Branch Manager, Iffco Tokyo General Insurance Company Ltd. vs Samuthiravel

Mr. S. Manikumar, J.—Challenge in this appeal, is to the finding fixing negligence on the driver of the bus bearing registration No.TN-72-D-5733, insured with the appellant company and the quantum of compensation of Rs.15,67,000/- with interest @ 9% per annum, awarded to the legal representatives of the deceased Murugan by the Motor Accident Claims Tribunal, II Additional District Court, Tirunelveli, in the judgment and decree made in MCOP.No.639 of 2014, dated 26.08.2015.

Facts leading to the appeal are that on 30.03.2014, Murugan, aged about 40 years, working as a driver cum customer service crew in Marrybrown at Tirunelveli, was riding a motor cycle bearing registration No.TN-72-AH-6878. Near a Tower, at Palayamcottai, a bus bearing registration No.TN-72-D-5733 insured with the appellant, driven in a rash and negligent manner dashed against the motor cycle. The motor cyclist sustained grievous injuries. He was taken to TVMC Hospital, Palayamcottai, where he was declared dead. In this regard, a case in Crime No.100/2014 under Section 304(A) IPC, on the file of Tirunelveli Traffic Investigation Wing Police, has been registered against the driver of the bus. Claiming compensation of Rs.15,00,000/-, the claimants laid a claim.

Defending the same, the appellant denied negligence of the bus driver. Added further, it was contended that the motor cyclist dashed against the right side of the bus and caused accident. Reliance was placed on Ex.P3 dated 01.04.2014, Certified copy of Motor Vehicle Inspector''s Report of the bus that it sustained damages on the right side body, below the 5th window. Thus, denying negligence, the appellant company has disputed its liability. Without prejudice to the above, the appellant disputed the age, avocation, income of the deceased and the quantum of compensation claimed under various heads.

Before the Claims Tribunal, wife of the deceased examined herself as PW1 and reiterated the manner of accident. PW2 is stated to be the informant of Crime No.100/2014 registered under Section 304(A) IPC, on the file of Tirunelveli Traffic Investigation Wing Police. PW3 is a Sales Executive of Sun Restaurant, who deposed about the employment and earning of the deceased. Ex.P1 dated 30.03.2014 certified copy of FIR, Ex.P2 dated 30.03.2014 certified copy of Postmortem certificate, Ex.P3 dated 01.04.2014 certified copy of M.V.I. report, Ex.P4 dated 30.03.2014 certified copy of Observation Mahazar, Ex.P5 dated 18.04.2014 certified copy of final report, Ex.P6-Driving licence of the deceased, Ex.P7 dated 02.03.2015 death certificate of Balasundari @ Bala, Ex.P8- Birth Certificate of minor Sasikumar & Arunkumar, Ex.P9-Certified copy of O.S.No.421/2014 for legal heir of minors, Ex.P10-ID card of the deceased, Ex.P11 dated 19.12.2014 salary certificate of the deceased and Ex.P12-ID card copy of Natarajan, have been marked on the side of the claimants/respondents. RW1 is the driver of the bus insured with the appellant. No document has been filed on behalf of the appellant.

Evaluating the pleadings and evidence, the Claims Tribunal found that RW1-driver of the bus was negligent in causing the accident. The Tribunal quantified the compensation as Rs.15,67,000/- with interest @ 9% per annum being the REPO rate of interest, from the date of filing of the claim petition as hereunder:-

Loss of income

: Rs.14,04,000/-

Loss of consortium

: Rs. 40,000/-

Loss of love and affection to R1 & R2

: Rs. 30,000/-

Loss of love and affection to R3 & R4

; Rs. 80,000/-

Loss of estate

: Rs. 5,000/-

Funeral expenses

: Rs. 5,000/-

Transportation

: Rs. 3,000/-

Total

Rs.15,67,000/-

Questioning the finding of negligence, Mr. S. Srinivasa Raghavan, learned counsel for the appellant submitted that the Tribunal ought to have found that the accident occurred due to the negligence of the motor cyclist; the Tribunal failed to give credence to the evidence of RW1; the Tribunal ought to have found that Ex.P3-Motor Vehicle Inspector''s Report was very clear and at column No.10, damage to the bus below the 5th window at half feet height, had been clearly recorded and therefore, by correlating the oral evidence of RW1 with Ex.P3, the Tribunal ought to have held that the motor cyclist was negligent in causing the accident.

On the quantum of compensation, it is the contention of the learned counsel for the appellant that the Tribunal ought not to have fixed the monthly income of the deceased as Rs.8,000/- and also erred in adding 30% of income towards future prospects. In support of the contention that the Tribunal erred in adding 30% of income under future prospects, reliance is placed on the decisions of the Hon''ble Supreme Court in Sarla Verma and Others v. Delhi Transport Corporation, reported in 2009 ACJ 1298 and Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC 422. Heard the learned counsel for the appellant and perused the materials available on record.

Involvement of the bus bearing registration No.TN-72-D-5733 insured with the appellant is not disputed. Though PW1/wife has reiterated the manner of accident, she has not witnessed the same. But PW2 is none other than the informant of Crime No.100/2014 registered under Section 304(A) IPC, on the file of Tirunelveli Traffic Investigation Wing Police. He has adduced evidence, supporting the manner of accident.

Per contra, RW1-driver of the bus has deposed that the motor cyclist came in a rash and negligent manner and dashed below the 5th window and fell down. While Ex.P3-Motor Vehicle Inspector''s Report of bus, was relied on, to corroborate the version of RW1, from the evidence of RW1, the Tribunal while analysing his evidence, has found that RW1 himself has admitted that width of the road would permit two vehicles, to be operated. Relevant portion of the evidence of RW1 in this regard, is extracted hereunder:-

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Having regard to the above admission, the Tribunal came to the conclusion that it is not possible for the motor cyclist to have dashed below the 5th window at half feet height, unless and until the bus had gone in a cross direction or for the matter it would have attempted to overtake some other vehicle and in that process, there could have been an accident. However, the Tribunal while considering the fact that Ex.P1-FIR has been registered against the driver of the bus and vide Ex.P5, he has also been charge sheeted and when the version of PW1/wife was duly supported by PW2, and by observing that the self interested testimony of RW1-driver of the bus, was not corroborated and placing reliance on the decision in A.P.S.R.T.C. Rep by its Managing Director and another v. Smt. Laxmi Shukla and others, reported in 2014 (3) TAC 818 (A.P), fixed negligence on the bus driver.

Though the learned counsel for the appellant reiterated the very same grounds before this Court and sought for reversal of the finding, fixing negligence on the driver of the bus, this Court is not inclined to accept the same. As rightly observed by the Claims Tribunal, testimony of RW1 is not supported, and Ex.P3 would lend support to the manner of accident, as suggested. As rightly observed, when width of the road permits two vehicles in the opposite direction, the possibility of the motor cylist hitting below the 5th window at half feet height of the bus, is not acceptable.

In N.K.V. Brother''s Private Limited v. Kurmai reported in AIR 1980 SC 1354, while dealing with the scope of the enquiry in the Claims Tribunal, the Apex Court has held that:

"Accident Claims Tribunal, must take special care to see that innocent victims do not suffer and drivers and owners do not escape liability merely because of some doubt here or some obscurity there. Save in plaint cases, culpability must be inferred from the circumstances where it is fairly reasonable. The Court should not succumb to niceties, technicalities and mystic maybes. We are emphasising this aspect because we are often distressed by transport operators getting away with it thanks to judicial laxity, despite the fact that they do not exercise sufficient disciplinary control over the drivers in the matter of careful driving."

In a decision in Union of India v. Saraswathi Debnath reported in 1995 ACJ 980, High Court of Gauhati has held in Paragraph 6 as follows:

"The law is well settled that in a claim under the Motor Vehicles Act, the evidence should not be scrutinised in a manner as is done in a civil suit or a criminal case. In a civil case the rule is preponderance of probability and in a criminal case the rule is proof beyond reasonable doubt. It is not necessary to consider these niceties in a matter of accident claim case inasmuch as it is summary enquiry. If there is some evidence to arrive at the finding that itself is sufficient. No nicety, doubt or suspicion should weigh with the Claims Tribunal in deciding a motor accident claim case."

In Bimla Devi & Ors. v. Himachal RTC reported in 2009 (13) SCC 530, the Supreme Court held as follows:-

"It was necessary to be borne in mind that strict proof of an accident caused by a particular bus in a particular manner may not be possible to be done by the claimants. The claimants were merely to establish their case on the touchstone of preponderance of probability. The standard of proof beyond reasonable doubt could not have been applied. For the said purpose, the High Court should have taken into consideration the respective stories set forth by both the parties."

It is the well settled law that proceedings before the Claims Tribunal are summary in nature and it is suffice to consider, whether there is any preponderance of probability, as to the manner of accident, as detailed in the claim petition. Strict proof of evidence is not required.

In the light of the above discussion and decisions, the finding of the Tribunal regarding negligence, cannot be termed as perverse or it is not a case of no evidence and therefore, the same is confirmed.

The age of the deceased has been determined as 40 years, placing reliance on the entries in Ex.P6-Driving Licence of the deceased and Ex.P2- Postmortem Certificate, which cannot be said to be erroneous, in view of the judgments in Fakeerappa v. Karnataka Cement Pipe Factory [2004 (4) LW 20] and The Managing Director, Tamilnadu State Transport Corporation, Madurai v. Mary [2005 (5) CTC 515].

On the quantum of compensation, PW1/wife has deposed that at the time of accident, the deceased was working as Driver cum Customer Service Crew in Marry Brown at Tirunelveli and earned Rs.10,000/- per month. To prove the avocation and income of the deceased, the claimants have examined PW3-Sales Executive of Sub Restaurant by the Agency of Marry Brown and marked Ex.P10-Identity Card issued by the Agency of Marry Brown, Tirunelveli and Ex.P11-Salary Certificate of the deceased, which shows that the deceased was drawing a salary of Rs.6,323/- Basic with D.A Rs.3,000/- (Rs.100/- per day) and he was working in the Concern for 9 months. In total, the deceased was drawing a salary of Rs.9,323/- per month. However, the Tribunal took the income of the deceased as Rs.8,000/- per month, by observing that Ex.P11 is not supported by related records and after considering the decisions of the Hon''ble Apex Court in Syed Saliq v. Divisional Manager, United India Insurance Company Ltd., reported in 2014 (1) TNMAC 459 (SC) = 2014 (2) SCC 735 and a decision of this Court in Royal Sundaram Alliance Insurance Company Ltd., v. S.Matheswari and others, reported in 2015 (1) TNMAC 485.

Though the learned counsel for the appellant contended that the Tribunal erred in fixing the monthly income of the deceased as Rs.8,000/-, this Court is not inclined to accept the same. The claimants have examined PW3- Sales Executive of Sub Restaurant by the Agency of Marry Brown and marked sufficient documents, to prove the avocation and income of the deceased. Though by placing reliance on the decisions of the Hon''ble Supreme Court in Sarla Verma and Others v. Delhi Transport Corporation, reported in 2009 ACJ 1298 and Reshma Kumari and others v. Madan Mohan reported in (2009) 13 SCC 422, learned counsel for the appellant further contended that the Tribunal erred in adding 30% of income under future prospects, this Court is not inclined to accept the same, for the reason that sufficient evidence has been adduced by the respondents/claimants that the deceased was working as a driver cum customer service crew in Marrybrown at Tirunelveli, an organised sector. In such a view of the matter, there is no error in the addition of 30% of income.

In a recent judgment in M/s. Royal Sundaram Alliance Insurance Co. Ltd., Salem v. Tmt.Vennila (C.M.A.Nos.3273 of 2014, 723 and 2386 of 2015, dated 13.10.2015), while considering the aspect of future prospect of an employee in unorganised sector, a Division Bench of this Court, to which, one of us (SMKJ), is a party, after considering the ''''Per Capita Income'''', ''''Gross Domestic Product'''' and ''''Consumer Price Index'''' etc., at paragraphs 54 to 68, held as follows:-

Taking into consideration the above illustrative cases of some of the employees, engaged by the Government, on daily rated basis and being revised periodically, we wish to state that the factors taken into consideration or the reasons stated by the Central Government or the District Collector, as the case may be, while revising the wages, from time to time, whether a person is employed in an organised or unorganised sector, would remain the same and consequently, decide the living conditions of different classes of persons, whether engaged in organised or unorganised sectors, as the case may be, to meet out the day to day expenditure and basic amenities. The difference in the rates of wages between the persons employed in a salaried structure, revisable periodically, though not, in strict sense, be applied with the same percentage to those, engaged in unorganised sectors, but it cannot be contended that there will not be any change in the earning or income.

The government servants have an expectation of periodical revision. So also, the employees working in Public Sector, Boards, Corporation, Companies owned and controlled by the Government. In respect of Private Limited Companies, it is more on the basis of terms and conditions of the contract, in which, they are governed. But in the case of self-employed or those, engaged in unorganised sectors, revision of wages or salary or in the case of self-employed, though may not be on par with the salaried structure in organised sectors or on the terms and conditions of the contracts in limited companies, still the important factor, Consumer Price Index, the deciding factor, would be the same, for a change in the earning of the self-employed or revision of salary or wage, even in unorganized sectors and that the expectation of a future event, ie., possibility of a change in wage or financial expectation, cannot be ruled out, for the simple reason that nothing has remained static, in this country.

As tabulated in the foregoing paragraphs, it should be noted that Consumer Price Index, Gross Domestic Product and Per Capita Income, have increased. One cannot disown the fact that the percentage of those in unorganized sectors is more than the organised sectors. While that be so, would it be appropriate for the Insurance Companies and Transport Corporations, to contend that there is absolutely no chance of any upward revision in wages or salary of those, employed in unorganised sectors or for that matter in the earnings of self-employed. If the contentions of the Insurance Companies and Transport Corporations have to be accepted, whether the self-employed or those engaged in unorganised sectors, can never have any expectation of an event in future, ie., increase in earnings or wages? With the basic study of the statistics, we are of the considered view that the answer should be a clear ''No''. When the Consumer Price Index is applicable uniformally to rich or raff, it cannot be contended that those who are engaged in unorganized sectors or self-employed, would continue to earn the same income, for years together.

For the above said reasons, we are of the considered view that the word, "prospects" should not be read and understood, only in plural sense, meaning thereby, its prospects or an apparent probability of advancement in employment, in organised sectors alone. Narrowing down the meaning of the words, "future prospects" only to the employment prospects and consequently, more possibility of earning income, only in the case of organised sector and not in unorganised sector or self-employed, would affect the majority and therefore, the meaning of the word, "prospect" used in singular, meaning thereby, expectation, possibility or probability, chances of earning more income in future, depending upon the factors, stated supra, should also be considered.

Thus, from the above particulars, extracted supra, it is evident that both the Central and State Governments have periodically revised the minimum wages across the country. It has been raised taking into consideration the Consumer Price Index. In respect of scheduled employments, for skilled, semi-skilled, unskilled, construction workers, labourers, etc., wages, are fixed in various scheduled employments, right from Agarbathi Industry to Woollen Carpet and Shawl wearing machinery.

While that be the position in organised sectors, it cannot be contended that insofar as unorganised sectors or self-employed, is concerned, there would not be any revision in the wages or salary or earning. When the minimum wages of an employee in the organised sector, is revised periodically, taking into consideration the Consumer Price Index and Variable Dearness Allowance, the living conditions, then the others, in a unorganised sector may expect more or less the same wage, and if there are more number of persons, there may be chances of lesser wage, on account of surplus human resources and in such cases, the bargaining power of certain class of employees, depending upon the field, for revision of wages or earning, may be less.

If a non-salaried domestic worker sells a piece of any article, which he or she manufacturers and if the customer bargains the rate, he or she would immediately reply, as to how much amount, he/she has to spend for buying the basic materials, other materials used, compare the erstwhile travel expenses and the cost of labour. Can anyone in this Country can say that the electricity charges, water charges, rent, fee received by the Government, cost of education, price of commodities, etc., have remained the same, without any change. Cost of tea sold in a ordinary tea stall is the same for any person, whether engaged in organised or unorganised. Contenting inter alia that there would not be any increase in wages or earning for those engaged in unorganised sectors, for years to come, can it be said that he would never take a cup of tea, outside?

At this juncture, it should be borne in mind that Consumer Price Index is fixed, taking into consideration that the majority consumers are from unorganised sectors. Thus, with reference to Gross Domestic Product, Per Capita Income, Consumer Price Index and such other economic factors, determined on the basis of participation and contribution of both organised and unorganised sectors, the classification that those engaged in unorganised sectors, should be totally denied of any addition of income under the head, future prospects, would in our humble view, would affect Article 14 of the Constitution of India. When the majority of persons, in unorganised sectors, also decide the economic factors, stated supra, it would be unjust and unreasonable to contend that there would not any prospect or addition in the earning of those engaged in unorganised sector, forever. If there is addition of Variable Dearness Allowance to the basic wages, in the case of organised sector, depending upon the Consumer Price Index, applicable for a particular period, one would reasonably expect the same factor of variable Dearness Allowance, to be a relevant factor, for determining the variation in the wage in case of unorganised sector also, as Consumer Price Index is common to all, whether engaged in organised or unorganised sector.

At this juncture, we deem it fit to consider, what "Dearness Allowance" means? "Dearness Allowance" is a cost of living adjustment allowance paid to Government employees, Public sector employees (PSU)and pensioners. Dearness Allowance is calculated as a percentage of an Indian''s basic salary to mitigate the impact of inflation. Variable Dearness Allowance is always linked to Consumer Prince Index. The notifications of Minimum wages by the Central and State Government reflects how much is the Variable Dearness in each field.

In the light of what we have tabulated above, judicial notice can also be taken that the cost of labour, whether it is in agricultural field or manufacturing or services, has increased. Thus, focusing on the increase in wages or earning, in almost all the fields of operation, right from agricultural or industrial or manual labourers, tea shop or road side vendor, the Consumer Price Index, being the same to rich or raff and therefore, correspondingly to meet out the living conditions, at least for providing the basic amenities, like food, shelter and clothing, and not to add up the expenditure towards health, education, certainly, there would be revision of wages or earning, even in unorganised sectors also. Future is the period of time that will come after the present or things that will happen. Having regard to the consistent and periodical revision of wages by the Governments, it cannot be contended by the Insurers or Transport Corporations that a person in unorganised sector, has no future at all, in the matter of revision of wages or earning.

In R.K.Malik''s case (cited supra), the Hon''ble Supreme Court considered the quantum of compensation, payable to the legal representatives of the deceased children, aged between 10 and 18 years. Referring to the inflation, price rise, etc., the Hon''ble Supreme Court, by observing that the there would be a future prospects, for the children also, granted a sum of Rs.75,000/- under the head, future prospects, though as on the date of accident, they were children, studying in a school. In V.Mekala''s case (cited supra), the injured was a student studying in 11th Standard. While determining the monthly income of the injured as Rs.10,000/-, the Hon''ble Supreme Court added 50% of the income, under the head, future prospects. In the recent decision in Munna Lal Jain''s case (cited supra), the Hon''ble Supreme Court added 50% under the head, future prospects.

Thus, from the line of judgments, it could be noticed that the Hon''ble Supreme Court has considered the addition of a quantified sum, under the head, future prospects, in effect, indicating that there is a prospect or chance or possibility of earning more income, after a passage of time, though not periodically, as done in the case of Government or Public Sector Undertakings or Boards or Corporations, Companies owned and controlled by the Government or Limited Companies.

We have already extracted the orders of the Chief Labour Commissioner, Ministry of Labour and Employment, Government of India, New Delhi and taken into consideration a sample case, City of Chennai. Wage revision may vary in rural or urban areas or metropolitan cities. At the risk of repetition, as observed earlier, the number of persons, engaged in unorganized sectors, agriculture or industrial, or home based or self-employment, etc., are more in number, than those employed in organised sectors.

Income from the organised sector alone, is not the deciding factor, for determining Gross Domestic Product, Consumer Price Index or Per Capita Income. Thus, from a basic study of the factors, taken into consideration by the Governments for revision of wages, to the enumerated categories of employees, one cannot lose sight of the fact that the said factors, would also have an indeligible effect on those, engaged in unorganized sectors also. In the light of our discussion and the details considered, we are of the considered view that addition of certain percentage of income under the head, future prospects, has to be done in the case of those engaged in unorganized sector or self-employed also, otherwise, they would be deprived of just compensation. Addition of income under the head,future prospects, should not be restricted to only salaried persons, with stable jobs.

Though it is the case of the Insurance Companies and Transport Corporation that in the case of persons engaged in unorganised sector or salaried or persons, who do not have any permanent job, addition of certain percentage of income, under the head, "future prospects", to the income drawn, at the time of death, should not be made, for computation loss of dependency compensation, we are not inclined to accept the same, for the reason that the expression "future prospects" should not be confined only to the prospects of the deceased in the career, progress or up gradation of position, in which, he was engaged, prior to death, but the expression "future prospects" should also be extended to the likelihood of increase in wages/salary, earned by either a skilled or semi-skilled person, clerical and others, considering the upward increase in the cost price, inflation and such other factors.''''

The compensation of Rs.5,000/- each awarded towards Loss of estate and Funeral expenses and Rs.3,000/- towards Transportation is meagre. On the aspect of awarding compensation for funeral expenses, in Rajesh and others v. Rajbir Singh and others reported in 2013(3) CTC 883, the Hon''ble Supreme Court held as follows:

"21. We may also take judicial notice of the fact that the Tribunals have been quite frugal with regard to award of compensation under the head ''Funeral Expenses''. The ''Price Index'', it is a fact has gone up in that regard also. The head ''Funeral Expenses'' does not mean the fee paid in the crematorium or fee paid for the use of space in the cemetery. There are many other expenses in connection with funeral and, if the deceased is follower of any particular religion, there are several religious practices and conventions pursuant to death in a family. All those are quite expensive. Therefore, we are of the view that it will be just, fair and equitable, under the head of ''Funeral Expenses'', in the absence of evidence to the contrary for higher expenses, to award at least an amount of Rs.25,000/-."

Though the rate of interest at 9% is on the higher side, considering the meagre amount awarded under the above said heads, this Court is not inclined to reduce the rate of interest. The overall quantum of compensation of Rs. 15,67,000/- with interest @ 9% per annum, awarded to the legal representatives of the deceased cannot be said to be excessive, warranting interference. Accordingly, the Civil Miscellaneous Appeal is dismissed. No costs.

It is represented by the learned counsel for the appellant that the entire award amount with proportionate accrued interest and costs, has already been deposited to the credit of MCOP.No.639 of 2014, on the file of the Motor Accident Claims Tribunal, II Additional District Judge, Tirunelveli. In view of the dismissal of the appeal, the respondents 1, 2 and 5/claimants are permitted to withdraw their respective shares with proportionate accrued interest and costs, by making necessary application before the Tribunal. At the time of accident, in 2014, respondents 2 and 3 were minors aged about 14 and 11 years respectively. Since the respondents 2 and 3/minors continue to be the minors, their share with proportionate accrued interest and costs, shall be deposited in any one of the Nationalised Banks in Fixed Deposit, proximate to the residence of the claimants, till the minors attain majority. The interest accruing on such deposit is permitted to be withdrawn by the 1st respondent/grand father of the minors once in three months. Consequently, C.M.P(MD)No.2815 of 2016 is closed.