Partly allowed

Shanti v. Sahi Ram

Rajasthan HC19 Feb 2024CMA/3332/2018

Case brief

AI extract

What is this about?

The High Court allowed the appellant's claim that the Motor Accident Claims Tribunal erred in assessing the deceased's income. The Court revised the deceased's monthly income to Rs.10,000 based on a works contractor's accounts diary and enhanced the 'loss of consortium' award to Rs.48,000 for each dependent, resulting in a total compensation of Rs.20,77,932.

What did the court decide?

Modified the challenged award: assessed deceased income at Rs.10,000/month; enhanced consortium award to Rs.48,000 per dependent; total compensation fixed at Rs.20,77,932 with interest.

Shanti Vs Sahi Ram — Motor Accident Claims | Rajasthan HC (2024)

¶1

[2024:RJ-JD:8420]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

¶3

S.B. Civil Misc. Appeal No. 3332/2018

¶4

Shanti W/o Late Shri Satya Narayan, Aged About 28 Years, B/c Meghwal, R/o Mehran Nagar, Post Janadosar, Tehsil Luni, District Jodhpur

¶5

Kumari Puja D/o Late Shri Satya Narayan, Aged About 9 Years, B/c Meghwal, R/o Mehran Nagar, Post Janadosar, Tehsil Luni, District Jodhpur (Appellant - Claimant No. 2 Is Minor Through Her Natural Guardian Mother Smt. Shanti W/o Late Shri Satya Narayan)

¶6

----Appellants

¶7

Versus

¶8

Sahi Ram S/o Shri Bhagirath Ram, B/c Vishnoi, R/o Vishnu Nagar (Surani) Post Dugar, Police Station Balesar, Tehsil Shergarh, District Jodhpur (Driver Splendor Plus Motorcycle No. Rj19 Gs 4264)

¶9

Manoj S/o Shri Dhana Ram, B/c Vishnoi, R/o Vishnu Nagar (Surani), Post Dugar, Police Station Balesar, Tehsil Shergarh, District Jodhpur. (Registered Owner Splendor Plus Motorcycle No. Rj19 Gs 4264)

¶10

National Insurance Company Ltd., Divisional Office, 12Th Residency Road, Jodhpur (Insurer Splendor Plus Motorcycle No. Rj19 Gs 4264)

¶11

Bhoma Ram S/o Late Shri Bhaga Ram, B/c Meghwal, R/o Mehram Nagar, Post Janadosar, Tehsil Luni, District Jodhpur. (Driver Spelndor Plus Motorcycle No. Rj19 Ks 0109)

¶12

Gyan Chand S/o Champa Lal, B/c Jain, R/o Mehram Nagar, Post Janadosar, Tehsil Luni, District Jodhpur. (Registered Owner Splendor Plus Motorcycle No. Rj19 Ks 0109)

¶13

National Insurance Company Ltd., Divisional Office, 12Th Residency Road, Jodhpur, Rajasthan. (Insurer Splendor Plus Motorcycle No. Rj19 Ks 0109)

¶14

Paru Devi W/o Bhaga Ram, B/c Meghwal, R/o Mehram Nagar, Post Janadosar, Tehsil Luni, District Jodhpur. (Mother Of Deceased)

¶15

----Respondents

¶16

For Appellant(s) : Mr. S.K. Sankhla For Respondent(s) : Mr. Koshlendra Vallabh Vyas

(2 of 14)

[2024:RJ-JD:8420]

[CMA-3332/2018]

HON'BLE MS. JUSTICE REKHA BORANA

¶21

Order

¶22

19/02/2024

¶23

The present appeal has been preferred under Section 173 of the Motor Vehicles Act, 1988 (for short, ‘the Act of 1988’) against the judgment/award dated 18.08.2018 passed by the Motor Accident Claims Tribunal First, Jodhpur in Motor Accident Claim Case No.172/2014 (NCV No.3183/14) whereby the claim petition as preferred by the claimants under Section 166 of the Act of 1988 has been partly allowed and an award for an amount of Rs.10,05,748/- with interest @ 9% per annum from the date of filing of claim petition has been passed in favour of the claimants.

¶24

It is relevant to note that Smt. Paru Devi, mother of the deceased, was though impleaded as proforma non-claimant, the learned Tribunal awarded a sum of Rs.55,748/- in her favour. In the present appeal too, she has been impleaded as proforma respondent no.7.

¶25

Brief facts of the case are that a claim petition was preferred by the claimants with the submission that on 19.01.2014, Satya Narayan was travelling as a pillion rider with his brother (nonclaimant No.4) on motorcycle bearing registration No.RJ19-KS0109 from Village Agolai to Mehram Nagar, Janadesar. At about 12:30 PM, near Dugar Sarhad, they were hit by the offending vehicle i.e. motorcycle bearing registration No.RJ19-GS-4264 which was driven rashly and negligently on wrong side of the road by its driver – non-claimant No.1. As a result of the said accident, Satya Narayan succumbed to the injuries on 24.01.2014 while

¶26

(3 of 14) [CMA-3332/2018]

¶27

[2024:RJ-JD:8420]

¶28

undergoing treatment in the hospital at Jodhpur. The offending vehicle, on the date of accident, was insured with respondent No.3 – Insurance Company.

¶29

The appellants-claimants being the wife and daughter of deceased Satya Narayan, claimed compensation to the tune of Rs.1,39,28,000/-. However, the learned Tribunal after framing the issues, evaluating the evidence available on the record and after hearing the counsel for the parties, while assessing the monthly income of the deceased to be Rs.4,914/-, awarded total compensation of Rs.10,05,748/- in favour of the claimantsappellants, the break-up of which is as under:

¶30

1.	Income per month (after adding future prospects @40% and deduction towards personal and living expenses 1/3^rd)	Rs.4,587/-
2.	Loss of Annual Income (as per the age of the deceased to be 29 years, multiplier of 17)	4587 x 12 x 17 = Rs.9,35,748/-
3.	Under the head of ‘loss of estate’	Rs.15000/-
4.	Under the head of ‘consortium’	Rs.40000/-
5.	Under the head of ‘Funeral expenses’	Rs.15000/-
6.	Total amount of compensation awarded by the Tribunal	Rs.10,05,748/-

¶31

Learned Tribunal also awarded interest @ 9% per annum from the date of filing of the claim petition.

¶32

Averring the compensation to be meagre, the claimantsappellants have preferred the present appeal on the following grounds: Firstly, the learned Tribunal has considered the income

(4 of 14)

[2024:RJ-JD:8420]

[CMA-3332/2018]

of the deceased on basis of minimum wages of an unskilled worker prevalent at the time of accident i.e. Rs.4,914/- per month whereas the same ought to have been considered on basis of his income as a contractor and agriculturist wherefrom he was earning Rs.21,000/- per month which fact was proved on record. Secondly , a lumpsum amount to the tune of Rs.40,000/- qua loss of consortium has been awarded whereas the same ought to have been awarded to each of the dependants with enhanced rate of 10% for every three years in terms of the ratio as laid down in National Insurance Company Limited Vs. Pranay Sethi & Ors.; (2017) 16 SCC 680 .

¶37

Per contra, learned counsel for respondent- Insurance Company submitted that the judgment/award passed by the learned Tribunal is totally in consonance with law and no ground for enhancement of the compensation amount as awarded by the Tribunal, is made out.

¶38

Heard learned counsel for the parties and perused the material available on record.

¶39

The points that emerge for consideration before this Court are:

¶40

1.) Whether the Tribunal has rightly assessed the income of the deceased for computation of compensation?

¶41

2.) Whether the Tribunal has rightly awarded the amount under the head ‘loss of consortium’?

¶42

Regarding 1^st point, the learned tribunal observed that the income of the deceased to be Rs.21,000/- per month was not proved on record as the document i.e. the accounts diary (Exh-24-

(5 of 14)

[2024:RJ-JD:8420]

[CMA-3332/2018]

as exhibited on record did not indicate any specific particulars so as to ascertain the per month income of the deceased. The said accounts diary neither clarified the credit/debit entries, neither the datewise expenses and nor the gross income. Therefore, the learned Tribunal assessed the income of the deceased on basis of the minimum wages prescribed for an unskilled labour during the year 2014, that is Rs.4,914/- per month.

¶47

This Court is of the opinion that though the Accounts diary (Exh-24-26) as exhibited on record, is merely an account of expenses consisting of debit entries qua payment made to the labourers and does not explicitly prove the income of the deceased but the same is definitely an indicator regarding income of the deceased and the most natural assumption that can be drawn from the same is that he was earning at least something more than the amount paid by him to the labourers. Further, the said documentary evidence has not been disputed by the respondents and neither has AW-1, Shanti (wife of the deceased) been cross examined on this aspect. Therefore, this piece of evidence could not have been discarded by the learned Tribunal. 10. In the case of Tebha Bai and Ors. vs. Raj Kumar Keshwani and Ors.; (2018) 7 SCC 705 , the Hon’ble Apex Court observed as under:

¶48

“ 13. We have perused the evidence adduced the parties. In our view, the sworn testimony of Appellant No. 1-wife of the deceased that her husband was in the employment of Late Mangu Ram Keshwani-father of Respondent Nos. 1-3, that he was being paid a monthly salary of Rs. 2000/- per month and that he died while driving the offending vehicle deserves to be accepted as in our opinion there is neither any

(6 of 14)

[2024:RJ-JD:8420]

[CMA-3332/2018]

contradiction in her examination-in-chief or in her cross-examination. Her evidence is throughout consistent .”

¶53

Further, the Hon’ble Himachal Pradesh High Court while dealing with a similar factual matrix in the case of Nirmla Devi vs. Kuldeep Kumar and Ors., 2023 (2) ShimLC 1057 observed as under:

¶54

“4(i)(d). There is no suggestion or question put to the contractor about his alleged false deposition of paying Rs. 9,000/- per month to the deceased. At this stage, it would be relevant to consider the ratio of law laid down by Hon'ble Apex Court in (2013) 4 SCC 97 Laxmibai (dead) through LRs. and another vs. Bhagwantbuva (dead) through LRs and others, wherein it was held that unchallenged part of the statement of the witness is to be relied upon for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regard the same, in absence of question put to him with respect to the circumstances which indicate that version of events provided by him is not to be believed and the witness is unworthy of credit. The part of the judgment relevant to the context reads as under:-

¶55

"xx xx xx 40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being untrue. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provisions enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to cross-examine a witness as regards information tendered in evidence by him during his initial examination in chief, and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, inter-alia, in order to test his

(7 of 14)

[2024:RJ-JD:8420]

[CMA-3332/2018]

veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version of events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses. (See Khem Chand v. State of HP., State of U.P. v. Nahar Singh, Rajinder Pershad v. Darshana Devi and Sunil Kumar v. State of Rajasthan. xx xx xx"

¶60

Meaning thereby, if a witness is not cross-examined qua any statement made by him or any evidence led by him/her, the version of the witness being an unrebutted one, is to be relied upon.

¶61

The issue of assessment of income for calculation of compensation when there is no ‘definite proof’ of income on record, has been dealt with by the Hon’ble Apex Court in a catena of cases.

¶62

In the case of Chandra and Ors. vs. Mukesh Kumar Yadav and Ors., (2022) 1 SCC 198 , the Hon’ble Supreme Court has held as under:

¶63

“ 10………………Though the wife of the deceased has categorically deposed as AW-1 that her husband Shivpal was earning Rs. 15000/- per 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

(8 of 14)

[2024:RJ-JD:8420]

[CMA-3332/2018]

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 .”

¶68

Also, in the latest pronouncement of Kubrabibi & Ors. vs Oriental Insurance Co Ltd & Ors., Civil Appeal No. 5461 of 2023 (decided on 28.08.2023), the Hon’ble Apex Court observed as under:

¶69

“7. In a matter of the present nature where the compensation is sought and even in the absence of definite proof of the income, the social status of the deceased is to be kept in perspective where such persons are employed in unorganized sector and the notional income in any event is required to be taken into consideration. The fact that the deceased had three dependents to be cared for and had claimed that he was working as a mechanic, the amount payable to an unskilled labour, cannot be the basis and in that circumstance when he was a skilled person, the daily income at Rs.200/- per day in any event could have been taken even if the income from jeep transport business was discarded for want of documents.”

¶70

Further, in the case of United India Insurance Co. Ltd. vs Indiro Devi and Ors.; (2018) 7 SCC 715 , the Hon’ble Apex Court observed as under:

¶71

“ 9…………………There is nothing in the law which requires the Tribunal to assess the income of the deceased only on the basis of a salary certificate for arriving at a just

(9 of 14)

[2024:RJ-JD:8420]

[CMA-3332/2018]

and fair compensation to be paid to the claimants for the loss of life .”

¶76

In the case of Jakir Hussein vs Sabir & Ors.; (2015) 7

¶77

SCC 252 , the Hon’ble Supreme Court observed as under:

¶78

“14………………After careful examination of the facts and legal evidence on record, it is not in dispute that the Appellant was working as a driver at the time of the accident and no doubt, he could be earning Rs. 4,500/per month. As per the notification issued by the State Government of Madhya Pradesh Under Section 3 of the Minimum Wages Act, 1948, a person employed as a driver earns Rs. 128/- per day, however the wage rate as per the minimum wage notification is only a yardstick and not an absolute factor to be taken to determine the compensation under the future loss of income. Minimum wage, as per State Government Notification alone may at times fail to meet the requirements that are needed to maintain the basic quality of life since it is not inclusive of factors of cost of living index. Therefore, we are of the view that it would be just and reasonable to consider the Appellant's daily wage at Rs. 150/- per day (Rs. 4,500/per month i.e. Rs. 54,000/- per annum) as he was a driver of the motor vehicle which is a skilled job.”

¶79

In the case of Syed Basheer Ahamed and Ors. Vs. Mohd.

¶80

Jameel and Ors; (2009) 2 SCC 225 , the Hon’ble Supreme Court

¶81

has held as under:

¶82

“15. In our view, though the entries in the current account (Ex.P-38) of the deceased and his transactions with his client, namely, Vasu Agarbathi (Ex.P-23) may not per se be cogent evidence to determine the yearly or monthly income of the deceased from the business(s) he was carrying on, yet we feel that these are some indicators in support of the appellants' plea that the business income of the deceased in the succeeding years could be more than what was declared for the year ended 31st March, 1998……

¶83

17. In the circumstances, having regard to the material on record, in our opinion, ends of justice would be met if

(10 of 14)

[2024:RJ-JD:8420]

[CMA-3332/2018]

the income of the deceased is taken at Rs. 5,500/- per month or Rs. 66,000/- per annum.”

¶88

Since the Act of 1988 is a welfare legislation, it is imperative that a just and reasonable compensation is awarded to the claimants. On this aspect, the Hon'ble Apex Court, in the case of Manusha Sreekumar and Ors. vs. The United India Insurance Co. Ltd.; AIR 2022 SC 5161 , has held as under:

¶89

“ 16. While determining compensation under the Act, Section 168 of the Act makes it imperative to grant compensation that appears to be just. The Act being a social welfare legislation operates through economic conception in the form of compensation, which renders way to corrective justice. Compensation acts as a fulcrum to bring equality between the wrongdoer and the victim, whenever the equality gets disturbed by the wrongdoer's harm to the victim. It also endeavors to make good the human suffering to the extent possible and to also save families which have lost their breadwinners from being pushed to vagrancy. Adequate compensation is considered to be fair and equitable compensation. Courts shoulder the responsibility of deciding adequate compensation on a case-to-case basis. However, it is imperative for the courts to grant such compensation which has nexus to the actual loss.”

¶90

Keeping into consideration the ratio as laid down from time to time by the Hon’ble Apex Court and as mentioned in the above judgments, coming on to the facts of the present case, the case of the claimants was that the deceased earned Rs.21,000/- per month. In support of the claim, the accounts diary as maintained by the deceased has been exhibited by his wife (AW-1) Shanti.

¶91

A perusal of the said diary clarifies that the deceased was working as a labour contractor and undertaking constructions works. The accounts diary as exhibited is a proof of the accounts

[2024:RJ-JD:8420]

[CMA-3332/2018]

(11 of 14)

maintained by him qua the construction expenses, the wages given by him to the labourers etc. The said accounts diary also prima facie shows that the rate of wages given by him to most of the labourers was Rs.500/- per day.

¶96

So far as the income from agriculture is concerned, there is nothing on record to suggest or prove the same. Therefore, the only income which can be considered is the income of the deceased earned as a Works Contractor. Although, the accounts diary as exhibited does not prove any specific per month income of the deceased but it can be safely be assumed that a works contractor, who was paying the wages @ Rs.500/- per day to his labourers, was definitely earning may be not more, but at least equal to them. Further, in common parlance also, a Civil Works Contractor cannot be expected to earn less than Rs.500/- per day. 15. In view of the above analysis, the finding of the learned Tribunal assessing the income of the deceased at the rate of Rs.4,914/- per month on basis of minimum wages of an unskilled labour, deserves modification.

¶97

As held by the Hon’ble Apex Court in the case of Chandra (supra), 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. Just because the claimants were unable to produce direct documentary evidence to prove the monthly income of the deceased, the same does not justify adoption of lowest tier of minimum wage while computing the income. Herein is a matter where although the specific income of the deceased is not proved but it is proved on record that he was working as a Works

(12 of 14)

[2024:RJ-JD:8420]

[CMA-3332/2018]

Contractor. Hence, in the facts and circumstances of the present case, the income of the deceased deserves to be assessed at the rate of Rs.10,000/- per month. 16. Regarding the 2^nd issue, the Hon’ble Apex Court in the case of National Insurance Company Limited vs Pranay Sethi and Ors.; (2017) 16 SCC 680 has fixed the amount payable under the conventional heads, namely, loss of estate, loss of consortium and funeral expenses to be Rs. 15,000/-, Rs. 40,000/- and Rs.15,000/- respectively. Further, the Hon’ble Apex Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram and Ors., (2018) 18 SCC 130 interpreted ‘consortium’ to be a compendious term, which encompasses spousal consortium, parental consortium as well as filial consortium.

¶102

Therefore, this Court is of the opinion that the amount of Rs.40,000/- awarded under the head of ‘loss of consortium’ also needs to be enhanced and be granted to each of the dependants. Further, the said amount deserves to be enhanced at the rate of 10% every three years from the date of judgment of Pranay Sethi (supra) i.e. 2017 and therefore, the amount under the head ‘loss of consortium’ deserves to be enhanced to Rs.48,000/-.

¶103

On the above analysis, the amount under the conventional heads, after enhancement, is modified as under: Loss of estate: Rs.15,000/ -;

¶104

Loss of consortium: Rs.48,000/- to each dependent; Funeral expenses: Rs.15,000 /-.

¶105

In view of the above discussion, the present appeal is partly allowed and the impugned judgment/award dated 18.08.2018

¶106

(13 of 14) [CMA-3332/2018]

¶107

[2024:RJ-JD:8420]

¶108

passed by the Motor Accident Claims Tribunal First, Jodhpur in Motor Accident Claim Case No.172/2014 (NCV No.3183/14) is modified to the extent as under:

¶109

1.	Income per month (after adding future prospects @40% and deduction towards personal and living expenses 1/3^rdin the monthly income of Rs.10,000)	Rs.9,333/-
2.	Loss of Annual Income (as per the age of the deceased to be 29 years, multiplier of 17).	Rs.9,333 x 12 x 17 = Rs.19,03,932/-
3.	Under the head of ‘loss of estate’	Rs.15,000/-
4.	Under the head of ‘consortium’	Rs.48,000/- to each dependant (3) Total: Rs.1,44,000/-
5.	Under the head of ‘Funeral expenses’	Rs.15,000/-
6.	Total amount of compensation	Rs.20,77,932/-
7.	Less amount awarded by the Tribunal.	Rs.10,05,748/-
8.	Enhanced amount of compensation	Rs.10,72,184/-

¶110

The amount qua the loss of income and other heads shall carry an interest at the rate of 6% per annum from the date of filing of the claim petition. However, the amount awarded vide this judgment qua the head of consortium shall not carry any interest

(14 of 14)

[2024:RJ-JD:8420]

[CMA-3332/2018]

as the same already comprises of a 10% increase for every three years and hence, has been computed to be Rs.48,000/-.

¶115

The respondent insurance company is directed to deposit the amount of enhanced compensation with the Tribunal within a period of two months from the date of receipt of the copy of this order failing which, the same shall carry interest @7.5% per annum from the date of this order till actual realization.

¶116

Upon deposition, learned Tribunal is directed to disburse the same to the claimants, including the matter of the deceased, in terms of the award.

¶117

(REKHA BORANA),J

¶118

381-S.Phophaliya/KashishS/-

Shanti v. Sahi Ram

Case brief

What is this about?

What did the court decide?

Shanti v. Sahi Ram

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Lrs of Fateh Mohd. Vs Kailash Chand

Hdfc Ergo General Insurance Company Ltd., Vs Maniram

Suresh Sharma Vs Tata Finance Ltd.

Reliance General Insurance Company Limited Vs Anek Kanwar

Reliance General Insurance Company Limited Vs Bahadur Singh

Reliance General Ins. Co. Ltd. Vs Kalulal and Ors.