Himachal Pradesh High Court
Giano Devi And Ors. vs Gian Singh And Anr. on 24 April, 1997
Equivalent citations: 1998ACJ933
Author: Arun Kumar Goel
Bench: Lokeshwar Singh Panta, Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. We propose to dispose of these three appeals by a common judgment as they have arisen out of the same accident. F.A.O. No. 166 of 1988 has been filed by the claimants for enhancement, whereas F.A.O. No. 178 of 1988 has been filed by the New India Assurance Company, Shimla against the award passed by the Motor Accidents Claims Tribunal (2), Shimla on the plea that it is not liable for payment of compensation awarded under the said award. F.A.O. No. 170 of 1988 has also been filed by the New India Assurance Co. Ltd. against the award passed by the aforesaid Motor Accidents Claims Tribunal (2), Shimla in M.A.C.T. Case No. 14-S/2 of 1988.
2. Brief facts of these appeals need to be given in order to properly appreciate the submissions made on behalf of the parties.
F.A.O. No. 170 of 1988
3. In this case a claim petition came to be filed by Subhadra Devi widow, Kusum Lata, Reena Kumari, minor daughters, Sunil Kumar, minor son, Manohar Singh and Gopi, parents respectively of the late Mangat Ram, who according to these claimants had died in a motor vehicle accident which was the result of rash and negligent driving on the part of the driver. This motor accident had taken place on 30.8.1987 at 7.30 p.m. near Bagharu Nala in the jurisdiction of police station Theog. Vehicle at the time of accident was being driven by Krishan Dutt, late driver of vehicle bearing registration No. HPS 5891 belonging to Gian Singh respondent. It is not in dispute that this vehicle stood insured with appellant insurance company. F.I.R. in this case was registered, copy whereof has been proved on record vide Exh. PA and copy of post-mortem report of deceased Mangat Ram has also been proved on record as Exh. PB. Insurance company placed reliance on a copy of insurance policy Exh. R-1, even otherwise there is no dispute between the parties regarding the vehicle being insured with the appellant insurance company. After completion of the trial, the Tribunal below has passed award in the sum of Rs. 92,000 in all and has apportioned this amount in favour of respondent Nos. 1 to 6, claimants, namely, Rs. 22,000/- to the widow, Rs. 20,000/- each to two daughters and one son of the deceased and Rs. 5,000/- to each of the parents. This award of the Tribunal below has been questioned by the insurance company in the present appeal.
4. Mr. K.D. Sood, learned Counsel for the appellant submitted that the award passed against his client is not sustainable and he made a feeble attempt to further rake up the question that the deceased was not engaged as a labourer by the owner as held by the Tribunal below and thus he has further attempted to urge that the award against his client is liable to be set aside. All these contentions were controverted by Mr. Ashok Sharma, the learned Counsel appearing for respondent Nos. 1 to 6.
F.A.O. No. 166 of 1988 & F.A.O. No. 178 of 1988
5. In this case Giano Devi widow and three minor daughters, namely, Soma, Sonu and Rita of late Amar Nath filed a claim petition on the basis that deceased Amar Nath was working as a conductor-cum-driver with the respondent at the time of accident and was getting Rs. 1,500/- p.m. as salary besides Rs. 20/- as daily allowance. By means of an award dated 26.8.1988, compensation in the sum of Rs. 1,06,000/- was awarded in favour of respondents-claimants, viz., Giano Devi Rs. 31,000/- and three minor daughters Rs. 25,000/- each.
6. As noted above, the insurance company has filed F.A.O. No. 170 of 1988 for exonerating it from payment of this amount, whereas respondents-claimants have filed F.A.O. No. 166 of 1988 for enhancement of compensation as according to them the sum awarded is inadequate. Mr. Devender Ghosh appeared in support of F.A.O. No. 166 of 1988 and pointed out that looking to the age of the deceased at the time of accident, multiplier of 12 is on the lower side which according to him should have been somewhere in the range of 20 and thus he prayed for enhancement of compensation.
7. On the other hand, Mr. K.D. Sood urged in both these appeals that deceased had not been proved to be the conductor-cum-driver or working as a conductor at the time of accident employed by the owner Gian Singh. Thus according to him appellant insurance company is not liable for the payment of compensation and has prayed for exonerating his client from payment of this amount.
8. In both the claim petitions, i.e., one filed by Giano Devi and the other by Subhadra Devi, the owner Gian Singh appeared as RW 1 who has categorically stated that vehicle at the time of accident was being driven by late Krishan Dutt driver while Amar Nath was working as a conductor-cum-driver. He has further stated that Mangat Ram had been employed by him to load and unload the apple boxes at the time of accident and was working as labourer and for this purpose was paying Rs. 40/- per day to the said deceased. This evidence of the owner has not been questioned by the appellant insurance company on this material aspect of the case. In these circumstances, arguments raised on behalf of the insurance company in this appeal that the deceased Amar Nath was not working as conductor at the time of accident or Mangat Ram had not been employed as a labourer on the truck at the time of accident are raised simply to be rejected.
9. In this context, it may be appropriate to point out that as per insurance policy, Exh. R-1 premium of Rs. 48/- had been charged in respect of one driver, one cleaner and four coolies. In view of the matter, it is evident that there is no merit in the appeals filed by the insurance company, i.e., F.A.O. No. 170 of 1988 and F.A.O. No. 178 of 1988, which are dismissed accordingly.
10. Now the question that remains to be determined is whether the respondents-claimants who have filed F.A.O. No. 166 of 1988 are entitled to any relief in their appeal or not. In this context, it may be appropriate to notice that it has come in the statement of RW 1 Gian Singh owner of the vehicle that deceased Amar Nath was working as conductor-cum-driver. There is otherwise enough material to show that at the time of the accident he was working as conductor because the vehicle in question was being driven by Krishan Dutt since deceased and there is no rebuttal of this evidence of the owner nor any cross-examination was directed on this material aspect of the case as well as regarding the wages of the deceased being Rs. 1,000/- p.m. besides Rs. 400/- p.m. as diet money being paid by the owner to the deceased. The Tribunal below has taken the income at Rs. 1,000/- p.m. and after following the well-known and recognised unit system has taken the dependence of the appellants at Rs. 715/- p.m. or say at Rs. 8,580/- p.a. and by applying the multiplier of 12 has held the compensation payable at Rs. 1,02,960/- and by adding a sum of Rs. 3,040/- on account of love, affection, mental shock and agony has awarded Rs. 1,06,000/-. While doing so, the Tribunal below has not taken into account the amount of diet money of Rs. 400/- p.m. that has been proved to be earned by the deceased. This approach of the Tribunal below while assessing the wages was not correct.
11. No doubt under the provisions of Motor Vehicles Act the wages have not been defined but a cue can be had from the definition of wages under the provisions of Minimum Wages Act as well as Industrial Disputes Act so as to ascertain what is included within the term wages. For ready reference definition of wages under the Minimum Wages Act as well as Industrial Disputes Act is reproduced here-in-below:
Minimum Wages Act, 1948 2(h) 'wages' means all remuneration, capable of being expressed in terms of money, which would, if the terms of the contract of employment, express or implied, were fulfilled, be payable to a person employed in respect of his employment or of work done in such employment, (and includes house rent allowance), but does not include-
(i) the value of-
(a) any house-accommodation, supply of light, water, medical attendance; or
(b) any other amenity or any service excluded by general or special order of the appropriate Government;
(ii) Any contribution paid by the employer to any pension fund or provident fund or under any scheme of social insurance;
(iii) any travelling allowance or the value of any travelling concession;
(iv) any sum paid to the person employed to defray special expenses entailed on him by the nature of his employment; or
(v) any gratuity payable on discharge;
xxx xxx xxx Industrial Disputes Act, 1947 2(rr) 'wages' means all remuneration capable of being expressed in terms of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to a workman in respect of his employment, or of work done in such employment, and includes-
(i) such allowances (including dearness allowance) as the workman is for the time being entitled to;
(ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of food grains or other articles;
(iii) any travelling concession;
(iv) any commission payable on the promotion of sales or business or both;
but does not include-
(a) any bonus;
(b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force;
(c) any gratuity payable on the termination of his service;
12. Now for the purpose of ascertaining the wages of the deceased as well as with the help of the aforesaid definitions, it can be safely held that not only the actual wages but the other sums which can be measured in terms of money also form a part of the wages. Applying this test to the facts of the present case, the monthly wages of the deceased would come to Rs. 1,400/-. Giving three units towards the personal expenses of the deceased the dependence of the appellants-claimants comes to Rs. 800/- p.m. or say Rs. 9,600/- p.a.
13. Now remains the question as to what should be the multiplier in the present case. We are not in agreement with the submissions made on behalf of the appellants that a multiplier of 20 should be applied keeping in view the age of the deceased at the time of accident was 39 years. In any event, we feel that in the present case interest of justice would be met if the multiplier is enhanced from 12 to 16. Needless to point out that so far as multiplier is concerned, it takes care of so many factors, viz., chances of future improvement in service and uncertainties of life. Some guidance in this behalf can also be had from the Schedule added to the Motor Vehicles Act, 1988 as amended up to date. Therefore on this basis also we feel that the award made by the Tribunal below needs to be modified.
14. As a result of the aforesaid discussion, the impugned award is modified and it is held that appellants are entitled to a sum of Rs. 1,53,600/- as aforesaid. To this a sum of Rs. 6,400/- be added as conventional damages, thus in all a sum of Rs. 1,60,000/- is the compensation payable by the respondents. In addition to this appellants are also entitled to interest at the rate of 12 per cent per annum from the date of filing of the petition, i.e., 14.11.87 till the date of actual payment and they would share this amount as under :
(1) Giano Devi Rs. 46,000/-
(2) Soma Rs. 38,000/-
(3) Sonu Rs. 38,000/- (4) Rita Rs. 38,000/-
Besides this, they would be entitled to proportionate interest on this amount. Any amount deposited pursuant to the award passed by the Tribunal below or paid/deposited under no fault liability shall be liable to be deducted out of this amount. Liability of the respondents is joint and several and respondent No. 2, insurance company in F.A.O. No. 166 of 1988 is directed to deposit the amount in terms of this award within a period of eight weeks from today in the Registry of this Court. The appellants in F.A.O. No. 166 of 1988 are entitled to their costs quantified at Rs. 1,000/- and respondent Nos. 1 to 6 in F.A.O. No. 170 of 1988 are also held entitled to their costs quantified at Rs. 1,000.