1. The appellant - claimants herein are before this Court
2. Facts first. On 07.12.2015, at approximately 10:30 AM,
routine. On the fateful day and time, respondent No.1 was coming
RJ01-GA-9090) rashly and negligently at high speed. Owing to this,
GJ02-VV-6985) parked on the roadside. Despite the collision, the
deceased. The impact of the accident was so severe that multiple
the spot. Rajmal @ Raju Bhai Rajmal sustained critical head
injuries and was rushed to Palanpur Hospital. Due to the severity
treatment. FIR No.149/2015 was registered at Mandar Police
2.1. The appellants, being the legal heirs of the deceased (his
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2.2. At the time of the accident, Rajmal was healthy, with no
pre-existing or life-threatening conditions. He ran a General Store
earning approximately Rs.15,000/- per month. His entire family
2.3. Respondent Nos.1 and 2, despite receiving notices, did not
2.4. Respondent No.3, while admitting the trailer was insured,
pleaded that the driver lacked a valid licence and also claimed
3. Learned tribunal had framed four issues, English translated
03. Whether the non-claimant No. 3 (insurance company) is not
liable to pay compensation to the claimants in view of the objections
raised in paragraphs 1 to 8 of its written statement?
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04. Relief?"
4. After analyzing the material available on record, the learned
tribunal decided the issues no.1 & 3 in favour of the claimants and
against the respondent-insurance company and issue no.2 & 4
partly in favour of the claimants. It partly allowed the claim
petition awarding a compensation of Rs.9,31,100/- to the
claimants with 6% annual interest from 10.02.2016 till the date of
decision with direction to the insurance company (respondent No.3)
to submit a demand draft of the amount to the Tribunal.
5. Aggrieved by the inadequacy of compensation, the claimants
are in appeal.
5.1. Learned counsel for the appellants submits that the
compensation awarded by the learned Motor Accident Claims
Tribunal vide judgment dated 18.03.2019 is grossly inadequate
and does not reflect the actual loss suffered by the appellants. The
deceased, aged 43 years, was earning Rs. 15,000/- per month
through a general store business and as a private commission
agent with a Society Limited firm. Despite uncontroverted oral and
documentary evidence to that effect, the learned Tribunal
erroneously assessed the monthly income at merely Rs.5,122/-,
without assigning cogent reasons or properly appreciating the
nature and scope of the deceased's earnings.
5.2. It is further contended on behalf of the appellants that the
learned Tribunal failed to account for the deceased's realistic
future earning capacity. At 43 years, with an entrepreneurial
background, the deceased could have continued working until 70
years, with prospects of increased income. The learned Tribunal's
omission to factor in future prospects of increased income of the
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deceased and its failure to award compensation for loss of
consortium, despite clear legal entitlement, render the award
unjust.
5.3. He further urges that the learned Tribunal did not consider
the actual financial, emotional and moral dependency of the family
on the deceased. He was the sole breadwinner for family
comprising of his wife, aged mother and two children--one of
whom is a minor. The minor child has been deprived of love,
affection, care and support from an early age. The future
educational needs of the children and the medical expenses of the
aged dependents were also ignored by the Tribunal while passing
the award.
5.4. It is also argued that the deduction made by the learned
Tribunal towards personal expenses of the deceased is excessive
and inconsistent with settled legal principles. Considering that the
deceased was supporting the entire family, such a high deduction
was unwarranted and has adversely affected the compensation
amount.Additionally, the appellants assert that the said deduction,
being contrary to law, ought to have been minimal, particularly in
light of the deceased's role as the sole provider. This has directly
led to a reduced and unjust compensation.
5.5. Lastly, he would contend that the awarded amount of
Rs.9,31,100/- is arbitrary, mechanical and fails to meet the ends
of justice. A reasonable and just compensation, based on the facts
and settled law, would be no less than Rs.44,05,000/-. Thus, the
appeal merits consideration for enhancement of the award.
6. Per contra, learned counsel for the respondent no.3 -
insurance company as well as learned counsel for the respondents
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no.1 & 2 (driver and owner) supported the impugned award and
sought dismissal of the instant appeal.
7. In the aforesaid backdrop, I have heard the rival contentions
of learned counsels which are more or less on the same lines as
the grounds taken in the pleadings and perused the case file. I
shall now proceed to deal with the merits and demerits thereof
and render my opinion based on the discussion and reasoning
contained hereafter.
8. The learned Tribunal's findings on issues No.1 & 3 in favour
of the claimants and against the respondent-insurance company
are not in challenge.
9. Now, let us have a look at the relevant part of the award,
English translation of which is as below:
"16. Issue No.2
This issue pertains to the quantum of compensation, the
burden of proving which rested upon the claimants. In this regard,
the claimants were required to prove that due to the motor vehicle
accident, the claimants are entitled to jointly and severally receive a
compensation amount of ₹44,05,000/- along with interest from the
respondents for the untimely death of Rajmal alias Rajubhai.
17. Since, in the discussion and analysis of Issue No.1, the fact
that the death of the deceased Rajmal alias Rajubhai occurred due to
injuries sustained in the accident has been proven, therefore, for the
determination of the compensation amount, the material components
of the deceased's age at the time of the accident, monthly/annual
income, and the number of dependents on the deceased's income are
legally just to discuss and analyze.
18. As far as the age of deceased-Rajmal alias Rajubhai at the
time of the accident is concerned, a copy school leaving certificate of
the deceased Rajmal alias Rajubhai has been exhibited as Exhibit-70
and a copy of the PAN card issued by the Government of India has
been exhibited as Exhibit-78, both of which mention the date of birth
of the deceased Rajmal alias Rajubhai as 02.10.1972. Thus, based on
the presented documents Exhibit-70 and 78, the age of the deceased
Rajmal alias Rajubhai on the date of the accident appears to be 43
years, 02 months, and 05 days. Therefore, the deceased is presumed
to be in the age group of 41 to 45 years on the date of the accident,
and in compliance with the principle laid down in the case of
National Insurance Co. Ltd. vs. Pranay Sethi reported in 2017 (2)
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ACTC Supreme Court page 1201, a multiplier of 14 is determined to
be applicable to the determined income of the deceased.
19. As far as the monthly/annual income of the deceased Rajmal
alias Rajubhai is concerned, in this regard, the claimant/witness
A.W.1 Smt. Suknadevi has stated in her petition and statements that
the deceased earned a monthly income of ₹15,000/- by working in
business and as a commission agent in a Society Limited. To prove
the fact that the deceased was doing business under the name of
Kapil General Store, she has presented bills/vouchers etc. from
Exhibit-101 to 207 and has presented many other bills and vouchers.
However, the claimant A.W.1 Smt. Sukna, in her cross-examination
by the insurance company, has admitted the factual suggestions that
she has not presented the registration certificate of the deceased's
firm, profit and loss account, income certificate, or income tax
returns. The claimant/witness has presented a copy of her husband's
recurring deposit account, Exhibit-A2, as her husband's commission
agent account, which is not acceptable. There is no document on
record that directly shows the deceased's monthly/annual income.
Therefore, the fact that the deceased earned income by doing cloth
business and working as a bank commission agent is not proven.
Consequently, considering the deceased Rajmal alias Rajubhai as an
income earner like a common laborer, the monthly wage rate of
₹5,122/- payable to an unskilled laborer by the Government of
Rajasthan in the year 2015 is determined as the monthly income of
the deceased.
20. As far as the number of dependents on the deceased's income
is concerned, the claimant/witness A.W.1 Smt. Suknadevi is the
deceased's married wife, claimantsNo.2 to 4, Kamlesh, Dimple, and
Reena, are the deceased's school-going son and minor daughters
respectively, and claimant No.5, Hastudevi, is the deceased's mother.
Therefore, according to the principle laid down in the case of Pranay
Sethi reported in 2017 (2) ACTC Supreme Court page 1201, a total
of five claimants, i.e., the claimants, are considered eligible for
dependency on the deceased's income, and on this basis, it is legally
sound to deduct 1/4th of the income loss amount under the head of
the deceased's personal living expenses. In accordance with the
guidelines laid down in the said precedent, since the deceased's age
was more than 40 years and less than 50 years and he was not an
income tax payer, the claimants are entitled to receive 25 percent of
the determined annual income as compensation for the loss of the
deceased's future prospects.
21. It is also pertinent to mention here that documents Exhibit-34
to 66 have been presented and exhibited regarding the treatment of
the deceased Rajmal alias Rajubhai's injuries after the accident.
Among these documents, Exhibit-36 and 37 are receipts for an
advance deposit of ₹42,469/- towards treatment at H.C.G. Culty
Speciality Hospital, Ahmedabad, which is for the amount included in
the provisional bills of the said hospital, Exhibit-38, 48, and 49.
Besides this, other medicine bills are Exhibit-40, 41, 42, 47, and 60
to 66, the total amount of which is ₹11,772/-. Exhibit-39, 45, and 50
to 59 are the deceased's pathological and ECG reports, and medicine
prescriptions, etc. Thus, the claimantsare entitled to receive ₹42,469
+ ₹11,772 = ₹54,241/- as compensation for the medical treatment
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expenses incurred before the deceased's death. Based on the above
discussion, the calculation of compensation is done as follows:
01- By adding 25 percent of the determined income towards loss of
future prospects, i.e., ₹1,281/-, to the deceased's determined monthly
income of ₹5,122/-, the monthly income becomes ₹5,122 + ₹1,281 =
₹6,403/-. Multiplying this by 12 gives an annual income of ₹76,836/-.
Applying a multiplier of 14 based on the deceased's age to the annual
income gives ₹76,836 x 14 = ₹10,75,704/-. After deducting 1/4th of
this amount, i.e., ₹2,68,926/-, towards the deceased's personal
expenses, the remaining amount is ₹8,06,778/-, which the claimants
are entitled to receive under the head of loss of income and future
prospects of the deceased.
02- ₹54,241/- as expenses incurred on medical treatment of the
injuries.
03- Due to the untimely death of the deceased, the claimants are
entitled to receive a lump sum amount of ₹70,000/- under the heads
of loss of love, support, cooperation, mental anguish, estate, and
funeral expenses of the deceased.Thus, the claimants are entitled to
receive a consolidated amount of ₹9,31,019/-, rounded off to
₹9,31,100/-, as compensation for the death of the deceased Rajmal
alias Rajubhai in the motor vehicle accident. Consequently, Issue
No.2 is partly decided in favor of the claimants for the compensation
amount of ₹9,31,100/-.
xxx xxxx xxxx
23. Issue No.4(Relief)
Since Issue No.1 has been decided in favor of the claimants, the
decision on Issue No.2 is partially in favor of the claimants and the
decision on Issue No.3 is against the respondent insurance company,
therefore, the claimants are entitled to receive a total compensation
of ₹9,31,100/- from the respondents along with simple interest at the
rate of 6 percent per annum on the said amount from the date of
filing the petition until the date of the decision. Accordingly, the
claim-petition is liable to be partially allowed.
10. A perusal of the impugned award shows that a rather over-
pedantic and mechanical approach was adopted by the learned
Tribunal to negate the documentary evidence, Exhibits 101 to 207,
which are the bills and vouchers of the various persons who had
purchased the insurance policies through the deceased-husband of
the claimant -wife, who in all earnestness, produced every
document that was available with her to prove that her husband
was indeed working as an insurance/investment agent.
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11. It is rather unfathomable that if the deceased-husband had
not been actually doing the insurance work, he would have
kept copies of all these vouchers and bills of various insurance
policies, which are totally private in nature. In ordinary course,
either the agent or the person who had purchased the insurance
policy or the Insurance Company would have he same. It is not
possible that the widow of the deceased commission agent went
door-to-door hunting for the same to collect their copies from
villagers, unless of course her husband was indeed working as an
agent and, in ordinary course, would have maintained his records
to claim commission from time to time, as and when the premium
was paid/payable qua the policies sold by him.
12. In the premise, the learned Tribunal committed material
irregularity in rejecting the said documentary evidence and
rendered an erroenous finding that the deceased-victim was not
working as a commission agent and thus treated him as an
unskilled labourer.
13. In the course of hearing, learned counsel for the claimants,
on Court query, submitted that the deceased was a Graduate,
though he submits that by sheer oversight, proof of his
educational qualifications could not be placed on record, as there
was no such pleading made by the counsel while drafting the claim
petition.
14. Be that as it may, even if he was not a graduate, I am of the
view that there is enough material on record to suggest that he
was working as an agent for the Life Insurance Corporation of
India as well as Adarsh Credit Cooperative Society, of which
various passbooks were also produced in evidence, apart from the
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proof of premium paid to the LIC by the various insurees who
purchased the policies.
15. The argument of learned counsel for the respondent-
Insurance Company that the vouchers produced by the widow did
not mention the name of the deceased-husband has no substance,
as the same are issued by the Insurance Company, and therefore,
the deceased could not be faulted merely because the agent's
name is not mentioned in the vouchers. Therefore, rejection of
this evidence on the ground that the documents did not bear the
deceased's name was by ignoring the ground reality as to how
commissions in such agencies are disbursed. As noted,
commission payments are recorded within the internal systems of
the insurance company and policy receipts issued to customers do
not normally reflect the agent's name. Therefore, the absence of
the deceased's name on the receipts/passbooks does not detract
from their evidentiary value.
16. Ordinarily, the commission is based on the entries made in
the LIC records as to the person who was instrumental in selling
the policy. The commission is thus not paid on the basis of the
receipt, but on the basis of the record maintained with the
Insurance Company.
17. In the aforesaid premise, I am of the view that the learned
Tribunal thus adopted an overly rigid approach in rejecting the
documentary evidence submitted by the claimant/widow. The bills
and vouchers submitted by her indicated that the deceased was
indeed engaged in work as a commission agent. Retention of
these documents is consistent with the nature of work typically
undertaken by a commission agent. It is rather too unrealistic to
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assume that the widow of the deceased would have been able to
collect such specific private documents from the third parties
unless her husband had in fact been working in that capacity and
maintained these records as part of his professional routine. The
Tribunal's decision to disregard this evidence because of the
absence of income tax returns or business registration overlooked
the practical realities of informal or semi-formal professions in
rural and semi-urban India, where individuals often do not
maintain exhaustive financial documentation.
18. Furthermore, the Tribunal erred in treating the deceased as
an unskilled laborer with an arbitrary monthly income of ₹5,122,
especially when there was uncontroverted testimony from the
widow and documentary material suggesting otherwise. The
nature of the deceased's work--working as an agent--
demonstrates a level of skill and financial engagement inconsistent
with that of an unskilled laborer's. The Tribunal failed to given due
weight to the evidence, the structured nature of his profession,
and the economic reality of a self-employed person in such trades.
19. Altogether, these errors, as enumerated herein above,
cumulatively resulted in a gross underestimation of the deceased's
earning potential, and consequently, an inadequate compensation
award. It is thus a fit case calling for a reassessment of
compensation based on a realistic and just appraisal of the
deceased's occupation and income.
20. In view of my finding, it is deemed appropriate that the
income of the deceased-husband of the claimant be taken as Rs.
12,000/- per month.
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21. The Tribunal also committed a mistake in giving a lump-sum
amount of Rs. 70,000/- towards consortium and funeral expenses
and not as per the legally well settled formula.
22. Accordingly, the compensation to be awarded is revised as
below:
Date of Accident/Death/injury and with FIR 07.12.2015
Nature of offending vehicle - whether insured or Insured
not-
Age of Deceased- 43 years
Simple injury or If disability is permanent then -
what Percentage-
Profession and Monthly Income of Deceased - 12,000/-
Future Prospects (40%) calculate- (40% *12000 = 4,800)
12000 + 4800 = 16,800/-
Deduction for Personal Expenses (1/4) calculate- (1/4th *16,800 = 4,200)
16,800 - 4,200 =
12,600/-
Annual Dependency- 12600 x 12 = 1,51,200/-
Total Loss of Dependency (Multiplier of 14) 21,16,800/-
mention- Award dated 18.03.2019
Loss of Consortium for 5 claimants (₹44,000 × 5) 2,20,000/-
Loss of Estate and Funeral Expenses- 16500+16500
= 33,000/-
Total Compensation- 23,69,800/-
Compensation Awarded by Tribunal- 09,31,100/-
Compensation amount to be Paid as per above - 14,38,700/-
23. By adjusting the payment, if any already made, the enhanced
amount of compensation with interest thereon @ 6% per annum
from the date of filing of compensation application (10.02.2016)
before the learned Tribunal shall be paid to appellants in the
following manner:
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1. Smt. Sukana Devi @ Suki Devi @ Sukhi Devi W/o Rajmal
@ Raju Bhai=50%
2. Kamlesh Kumar S/o Rajmal @ Raju Bhai=7%
3. Dimple Kumari D/o Rajmal @ Raju Bhai=8%
4. Reena Kumari D/o Rajmal @ Raju Bhai, Aged About 10
Years, Minor Through Her Natural Mother Smt. Sukana Devi
@ Suki Devi @ Sukhi Devi =20%
5. Hastu Devi W/o Kartor Ram (mother of the deceased)
=15%.
24. Disposed of accordingly.
25. Pending application(s),if any, also stand(s) disposed of.
(ARUN MONGA),J
78-/Jitender/SP
Whether fit for reporting : Yes / No.
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