Rajasthan High Court - Jodhpur

The New India Assurance Co. Ltd vs Smt. Jyoti And Ors. (2024:Rj-Jd:38752) on 19 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:38752]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                                 JODHPUR

                 S.B. Civil Misc. Appeal No. 1352/2016

The New India Assurance Co. Ltd., Branch Office Udaipur,
through its Authorized Officer,T.P. Claims Hub, Divisional Office-I,
Abhay Chambers, Jalori Gate, Jodhpur.
                                                                    ----Appellant

                                     Versus

1. Smt. Jyoti W/o Late Kailash Chandra.
2. Mohit S/o Late Kailash Chandra(Minor).
3. Kunal S/o Late Kailash Chandra(Minor).
Minors are represented through their natural guardian mother
Smt. Jyoti.
4. Smt. Sunder Devi W/o Late Parasram,
All residents of village Gyangarh, Tehsil Kareda, District Bhilwara.
                                                                     (Claimants)
5. Mohd. Rafiq S/o Shri Mustaq Ali, resident of Village Dulaliya,
P.S. Pilani, District Jhunjhunu
                                                                         (Driver)
6. Ashwini Kumar S/o Shri Mahendra Singh Jat, resident of Ward
No. 1, Shanti Nagar, Vidhya Vihar, Pilani, District Jhunjhunu.
                                                                        (Owner)
                                                                 ----Respondents


For Appellant(s)           :    Mr. Jagdeesh Vyas
For Respondent(s)          :    Mr. Nikhil Ajmera for Mr. Sandeep
                                Saruparia



               HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

19/09/2024

1. The instant misc. appeal, seeking reduction of the awarded

compensation, has been preferred by the Appellant/insurance

Company under Section 173 of the Motor Vehicles Act, 1988

against the judgment and award dated 23.02.2016 whereby the

[2024:RJ-JD:38752] (2 of 11) [CMA-1352/2016]

MACT, Rajasamand has awarded Rs. 17,01,000/-(after rounding

off the amount of Rs. 17,00,615/-) to the claimants.

2. Briefly stated the facts of the case are that on 03.09.2014

the deceased-Kailash Chandra was standing on a road in front of a

hotel and at around 11:00 PM, a bus bearing registration no. RJ18

PA 5858(hereinafter as 'the offending vehicle), which was driven

by the respondent no.5/driver in a rash and negligent manner, hit

the deceased and as a result the deceased died on spot. The claim

petition(Claim Case no. 274/2014) was filed before the MACT,

Rajsamand(hereinafter as 'learned tribunal') by the respondent

no.(s) 1 to 4 claiming compensation on account of the death of

the deceased.

3. The respondent no. 5 and 6 were proceeded against ex-

parte. And the appellant/insurance company filed its reply to the

claim petition alleged that the deceased was unemployed and his

mental state was not right, and he suddenly came in front of the

bus and got hit, thus, there there was no negligence of the driver

of the offending vehicle. Further, it was alleged by the

appellant/insurance company before the learned tribunal that the

it is not liable to pay the compensation as the there was violation

of the conditions of the policy.

4. On the basis of the pleadings of the parties two issues were

framed. And the respondent no. 1 to 4(claimants) examined two

witness (AD1 and AD2) and produced 9 documentary evidences.

However, no oral or documentary evidence was produced by the

appellant/insurance company before the learned tribunal.

[2024:RJ-JD:38752] (3 of 11) [CMA-1352/2016]

5. After hearing the parties, the learned tribunal vide judgment

and order dated 23.02.2016(hereinafter as 'impugned award')

awarded Rs. 17,01,000/-(after rounding off the amount of Rs.

17,00,615/-) along with interest @9% p.a. from the date of the

filing of the claim petition to the claimants(respondent no. 1 to 4)

and held Respondent no. 5 & 6 and appellant/insurance company

jointly and severally liable to pay the compensation.

6. Aggrieved by the impugned award, the instant misc. appeal

has been preferred by the appellant/insurance company.

7. While admitting the instant appeal a coordinate bench of this

court vide order dated 01.06.2016 stayed the execution of the

impugned award qua the appellant/insurance company provided

that appellant/insurance company shall deposit 70% of the

awarded sum along with interest @9% p.a. from the date of the

filing of the claim petition. It was further directed that upon

deposition of the aforesaid 70% sum of the awarded

compensation, the same was to be disbursed to the claimant in

terms of the learned tribunal's directions subject to their

furnishing of an undertaking that in case the appeal filed by the

appellant/insurance company is allowed, they will refund back the

said amount along with interest @6% p.a..

8. Since there is no dispute as to the factual matrix of the case,

the learned counsel appearing on behalf of the appellant/insurance

company has challenged only the quantum of the compensation

that is awarded by the learned tribunal. He submits that the

tribunal has come to the conclusion that the income of the

[2024:RJ-JD:38752] (4 of 11) [CMA-1352/2016]

deceased has to be assessed in accordance with the Minimum

Wages Notification that was prevalent at the time of the

accident(i.e., 03.09.2014) considering the deceased as Semi-

skilled workman, however, the learned tribunal erroneously

assessed the monthly income of the deceased as Rs. 5970/- per

month instead of Rs. 5174/- per month. He further submits that

the learned tribunal has erred in awarding the future prospects

@50%, which should be @40% in accordance with the judgment

of the Hon'ble Supreme Court in National Insurance Co. Ltd vs

Pranay Sethi [2017 (16) SCC 680]. He also submits that the

learned tribunal has erred in awarding compensation under the

head of loss of consortium to the tune of Rs. 1,00,000/- to the

wife of the deceased and Rs. 2,00,000/- as lump-sum to the two

sons and mother of the deceased. He further submits that the

tribunal has erred in awarding Rs. 25,000/- as funeral expenses.

He also submits that the learned tribunal has erred in determining

the rate of interest @9% p.a., and the same should be @6% p.a..

9. Per contra, It is submitted by the learned counsel appearing

on behalf of the respondent no. 1 to 4(claimants), while placing

reliance on the judgments of the Hon'ble Supreme Court in

Ranjana Prakash v. Divl. Manager, (2011) 14 SCC 639

(paragraphs 6 to 8) and Chandra v. Mukesh Kumar Yadav,

(2022) 1 SCC 198 (para 9), that even in an appeal preferred by

the owner/insurer the court has to determine the just

compensation looking to the facts of the case. He further submits

since, no rebuttal evidence was produced by the

appellant/insurance company with respect to the salary

[2024:RJ-JD:38752] (5 of 11) [CMA-1352/2016]

certificate(Ex.9), the learned tribunal has erred in assessing the

income of the deceased as Rs. 5970/- as per Minimum Wages

prevalent at the time of the accident while considering the

deceased as semi-skilled workman. He also submits that the

learned tribunal has awarded only Rs. 2,500/- under the head of

loss of estate. He also submits that the contention of the learned

counsel on behalf of the appellant/insurance company with respect

to the rate of interest awarded cannot be sustained as this court in

Kailash Kunwar and ors. vs. Nawal Singh and ors.[S.B. Civil

Misc. Appeal No. 746/2017, dated: 03.09.2024] has also not

interfered with the rate of interest as awarded by the learned

tribunal.

10. Heard both the parties and perused the material available on

record.

11. This court finds that in Chandra v. Mukesh Kumar Yadav,

(2022) 1 SCC 198 held that in absence of proof with respect to the

income of the deceased/claimant some guesswork has to be done

by the court in order to assess the income of the

deceased/claimant. However, this guesswork cannot be detached

from the reality. The relevant paragraph of the said judgment is

reproduced as under:

"9. It is the specific case of the claimants that the deceased was possessing heavy vehicle driving licence and was earning Rs 15,000 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 15,000 per month, same

[2024:RJ-JD:38752] (6 of 11) [CMA-1352/2016]

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 the 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 15,000 per month."

12. This court also finds that the Hon'ble Supreme Court in

Ranjana Prakash v. Divl. Manager, (2011) 14 SCC 639 has held

that even in an appeal filed by the insurer/owner the court has to

determine the just compensation after examining the facts and by

applying relevant legal principle. However, in an appeal by

owner/insurer seeking reduction in the awarded compensation,

enhancement cannot be made. The relevant paragraph of the said

judgment is reproduced as under:

"8. Where an appeal is filed challenging the quantum of compensation, irrespective of who files the appeal, the appropriate course for the High Court is to examine the facts and by applying the relevant principles, determine the just compensation. If the compensation determined by it is higher than the compensation awarded by the Tribunal, the High Court will allow the appeal, if it is by the claimants and dismiss the appeal, if it is by the owner/insurer. Similarly, if

[2024:RJ-JD:38752] (7 of 11) [CMA-1352/2016]

the compensation determined by the High Court is lesser than the compensation awarded by the Tribunal, the High Court will dismiss any appeal by the claimants for enhancement, but allow any appeal by the owner/insurer for reduction. The High Court cannot obviously increase the compensation in an appeal by the owner/insurer for reducing the compensation, nor can it reduce the compensation in an appeal by the claimants seeking enhancement of compensation."

13. This court is of the view that admittedly the position of law

as laid down in the judgments of the Hon'ble Supreme Court in

Chandra(Supra) and Ranjana Prakash(Supra) is that while

assessing the income of the deceased/claimant some guesswork

has to be done by the court, however, such guesswork cannot be

detached from reality.

However, this court finds that in the instant case the learned

tribunal assessed the income of the deceased as per the Minimum

Wages which was applicable at the time of the accident

(03.09.2014) and as per the wages prescribed during the said

period the minimum wages for an unskilled workman was Rs.

5174/-(as per the Minimum wages notification dated 29.01.2015,

made applicable with effect from 01.01.2014) as the salary

certificate(Ex.9) of the deceased was not proved by examining the

person who issued it. The relevant paragraph of the impugned

award is reproduced as under:

"12. मृतक की आय के संबंध में पु ष्टिकारक साक्ष्य पेश नहीं की गई है न ही मृतक की आय व्यय का कोई हिसाब पेश किया है मृतक द्वारा रामदे व ट्र े वल एजेंसी में मैनेजर का कार्य करके तथा साथ में भागीदार होकर 40,000 रूपये प्रतिमाह की आय अर्जित करने का कथन उसकी पत्नी ने किया है । वेतन प्रमाण पत्र प्रदर्श 9 साक्ष्य में पेश किया है जिसमें

[2024:RJ-JD:38752] (8 of 11) [CMA-1352/2016]

उसकी आमदनी 30,000 रूपये प्रतिमाह अंकित है परन्तु इसे जारी करने वाले अन्य भागीदार की साक्ष्य से साबित नही कराया गया है और न ही भागीदारी संबंधी कोई प्रमाण ही पेश किया है । मृतक 28 वर्षीय परिवार वाला विवाहित युवक था। बीमा कम्पनी की ओर से खण्डन में ऐसी कोई साक्ष्य या अनुसंधान रिपोर्ट पेश नहीं की गयी है जिससे यह साबित होता हो कि मृतक उक्त कार्य नहीं करता था। प्रस्तुत साक्ष्य के प्रकाश में यद्यपि मृतक की आय की मात्रा तो साबित नहीं है परन्तु घटना नवम्बर 2014 की है अतः प्रकरण के तथ्यों एवं परिस्थितियों तथा मृतक की 28 वर्षीय उम्र के आधार पर तत्समय प्रचलित अर्द्धकुशल व्यक्ति की न्यूनतम आमदनी व मृतक के कार्य को दे खते हुये मृतक की मासिक आय 5,970 रूपये अर्थात वार्षिक आय 71,640 रूपये अभिनिर्धारित की जाती है ।"

Thus, the learned tribunal has not done any guesswork while

assessing the income of the deceased but in clear terms has given

a finding that since, the salary certificate(Ex.9) was not proved by

examining the person who has issued it, the same cannot be

considered for assessing the income of the deceased and the

assessment of the income should be done as per the Minimum

Wages prevalent at the time of the accident(03.09.2014). Thus,

the contention of the learned counsel on behalf of the respondent

no. 1 to 4(claimants) with respect to the income does not have

any force. However, this court finds that the learned tribunal while

considering the deceased as semi-skilled workman assessed his

income as per the Minimum Wages Notification(dated 29.01.2015,

applicable from 01.01.2014) as Rs. 5970/- instead of Rs. 5174/-

per month. Thus, the finding of the learned tribunal with respect

to the income of the deceased deserves to be modified as Rs.

5174/- per month.

14. Further, the learned counsel appearing on behalf

appellant/insurance company has also challenged the rate of

interest@9% as awarded by the learned tribunal as the prevalent

rate of interest at that time was 6%p.a.. However, the learned

[2024:RJ-JD:38752] (9 of 11) [CMA-1352/2016]

counsel appearing on behalf of the respondent no. 1 to

4(claimants) has objected to the same while placing reliance on

the judgment of this court in Kailash Kunwar and ors. vs.

Nawal Singh and ors.[S.B. Civil Misc. Appeal No.

746/2017]. This court does not find any force in the contention

raised by the learned counsel appearing on behalf of the

respondent no 1 to 4(claimants) as in the said judgment this court

was dealing with an appeal filed by the claimants for enhancement

and moreover, there was no objection raised by the opposite party

with respect to the rate of interest, therefore, the finding with

respect to the rate of interest was not disturbed. Accordingly, the

rate of interest also deserves to be modified as @6% p.a., which

was the prevalent at the time of the accident(01.01.2014).

15. This court also finds that the learned tribunal has awarded

Rs. 1,00,000/- to the wife of the deceased and Rs. 2,00,000/- as

lump-sum to the two sons and mother of the deceased under the

head of loss of consortium. And the same deserves to be modified

as Rs. 48,000/- each in the light of the judgment of the Supreme

Court in National Insurance Co. Ltd vs Pranay Sethi [2017 (16)

SCC 680]. Also, the learned tribunal has awarded future prospects

@50%, however, the same deserves to be modified to @40% as

per the judgment of the hon'ble court in Pranay Sethi(Supra)

looking to the fact that the deceased was not in a permanent job

and was below 40 years of age. Further, the amount awarded by

the learned tribunal under the head of funeral expense i.e., Rs.

25,000/- also deserves to be modified to Rs. 18,000/- in the light

of the judgment of the Hon'ble Supreme Court in Pranay

[2024:RJ-JD:38752] (10 of 11) [CMA-1352/2016]

Sethi(Supra). This court also finds that the learned tribunal has

awarded Rs. 2,500/- under the head of loss of estate and Rs.

3000/- as transportation charges.

16. Thus, in view of the discussion in the above paragraphs, this

court is of view that the compensation as awarded by the learned

tribunal deserves to be modified as under:

S.N                 Particulars          Amount       as Amount      as
o.                                       awarded by the modified     by
                                         learned         this court
                                         tribunal

1. (add)Compensation towards loss Rs.13,70,115/- Rs.11,08,332/-

of dependency while adding 40% towards Future Prospects:

5174(Minimum wages per month) + 2070 (40% future prospects) -

1811 (1/4 deduction on account of personal expenses) x 12 x 17(Multiplier) = Rs.11,08,332/-

2. (add)Loss of Consortium 48,000 Rs. 3,00,000/- Rs.1,92,000/-

x 4= /-

3. (add)Loss of Estate Rs.2,500/- Rs.18,000/-

4. (add)Funeral Expenses Rs.25,000 /- Rs.18,000/-

5. (add)Transportation charges Rs.3000/- Rs.3000/-

incurred for taking body of deceased Gross Total Rs.17,01,000/- Rs.13,39,332/-

                                         (after rounding
                                         off the amount
                                         of          Rs.
                                         17,00,615/-)

                                                 Reduced amount
                                                                         Rs.3,61,668/-

(after deducting from the amount as awarded by the learned tribunal)

17. Accordingly, in view of the discussion in the above

paragraphs the instant misc. appeal stands partly allowed. The

respondent no. 1 to 4(claimants) are thus held entitled to get

compensation of Rs.13,39,332/- instead of Rs.17,01,000/- along

[2024:RJ-JD:38752] (11 of 11) [CMA-1352/2016]

with interest @6% p.a. instead of @9% p.a., as awarded by the

learned tribunal from the date of filing of the claim petition. The

impugned award passed by the learned Tribunal stands modified

accordingly. The amount of compensation if any paid or disbursed

shall be adjusted.

18. No order as to the cost.