Rajasthan High Court - Jodhpur

Smt.Geeta And Ors vs Jagdish And Ors. (2025:Rj-Jd:11811) on 3 March, 2025

Author: Nupur Bhati

Bench: Nupur Bhati

[2025:RJ-JD:11811]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                     S.B. Civil Misc. Appeal No. 680/2012

 1. Smt. Geeta wife of Shri Mangi Lal, aged about 23 years.
 2. Manisha daughter of Shri Mangi Lal, aged about 5 ½ years.
 3. Ashok S/o Shri Mangi Lal, aged 3 years [Appellant No.2 & 3
     minor through their natural guardian mother Smt. Geeta w/o
     Shri Mangi Lal (Appellant No.1)].
 4. Ramlal S/o Shri Rugha Ram, aged 61 years.
 5. Samdi W/o Shri Ramlal, aged 55 years.
     All residents of Mandla Kalla, Tehsil Phalodi, District Jodhpur
                                                                       ----Appellants
                                         Versus
 1. Jagdish S/o Shri Gordhan Ram, resident of Maliyon Ka Bas ,
     Pokaran, District Jaisalmer.
                                       (Driver of Tanker No.RJ-19 1G 5314)
  2. Girdhari Ram S/o Shri Chaina Ram. (Died)
      2/1. Kishan Lal S/o Girdhari Ram.
      2/2. Ashok Kumar S/o Girdhari Ram.
     Resident of C-100, Pratap Nagar, Jodhpur at present resident
      of Outside Bhawani Pole, Pokaran, District Jaisalmer.
                                      (Owner of Tanker No.RJ-19 1G-5314)
  3. United India Insurance Company Ltd. 12-D, Residency Road,
     Jodhpur.
                                                                     ----Respondents


 For Appellant(s)              :    Mr. Deepak Bishnoi for Appellants-
                                    claimants
 For Respondent(s)             :    Mr. T.R.S. Sodha for Insurance
                                    Company



                HON'BLE DR. JUSTICE NUPUR BHATI

Judgment

03/03/2025

1. The instant civil misc. appeal has been filed by the

appellants-claimants under Section 173 of the Motor Vehicles Act,

1988 ('the Act') challenging the judgment and award dated

[2025:RJ-JD:11811] (2 of 7) [CMA-680/2012]

19.08.2011 passed by learned Motor Accident Claims Tribunal,

Falodi, Jodhpur ('learned tribunal') in MAC. No.06/2011 whereby

the learned tribunal has partly allowed the claim petition filed by

the appelllants-claimants and awarded compensation to the tune

of Rs.5,71,068/- along with interest @6% from the date of filing

of the claim petition.

2. Briefly stated the facts of the case are that on 13.11.2010

the driver of the Tanker bearing registration no.RJ19 IG 5314

dashed into Mangilal, who was riding his bike on the correct side

of the road. As a result of the accident Mangilal suffered injuries

and ultimately met his demise during the course of treatment in

the hospital. Subsequently, a claim petiton was filed by the

appellants-claimants under Section 166 read with Section 140 of

the Act before the learned tribunal seeking compensation on

account of death of Mangilal ('the deceased'). The respondent

no.3-insurance company filed reply to the claim petition denying

the averments made therein. Respondent Nos.1 and 2 were

proceeded against ex-parte. On basis of pleadings of the parties

the learned tribunal framed four issues. The appellants-claimants

examined three witnesses (AW1 to AW3) and produced

documentary evidence (Ex.1 to Ex.12). The respondent no.3-

insurance company failed to produce any oral or documentary

evidence. After hearing both the parties the learned tribunal partly

allowed the claim petition and awarded compensation to the tune

of Rs.5,71,068/- along with interest @6% from the date of filing

of the claim petition while fastening the liability, jointly and

severally, on the respondents. Aggrieved by the quantum of

[2025:RJ-JD:11811] (3 of 7) [CMA-680/2012]

compensation as awarded by the learned tribunal the instant misc.

appeal has been preferred by the appellants-claimants.

3. Learned counsel for the appellants-claimants submits that

the learned tribunal has erred in assessing the income of the

deceased on the lower side based on the minimum wages. He also

submits that the deceased was an Advocate of 2.5 years standing

and could not be compared to daily wagers. He also submits that

the learned tribunal has erred in awarding amount under the head

of consortium, funeral expenses and future prospects on the lower

side. He also submits that learned tribunal has failed to award any

amount under the head of loss of estate and also erred making

deduction of 1/3 instead of 1/4 on account of pesonal expenses.

4. Per contra, learned counsel for the respondent-insurance

company submits that the learned tribunal has already awarded

adequate amount of compensation hence, the same does not

deserve to be enhanced. He also submits that the learned tribunal

has rightly assessed the income of the deceased as Rs.3,000/- as

the appellants-claimants failed to produce any proof of income.

5. Heard the counsel for the parties.

6. As far as contention of the counsel for the appellants-

respondents regarding the income is concerned this court finds

that the learned tribunal has assessed the income of the deceased

as Rs.3000/- mainly on the grounds that no evidence has been

produced by the appellants-claimants to prove that the deceased

was earning Rs.13,000/- per month and also the deceased was an

advocate with a standing of only two years.

6.1 This court finds that the Hon'ble Supreme Court in Chandra

v. Mukesh Kumar Yadav, (2022) 1 SCC 198, held that in case

[2025:RJ-JD:11811] (4 of 7) [CMA-680/2012]

there is no documentary evidence to show monthly income of the

deceased the income of such deceased person can be assessed by

some guesswork however, such guesswork should not be detached

from reality. The relevant paragraph of the aforesaid 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 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."

6.2. In Basanti Devi and Ors. vs. Divisional Manager, The

New India Assurance Company Ltd. and Ors.,

MANU/SC/1333/2021, the Hon'ble Supreme Court, while

dealing with a case wherein no documentary proof of income was

available, has held that income can be assessed considering the

potentiality to earn. The relevant paragraph of the aforesaid

judgment is reproduced as under:

"5. Having heard the learned Counsel appearing for the respective sides and considering the fact that the deceased

[2025:RJ-JD:11811] (5 of 7) [CMA-680/2012]

at the time of death/accident was aged 25 years of age and was a Bachelor of Engineering in Computer Technology, we are of the opinion that the Tribunal rightly considered the income of the deceased at the time of death at least @ 20,000/- p.m. The same was not required to be interfered with by the High Court. The submission on behalf of the Respondent - Insurance Company that as no documentary evidence was produced and/or laid in support of the documentary evidence produced on record that the deceased was earning Rs. 20,000/- per month and therefore the Tribunal ought not to have assessed the income of the deceased at Rs. 20,000/- per month is concerned, assuming that there was no supporting evidence laid, in that case also considering the potentiality to earn, as the deceased was a Bachelor of Engineering in Computer Technology, his income can safely be assessed at-least at Rs. 20,000/- per month. As such we are in complete agreement with the view taken by the Tribunal. The High Court has committed a grave error in reducing the compensation from Rs. 30,54,000/- (Rs. 30,04,000/-) to Rs. 15,82,000/-."

6.3. Thus, in even in cases where no documentary proof of

income of the deceased is available on record, the court can

assess the income considering the potentiality to earn while

applying some guesswork however, such guesswork should not be

detached from the reality.

6.4. This court considering the fact that the deceased was an

advocate of a standing of approximately two years deems it

appropriate to assess the income of the deceased as Rs.7,000/-

per month.

7. Furthermore, this court finds that the learned tribunal has

erred in not awarding any amount under the head of loss of

estate, thus, this court deems it appropriate to award Rs.18,150/-

under this head in the light of the judgment passed by the Hon'ble

Supreme Court in the case of National Insurance Co. Ltd. v.

Pranay Sethi, (2017) 16 SCC 680. Also, learned tribunal has

[2025:RJ-JD:11811] (6 of 7) [CMA-680/2012]

erred in making a deduction of 1/3 on account of personal

expenses of the deceased as looking to the number of dependants

i.e., 5 deduction on account of personal expenses of the deceased

ought to be 1/4 in the light of the judgment of the Hon'ble

Supreme Court in Sarla Verma and Ors. Vs. Delhi Transport

Corporation and Ors., (2009) 6 SCC 121. Further, this court

finds that the learned tribunal has erred in awarding meager

amount under the head of consortium (i.e., Rs.5,000/- each) and

funeral expenses (i.e., Rs.2,000/-) and thus, the same deserve to

be enhance to Rs.48,400/- each and Rs.18,150/- respectively in

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

Sethi (supra). Further, the learned tribunal has erred in awarding

a lumpsum towards the future prospect and the same should be

@40% looking to the age of the deceased i.e., 27 years.

8. Thus, in view of the above, the amount of compensation

awardable to the appellants-claimants is as under:

S.N Particulars                                  Amount      as       Amount     as
o.                                               awarded by the       awarded/modif
                                                 learned              ied   by this
                                                 tribunal             court
1.   (add) Compensation towards loss             Rs.5,44,068/-        Rs.14,99,400/-
     of dependency
     7000 (per month) + 2800(future
     prospect @40%)- 2450 (1/4
     deduction on account of personal
     expenses) x 12 x 17 (Multiplier)
     = Rs.14,99,400/- [A]
2.   (add) Loss of Consortium 48,400             Rs. 25,000/-         Rs.2,42,000/-
     x 5= 2,42,000/- [B]
3.   (add) Funeral Expenses [C]                  Rs.2,000 /-          Rs.18,150/-
4.   (add) Loss of Estate [D]                    nil                  Rs. 18,150/-
        Gross Total [A]+[B]+[C]+[D]              Rs.5,71,068/-        Rs.17,77,700/-
                                                 [E]                  [F]




                                    [2025:RJ-JD:11811]                         (7 of 7)                     [CMA-680/2012]


                                                                     Enhanced Amount [F]-[E]
                                                                                                          Rs.12,06,632/-

9. Thus, the instant civil misc. appeal preferred by the

appellants-claimants is partly allowed. The impugned award

passed by the learned tribunal is modified accordingly.

10. Accordingly, the appellants-claimants are held entitled to get

enhanced compensation of Rs.12,06,632/- along with interest

@6% (same as awarded by the learned tribunal) from the date of

filing of the claim petition in the same manner as directed by the

learned tribunal.

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

appellants/claimants, shall be adjusted accordingly.

12. Pending Application (s), if any, shall also stand disposed of.

(DR. NUPUR BHATI),J 257S-/ravi khandelwal/-