Himachal Pradesh High Court
47-148 vs Pranay Sethi And Others 2017 Acj 2700. ... on 29 March, 2022
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 29th DAY OF MARCH, 2022.
.
BEFORE
HON'BLE MR. JUSTICE TARLOK SINGH CHAUHAN
FIRST APPEAL FROM ORDER No.124 of 2018
a/w FIRST APPEAL FROM ORDER No.504 of 2018
FIRST APPEAL FROM ORDER No.124 of 2018.
Between:-
r to
RELIANCE GENERAL INSURANCE COMPANY
LIMITED, SCO 147-148, MADHYA MARG,
CHANDIGARH WITH ITS HEAD OFFICE AT
RELIANCE CENTER, 19 WALCHAND
HIRA CHAND MARG, BALLARD
MUMBAI-57, 400001 THROUGH ITS
MANAGER (LEGAL), 2ND FLOOR, SCO
147-148, SECTOR 9-C, MADHYA MARG,
CHANDIGARH.
......APPELLANT.
(BY SH. JAGDISH THAKUR, ADVOCATE)
AND
1. SMT. SWARNA DEVI W/O LATE SH. SHER SINGH,
2. AJAY KUMAR (MINOR) S/O LATE SH. SHER SINGH,
3. RAJESH KUMAR (MINOR), S/O LATE SH. SHER SINGH,
(RESPONDENT NO.2 AND 3 ARE MINOR HENCE
SUED THROUGH THEIR MOTHER AND NATURAL
GUARDIAN SMT. SWARNA DEVI I.E. RESPONDENT
NO.1.
ALL RESIDENT OF VILLAGE BAG UPPERLI KOTHI,
TEHSIL AND DISTRICT KANGRA, H.P.
.....RESPONDENTS/PETITIONERS.
4. TILAK RAJ S/O SH. ISHWAR DASS, R/O VILLAGE
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2
TARSUH, TEHSIL AND DISTRICT KANGRA, H.P.
5. SH. SHASHI BANSAL S/O SH. RAM PRAKASH,
.
R/O BODAR BALLA, MAUZA UJJAIN, TEHSIL
AND DISTRICT KANGRA, H.P.
.......RESPONDENTS.
(SH. GOLDY KUMAR, ADVOCATE, FOR
RESPONDENT-1 TO 3)
(MS. SEEMA SOOD, ADVOCATE, FOR
RESPONDENT-4)
(SH. RAVI TANTA AND SH. NITIN THAKUR,
ADVOCATES, FOR RESPONDENT-5)
FIRST APPEAL FROM ORDER No.504 of 2018.
Between:-
SHASHI BANSAL SON OF SHRI RAM PARKASH,
RESIDENT OF BODAR BALLA, MAUZA UJJAIN, TEHSIL
AND DISTRICT KANGRA, HIMACHAL PRADESH
(OWNER OF VEHICLE No.A/F BEARING ENGINE
NO. 497 SP28CSZ837825, CHASSIS NO.
421056C8Z917752, MAKE TYPE TATA SUMO.
......APPELLANT.
(BY SH. RAVI TANTA AND SH. NITIN
THAKUR, ADVOCATES)
AND
1. SURESHTHA DEVI WIDOW OF LATE
SHRI VINOD KUMAR,
2. MASTER SACHIN (MINOR) SON OF LATE
SHRI VINOD KUMAR,
3. MISS SANKLAPNA (MINOR) DAUGHTER OF
LATE SHRI VINOD KUMAR,
ALL RESIDENT OF VILLAGE BAG UPERLI KOTHI,
TEHSIL AND DISTRICT KANGRA, HIMACHAL
PRADESH. RESPONDENT NO. 2 AND 3 AS MINOR
THROUGH THEIR NATURAL GUARDIAN AND MOTHER
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3
SMT. SURESTHA DEVI (RESPONDENT NO.1).
4. TILAK RAJ SON OF SHRI ISHWAR DASS,
.
RESIDENT OF TARSUH, TEHSIL AND
DISTRICT KANGRA, HIMACHAL PRADESH.
5. RELIANCE GENERAL INSURANCE COMPANY
THROUGH ITS GENERAL MANAGER,
SCO 147-148 MADHYA MARG CHANDIGARH
WITH ITS HEAD OFFICE AT RELIANCE
CENTER 19-WALCHAND HIRA CHAND MARG,
BALLARD, MUMBIA 57, 400001.
.......RESPONDENTS.
FOR RESPONDENT-5)
r to
(SH. JAGDISH THAKUR, ADVOCATE,
Reserved on : 16.03.2022.
These appeals coming on for admission after
notice this day, the Court delivered the following:
JUDGMENT
Since both these appeals arise out of the same accident (though decided by different Tribunals) were taken up together for consideration and are being disposed of by a common judgment.
2. Brief facts of the case are that on 09.11.2007 Taxi Sumo bearing registration No. HR-99AK(HQ) Tp 5396 A/F met with an accident on account of its being driven at a high speed and in a rash or negligent manner by its driver Tilak Raj. This resulted in death of its occupants Sher Singh and Vinod Kumar, who both were working as Foreman.
::: Downloaded on - 30/03/2022 20:11:41 :::CIS 43. The legal heirs of Sher Singh filed a Claim Petition before Motor Accident Claims Tribunal(I), Kangra at .
Dharamshala (for short 'Tribunal) and were awarded compensation of Rs.9,84,700/- along with interest at the rate of 9% per annum from the date of the petition till the realization thereof and the said compensation was directed to be paid by the Insurance Company.
4. As regards legal heirs of Vinod Kumar, they filed a Claim Petition before Motor Accident Claims Tribunal-III, Kangra Division at Dharamshala and were awarded a sum of Rs. 12,79,600/- along with interest @ 9% per annum.
However, in their case, the liability to pay the compensation amount was fastened upon the driver and owner and Insurance Company was exonerated of any liability on the ground that the vehicle was not having registration certificate and fitness certificate at the relevant time.
5. Aggrieved by the fastening of liability in case instituted by the legal heirs of Sher Singh, the appellant-
Insurance Company has filed FAO(MVA) No. 124 of 2018, whereas, the owner of the vehicle aggrieved by the fastening of liability in case instituted by the legal heirs of Vinod Kumar has filed FAO(MVA) No. 504 of 2018.
::: Downloaded on - 30/03/2022 20:11:41 :::CIS 56. Learned counsel for the Insurance Company Shri Jagdish Thakur, Advocate, has argued that since the vehicle .
was not registered on the date of the accident and the driving licence of the driver has been found fake, no liability could have been fastened upon the Insurance Company. It is further argued that the owner of the vehicle did not have the valid route permit at the time of the accident. Lastly, it is argued that in absence of any proof of income having been led by the claimants, the learned Tribunal was required to base its award by working out the wages in accordance with the Minimum Wages Act and could have determined the compensation in accordance with Constitutional Bench judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Pranay Sethi and others 2017 ACJ 2700. The maximum the learned Tribunal could have done was to have directed the Insurance Company at the first instance to pay the compensation with the right of recovery from the owner and the driver of the vehicle.
7. The owner of the vehicle is represented by Shri Ravi Tanta and Nitin Thakur, Advocates and the claimants are represented by Shri Goldy Kumar, Advocate, who have ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 6 made a faint attempt to support the award both as regards the quantum as also fixing of the liability.
.
8. I have heard the learned counsel for the parties and have gone through the records of the case.
9. At the outset, it needs to be noticed that the FIR regarding the accident in question was lodged promptly and there is otherwise overwhelming evidence which establishes the negligence of the driver of the vehicle as no contrary evidence whatsoever has been led by either of the parties.
10. Now, the moot question arises as to who is liable to pay the amount of compensation as would be determined in these cases.
11. It has categorically come in the statement of the owner recorded in Swarna Devi's case that the vehicle had a temporary registration certificate valid with effect from 05.06.2007 to 04.07.2007. In the cross-examination, the owner, who appeared as RW-1, in Swarna Devi's case, stated that the vehicle had no valid route permit nor was the same ever got prepared. It was further admitted that the vehicle did not have a fitness certificate or for that matter even the registration certificate. He admitted that he ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 7 had not checked the driving licence of the driver. It also needs to be noticed that the licence produced by the driver .
Ex. RW1/C was found to be fake.
12. RW-2 Ravi Karan Singh, Junior Clerk, RTO Office, Mathura, categorically stated that the licence in question Ex. RW1/C had not been prepared by his Office, which evidence has gone totally unrebutted.
13. Thus, it stands established that the vehicle as on the date of accident was not registered nor had a valid route permit and even licence of the driver of the vehicle was found to be fake. Obviously, in such circumstances, the liability to pay the award amount could not have been fastened straightaway on the Insurance Company.
14. It is apt to take note of Sections 39, 43, 56 and 66 of the Motor Vehicles Act and the same are reproduced hereinbelow:-
"39. Necessity for registration.--No person shall drive any motor vehicle and no owner of a motor vehicle shall cause or permit the vehicle to be driven in any public place or in any other place unless the vehicle is registered in accordance with this Chapter and the certificate of registration of the vehicle has not been suspended or cancelled and the vehicle ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 8 carries a registration mark displayed in the prescribed manner:
.
Provided that nothing in this section shall apply to a motor vehicle in possession of a dealer subject to such conditions as may be prescribed by the Central Government.
43. Temporary registration.--
(1) Notwithstanding anything contained in section 40 the owner of a motor vehicle may apply to any registering authority or other prescribed authority to have the vehicle temporarily registered in the prescribed manner and for the issue in the prescribed manner of a temporary certificate of registration and a temporary registration mark. (2) A registration made under this section shall be valid only for a period not exceeding one month, and shall not be renewable:
Provided that where a motor vehicle so registered is a chassis to which a body has not been attached and the same is detained in a workshop beyond the said period of one month for being fitted 1[with a body or any unforeseen circumstances beyond the control of the owner], the period may, on payment of such fees, if any, as may be prescribed, be extended by such further period or periods as the registering authority or other prescribed authority, as the case may be, may allow.
[(3) In a case where the motor vehicle is held under 2 hire-purchase agreement, lease or hypothecation, the registering authority or other prescribed authority ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 9 shall issue a temporary certificate of registration of such vehicle, which shall incorporate legibly and .
prominently the full name and address of the person with whom such agreement has been entered into by the owner.]
56. Certificate of fitness of transport vehicles.--
(1) Subject to the provisions of sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorized testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the requirements of this Act and the rules made thereunder:
Provided that where the prescribed authority or the "authorized testing station" refuses to issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal.
(2) The "authorized testing station" referred to in sub-section (1) means a vehicle service station or public or private garage which the State Government, having regard to the experience, training and ability of the operator of such station or garage and the testing equipment and the testing personnel therein, may specify in accordance with the rules made by the Central Government for regulation and control of such stations or garages.::: Downloaded on - 30/03/2022 20:11:41 :::CIS 10
(3) Subject to the provisions of sub-section (4), certificate of fitness shall remain effective for such .
period as may be prescribed by the Central Government having regard to the objects of this Act.
(4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained:
1[Provided that no such cancellation shall be made by the prescribed authority unless such prescribed authority holds such technical qualification as may be prescribed or where the prescribed authority does not hold such technical qualification on the basis of the report of an officer having such qualifications.] (5) A certificate of fitness issued under this Act shall, while it remains effective be valid throughout India."
66. Necessity for permits.--
(1) No owner of a motor vehicle shall use or permit the use of the vehicle as a transport vehicle in any public place whether or not such vehicle is actually carrying any passengers or goods save in accordance with the conditions of a permit granted or ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 11 countersigned by a Regional or State Transport Authority or any prescribed authority authorising him .
the use of the vehicle in that place in the manner in which the vehicle is being used:
Provided that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a contract carriage:
Provided further that a stage carriage permit shall, subject to any conditions that may be specified in the permit, authorise the use of the vehicle as a goods carriage either when carrying passengers or not:
Provided also that a goods carriage permit shall, subject to any conditions that may be specified in the permit, authorise the holder to use the vehicle for the carriage of goods for or in connection with a trade or business carried on by him.
(2) The holder of a goods carriage permit may use the vehicle, for the drawing of any trailer or semi-trailer not owned by him, subject to such conditions as may be prescribed:1
[Provided that the holder of a permit of any articulated vehicle may use the prime-mover of that articulated vehicle for any other semi-trailor.] (3) The provisions of sub-section (1) shall not apply--
(a) to any transport vehicle owned by the Central Government or a State Government and used for Government purposes unconnected with any commercial enterprise;
(b) to any transport vehicle owned by a local authority or by a person acting under contract with a local authority and used solely for road cleansing, road watering or conservancy purposes;::: Downloaded on - 30/03/2022 20:11:41 :::CIS 12
(c) to any transport vehicle used solely for police, fire brigade or ambulance purposes;
(d) to any transport vehicle used solely for the .
conveyance of corpses and the mourners accompanying the corpses;
(e) to any transport vehicle used for towing a disabled vehicle or for removing goods from a disabled vehicle to a place of safety;
(f) to any transport vehicle used for any other public purpose as may be prescribed by the State Government in this behalf;
(g) to any transport vehicle used by a person who manufactures or deals in motor vehicles or builds bodies for attachment to chassis, solely for such purposes and in accordance with such conditions as the Central Government may, by notification in the Official Gazette, specify in this behalf; 2[***]
(i) to any goods vehicle, the gross vehicle weight of which does not exceed 3,000 kilograms;
(j) subject to such conditions as the Central Government may, by notification in the Official Gazette, specify, to any transport vehicle purchased in one State and proceeding to a place, situated in that State or in any other State, without carrying any passenger or goods;
(k) to any transport vehicle which has been temporarily registered under section 43 while proceeding empty to any place for the purpose of registration of the vehicle;
[***] 1
(m) to any transport vehicle which, owing to flood, earthquake or any other natural calamity, obstruction on road, or unforeseen circumstances, is required to be diverted through any other route, whether within or outside the State, with a view to enabling it to reach its destination;
(n) to any transport vehicle used for such purposes as the Central or State Government may, by order, specify;
(o) to any transport vehicle which is subject to a hire- purchase, lease or hypothecation agreement and which owing to the default of the owner has been taken possession of by or on behalf of the person with whom the owner has entered into such agreement, to enable such motor vehicle to reach its destination; or ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 13
(p) to any transport vehicle while proceeding empty to any place for purpose of repair.
(4) Subject to the provisions of sub-section (3), sub-
.
section (1) shall, if the State Government by rule made under section 96 so prescribes, apply to any motor vehicle adapted to carry more than nine persons excluding the driver."
15. Identical question where the vehicle was not having valid route permit came up for consideration before me in FAO(MVA) No. 476 of 2015 in case titled The New India Assurance Company Limited vs. Sandhya Devi and Others, decided on 13.12.2019 and it was held as under:-
"15. Before adverting to this submission, it need to be noticed that from the material brought on record, it is duly proved that at the time of accident, the vehicle in question did not have valid route permit.
Exceptions that have been carved under Section 66 of the Motor Vehicles Act, needless to emphasize, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction.
16. In taking this view, I am supported by the judgment of the Hon'ble Supreme Court in Amrit Paul Singh vs. TATA AIG General Insurance Company Limited, (2018) 7 SCC 558, wherein it was held as under:-::: Downloaded on - 30/03/2022 20:11:41 :::CIS 14
24. In the case at hand, it is clearly demonstrable from the materials brought on .
record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a permit is a fundamental statutory infraction. We are disposed to think so in view of the series of exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in Swaran Singh (supra) and Lakhmi Chand (supra) in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 15 he had a permit of the vehicle. In such a situation, the onus cannot be cast on the .
insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases r pertaining to pay and recover principle."
16. As regards non-registration of vehicle, the same has been held to be a fundamental breach of policy conditions by the Hon'ble Supreme Court in Narinder Singh vs. New India Assurance Company Limited and others (2014) 9 SCC 324. It is apt to reproduce relevant observations made in para-12 of the report which reads as under:-
"12. Indisputably, a temporary registration was granted in respect of the vehicle in question, which had expired on 11.1.2006 and the alleged accident took place on 2.2.2006 when the vehicle was without any registration. Nothing has been brought on record by the appellant to show that before or after 11.1.2006, when the period of temporary registration expired, the appellant, owner of the vehicle either applied for permanent registration as ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 16 contemplated under Section 39 of the Act or made any application for extension of period as temporary .
registration on the ground of some special reasons.
In our view, therefore, using a vehicle on the public road without any registration is not only an offence punishable under Section 192 of the Motor Vehicles Act but also a fundamental breach of the terms and conditions of policy contract."
17. Similarly, use of a transport vehicle in a public place without a route permit has been held to be a fundamental statutory infraction by the Hon'ble Supreme Court in Amrit Paul Singh and another vs. Tata AIG General Ins. Co. Ltd. and others 2018 (3) ACJ 1768. It is apt to reproduce para-23 of the report which reads as under:-
"23. In the case at hand, it is clearly demonstrable from the materials brought on record that the vehicle at the time of the accident did not have a permit. The appellants had taken the stand that the vehicle was not involved in the accident. That apart, they had not stated whether the vehicle had temporary permit or any other kind of permit. The exceptions that have been carved out under Section 66 of the Act, needless to emphasise, are to be pleaded and proved. The exceptions cannot be taken aid of in the course of an argument to seek absolution from liability. Use of a vehicle in a public place without a ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 17 permit is a fundamental statutory infraction. We are disposed to think so in view of the series of .
exceptions carved out in Section 66. The said situations cannot be equated with absence of licence or a fake licence or a licence for different kind of vehicle, or, for that matter, violation of a condition of carrying more number of passengers. Therefore, the principles laid down in National Insurance Co. Ltd. v. Swaran Singh 2004 ACJ 1 (SC) and Lakhmi Chand v.
Reliance General Ins. Co. Ltd., 2016 ACJ 551 (SC), in that regard would not be applicable to the case at hand. That apart, the insurer had taken the plea that the vehicle in question had no permit. It does not require the wisdom of the "Tripitaka", that the existence of a permit of any nature is a matter of documentary evidence. Nothing has been brought on record by the insured to prove that he had a permit of the vehicle. In such a situation, the onus cannot be cast on the insurer. Therefore, the tribunal as well as the High Court had directed the insurer was required to pay the compensation amount to the claimants with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in Swaran Singh (supra) and other cases pertaining to pay and recover principle."
18. Coming to the first contention of the appellant-
Insurance Company regarding the use of vehicle in a public place without route permit, it need not engage the Court ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 18 any longer as it is more than settled that use of vehicle in a public place without route permit is fundamental statutory .
infraction. In fact, this Court has already decided a similar issue in FAO (MVA) No. 476 of 2015 (supra).
19. Similarly, coming to the other contention of the appellant-Insurance Company regarding non-registration of the vehicle. Even this question need not detain this Court any longer as non-registration of vehicle is against the fundamental breach of policy conditions, as has been held by the Hon'ble Supreme Court in Narinder Singh's case (supra).
20. Likewise, use of transport vehicle in a public place without a route permit has also been held to be a fundamental statutory infraction by the Hon'ble Supreme Court in Amrit Paul Singh's case (supra).
21. However, even after accepting the aforesaid contentions of the appellant-Insurance Company, it cannot be absolved of its liability of initially satisfying the award with the right to recover from the owner and the driver of the vehicle as held by the Hon'ble Supreme Court in National Insurance Co. Ltd. vs. Swaran Singh and others (2004) 3 SCC 297 and thereafter reiterated in ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 19 Narinder Singh's case (supra). However, no liability beyond pay and recover can be fastened upon the .
Insurance Company for all the reasons stated above coupled with the fact that the driver of the vehicle at the time of the accident was not even possessed of a valid and effective driving licence.
22. Lastly and more importantly, the question now arises as to what compensation r and at what rate of interest are the claimants entitled to.
23. As observed above, both the deceased were employed as Foreman in Hero Cycle Pvt. Ltd., Ludhiana.
The claimants (in FAO No. 124 of 2018) averred that the deceased was drawing salary of Rs. 15,000/- per month, but despite opportunities could not prove by producing contemporaneous official records of such proof of income.
Yet, the learned Tribunal for some strange reasons took the income of the deceased to be Rs. 6,000/- per month and thereafter by giving 25% increase in the income in terms of judgment rendered by the Hon'ble Supreme Court in Pranay Sethi's case (supra) worked out the monthly income to Rs.6000+1500=7500/-. Since, the deceased was left behind by his widow and two sons, therefore, 1/3 of his ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 20 income is to be deducted towards his personal expenditure.
As a result, monthly dependency comes to Rs. 7500- .
2500=Rs.5000/-and annual dependency would come to Rs.5000-12=Rs.60,000/-. Thereafter, the learned Tribunal applied the multiplier of 15, and in this way, it worked out total compensation amounting to Rs.60,000 x15 =Rs.9,00,000/-.
24. It was further held by the learned Tribunal that since the accident took place in the year 2007 and the claim petition was being decided in the year 2017, therefore, claimant No.1 was entitled to 10% increase twice on the amount of Rs.40,000/- which works out to Rs.48,400/-. Besides the aforesaid amount, the claimants were held entitled to compensation on account of loss of estate which was determined at Rs.15,000/-with 10% increase after every three years i.e. Rs. 18,150/- and the total compensation was worked out to Rs.9,00,000 +48,400 +18,150 +18,150 =Rs.9,84,700/-.
25. As regards legal heirs of deceased Vinod Kumar, the learned Tribunal came to the conclusion that the deceased at the time of accident was 35 years and worked out the monthly income of the deceased to be Rs.6,000/-
::: Downloaded on - 30/03/2022 20:11:41 :::CIS 21i.e. Rs. 72,000/- per year. By adding 40% of the income towards future prospects, monthly income of the deceased .
was worked out at Rs.84,000/- i.e. Rs.6,000+2400=8400 or say Rs.1,00,800/-. Since, the deceased had left behind four dependents, ¼ was deducted towards personal expenses which worked out at Rs. 25,200/-(i.e. ¼ of Rs. 1,00,800/-).
After deducting the personal expenses from annual income of the deceased, the annual income of the deceased was worked out at Rs.1,00,800-25,200=75,600/-. Since, the deceased was between the age of 31-35, therefore multiplier of 16 was applied and the dependency thereafter was calculated to be Rs. 12,09,600/- (Rs.75,600x16- 12,09,600/-). In addition to this, the claimants were held entitled to Rs.15,000/- towards funeral charges and other ceremonies, Rs.40,000/- towards loss of consortium to claimant No.1 and Rs.15,000/- under the head 'loss of estate'. In this way, the claimants were held entitled to compensation as follows:-
Sr. No Head Amount of
compensation
1. Loss of Dependency Rs.12,09,600/-
2. Funeral charges, other Rs.15,000/-
ceremonies, pain, loss and
suffering
::: Downloaded on - 30/03/2022 20:11:41 :::CIS
22
3. Loss of consortium Rs.40,000/-
4. Loss of estate Rs.15,000/-
.
Total Rs.12,79,600/-
26. In addition to the aforesaid compensation, the claimants were held entitled to interest @ 9% per annum by applying the ratio of judgment rendered by the Hon'ble Supreme Court in Municipal Corporation of Delhi, Delhi vs. Uphaar Tragedy Victims Association and others (2011) 14 SCC 481.
27. It would be noticed that the total compensation claimed in the petition filed by the legal heirs of deceased Vinod Kumar was only Rs.10,00,000/-. However, the learned Tribunal justified the award at Rs.12,79,600/- by placing reliance on the judgment of the Hon'ble Supreme Court in Sanobanu Nazirbhai Mirza and others vs. Ahmedabad Municipal Transport Service (2013) 16 SCC 719.
28. As observed above, there was no contemporaneous official records placed by the claimants on record regarding the income of the deceased. In both the cases, the deceased were stated to be working in a Company that too of a name of Hero Cycle and it was not ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 23 difficult for the claimants to have placed the sufficient proof regarding the income of the deceased. In absence of there .
being any evidence or proof of income, the learned Tribunal assessed the minimum wages prevalent at the time of the accident.
29. In Govind Yadav vs. New India Assurance Co. Ltd., 2012 (1) ACJ 28, the Hon'ble Supreme Court held as under:- r "17. A brief recapitulation of the facts shows that in the petition filed by him for award of compensation, the appellant had pleaded that at the time of accident he was working as Helper and was getting salary of Rs.4,000/- per month. The Tribunal discarded his claim on the premise that no evidence was produced by him to prove the factum of employment and payment of salary by the employer.
The Tribunal then proceeded to determine the amount of compensation in lieu of loss of earning by assuming the appellant's income to be Rs.15,000/-
per annum. On his part, the learned Single Judge of the High Court assumed that while working as a Cleaner, the appellant may have been earning Rs.2,000/- per month and accordingly assessed the compensation under the first head. Unfortunately, both the Tribunal and the High Court overlooked that at the relevant time minimum wages payable to a worker were Rs.3,000/- per month. Therefore, in the ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 24 absence of other cogent evidence, the Tribunal and the High Court should have determined the amount .
of compensation in lieu of loss of earning by taking the appellant's notional annual income as Rs.36,000/- and the loss of earning on account of 70% permanent disability as Rs.25,200/- per annum. The application of multiplier of 17 by the Tribunal, which was approved by the High Court will have to be treated as erroneous in view of the judgment in Sarla Verma v.
Delhi Transport Corporation 2009 ACJ 1298 (SC). In para 42 of that judgment, the Court has indicated that if the age of the victim of an accident is 24 years, then the appropriate multiplier would be 18.
By applying that multiplier, we hold that the compensation payable to the appellant in lieu of the loss of earning would be Rs.4,53,600/-."
30. In Smt. Pappi Devi and others vs. Kali Ram and others Latest HLJ 2008 (HP) 1440, the Court held as under:-
"6. It has come in the statement of claimant Smt. Kala Devi (PW-1) that the deceased, while working as a labourer and also selling milk was having an income of Rs.4000/- per month. Importantly, there is no cross-examination on this point at all. But the fact of the matter is that no documentary evidence has been placed on record to prove the income. This is the only evidence with regard to income of the deceased on record.::: Downloaded on - 30/03/2022 20:11:41 :::CIS 25
7. It has come on record that the deceased was illiterate and working as a labourer. In my view, his .
income determined by the Tribunal i.e. Rs.50/- per day, is on the lower side. Taking the deceased to be employed as a daily wager, the minimum wages paid by the government in the year 2001 to the labourers was more than Rs.70/- per day. This is not disputed at the Bar. Therefore, the same can be made the basis for determining the income of the deceased. Thus, the monthly income of the deceased is determined as Rs.70 x 30 = Rs.2100/- and after deducing 1/3rd of the amount i.e. Rs.700/-, for the purpose of dependency is determined as Rs.1400/-."
31. The minimum wages at the time of the accident in the year 2007, as notified by the Labour and Employment Department , Himachal Pradesh, on 07.02.2007 for unskilled workers were Rs. 75/- per day or Rs.2250/- per month.
32. Evidently, the judgment in Pranay Sethi's case (supra) has brought about radical and fundamental changes with regard to award of compensation. For this purpose, this Court would deal with individual case by drawing a comparative table of the amount actually awarded by the learned Tribunal along with modified award.
Comparative chart of award passed by the learned Tribunal as also by the High Court ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 26 FAO (MVA) No.124 of 2018.
.
Sr. Award passed by the Tribunal Modified Award by this Court No. Details/Particulars Details/Particulars
(i) Income taken by the Tribunal : Income taken by High Court: Rs.2,850/-
Rs.6,000/- per month i.e. Rs.200/- per month i.e. Rs. 95/- per day as per per day. Minimum Wages Notification.
(ii) Addition on account of future Addition on account of future prospects prospects @ 25% : @ 25%: Rs. 2,850x25/100=Rs. 712/-. 6,000x25/100= Rs.1,500/-
(iii) Total Income: Rs.6,000+ Total Income :
Rs.1,500=Rs.7,500/-. Rs.2,850+Rs.712=Rs.3562/-.
(iv) 1/3rd deduction on account of 1/3rd deduction on account of
personal expenses: personal expenses= Rs.3,562/3=
Rs.7500/3=Rs.2,500/- Rs.1187/-.
(v) Loss of Dependency: Rs.7500- Loss of Dependency :Rs.3562-Rs.1187=
Rs.2500/-= Rs.5,000/- Rs.2375/-
(vi) Annual Dependency : Annual Dependency : Rs.2375x12=
Rs.5000x12=Rs. 60,000/- Rs.28,500/-
(vii) Multiplier of 15 : Rs.60,000x15 Multiplier of 15 : Rs.28,500x 15 =
=Rs.9,00,000/-. Rs.4,27,500/-
(viii) Loss of Consortium : Rs. 48,400/- Loss of Consortium to each claimant @
Loss of Estate : Rs.18,150/- 40% as per Magma General Insurance
Funeral Expenses : Rs. 18,150/- Co. Ltd. vs. Nanu Ram Alias Chuhru
Ram: Rs. 1,20,000/-
Loss of Estate : Rs. 15,000/-with
10% increase as per Pranay Sethi's
case = 1500/-
Rs.15,000+1500/- =16,500/-
Funeral Expenses : Rs.15,000/-with 10% increase as per Pranay Sethi's case = 1500/-
Rs.15,000+1500/- =16,500/-
(ix) Total: Rs.9,84,700/- with Total: Rs.5,80,500/- with interest @ interest @ 9% per annum 7.5% per annum.
::: Downloaded on - 30/03/2022 20:11:41 :::CIS 27FAO(MVA) No. 504 of 2018.
Sr. Award passed by the Tribunal Modified Award by this Court .
No. Details/Particulars Details/Particulars
(i) Income taken by the Tribunal : Income taken by High Court: Rs.2,850/-
Rs.6,000/- per month i.e. Rs.200/- per month i.e. Rs. 95/- per day as per per day. Minimum Wages Notification.
(ii) Addition on account of future Addition on account of future prospects prospects @ 40% : @ 40% Rs. 2,850x40/100=Rs. 1140/-. 6,000x40/100= Rs.2400/-
(iii) Total Income: Rs.6,000+ Total Income :
Rs.2,400=Rs.8,400/- Rs.2,850+Rs.1140=Rs.3990/-.
(iv) 1/4th deduction on account of
personal expenses: 1/3rd deduction on account of personal
Rs.8400/4=Rs.2,100/-. expenses= Rs.3990/3= Rs.1330/--.
(v) Loss of Dependency: Rs.8400- Loss of Dependency :Rs.3,990-1330=
Rs.2100/-= Rs.6300/- Rs.2660/-
(vi) Annual Dependency : Annual Dependency : Rs.2660x12=
Rs.6300x12=Rs. 75,600/- Rs.31920/-
(vii) Multiplier of 16 : Rs.75,600x16 Multiplier of 16 : Rs.31,920x16 =
=Rs.12,09,600/-. Rs.5,10,720/-
(viii) Loss of Consortium : Rs. 40,000/- Loss of Consortium to each claimant @
Loss of Estate : Rs.15,000/- 40% as per Magma General Insurance
Funeral Expenses : Rs. 15,000/- Co. Ltd. vs Nanu Ram Alias Chuhru Ram
and others: Rs. 1,20,000/-
Loss of Estate : Rs. 15,000/- with
10% increase as per Pranay Sethi's case = 1500/-
Rs.15,000+1500/- =16,500/-
Funeral Expenses : Rs.15,000/-with 10% increase as per Pranay Sethi's case = 1500/-
Rs.15,000+1500/- =16,500/-
(ix) Total Award: Rs.12,79,600/- Total Modified Award: Rs.6,63,720/-
with interest @ 9% per with interest @ 7.5% per annum. annum.
::: Downloaded on - 30/03/2022 20:11:41 :::CIS 2833. In view of the aforesaid discussion, the appeal .
filed by the appellant-Insurance Company in FAO (MVA) No.124 of 2018 is partly allowed and the award passed by the learned Tribunal on 22.12.2017 is modified to the extent that the claimants would now be entitled to a total compensation of Rs. 5,80,500/- instead of Rs.9,84,700/-
along with interest @ 7.5% per annum, to be apportioned amongst them, as ordered by the learned Tribunal, from the date of filing of the petition till its realization.
34. The appeal filed by the appellant -Shashi Bansal is also partly allowed. The award passed by the learned Tribunal in FAO(MVA) No. 504 of 2018 on 01.06.2018 is also modified to the extent that the claimants would now be entitled to a total compensation of Rs. 6,63,720/- instead of Rs.12,79,600/- along with interest @ 7.5% per annum to be apportioned amongst them as ordered by the learned Tribunal, from the date of filing of the petition till its realization. The awards in both these cases shall, at the first instance, be satisfied by the Insurance Company, however, with a right to recover the same from the owner and the ::: Downloaded on - 30/03/2022 20:11:41 :::CIS 29 driver of the vehicle. The parties are left to bear their own costs. Pending application(s), if any, also stand disposed of.
.
(Tarlok Singh Chauhan) Judge 29th March, 2022.
(krt)
r to
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