Rajasthan High Court - Jodhpur

Rasida B vs The New India Insurance Co. Ltd on 6 September, 2022

Bench: Farjand Ali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Misc. Appeal No. 1135/2020

1. Rasida Bee W/o Late Shri Makbul Mansuri, Aged About 29 Years, B/c Musalman , R/o Chachor , Tehsil Rampur Manasa , Distt. Nimach (M.p.)

2. Nijba D/o Late Shri Makbul Mansuri, Aged About 4 Years, Through Her Natural Guardian Mother Smt Rasida B W/o Late Shri Makbul , B/c Musalman , R/o Chachor , Tehsil Rampur Manasa , Distt. Nimach (M.p.)

3. Abdul Rajak S/o Shri Abdul Mansuri, Aged About 54 Years, B/c Musalman , R/o Chachor , Tehsil Rampur Manasa , Distt. Nimach (M.p.)

4. Rabia B Mansuri W/o Shri Abdul Rajak Mansuri, Aged About 52 Years, B/c Musalman , R/o Chachor , Tehsil Rampur Manasa , Distt. Nimach (M.p.)

5. Raees Mansuri S/o Shri Abdul Rajak Mansuri, Aged About 28 Years, B/c Musalman , R/o Chachor , Tehsil Rampur Manasa , Distt. Nimach (M.p.)

6. Azad Mansuri S/o Shri Abdul Rajak Mansuri, Aged About 25 Years, B/c Musalman , R/o Chachor , Tehsil Rampur Manasa , Distt. Nimach (M.p.)

7. Sugra Bai W/o Shri Abdul Mansuri, Aged About 72 Years, B/c Musalman , R/o Chachor , Tehsil Rampur Manasa , Distt. Nimach (M.p.)

----Appellants Versus

1. The New India Insurance Co. Ltd., Through Divisional Manager , Branch Bhilwara (Raj.) (Insurance Company)

2. Udai Lal S/o Nathu Suthar, R/o P.s. Pansal Pur , Distt.

Bhilwara (Raj.) (Owner)

3. Satynarayan S/o Jamnalal Jat, R/o 26, Rajput Mohalla , Pansal , Distt. Bhilwara (Raj.) (Driver)

----Respondents

For Appellant(s) : Mr. Sanjay Nahar For Respondent(s) : Mr. Sanjeev Johari, Sr. Advocate assisted by Mr. Lalit Parihar

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HON'BLE MR. JUSTICE FARJAND ALI

Judgment

06/09/2022

1. This Misc. Appeal has been filed under Section 173 of the

Motor Vehicle Act, 1988 against the judgment dated 08.07.2019

passed by the learned Judge, Motor Accident Claims Tribunal No.2,

Bhilwara, in MACT Claim No.285/2018 (310/2017) whereby the

learned Judge, Motor Accident Claims Tribunal No.2, Bhilwara,

(hereinafter referred to as 'the Tribunal') has partly allowed the

claim petition and awarded Rs.12,94,712/- as compensation to the

appellants-claimants.

2. Aggrieved against the said order, the appellants-claimants

have preferred this appeal for enhancement of the quantum of

compensation.

3. Succinctly stated, the facts relevant and necessary for

disposal of the appeal are enumerated herein below:

4. The appellants-claimants are dependents of Makbul Mansuri,

who was a taxi driver and he expired in a road accident on

21.01.2017. The appellants-claimants filed the Claim Application

under Section 166 of the Motor Vehicle Act seeking total

compensation to the tune of Rs.77,10,000/- by impleading United

India Insurance Company (Insurer), Udailal (Owner of the vehicle)

and Satyanarayan (Driver of the vehicle) as respondents Nos.1, 2

& 3 respectively. An FIR No.08/2017 to this effect was also

registered at the Police Station Hamirgarh, District Bhilwara. The

Tribunal decided all the issues in favour of the claimants and

against the respondents and awarded a sum of Rs.12,94,712/- as

compensation to the appellant-claimants towards the death of

Makbul Mansuri.

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5.       The   bone   contention       of    the       learned     counsel   for   the

appellants-claimants is that the impugned award suffers from

gross illegality inasmuch as the Tribunal failed to appreciate the

factum of monthly income of the deceased as well as did not take

into account the component of rise in income of the deceased by

future prospects while evaluating the compensation awardable to

the claimants.

6. Learned counsel for the appellants-claimants submits that at

the time of the accident, the deceased was 30 years of age and

was drawing a salary to the tune of Rs.10,000/- per month. At the

time of the accident, the deceased Makbul Mansuri was working as

a taxi driver and he was having a valid and effective driving

licence. The evidence to this effect has also been adduced in the

trial. He further submits that the learned Tribunal has erred in

determining the monthly income of the deceased to be Rs.5,382/-

instead of Rs.5,902/- which is the minimum wage scale as

applicable in the State of Rajasthan at the relevant time. He

further submits that there is a specific pleading in the claim

petition and then reiteraed the same in evidence. Even in cross-

examination, Rashida Bee (AW/1), in response to the question

asked by the respondents, has replied that her husband was

driving a vehicle of owner of Aradhana Tent House. It is further

submitted that as per the schedule of Minimum Wages applicable

in Rajasthan, the minimum wage for a skilled person would be

Rs.5,902/- per month. Thus, the learned Tribunal ought to have

calculated monthly income of the deceased to be Rs.5,902/- per

month.

7. As per the judgment delivered by the Hon'ble Supreme Court

in the matter of Kirti & Anr. Etc. Vs. Oriental Insurance

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Company Ltd. reported in ( 2021 ) 2 SCC 166, it was held that

the rationale behind the awarding of future prospects is therefore

no longer merely about the type of profession, whether permanent

or otherwise, although the percentage awarded is still dependent

on the same. The awarding of future prospects is now a part of

the duty of the Court to grant just compensation, taking into

account the realities of life, particularly of inflation, the quest of

individuals to better their circumstances and those of their loved

ones, rising wage rates and the impact of experience on the

quality of work.

8. Learned counsel for the appellants-claimants further submits

that if sufficient evidence is not produced to establish the fact of

employment then he shall be considered to be a skilled labour.

Since in the case at hand, the deceased was having a valid driving

licence and ample evidence has been adduced to prove the fact

that the deceased was working as a driver. It is asserted that if

the learned Tribunal was not convinced with the evidence adduced

on behalf of the claimants regarding monthly income as pleaded in

the claim petition even then he ought to have applied the formula

of minimum wage of an unskilled labour and for which the table

applicable in the State of Rajasthan can be considered. Learned

counsel drew attention of this Court over the table of wages

applicable in the State as per which the minimum wage of a skilled

labour has been shown to be Rs.5,902/- per month. The learned

Tribunal has dealt with all other issues aptly except determination

of monthly income which was considered to be Rs.5,382/- instead

of Rs.5,902/-. He, thus, urges that suitable enhancement

deserves to be ordered in the compensation awarded to the

appellants-claimants by modifying the impugned award.

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9. Per contra, Shri Sanjeev Johari, Sr. Advocate assisted by Mr.

Lalit Parihar, vehemently opposed the submissions advanced by

the appellants' counsel. He submits that the fact that the

deceased was a driver has not been established by way of

adducing cogent and clinching evidence, therefore, the learned

Tribunal has not erred in passing the impugned judgment and

award, and thus, the same does not require any interference by

this Court.

10. Heard learned counsel for the parties and perused the

material available on record.

11. Considering the overall facts and circumstances and after

scrutinizing the record, this Court is in agreement with the

submissions made by learned counsel for the appellants-claimants

that even if the evidence produced by the claimants-appellants is

not found convincing then, the minimum wage as applicable in the

State of Rajasthan should be applied. There are various judicial

pronouncements on this aspect. The driving license of the

deceased is already on record and his wife Rashida Bee (AW/1)

deposed that he(deceased) was working as a driver but in absence

of any sound proof, he may be treated as skilled labour for which

the minimum wage as prescribed under the law is Rs.5,902/-.

Thus, the monthly income of the deceased Makbul Mansuri would

be considered to be Rs.5,902/-.

12. In National Insurance Co. Ltd. Vs. Pranay Sethi & Ors.

reported in (2017) AIR (SC) 5157, the Hon'ble Supreme Court

has held that if the deceased was self-employed or a person on a

fixed salary and his age is below 40 years, then the future

prospects should be paid to the tune of 40% of the established

income. Reasonable figures were fixed as compensation on

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conventional heads. The amounts of compensation for loss of

estate, loss of consortium and funeral expenses were fixed at Rs.

15,000/-, Rs. 40,000/- and Rs. 15,000/- respectively.

13. In view of the discussion made herein above, the

computation of compensation in the instant case is as follows:-

                                   S.No.                          Heads                          Amount (Rs.)

                                   01.     Monthly income                                        5,902

02. 40% of the actual income as adjustment 2,360.8 for (future prospects)

03. Monthly income + 40% for future 8,262.8 prospects

04. 1/5 of income as deduction towards 1,652.56 personal expenses

05. Annual income after deduction towards 6,610.24 X 12 =79,322.88 personal expenses

06. Age Multiplier 79,322.88 X 17 = 13,48,488.96

07. Conventional heads namely Funeral 15,000+40,000+15,000 =70,000 Charges, Loss of consortium and Loss of Estate

Total Compensation 14,18,488.96

14. In light of above observations and considering the tabular

computation, the appeal is allowed in part. The total motor

accident compensation of Rs.12,94,712/- awarded by the learned

Tribunal to the claimants-appellants is increased by

Rs.1,23,776.96/- to reach a new total of Rs.14,18,488.96/-. The