Rajasthan High Court - Jaipur
Oriental Insurance Co Ltd vs Smt Nanchhi Devi And Others on 4 November, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Appeal No.6194/2011 Oriental Insurance Company Limited Vs. Smt. Nanchhi Devi and Others Date of Order ::: 04.11.2011 Present Hon'ble Mr. Justice Mohammad Rafiq Shri Om Prakash Gupta, counsel for non-claimant-appellant, insurance company #### By the Court:-
This appeal has been preferred by Oriental Insurance Company Limited being aggrieved by award dated 25.08.2011 of learned Motor Accident Claims Tribunal, Chomu, in MAC Case No.90/2009, whereby it has awarded compensation of Rs.7,13,000/- in favour of claimants-respondents for accidental death of Mukesh, husband of claimant-respondent no.1 Nanchhi Devi.
Learned counsel for appellant has argued that there was no proof of definite income as the claimants have failed to produce income-tax return or assessment order of the firm concerned where the deceased was working, on record. It is contended by learned counsel for appellant that in absence of reliable evidence regarding income, the notional income as provided in the second schedule appended to the Motor Vehicles Act, should be accepted. Learned counsel cited a judgment of the Supreme Court in Ponnumany and Another Vs. V.A. Mohanan and Others 2008 ACJ 1338, and argued that where there is no convincing evidence to prove income, the income should be accepted on notional basis, which, according to learned counsel, should be Rs.15000/- per annum. He also relied on the judgment of a coordinate bench of this court in Durga Lal Vs. Shri Badri Narain 2010 R.A.R. 477 (Raj.) which is to the same effect. Learned counsel submitted that the amount of compensation should be reasonable and not a bonanza and that the assertion made by the claimant that apart from the salary as driver in the company concerned, the deceased was also earning out of part time job, has also not been proved by any evidence whatsoever. It is argued that multiplier of 18, applied by learned Tribunal while calculating the compensation, ought not to have been applied because even if the deceased was in the age group between 20 and 25 years, it was the highest of that group and multiplier of 18 should not have been applied.
On hearing learned counsel for the appellant and perusing the impugned award, I find that as far as argument of learned counsel regarding multiplier is concerned, learned Tribunal has correctly applied the multiplier of 18 as held by the Supreme Court in Sarla Verma (Smt.) and Others Vs. Delhi Transport Corporation and Another (2009) 6 SCC 121, that for age group of deceased between 21 and 25 years, multiplier of 18 should be applied. As regards the income of the deceased, there is evidence to prove the same. The judgment of the Supreme Court in Ponnumany and Another Vs. V.A. Mohanan and Others, supra, cannot be applied in the present case. In that case, there was no convincing evidence to prove income of deceased out of agricultural operations and calculation of amount of compensation for loss of earning capacity on the basis of notional income was held to be justified. Here is not a case where there was no evidence muchless convincing evidence to justify the assessment of learned Tribunal to come to the conclusion about income of the deceased being Rs.4500/- per month in the year 2008. Apart from the evidence of claimant AW-1 Nanchhi Devi, AW-2 Gopal Lal, who was accountant in the firm, namely, Sheetal Transport Company, where deceased was employed, and AW-3 Babulal, who was employee in said transport company, have appeared as witnesses to say that deceased, apart from salary as regular employee, was also earning a sum of Rs.5000/- per month by working part time with said transport company. In so far as the assertion made by these witnesses regarding his part time working in the said company, the same has not been believed by learned Tribunal. However, learned Tribunal, considering the fact that the deceased was engaged with aforesaid transport company, accepted him to be a skilled labourer and, on that basis, proceeded on the assumption that he must have been earning Rs.150/- per day, and, thus, arrived at the conclusion that his income was Rs.4500/- per month. In the normal course, learned Tribunal ought to have deducted only 1/4th towards self-expenses in view of judgment of the Supreme Court in Sarla Verma, supra, however, considering the fact that there are five claimants, it has deducted 1/3rd towards self-expenses and assessed the dependency at Rs.3000/- and after applying the multiplier of 18 it has arrived compensation of Rs.6,48,000/-. It has also rightly awarded compensation of Rs.65,000/- under different other non-pecuniary heads. In view of the aforesaid discussion, I do not find any infirmity in the conclusion arrived at by learned Tribunal about income of the deceased being Rs.4,500/-, and application of multiplier of 18 in the facts of the present case.
The appeal is therefore dismissed.
(Mohammad Rafiq) J.
//Jaiman//