Madhya Pradesh High Court
Oriental Insurance Corporation ... vs Kailash on 22 December, 2023
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDOR E
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. APPEAL No.2144/2022
BETWEEN:-
1. KAILASH S/O POONAJI CHOUHAN (FATHER OF
DECEASED), AGED ABOUT 45 YEARS, OCCUPATION:
BUSINESS R/O VILLAGE KAPSI, THANA KUKSHI TEHSIL
KUKSHI (MADHYA PRADESH)
2. JYOTI BAI W/O KAILASH CHOUHAN, AGED ABOUT 40
YEARS, OCCUPATION: HOUSEWIFE VILLAGE KAPSI,
THANA KUKSHI, TEHSIL KUKSHI DIST. DHAR (MADHYA
PRADESH)
.....APPELLANTS
(SHRI AKASH RATHI, LEARNED COUNSEL FOR THE APPELLANTS)
AND
1. MAHENDRA S/O RAMESH SEPTA, AGED ABOUT 29 YEARS,
OCCUPATION: DRIVER AND OWNER OF THE TOOFAN
VEHICLE (MP 10 BA 4578) R/O SIVRI MOHALLA, AAI MATA
MANDIR, WARD NO. 11 KUKSHI, TEHSIL KUKSHI, DISTRICT
DHAR (MADHYA PRADESH)
2. THE ORIENTAL INSURANCE CO. LTD. ADDRESS: IDA
BHAWAN FOURTH FLOOR, RACE COURSE ROAD, INDORE
(MADHYA PRADESH)
(INSURANCE CO. OF THE TOOFAN VEHICLE MP 10 BA 4578)
.....RESPONDENTS
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 12/22/2023
5:35:10 PM
2
(SHRI PRADEEP GUPTA, LEARNED SR. COUNSEL WITH SHRI
BHASKAR AGRAWAL FOR THE RESPONDENT/INSURANCE
COMPANY)
MISC. APPEAL No.1984/2022
BETWEEN:-
ORIENTAL INSURANCE CORPORATION LIMITED
THROUGH REGIONAL OFFICE I.D.A. BUILDING,
4TH FLOOR, 7 RACE COURSE ROAD (MADHYA
PRADESH)
........APPELLANT
(SHRI PRADEEP GUPTA, LEARNED SR. COUNSEL WITH SHRI
BHASKAR AGRAWAL FOR THE APPELLANT/INSURANCE
COMPANY)
AND
1. KAILASH S/O POONAJI CHOUHAN, AGED ABOUT
45 YEARS, OCCUPATION: LABOUR ADD. VILLAGE
KAPSI, POST P.S. AND TEHSIL KUKSHI DISTRICT
DHAR (MADHYA PRADESH)
2. JYOTIBAI W/O KAILASH CHOUHAN, AGED
ABOUT 40 YEARS, OCCUPATION: HOUSEHOLD R/O
VILLAGE KAPSI POST PS & TEHSIL KUKSHI
DISTRICT DHAR (MADHYA PRADESH)
3. MAHENDRA S/O RAMESH SEPTA, AGED ABOUT
29 YEARS, OCCUPATION: DRIVER AND OWNER R/O
SIRVI MOHALLA, AAI MATA MANDIR , WARD NO.
11 KUKSHI DISTRICT DHAR (MADHYA PRADESH)
(OWNER AND DRIVER OF TOOFAN NO.MP10-BA-
4578)
.........RESPONDENTS
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 12/22/2023
5:35:10 PM
3
(SHRI AKASH RATHI, LEARNED COUNSEL FOR RESPONDENTS NO.1
& 2)
................................................................................................
Reserved on : 21.11.2023.
Pronounced on : 22.12.2023.
------------------------------------------------------------------------------------
These miscellaneous appeals having been heard and reserved
for orders, coming on for pronouncement this day, JusticeAchal
Kumar Paliwal pronounced the following:
ORDER
This common order shall govern disposal of both M.A.No.2144/2022 and M.A.No.1984/2022 as both appeals arise out common award dated 25.02.2022.
2. These appeals by the appellants/claimants (M.A.No.2144/2022) and Insurance Company (M.A.No.1984/2022) under section 173(1) of the Motor Vehicles Act are arising out of the award dated 25.02.2022 passed by Member, MACT, Kukshi, district Dhar in Claim Case No.232/2019 seeking enhancement/reduction of compensation amount awarded by the Tribunal.
3. Learned counsel for the appellant/claimants has submitted that Tribunal has assessed deceased's income on the lower side. Deceased had completed BSc. IInd year in the year 2016 and accident occurred in the year 2019. There was pesticide shop as well as agricultural land in the name of deceased's father and at the time of accident, deceased was looking after father's above shop and agricultural land. It is also submitted that in view of above, Tribunal has wrongly assessed deceased's income, considering him as a student, whereas at the time Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 4 of accident deceased was not studying, instead, he was looking after father's shop as well as agricultural land. Hence Tribunal has wrongly assessed deceased's income as Rs.7500/- per month taking him as unskilled labour. Relying upon Basanti Devi and another vs. Divisional Manager, the New India Assurance Company Ltd. & others - Civil Appeal Nos.7435 - 7436 of 2021, learned counsel for the appellant/claimants submits that deceased must be treated as highly skilled person and hence his income should be assessed as Rs.11,235/- per month as per Circular issued under the Minimum Wages Act/ guidelines issued by the M.P State Legal Services Authority.
4. Learned counsel for the Insurance Company has submitted that no documentary evidence has been filed/produced on behalf of the claimants with respect to deceased's income. In this connection he has referred to para-10 of the evidence of PW/1. After referring to para-17 to 20 of the impugned award as well as guidelines issued by M.P State Legal Services Authority, it is submitted that Tribunal has rightly assessed deceased's income. Further, at the most deceased may be considered as semi skilled labour. While assessing / determining income, other facts such as standard of the academic institution / place of residence etc. are also relevant for assessing the income. On above grounds it is submitted that Tribunal has rightly assessed deceased's income.
5. Further, learned counsel for the Insurance Company has also submitted that as deceased was unmarried at the time of accident, hence ½ amount should have been deducted for personal expenses whereas Tribunal has deducted 1/3 amount which is not correct.
Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 56. I have heard learned counsel for the parties and perused the record of the case.
Principles regarding determination of income:-
7. So far as calculation of actual income/established income for determining compensation is concerned, where there is documentary evidence to prove the income or Tribunal finds it otherwise proved from evidence on record, no difficulty arises but where there is no documentary evidence or insufficient oral/documentary evidence to prove the income or Tribunal finds that applicants have failed to prove actual income/established income, then, question arises as to how determine the actual income/established income of the deceased/applicant for assessing the compensation under Motor Vehicles Act. So far as the second category of cases are concerned, Hon'ble Apex Court as well as Coordinate Benches of this Court has dealt with the issue in a number of cases.
8. In Magma General Insurance Company Limited vs. Nanu Ram alias Chuhru Ram and Others, (2018) 18 SCC 130, Hon'ble Apex Court in para No.17 has held as under:
"17. With respect to the income of the deceased, as the family could not produce any evidence to show that the income of the deceased was Rs.15,000/- per month, as claimed, the High Court took his income to be Rs.6000/-, which is marginally above the minimum wage of an unskilled worker at Rs.5342. This finding is also not being interfered with."Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 6
9. In Kirti and Another vs. Oriental Insurance Company Limited, (2021) 2 SCC 166, Hon'ble Apex Court in para No.11 has held as under:
II. Assessment of monthly income "11. Second, although it is correct that the claimants have been unable to produce any document evidencing Vinod‟s income, nor have they established his employment as a teacher; but that doesn't justify adoption of the lowest tier of minimum wage while computing his income. From the statement of witnesses, documentary evidence on record and circumstances of the accident, it is apparent that Vinod was comparatively more educationally qualified and skilled. Further, he maintained a reasonable standard of living for his family as evidenced by his use of a motorcycle for commuting. Preserving the existing standard of living of a deceased‟s family is a fundamental endeavour of motor accident compensation law.Thus, at the very least, the minimum wage of Rs 6197 as applicable to skilled workers during April 2014 in the State of Haryana ought to be applied in his case."
10. In Chandra alias Chanda alias Chandraram and Another vs. Mukesh Kumar Yadav and Others, (2022) 1 SCC 198, Hon'ble Apex Court in para No.9 has held as under:
"9.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 AW1 that her husband Shivpal was earning Rs.15000/per Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 7 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 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."
11. In Manusha Sreekumar and Others vs. The United India Insurance Company Limited reported in (2022) 2 TNMAC 596 SC, Hon'ble Apex Court in para Nos.19 & 20, has held as under:
"19. Applying the above parameters to the instant case, there exists sufficient evidence to show that the Deceased, undoubtedly, was a fish vendor- cum-driver with a valid license. The certificate issued by the Kerala Motor Transport Workers Welfare Fund Board, certifying the Deceased as the driver of light motor goods vehicle bearing Registration No. KL-36-B-7822 under the ownership of one Shri Prakashan has been proved on record. Further, the Deceased had also paid all his subscriptions to the Board from April 2012 until the month he died. We find no reason to doubt that the Deceased was a driver at the time Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 8 of his death. This Court in Chandra Alias Chanda Alias Chandraram and Anr. v. Mukesh Kumar Yadav and Ors.., (2022) 1 SCC 198has aptly held that in the absence of a salary certificate, the minimum wages notification along with some amount of guesswork that is not completely detached from reality shall act as a yardstick to determine the income of the deceased. In this context, keeping in view the import of section 57 of the Indian Evidence Act, 1872, we take judicial notice of the provisions of the Kerala Fair Wages Act...........
20. Schedule B-Category III of the Kerala Fair Wages Act classifies a driver as a "Skilled worker". Reading this in conjunction with the Notification that came into effect from 01.01.2015 which amended Schedule A of the Kerala Fair Wages Act, prescribing a minimum pay scale of the workers listed in Schedule B, it is apparent that a „driver‟ in Kerala earned a minimum of Rs. 15,600/ in 2015. It appears to us that the aforesaid Act and the notification issued thereunder were not brought to the notice of the Tribunal or the High Court. As a result thereto, the High Court could not be cognizant of the statutory mandate prescribing minimum wages for a skilled worker like „driver‟, and thus, erred in fixing the income of the Deceased at Rs.10,000/. We are therefore inclined to fix the income of the Deceased notionally at Rs. 15,600/ per month."
12. In Sidram vs. Divisional Manager, United India Insurance Company Limited and Another , (2023) 3 SCC 439, Hon'ble Apex Court in para Nos.58 & 59 has held as under:
"58.This Court in the case of Kirti and Another v. Oriental Insurance Company Limited, (2021) 2 SCC Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 9 166, while discussing the issue of proving the income of the victim, held as under:
"39. Taking the above rationale into account, the situation is quite clear with respect to notional income determined by a court in the first category of cases outlined earlier, those where the victim is proved to be employed but claimants are unable to prove the income before the court. Once the victim has been proved to be employed at some venture, the necessary corollary is that they would be earning an income".
59. Thus, we are of the view, more particularly keeping in mind the dictum of this Court in the case of Kirti (supra) that it is not necessary to adduce any documentary evidence to prove the notional income of the victim and the Court can award the same even in the absence of any documentary evidence. In the case of Kirti (supra), it was stated that the Court should ensure while choosing the method and fixing the notional income that the same is just in the facts and circumstances of the particular case, neither assessing the compensation too conservatively, nor too liberally."
13. InSapna and Others vs. Mangilal and Another, 2021 ACJ 957, Coordinate Bench of this Court in para No.8 has held as under:-
"8. Having heard the learned counsel for parties and on perusal of the record, it is noticed that the appellant had deposed before the tribunal that the deceased was earning Rs.8,000/- per month, but no document in support of which was produced. The tribunal had noted that the deceased was about 20 years of age and was a labourer, therefore, considering the minimum wages and dearness allowance for the relevant period, the tribunal has assessed the income of the deceased as Rs.6000/-. No notification/circular of the concerned Labour Officer was taken note of by the tribunal while mentioning the daily wages of Rs.6000/-. The circular dated 7/4/2018 issued by the Labour Officer, Barwani applicable to the period from 01/4/2018 to 30/9/2018 produced by the appellants reveals that the monthly wages on the basis of daily wages along with dearness allowance fixed by the concerned Labour Officer was Rs.7325/-.Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 10
Hence, the tribunal ought to have fixed the monthly income on the basis of the said circular."
14. Coordinate Benches of this Court in the cases of Bhim Singh vs. Jagmelsingh in MA No.5350 of 2022 dated 07 th July, 2023, Shankar and Others vs Dinesh and Others in MA No.2057 of 2021 dated 08th September, 2023 and Sohanlal and Others vs. Noorasingh and Others in MA No.7014 of 2019 dated 22.08.2023 have also determined income on the basis of minimum wages notified under the Minimum Wages Act, 1948.
15. Thus, from principles laid down in above cases, it is evident that Hon'ble Apex Court as well as Coordinate Benches of this Court has consistently determined the income of the deceased/applicant on the basis of Minimum Wages duly notified under Minimum Wages Act.
16. It is correct that as per section 3 & other provisions of Minimum Wages Act, 1948, minimum wages thereunder are fixed & notified for employees employed in an employment specified in the Act, i.e. in respect of scheduled employment under the Act. But, in view of principles laid down in decisions referred to in preceding paras, in this court's considered opinion, in absence of other evidence on record, to obviate uncertainty & for sake of reasonable uniformity & consistency, it would be just & proper to apply yardstick of Minimum Wages duly notified under Minimum Wages Act, 1948 for determining compensation under the Motor Vehicles Act.
Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 1117. In view of section 57 of Indian Evidence Act, 1872, judicial notice can be taken of Minimum Wages duly notified under Minimum Wages Act, 1948. Hence, the same need not to be proved separately.
18. Another issue is what is meant by "Minimum Wages" ? Section 4 of Minimum Wages Act, 1948, has defined term "Minimum Wages" & "Minimum Wages" means Minimum basic pay & dearness allowance. Thus, "Minimum Wages" consists of Minimum basic pay & dearness allowance.
19. Next question arises, how to calculate monthly Minimum Wages i.e. whether on the basis of 30 days or less than 30 days. This issue has been taken care of/dealt with in section 13 & 23 of Minimum Wages Act, 1948 & also in notifications issued under the Act. Further, perusal of various notifications issued under under Minimum Wages Act, 1948 show that therein "Minimum Wages"
are fixed on monthly basis as well as daily basis. Hence, "Monthly Minimum Wages" fixed in the the relevant notification are to used & applied for determining the compensation.
20. There is another aspect of matter also, that is, while calculating annual income, whether "Minimum Monthly Wages" are to be multiplied by 12 months or less than 12 months. In this court's considered opinion, annual income has to be calculated by multiplying "Minimum Monthly Wages" by 12 months. This view also stands fortified from decisions in Magma General Insurance company Limited, Manusha Sreekumar, Sidram & Sapna (supra).
Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 1221. Further, just because there is no provision in the Motor Vehicles Act to the effect that if income is not proved, then, income is to determined on the basis of Minimum Wages, it can not be said that in cases, income is not proved, then, Tribunal/court can not determine income on the basis of Minimum Wages.
22. It is correct that Tribunal/Court can not determine income on the basis of guidelines issued by State Legal Service Authority. The reason being that they are not issued under any statutory authority/Statutory provision empowering State Legal Service Authority to issue such guidelines. Such guidelines are issued for Lok Adalat purposes. On the contrary, Minimum Wages are notified under Minimum Wages Act. Hence, they can be used for determining compensation under the Motor Vehicles Act.
23. Hence, in view of discussion in the foregoing paras , it would be just and proper to determine the income of the deceased/applicant on the basis of minimum wages duly notified under the Minimum Wages Act, 1948. But while determining income on the basis of minimum wages duly notified under the Minimum Wages Act, 1948, following factors should also be kept in mind:-
i. Reliance on Minimum Wages for determining income should be resorted to only when Tribunal comes to the conclusion that from evidence on record income is not proved.
ii. Minimum Wages are the minimum & it is not that Tribunal/court can not fix over & above Minimum Wages, if circumstances/evidence of particular case warrants so.Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 13
iii. Before determining/proceeding to determine income, Tribunal/court must, on the basis of evidence available, record a finding with respect to as to which category the person, whose income is to be determined, belongs, i.e. unskilled/skilled/semi- skilled etc. Factual Analysis of case:-
24. So far as income of deceased Kamlesh is concerned, evidently with respect to income of deceased Kamlesh, there is no documentary evidence on record. Para-20 of impugned award reveal that Tribunal has assessed deceased's income as Rs.7,500/- per month considering him as unskilled labour. Claimant's witness Kailash Chouhan has deposed that his son Kamlesh used to run pesticides shop in the na me of Shubam Krishi Seva Kendra. Further, he also used to supervise the agricultural land. From deposition of Kailash Chouhan and mark sheet Ex.P/11 it is evident that in the year 2016 deceased has passed BSc IInd year. The accident has occurred on 07.07.2019. In view of above, in this Court's considered opinion, deceased may be considered as semi-skilled labour and his income should be assessed accordingly. As per Circular issued by Labour Commissioner under Minimum Wages Act, monthly wages of semi-skilled labourer, on the date of accident, was Rs.8557/- per month. Principle laid down in Basanti Devi (supra) does not apply to the facts of the case as in that case deceased was Bachelor of Engineering in Computer Science whereas in the present case it is not so.
25. So far as deduction for personal expenses is concerned, as per the decision in the case of Sarla Verma & others vs. Delhi Transport Corporation & another - AIR 2009 SC 3104, where deceased was Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM 14 unmarried, ½ amount is to be deducted for personal expenses. In the present case, so far as deduction towards personal expenses is concerned, admittedly, at the time of accident, deceased was bachelor. Hence, as per Sarla Verma (supra), ½ amount should have been deducted towards personal expenses, instead, 1/3 has been deducted by the Tribunal. Accordingly, this finding of Tribunal is set aside.
26. In the instant case, there is no dispute with respect to multiplier applicable/ % of future prospects. But Tribunal has wrongly awarded excess amount under the head of consortium/funeral expenses/loss of estate by adding 10%.
27. In view of above, compensation awarded by the Tribunal in the present case is recalculated as under:-
Loss of Dependency Rs.12,93,822/-
(i.e.Rs.8557 x 12=1,02,684+40%
future prospects=1,43,758 - ½
personal expenses=71,879 x
18=12,93,822/-
Consortium Rs.80,000/- (i.e. Rs.40,000 x 2)
Funeral Expenses Rs.15,000/-
Loss of estate Rs.15,000/-
TOTAL Rs.14,03,822/-
Signature Not Verified
Signed by: HARIKUMAR
NAIR
Signing time: 12/22/2023
5:35:10 PM
15
28. Thus, the just and proper amount of compensation in the instant case is Rs.14,03,822/- as against the award of the Tribunal of Rs.16,33,000/-.
29. In the result, the appeal filed by the claimants is dismissed and the appeal filed by the Insurance Company is partly allowed by reducing the compensation amount from Rs.16,33,000/- to Rs.14,03,822/-. The other findings recorded by the Tribunal shall remain intact.
30. Accordingly, appellant/claimants shall refund the difference amount of Rs.2,29,178/- along with interest to appellant insurance company, if already deposited by the insurance company& appellant insurance company shall be entitled to recover the same from appellants/claimants.
31. Let a copy of this order be placed in the record of connected appeal.
32. Both the appeals stands disposed of accordingly.
(ACHAL KUMAR PALIWAL) JUDGE hk/ Signature Not Verified Signed by: HARIKUMAR NAIR Signing time: 12/22/2023 5:35:10 PM