Punjab-Haryana High Court
Bharti Axa General Insurance Company ... vs Pooja And Others on 1 August, 2024
Author: Alka Sarin
Bench: Alka Sarin
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
128 FAO-848-2024 (O&M)
Date of Decision : 01.08.2024
Bharti AXA General Insurance Company Ltd (now ....Petitioner
known as ICICI Lombard General Insurance Company)
VERSUS
Pooja and Others ....Respondents
CORAM : HON'BLE MRS. JUSTICE ALKA SARIN
Present : Mr. Sachin Ohri, Advocate for the appellant.
ALKA SARIN, J. (Oral)
CM-3284-CII-2024
1. This is an application for condonation of delay of 09 days in filing the present appeal.
2. For the reasons stated in the application, the same is allowed. The delay of 09 days in filing the present appeal is condoned. FAO-848-2024 (O&M)
3. The present appeal has been preferred by the Insurance Company challenging the award dated 18.10.2023 passed by the Motor Accident Claims Tribunal, Gurugram (hereinafter referred to as the 'Tribunal') whereby an amount of Rs.33,44,452/- has been awarded as compensation.
4. The only argument raised by learned counsel for the appellant- Insurance Company is that the Tribunal has wrongly assessed the income of the deceased as Rs.14,727/- per month as per DC rates as notified by the JITENDER KUMAR 2024.08.02 09:01 I attest to the accuracy and integrity of this order/judgment Chandigarh FAO-848-2024 -2- Deputy Commissioner, Gurugram for the year 2019-20. He has further contended that at the time of accident i.e. 02.01.2020 the minimum wages in the State of Haryana for an unskilled worker were Rs.9,319/- per month and hence the Tribunal while calculating the compensation should have considered the minimum wages instead of applying the DC rates.
5. Heard.
6. The argument of the learned counsel for the Insurance Company that the income ought to have been assessed as per the Minimum Wages Act, 1948 and not as per the DC rates deserves to be rejected. In the case of Shri Ram General Insurance Company Ltd. & Ors. Vs. Beant Kaur & Ors. [2019 (3) SCT 684] a detailed discussion has been made on the applicability of the minimum wages prescribed as per the Minimum Wages Act, 1948 as well as the case law applicable thereto. In para 15 it has been held as under :
"15. It has been held in a plethora of judgements by the Hon'ble Supreme Court that it is the duty of the tribunal/Court to award 'just compensation'. Motor Vehicles Act is admittedly a beneficial legislation, therefore to circumscribe the scope of assessment of income of the deceased/injured to the minimum wages as may be notified under the Minimum Wages Act would not be justified. Needless to say, assessment of income in cases where no specific documentary evidence is led in support of the claim, such assessment would be JITENDER KUMAR 2024.08.02 09:01 I attest to the accuracy and integrity of this order/judgment Chandigarh FAO-848-2024 -3- dependent upon the facts and circumstances of each case. There may be instances where oral evidence alongwith other supporting evidence on record may inspire confidence. There has to be a sound evaluation of the oral evidence and supporting circumstances in the factual matrix of each particular case. The Tribunal/Court while keeping in view the minimum wage fixed under the Minimum Wages Act as the basic criterion at the outset would proceed to determine whether income of the deceased/injured is to be assessed at any higher level keeping in view the evidence on record. This in my considered view, would be the correct approach to follow in such cases."
7. Hon'ble Supreme Court in the case of Jakir Hussein Vs. Sabir & Ors. [2015(7) SCC 252] has held as under :
"14. We have carefully examined the facts of the case and material evidence on record in the light of the rival legal contentions urged before us by both the learned counsel on behalf of the parties to find out as to whether the appellant is entitled for further enhancement of compensation? We have perused the impugned judgment and order of the High Court and the award of the Tribunal. After careful examination of the facts and legal evidence on record, it is not in dispute that the JITENDER KUMAR 2024.08.02 09:01 I attest to the accuracy and integrity of this order/judgment Chandigarh FAO-848-2024 -4- appellant was working as a driver at the time of the accident and no doubt, he could be earning Rs.4,500/- per month. As per the notification issued by the State Government of Madhya Pradesh under Section 3 of the Minimum Wages Act, 1948, a person employed as a driver earns Rs.128/- per day, however the wage rate as per the minimum wage notification is only a yardstick and not an absolute factor to be taken to determine the compensation under the future loss of income. Minimum wage, as per State Government Notification alone may at times fail to meet the requirements that are needed to maintain the basic quality of life since it is not inclusive of factors of cost of living index. Therefore, we are of the view that it would be just and reasonable to consider the appellant's daily wage at Rs.150/- per day (Rs.4,500/- per month i.e. Rs.54,000/- per annum) as he was a driver of the motor vehicle which is a skilled job. Further, the Tribunal has wrongly determined the loss of income during the course of his treatment at Rs.51,000/- for a period of one year and five months. We have to enhance the same to Rs.76,500/- (Rs.4,500 X 17 months)."
8. In the case of Ramachandrappa Vs. Manager, Royal Sundaram Alliance Insurance Company Limited [2011(13) SCC 236] JITENDER KUMAR 2024.08.02 09:01 I attest to the accuracy and integrity of this order/judgment Chandigarh FAO-848-2024 -5- Hon'ble Supreme Court has held as under :
"14. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as a Coolie and was earning Rs.4500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of Rs.3000/- only on the assumption that wages of the labourer during the relevant period viz. in the year 2004, was Rs.100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of Rs.3000/- per month. Secondly, the appellant was working as a Coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given JITENDER KUMAR 2024.08.02 09:01 I attest to the accuracy and integrity of this order/judgment Chandigarh FAO-848-2024 -6- case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between Rs.100/- to 150/- per day or Rs.4500/- per month. In our view, the claim was honest and bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from Rs.4500/- to Rs.3000/- per month. We, therefore, accept his statement that his monthly earning was Rs.4500/-."
9. In the present case, the deceased was 28 years of age and was employed with Truck Operators Transport Association, NH-8 IMT Manesar, Gurugram. He was survived by his widow aged 28 years, two minor children of 7 and 6 years of age and a 57 years old mother. The minor children have their whole life ahead of them and their education as well as future expenses all have to be borne by the widow. Thus, there is no error in the impugned award passed by the Tribunal inasmuch as the minimum wages notified by the Deputy Commissioner, Gurugram at the relevant point of time were Rs.14,727/-. Further still, the Hon'ble Supreme Court in the case of Chandra @ Chanda @ Chandraram & Anr. vs. Mukesh Kumar Yadav JITENDER KUMAR 2024.08.02 09:01 I attest to the accuracy and integrity of this order/judgment Chandigarh FAO-848-2024 -7- & Ors. [2021(4) RCR (Civil) 492] has held that a certain amount of guesswork can be done in motor accident claim cases while assessing the income when there is no definite proof regarding income. Para 10 of the said judgment reads 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 AW-1 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 JITENDER KUMAR 2024.08.02 09:01 I attest to the accuracy and integrity of this order/judgment Chandigarh FAO-848-2024 -8- 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.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 JITENDER KUMAR 2024.08.02 09:01 I attest to the accuracy and integrity of this order/judgment Chandigarh FAO-848-2024 -9- 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 appellant-parents 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 SCC OnLine SC 1546 = (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, (2021) 2 SCC 166 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."
10. No other argument has been raised.
JITENDER KUMAR 2024.08.02 09:01 I attest to the accuracy and integrity of this order/judgment Chandigarh FAO-848-2024 -10-
11. In view of the above, no ground is made out to interfere with the impugned award passed by the Tribunal and hence the present appeal is dismissed. The statutory amount deposited by the appellant at the time of filing of the present appeal be remitted to the Tribunal concerned for dealing with the same towards satisfaction of the award. Pending applications, if any, also stand disposed off.
( ALKA SARIN ) 01.08.2024 JUDGE jk NOTE: Whether speaking/non-speaking: Speaking Whether reportable: YES/NO JITENDER KUMAR 2024.08.02 09:01 I attest to the accuracy and integrity of this order/judgment Chandigarh