers and a reflection of changing attitudes.
It is also in furtherance of our nation's international
law obligations and our constitutional vision of
social equality and ensuring dignity to all.
c. Various methods can be employed by the Court to
fix the notional income of a homemaker, depending
on the facts and circumstances of the case.
d. The Court should ensure while choosing the
method, and fixing the notional income, that the
same is just in the facts and circumstances of the
particular case, neither assessing the compensation
too conservatively, nor too liberally.
e. The granting of future prospects, on the notional
income calculated in such cases, is a component of
just compensation."
16. The deceased in the present case was admittedly more than 25
years of age at the time of the accident and was admittedly a homemaker. The
minimum wage for a skilled worker prevailing at the time of the accident was
₹9,233/- per month and accordingly the income of the deceased - Manisha -
is assessed as ₹9,233/- per month.
17. The argument of the learned counsel for the claimants that the
compensation awarded to the parents and minor child on account of death of
Sushil Kumar and awarded to minor child on account of death of Manisha
under the conventional heads as well as under the head 'loss of consortium' is
not as per the law laid down by the Hon'ble Supreme Court in the cases of
Pranay Sethi (supra), Magma General Insurance Company Limited (supra)
authenticity of this order/judgment.
and N. Jayasree (supra) deserves to be accepted. Hence, in MACT No.145 of
2016 the claimants being parents and minor child of the deceased would be
entitled to ₹18,000 (₹15,000 + 20% increase) towards loss of estate and
₹18,000 (₹15,000 + 20% increase) towards funeral expenses and they would
also be entitled to ₹48,000/- each (₹40,000 + 20% increase) towards loss of
consortium. In MACT No.144 of 2016 the claimant being minor child of the
deceased would be entitled to ₹18,000 (₹15,000 + 20% increase) towards loss
of estate and ₹18,000 (₹15,000 + 20% increase) towards funeral expenses and
he would also be entitled to ₹48,000/- (₹40,000 + 20% increase) towards loss
of consortium. The compensation awarded by the Tribunal on the other heads
in both the claim petitions is maintained. Accordingly, the reworked
compensation is as under :
Compensation on account of death of Sushil Kumar
Sr. No. Heads Compensation Awarded
1 Monthly Income ₹7,996/-
2 Annual Income ₹95,952/- [₹7,996 x 12]
3 Deduction - 1/3rd ₹63,968/- [₹95,952 - ₹31,984]
4 Future Prospects - 40% ₹89,556/- [₹63,968 + ₹25,588]
5 Multiplier - 17 ₹15,22,452/- [₹89,556 x 17]
6 Loss of estate ₹18,000/-
7 Funeral expenses ₹18,000/-
8 Loss of consortium
(i) Parental [₹48,000/- x 1] ₹48,000/-
(ii) Filial [₹48,000/- x 2] ₹96,000/-
(Total ₹1,44,000/-)
Total Compensation ₹17,02,452/-
Compensation on account of death of Manisha
Sr. No. Heads Compensation Awarded
1 Monthly Income ₹9,233/-
2 Annual Income ₹1,10,796/- [₹9,233 x 12]
authenticity of this order/judgment.
3 Deduction - 1/3rd ₹73,864/- [₹1,10,796 - ₹36,932]
4 Future Prospects - 40% ₹1,03,410/- [₹73,864 + ₹29,546]
5 Multiplier - 17 ₹17,57,970/- [₹1,03,410 x 17]
6 Loss of estate ₹18,000/-
7 Funeral expenses ₹18,000/-
8 Loss of consortium
(i) Parental [₹48,000/- x 1] ₹48,000/-
Total Compensation ₹18,41,970/-
18. The amount in excess of and over and above the amount awarded
by the Tribunal shall also attract interest @ 7.5% per annum from the date of
filing of the claim petition till the realization of the entire amount.
19. In view of the decision by the Hon'ble Supreme Court in
Parminder Singh vs. Honey Goyal & Ors. [AIR 2025 SC 1713 = 2025 SCC
OnLine SC 567], after calculation of the enhanced amount, the same be
transferred by the Insurance Company in the bank account(s) of the claimants
within six weeks from today and the apportionment thereof shall be as per the
percentage directed by the Tribunal and the share of the minor claimant shall
be kept in an FDR. The particulars of the bank account(s) alongwith the
requisite documents(s) in support thereof shall be furnished by the claimant-
appellants to the Insurance company within a period of two weeks from the
date of this order and needful shall be done by the Insurance Company after
verification thereof within four weeks thereafter alongwith up-to-date interest.
The compliance shall be reported by the Bank to the Tribunal concerned.
20. In view of the above discussion, the award passed by the Tribunal
is modified and the present appeals filed by the Insurance Company are
accordingly dismissed. Pending applications, if any, also stand disposed off.
29.01.2026 ( ALKA SARIN )
Yogesh Sharma JUDGE
NOTE: Whether speaking/non-speaking: Speaking
Whether reportable: YES/NO
authenticity of this order/judgment.
