Rajasthan High Court - Jodhpur

Reliance General Ins. Co. Ltd vs Smt. Moti Bai And Ors on 21 September, 2024

Author: Nupur Bhati

Bench: Nupur Bhati

[2024:RJ-JD:38861]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     S.B. Civil Misc. Appeal No. 965/2017

Reliance General Insurance Company Limited Through Regional
Manager, 6Th Floor, Man Upasana Tower, Sardar Patel Marg, "c"
Scheme, Jaipur.
                                                                        ----Appellant
                                        Versus
1.       Smt. Moti Bai W/o Late Shankar Lal Rawat,
2.       Sushri Suma D/o Late Shankar Lal Rawat,
3.       Sushri Durga D/o Late Shankar Lal Rawat,
4.       Raju S/o Late Shankar Lal Rawat,
5.       Raju S/o Late Shankar Lal Rawat
6.       Smt. Motari @ Moti Bai W/o Late Jeta Rawat, Respondent
         No. 2 To 5 Is Minor Through Her Natural Guardian Mother
         Smt. Moti Bai All Are R/o Shikarwadi, Bhinder, Post
         Bhinder, Via Bhinder, Tehsil Vallabhnagar, District Udaipur.
7.       Pratap Meena @ Pratap Singh Meena S/o Moti Meena @
         Moti Singh, R/o Chhapariya, Police Station Kanod, Tehsil
         Lasariya, District Udaipur. Driver/owner
                                                                     ----Respondents


For Appellant(s)              :     Mr. T.R.S. Sodha
For Respondent(s)             :     Mr. Deelip Kawadia for the claimants



               HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

Reserved on: 19/09/2024 Pronounced on: 21/09/2024

1. The appellant/non-claimant No.2 has filed the instant appeal

under Section 173 of the M.V. Act, 1988, challenging the validity

of the judgment and award dated 01.02.2017 passed by learned

Judge, Motor Accident Claims Tribunal No.1, Udaipur ('Tribunal') in

MAC Case No.218/2015, whereby the learned Tribunal has

[2024:RJ-JD:38861] (2 of 10) [CMA-965/2017]

awarded compensation in favour of claimants to tune of

Rs.19,20,000/- along with interest @ 8.5% p.a. from the date of

filing the claim petition on account of death of Sh. Shankar Lal.

2. Briefly stated, the facts of the case are that claimants filed a

claim petition under Section 166 of the M.V. Act, 1988 before the

learned Tribunal claiming compensation on account of untimely

death of Sh. Shankar Lal. In the claim petition, it was stated by

the claimants that on 07.01.2015 at about 8:15 PM, while the

deceased was going to his home in Aamli ka Chauda on his

motorcycle bearing number RJ-27/M-5712, he met with an

accident with the motorcycle bearing number RJ-27/SY6823 at

Halopada ka Ghatar, and resultantly, deceased Shankar Lal

received griveous injuries and died. At the time of the accident,

the age of the deceased was 35 years and thus the claimants filed

a claim petition claiming compensation of Rs. 54,51,000/-.

3. Thereafter, learned Tribunal issued notices to the non-

claimants. Respondent no. 7 denied the facts of the claim petition

and stated that it was negligence of the deceased himself while

the appellant-non-claimant no. 2 denied the factum and averred

that the FIR was registered after a delay of 9 days and that the

driver did not have an effective and valid driving license at the

time of the accident. Thereafter, claimants in support of their claim

petition examined 2 witnesses and produced 19 documents

whereas no witness(es) or any document(s) was examined or led

in defence.

4. After hearing both the parties, the learned Tribunal allowed

the claim petition of the claimants and vide judgment/award dated

01.02.2017 awarded a quantum of compensation to the tune of

[2024:RJ-JD:38861] (3 of 10) [CMA-965/2017]

Rs. 19,20,000/- with the interest @ 8.5% and being dissatisfied of

the award, the appellant-Insurance Company has preferred this

appeal.

5. Learned counsel for the appellant-Insurance Company has

laid a challenge to the impugned award only to the extent of

quantum of the compensation so awarded by the learned Tribunal.

He submits that the learned Tribunal has erred in assessing the

income of the deceased as Rs. 90,000/- per annum, while adding

50% future prospects for his loss of income. He also submits that

according to the age of the deceased, i.e. 35 years, the multiplier

of 15 ought to have been applied in the light of law laid down by

Hon'ble Apex Court in the case of Sarla Verma v. Delhi

Transport Corporation : AIR 2009 SC 3104, however the

learned Tribunal has erred in taking the multiplier as 16.

6. Per contra, learned counsel for the respondent-claimants

submits that the submission of the learned counsel of the

appellant that learned Tribunal has erred in taking the income of

the deceased as Rs. 90,000/- per annum, cannot be considered

and the income determined by the learned Tribunal cannot be

reduced inasmuch as the respondent no.1/claimant had deposed

that the income of the deceased was Rs. 15,000 per month which

was not rebutted while examining respondent no.1/claimant. He

thus submits that in the absence of any rebuttal made by the

appellant-Insurance Company during the examination of

respondent no.1/claimant, the learned Tribunal has rightly arrived

at the income of the deceased and thus, the same does not

deserve to be reduced. He also relies upon the judgment passed

by the Hon'ble Jharkhand High Court in the case of Gautam

[2024:RJ-JD:38861] (4 of 10) [CMA-965/2017]

Banerjee v. Dr. C.P. Vidyarthi [M.A. No. 225 of 2018 decided on

20.12.2023] wherein the High Court has categorically held that

inasmuch as there was no rebuttal made by the opposite parties

to the statement of the claimant with respect to his income, the

opposite parties cannot cast any doubt in respect of the monthly

income of the claimant.

7. I have considered the submissions made by counsel for the

parties at length and have perused the material available on

record.

8. This Court finds that the judgment relied upon by the learned

counsel for the respondent-claimants does not render any

assistance inasmuch as in the case of Gautam Banerjee (supra),

the claimant was an advocate having practiced for 12 years and

that, the income deposed by the witness therein was reasonable,

and the High Court thus took into account the evidence on oath of

the claimant in the absence of any rebuttal evidence. The relevant

para of the judgment is reproduced as under:

"16. It appears that learned tribunal while deciding the income of the claimant failed to take into notice the evidence on oath of the claimant and there was no rebuttal evidence from opposite parties to cast any doubt in respect of monthly income of the claimant. Learned tribunal on his own accord conjectured about the monthly income of the claimant reduced it to Rs.9,000/- in place of Rs.14,000/- as claimed without any cogent reasons merely on the ground of absence of documentary proof of income the unrebutted sworn testimony of a witness can not be disbelieved. Moreover, the practicing lawyer of more than 12 years, practice may easily earn Rs.14,000/- per month. As such, the findings of learned tribunal as regards monthly income of the appellant is based on extraneous consideration and

[2024:RJ-JD:38861] (5 of 10) [CMA-965/2017]

beyond the weight of evidence available on record. Accordingly, monthly income of the appellant at the time of alleged accident is considered to be Rs.14,000/- per month. It is also admitted fact that the appellant was 43 years old on the date of accident. It is also admitted position that the appellant has undergone operation of hip joint by putting steel rod and sustained 48 % permanent disability of lower limb of right leg and still unable to discharge his normal pursuit of life without help of armlets."

On the contrary to this juxtaposition, in the present case, this

Court finds that the deceased was earning from the business of a

tea stall, which in view of this Court has to be considered as per

the Minimum Wages prevailing at the time of the accident.

9. Therefore, this Court deems it fit to take the monthly income

of the deceased in accordance with the Minimum Wages

Notification, published in the Rajasthan Gazette, dated

28.01.2015, which prescribed the minimum wages as revised from

01.01.2014. It is also seen that in accordance with the said

Notification dated 28.01.2015, un-skilled work ( v)Zdq'ky) includes

within its ambit such work which involves certain degree of skill or

competence acquired through work-related experience and which

is capable of being performed under the supervision or

performance of a skilled employee and also includes unskilled

supervisory work. Thus, in the absence of any proof produced by

the respondent/claimants with respect to the work of the

deceased, and taking into consideration the nature of job of the

deceased in light of the said Notification, this Court asseses the

salary of the deceased to be Rs. 5,174/-, per month. The relevant

part of the Notification dated 28.01.2015 is reproduced as under:

[2024:RJ-JD:38861] (6 of 10) [CMA-965/2017]

"fVIif.k;k (ख) v)Zdq'ky (semi-skilled) dk;Z og gS ftlesa dk;Z laca/kh vuqHko }kjk izkIr dq'kyrk ;k l{kerk dqN va'k rd lfEefyr gS vkSj tks prqj deZpkjh ds Ik;Zos{k.k ;k dk;Z n'kZu ds v/khu iwjk fd;k tkus ;ksX; gS vkSj blesa vdq'ky Ik;Zos{kdh; dk;Z Hkh lfEefyr gSA "

10. Furthermore, this Court is conscious of the fact that in the

case of Chandra @ Chanda @ Chandaram & Anr. v. Mukesh

Kumar Yadav & Ors. [Civil Appeal No. 6152 of 2021 decided on

01.10.2021], it has been observed that in the absence of

documentary evidence, some guesswork is required to be done,

however, simultaneously the Hon'ble Apex Court observed that

such guesswork should be related to the reality. The relevant para

of the judgment is reproduced 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 AW1 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 unable to produce documentary evidence to show the monthly income of Shivpal, same does not justify adoption of lowest tier of

[2024:RJ-JD:38861] (7 of 10) [CMA-965/2017]

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 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 appellantparents 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) 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 (supra) 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."

[2024:RJ-JD:38861] (8 of 10) [CMA-965/2017]

Therefore, in the present case too, taking into account the fact

that the deceased was earning from the business of a tea stall, the

income of the deceased had to be taken reasonably in accordance

with the nature of his job.. Also, in the absence of any salary

certificate demonstrating the proof of income of the deceased, the

income is to be taken in accordance with the Minimum Wages

prevailing at the time of the accident in light of the judgment

passed by the Hon'ble Apex Court in the case of Manusha

Sreekumar & Ors. v. United India Insurance Co. Ltd. [Civil

Appeal 7593 of 2022 decided on 17.10.2022]. The relevant para

of the judgment is reproduced as under:

"19. Applying the above parameters to the instant case, there exists sufficient evidence to show that the Deceased, undoubtedly, was a fish vendor-cum-driver with a valid license. The certificate issued by the Kerala Motor Transport Workers Welfare Fund Board, certifying the Deceased as the driver of light motor goods vehicle bearing Registration No. KL-36-B-7822 under the ownership of one Shri Prakashan has been proved on record. Further, the Deceased had also paid all his subscriptions to the Board from April 2012 until the month he died. We find no reason to doubt that the Deceased was a driver at the time of his death. This Court in Chandra Alias Chanda Alias Chandraram and Anr. v. Mukesh Kumar Yadav and Ors., has aptly held that in the absence of a salary certificate, the minimum wages notification along with some amount of guesswork that is not completely detached from reality shall act as a yardstick to determine the income of the deceased...."

Thus, in the present case too, in the absence of the salary

certificate of the deceased, and looking into the nature of the work

done by the deceased, this Court deems it appropriate to take into

[2024:RJ-JD:38861] (9 of 10) [CMA-965/2017]

account the Minimum Wages Notification, dated 28.01.2015,

which prescribed the minimum wages as revised from 01.01.2014,

i.e. Rs., 5,174/- inasmuch as the accident took place on

07.01.2015, in order to assess the income of the deceased.

11. This Court also finds the learned Tribunal has erred in

applying the multiplier of 16, when the age of the deceased was

35 years in light of the judgment passed by the Hon'ble Apex

Court in the case of Sarla Verma (supra) and that, the learned

Tribunal has also erred in adding 50% of the income towards

future prospects instead of 40%. Also, the claimants would be

entitled to a consortium of Rs. 48,000/- each, funeral expenses to

the tune of Rs. 18,000/- only and loss of estates to the tune of Rs.

18,000/- in the light of the judgment passed by the Hon'ble Apex

Court in the case of Pranay Sethi (supra).

12. Thus, the award passed by the learned Tribunal deserves to

be modified and requantified as under:

Particulars Awarded by the Tribunal Amount Income of the deceased (Rs. Rs. 90,000/- per annum Rs. 62,088/- per annum 5,174 x 12) Adding 40% as Future (90,000+45,000) (62,088+24,835.2) Prospects (40% of 62,088 = = Rs. 1,35,000/- = Rs. 86,923.2/- 24,835.2/-) Deduction of ¼ towards (1,35,000 - ¼ of 1,35,000) (86,923.2 - ¼ of 86,923.2 personal expenses = Rs. 1,01,250/- => 86,923.2-21,730.8) = Rs. 65,192.4/-

Applying the multiplier of 15 (applied multiplier of 16, Rs. 9,77,886/-

(65,192.4 x 15) [A]                       i.e. 1,01,250 x 16)
                                           = Rs. 16,20,000/-
Consortium (48,000 x 6) [B]          For wife Rs. 1,00,000/-                    Rs. 2,88,000/-
                                     For respondents 2 to 6,
                                               (35,000 x 5)
                                            = Rs. 1,75,000/-
Funeral Expenses [C]                                Rs. 25,000                    Rs. 18,000/-
Loss of Estates [D]                                                               Rs. 18,000/-
Total [A+B+C+D]                          Rs. 19,20,000/- [E]                Rs. 13,01,886/-[F]
Higher amount awarded by Tribunal [E-F]                                         Rs. 6,18,114/-




                                    [2024:RJ-JD:38861]                    (10 of 10)                        [CMA-965/2017]

13. Accordingly and in view of above discussion, the misc. appeal

filed by the appellant-insurance company is partly allowed. The

claimants are thus held entitled to get compensation of

Rs.13,01,886/- instead of Rs.19,20,000/- from the appellant-

Insurance Company and the respondent no.7/owner-driver jointly

and severally, as awarded by the learned Tribunal. The amount of

compensation is thus reduced by Rs.6,18,114/-. The judgment

and award dated 01.02.2017 passed by MACT Udaipur in MAC

Case No.218/2015 is modified. Also, in light of Section 171 of the

MV Act, the rate of interest awarded by the learned Tribunal is

kept as it is and thus, the compensation re-determined by this

judgment, shall carry interest as awarded by the learned Tribunal

from the date of filing of claim petition.

14. The amount of compensation, if any disbursed to the

claimants, shall be adjusted accordingly. Record to be sent back

forthwith. No costs.