Himachal Pradesh High Court
Shriram General Insurance Company Ltd vs Vijay Laxmi And Others on 24 February, 2021
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
.
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
FAO No. 379 of 2015
Judgment Reserved on 23.02.2021
Date of Decision 24th February,2021
________________________________________________________
Shriram General Insurance Company Ltd.
...Appellant.
Versus
Vijay Laxmi and others ....Respondents
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, J.
Whether approved for reporting?1 Yes ______________________________________________________________ For the Appellant: Mr. Jagdish Thakur, Advocate.
For the Respondents: Ms Kamlesh Shandil and Mr.Rakesh
Chauhan, Advocates, for
respondent No.1.
Mr. Malay Kaushal, Advocate, for
respondent No.2.
Respondent No. 3 already ex-parte.
__________________________________________________________________ Vivek Singh Thakur, J.
This appeal has been preferred by Insurance Company against award passed by Motor Accident Claims Tribunal, Shimla (in short 'MACT'), whereby MACT has awarded compensation for a sum of Rs.13,38,500/- along with interest 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 2 thereon @ 7.5% per annum from the date of filing of claim petition till realization of whole amount, to be payable by .
appellant/Insurance Company to respondent No.1 and her children as apportioned in the impugned award.
2 I have heard learned counsel for contesting parties and have also gone through record.
3 First issue raised by learned counsel for appellant is that addition of 15% of income of deceased in his income for the purpose of determining amount of compensation is wrong particularly in view of ratio of pronouncement of Apex Court in National Insurance Company Limited vs. Pranay Sethi, reported in 2017(4) ACJ 2700: AIR 2017 SC 5157: (2017)16SCC 680, reiterated in Civil Appeal No 2705 of 2020 titled United India Insurance Co. Ltd. vs. Satinder Kaur and others decided on 30 th June, 2020. It is contended that in view of above referred judgments of the Supreme Court coupled with facts of present case, only 10% of the income could have been added for the purpose of calculation of amount of compensation payable.
4 On aforesaid issue, the Supreme Court in Pranay Sethi's case has concluded as under:-
"59. In view of the aforesaid analysis, we proceed to record our conclusions:-
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59.3 While determining the income, an addition of 50% of actual salary to the income of the deceased towards future prospects, where the deceased had a .
permanent job and was below the age of 40 years, should be made. The addition should be 30%, if the age of deceased was between 40 to 50 years. In case, the deceased was between the age of 50 to 60 years, the addition should be 15%. Actual salary should be read as actual salary less tax.
59.4 In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component...."
5 In present case age of deceased in claim petition has been mentioned as 51 years. PW1 claimant/respondent No.1, in her statement, has stated the age of her husband as 50 years, whereas in postmortem report, age of deceased has been recorded as 52 years. In driving licence of deceased, his date of birth has been recorded as 3.11.1960. Accident had taken place on 2.11.2012. Therefore, on the day of accident, according to date of birth recorded in driving licence, deceased had 11 days ::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 4 short to complete 52 years. In any case, age of deceased was above 50 which is in the age group of 50 to 60 years.
.
6 It has come in evidence of PW3 Narender Singh that except for some period in the year 2011, he had engaged the deceased in casual manner and it is also proved on record by claimant/respondent No.1 that deceased was earning his livelihood as a driver as well as tourist guide. Therefore, deceased was not having permanent job, but, was self employed and during his regular engagement as driver, his employer was giving him a fixed salary.
7 In aforesaid facts and circumstances, applying dictum of para 59.4 of Pranay Sethi's case supra, only 10% of established income should be added in income of deceased for computation of compensation. Therefore, on this count, impugned award deserves to be modified.
8 Second issue raised on behalf of appellant is that award of Rs.50,000/- each for loss of estate and funeral expenses and award of Rs.1 lac for loss of consortium to claimant is also contrary to pronouncements of the Supreme Court in cases of Pranay Sethi and Satinder Kaur (referred supra). It is contended that in view of these pronouncements, respondent No.1/claimant is entitled for Rs.15,000/- each for loss of estate and funeral expenses and Rs.40,000/- for loss of consortium and therefore, ::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 5 amount awarded against these heads also deserves to be interfered with and modified.
.
9 On this issue, the conclusion of Constitutional Bench of Supreme Court in Pranay Sethi's case is as under:-
"59.8 Reasonable figures on conventional head, namely loss of estate, loss of consortium and funeral expenses should be Rs.15,000/-, Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."
10 As evident, in para 59.8 of Pranay Sethi's case, quantum of amount for loss of estate, loss of consortium and funeral expenses was determined as Rs.15,000/-, Rs.40,000/-
and Rs.15,000/- with observations that it should be enhanced at the rate of 10% after every three years. Judgment in Pranay Sethi's case was pronounced on 31 st October, 2017. Therefore, amount against the heads of loss of estate, loss of consortium and funeral expenses is to be enhanced at the rate of 10% after 31st October, 2020. As such, today, the claimant/respondent No.1 is entitled for loss of estate, loss of consortium and funeral expenses at the rate of Rs.16,500/-, Rs.44,000/- and Rs.16,500/-
respectively and award deserves to be modified accordingly on this count.
::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 611 Third point agitated on behalf of appellant is that in absence of any documentary proof of income of deceased, the .
income is to be taken on the basis of minimum wages prevalent at the time of accident. In support of this contention, pronouncement of Apex Court in Govind Yadav vs. New Indian Assurance Company Limited reported in 2012(1) ACJ 28, 2008(2), Pappi Devi vs. Kali Ram and others reported in Latest HLJ 1440 (HP) along with judgments of this High Court dated 4.5.2017 in FAO No. 488 of 2016 titled Mast Ram vs. Yogesh Azta and others, dated 23.4.2018 in FAO No. 43 of 2018 titled Reliance General Insurance Company Limited vs. Ishwar Singh and dated 30.5.2019 in FAO No. 9 of 2019 in FAO No. 9 of 2019 titled ICICI Lombard vs. Kala Devi and others have been referred and during course of arguments, learned counsel for appellant has also produced a print out of downloaded notification of minimum wages in Himachal Pradesh as notified w.e.f. September 01, 2012 and has submitted that in present case, there is no documentary proof on record to establish the income of deceased and claimant as well as employer PW3 Narender Singh have failed to produce any document on record including income tax returns of PW3 to establish the payment of wages to the deceased at the rate of Rs.8000/- per month plus expenses Rs.100/- per day. It is canvassed that for absence of any documentary proof of income ::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 7 of deceased, in view of above referred pronouncements of Courts, income of deceased is to be taken on basis of notification .
specifying the minimum wages at the relevant time and as per notification produced by him, for employee in Public Motor Transport, maximum daily wages for highly skilled employee was Rs.212.22 and thus, even by taking lenient view, the highest wages of deceased can be taken as 212.22X30 per month and it is also contended that in spite of aforesaid, MACT has taken minimum wages of deceased at Rs.10,000/-, which deserves to be interfered with and amount of compensation deserves to be calculated on the basis of minimum wages as notified for relevant time, referred supra.
12 The Supreme Court in a recent judgment, in Mohammed Siddique and another vs. National Insurance Company Limited and others reported in (2020)3 SCC 57 has held as under:-
"14. The second issue on which the High Court reversed the finding of the Tribunal, related to the employment of the deceased and the monthly income earned by him. According to the claimants, the deceased was aged 23 years at the time of the accident and he was not even a matriculate. But he was stated to have been employed in a proprietary concern named M/s Chandra Apparels on a monthly salary of Rs.9600/-. The sole proprietor of the concern was examined as PW2 and the salary ::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 8 certificate was marked as Ext.PW1/8. The Tribunal which had the benefit of recording the evidence and which consequently had the benefit of observing the .
demeanour of the witness , specifically recorded a finding that there was no reason to discard the testimony of PW2.
15. But unfortunately the High Court through that the employer should have produced salary vouchers and other records including income tax returns, to substantiate the nature of employment and monthly income. On the ground that in the absence of other records, the salary certificate and the oral testimony of the employer could not be accepted, the High Court proceeded to take the minimum wages paid for the unskilled workers at the relevant point of time as the benchmark.
16. But we do not think that the approach adopted by the High Court could be approved. To a specific question in cross examination, calling upon PW2 to produce the salary vouchers, he seems to have replied that his business establishment had been wound up and that the records are not available. This cannot be a ground for the High Court to hold that the testimony of PW2 is unacceptable.
17. The High Court ought to have appreciated that the court of first instance was in a better position to appreciate the oral testimony. So long as the oral testimony of PW2 remained unshaken and hence believed by the Court of first instance, the High Court ought not to have rejected his evidence. After all, there was no allegation that PW2 was set up for the ::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 9 purposes of this case. There were also no contradictions in his testimony. As against the testimony of an employer supported by a certificate .
issued by him, the High Court ought not to have chosen a theoretical presumption relating to the minimum wages fixed for unskilled employment.
Therefore, the interference made by the High Court with the findings of the Tribunal with regard to the monthly income of deceased, was uncalled for."13
In present case, in support of pleadings that income of deceased was Rs.10,000/-, claimant/respondent No.1 has deposed on oath as PW1 that deceased was earning Rs.8,000 to 10,000/- per month from his profession of driver and tourist guide and on account of employment with M/s Guleria and Company Kasumpti. Proprietor of M/s Guleria and Company namely Narinder Singh has appeared in witness box as PW3 and in his affidavit filed in examination-in-chief, he has stated that he had paid Rs.8000/- per month plus expenses @ Rs.100/- per day to deceased, who engaged him as a driver for four months during July to October, 2011 and in his cross examination, he has stated that deceased remained with him as a driver on regular basis for three months and otherwise he was engaging the deceased on need basis as deceased was not his permanent driver. He has also stated that he did not use to maintain any register regarding payment of salary to deceased nor he used to ::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 10 issue salary certificate nor he maintained any attendance register. This witness, PW3 Narender Kumar, appears to be a .
genuine witness as he has deposed in natural manner narrating true facts. Had he been procured witness, he would have claimed that deceased was his permanent driver or he would have stated that deceased was engaged by him in the year 2012, immediately before accident, but he has deposed true facts without caring for effect thereof. Therefore, his statement, being cogent and reliable, can be considered to substantiate the quantum of income of deceased, even in absence of production of any document.
14 The MACT has discussed the evidence in this regard in impugned award and has arrived at a conclusion that deceased was earning Rs.10,000/- per month. For nature of employment of deceased with PW3 Narinder Singh and also keeping in view the nature of occupation of deceased i.e. driver as well as tourist guide, as claimed by claimant/respondent No.1, for earning his livelihood, there would be least possibility of availability of any documentary proof with respect to earnings of deceased.
15 Deceased was driver and tourist guide by profession and there is positive evidence on record in statements of PW1 and PW3 with respect to probable earnings of deceased. There is ::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 11 nothing on record to negate it by establishing that in the year 2012, driver could not have earned Rs.8,000/- to 10,000/- per .
month. Considering the entire facts and circumstances and also latest pronouncement of Apex Court in Mohammed Siddique's case supra, even taking monthly income of deceased on lower side, it would be appropriate to consider it as Rs.8000/- per month. Therefore, plea of appellant that in absence of documentary proof, income of deceased is to be taken on the basis of minimum wages, prevalent at the time of accident, is rejected as case in hand is not a case of no evidence at all, rather credibility of PW1 and PW3 with respect to quantum of earnings of deceased has not been impeached in any manner.
16 In Govind Yadav's case, relied upon by appellants, ratio of judgment is that in absence of other cogent evidence, Court should have determined the amount of compensation in lieu of loss of earning by taking minimum wages payable to a worker at the relevant time as notional income. In Pappi Devi's case also, there was no other evidence with respect to income of deceased except the statement of claimant. In given facts on record coupled with pronouncement of Apex Court in Mohammed Siddique's case and for discussion herein before, the judgments referred on behalf of appellant are not strictly applicable in ::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 12 present case for determining the quantum of income of the deceased.
.
17 No other point raised or urged.
18 In the impugned award, the MACT has observed that claimant, while appearing in witness box as PW1, has admitted in cross examination that she has two married daughters and one son, who have not been impleaded as claimants or proforma-
respondents in claim petition. The MACT, referring the proviso of Section 166 of MV Act, has considered her two daughters and one son as legal representatives of deceased and has held that claimant/respondent No.1 as well as her two daughters and one son are entitled for compensation and the MACT has apportioned the compensation amongst the claimant and her daughters and one son whereby claimant/respondent No.1 has been held entitled for 70% of compensation amount whereas her three children are held entitled for remaining 30% of compensation amount in equal shares. There is no challenge in this regard by either party.
19 In view of pronouncement of Supreme Court in Magma General Insurance Co.Ltd vs. Nanu Ram and others, reported in (2018)18 SCC 130, where wife is entitled for loss of spousal consortium, there each child is also entitled for separate loss of parental consortium. The children may be entitled for ::: Downloaded on - 24/02/2021 20:15:43 :::HCHP 13 compensation but they have not approached the Court for any compensation. Therefore, though some percentage of the .
compensation, as awarded by the MACT, is being made payable to them, however, no amount on account of consortium is awarded.
20 In view of above discussion, amount of compensation is modified as under:-
i) Income Rs.8000/- per month
ii) Annual income Rs.96,000/- per annum
(8000 X 12)
iii) Future Prospects
(Addition of 10%) (+) Rs.9,600/-
iv) Amount with addition
of future prospects
Rs.9600/-+Rs.96,000/- Rs.1,05,600/-
iv) Deduction towards
personal expenses Rs.1,05,600 - Rs.35,200
(1/3rd) Rs.70,400/-
v) Multiplicand Rs.70,400/-
vi) Multiplier (Age between
50 to 60 years) 11
vii) Loss of Dependency Rs.7,74,400/-
viii) Loss of Estate payable
to wife Rs. 16,500/-
ix) Funeral expenses payable
to wife Rs. 16,500/-
x) Loss of spousal Consortium Rs. 44,000/-
payable to wife/
respondent No.1/claimant
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14
Total compensation Rs.8,51,400/-
.
21 Amount of compensation is modified in aforesaid
terms and now, claimant as well as her two daughters and one son are entitled for a sum of Rs.8,51,400/- along with interest at the rate of 7.5% per annum from the date of filing of claim petition till realization of whole amount with interest from appellant/Insurance Company as held by MACT. This amount of compensation is inclusive of any amount paid under Section 140 of MV Act.
22 In the aforesaid compensation, amount payable for loss of estate, funeral expenses and loss of spousal consortium shall be paid to wife i.e. claimant/respondent No.1. Remaining compensation amount shall be apportioned amongst claimants and her three children as awarded by the MACT.
The appeal is partly allowed in aforesaid terms along with pending miscellaneous application(s), if any.
February 24, 2021 (Vivek Singh Thakur)
(ms) Judge
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