IFFCO Tokio General Insurance Co. Ltd. vs Gurmeet Kour And Others

Sindhu Sharma, J

This Civil 1st Miscellaneous Appeal of the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 is directed against the award dated 07.11.2017 passed by the Motor Accident Claims Tribunal, Kathua, (hereinafter to be referred to as ‘Tribunal’) in Claim Petition No.03/2016 titled Gurmeet Kour & ors. Vs. Sanjeev Singh & ors.

The facts of the case discernible from the record are that, on 16.02.2016 the deceased Gurinder Singh was proceeding from Kalibari towards Barnoti on a Motor cycle bearing registration No. JK08B-5347 which was hit by a vehicle (Swift Dzire) bearing Engine No. 1735273 Chasis No. 896450 at National Highway near DAV Collegiate School Logate Morh, Tehsil & District Kathua, due to which the deceased suffered serious injuries which resulted in his death.

The wife and two minor children filed claim petition seeking compensation from respondent No. 1/driver-cum-owner as well as appellant. The respondent No. 1 did not appear despite service and were, accordingly, set ex parte vide order dated 16.01.2017. The respondent No. 2 appeared through counsel and filed his objections. During the pendency of the petition, father of the deceased Harbhajan Singh died and the mother of the deceased Kuldeep Kour moved an application to be transposed and impleaded as petitioner, which was allowed vide order dated 08.07.2017 and she was transposed as petitioner No. 4. Both the father and mother of the deceased were impleaded as proforma respondents in the claim petition.

On the pleadings of the parties, the following issues were framed by the Tribunal: -

(i) Whether the accident took place on 16.02.2016 at about 4.15 PM at National Highway near DAV Collegiate School Logate More Tehsil and District Kathua due to rash and negligent driving of the offending vehicle bearing Engine No.1735273 and Chassis No. 896450 by respondent No.1, as a result of which Gurinder Singh succumbed to injuries ? OPP

(ii) In case issue No.1 is proved in affirmative, to what amount of compensation the petitioners are entitled to ? OPP

(iii) Whether the delinquent driver was not holding a valid driving licence as on the date of the accident and the documents of the vehicle were not valid and so the Insurance Company is not liable to indemnify the owner ? OPR-2

(iv) Relief ? O.P. Parties

The claimant besides herself examined Vikram Singh as her witnesses in addition to the documentary evidence whereas respondent No. 2 has not le-d any evidence in support of his case.

The Tribunal after considering pleadings as well as documentary evidence decided the claim petition and awarded an amount of Rs.32,20,000/- as compensation to the claimants along with interest at the rate of 7 % p.a. till liquidation.

The appellant aggrieved of the award, has filed this appeal on the ground that the income of the deceased was not proved and no evidence was given by the claimants to prove the income of the deceased to be at Rs. 20,000/- per month. The Tribunal instead of taking the income of the deceased at Rs. 20,000/- should have taken the income of the deceased on the basis of wages prescribed under the Minimum Wages Act. The Tribunal, thus, has not awarded the just compensation in accordance with the Act.

The Tribunal determined Issue No. 1 and held that the claimant had proved that the deceased Gurinder Singh had died in a vehicular accident , as a result of the injuries received on 16.02.2016 at a place near DAV Collegiate School on National Highway in an accident caused due to rash and negligent driving of the offending vehicle. FIR No. 68/2016 in this regard registered at Police Station, Kathua for commission of offences under Sections 279/304-A RPC was placed on record along with the charge-sheet which was presented for the offences against the driver-cum-owner of the offending vehicle. This issue was thus, decided in favour of the petitioners.

The next issue i.e, Issue No.2, ‘to what amount of compensation the petitioners are entitled to. The Tribunal after considering the evidence on record and the fact that the deceased, who claimed to be 37 years of age and was running mechanical shop of repair and spare part of bikes under the name and Style of ‘M/s Royal Bikers’ having the monthly income of Rs. 20,000/-. The respondents have not produced any evidence in rebuttal with regard to the income of the deceased or his vocation of mechanic of bikes having a shop, therefore, the income of the deceased was taken to be Rs. 20,000/- per month.

In Shivakumar M. vs. Managing Director, Bengaluru Metropolitan Transport Corporation reported as (2017) 5 SCC 79, the Hon’ble Apex Court in Para-6 has held as follows:-

“6. In the absence of any serious dispute on the part of the respondent on the avocation and income, we are of the view that the Tribunal and for that matter the High Court should have accepted the evidence of the appellant. Therefore, we assess his monthly income as Rs.15,000/- and after deducting one third towards his personal expenses, the income will be assessed for the purpose of computation of compensation as Rs.10,000/- per month. The income is substituted as Rs.10,000/- in the place of Rs.6,500/-, as assessed by the High Court. The compensation will carry interest at the rate of 9% per annum from the date of the claim petition before the Tribunal. Rest of the award is maintained.”

Similarly in Chandra alias Chanda Alias Chandraram & anr. vs. Mukesh Kumar Yadav & ors. reported as (2022) 1 SCC 198, the Hon’ble Apex Court has held that ‘guesswork for assessing the income of the deceased should not be totally detached from reality. The absence of production of documentary evidence to show proof of income would not justify adoption’. Para-9 of the same being relevant reads 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 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/-.”

Though the claimant claimed the age of the deceased as 37 years but in view of the age of the deceased as reflected in the post mortem report as 42 years. The Tribunal has accepted the same as 42 years.

Having regard to the age of the deceased as 42 years, an addition of 25% to establish income is to be Rs. (2,40,000 + 60,000) = 3,00,000/-, thus, Rs. 3,00,000/- is taken as annual income of the deceased. The Tribunal while considering the computation of the loss of dependency to the defendants and in view of his five dependants after spending 1/4th of his income as personal expenses may have been contributing an amount of Rs. 2,25,000/- annually towards his family. Reliance in this regard has been placed in Sarla Verma & ors. Vs. Delhi Transport Corporation & anr. reported as 2009 (3) Supreme 487 wherein the Hon’ble Apex Court in Para 14 has held as under:-

“14. Though in some cases the deduction to be made towards personal and living expenses is calculated on the basis of units indicated in Trilok Chandra, the general practice is to apply standardized deductions. Having considered several subsequent decision of this Court, we are of the view that where the deceased was married, the deduction towards personal and living expenses of the deceased, should be one-third (1/3rd) where the number of dependent family members is 2 to 3, one-forth (1/4th) where the number of dependent family members is 4 to 6, and one fifth (1/5th) where the number of dependent family members exceeds six.”

The deceased was 42 years of age, therefore, in terms of the judgment of Hon’ble Supreme Court in Sarla Verma (supra), the multiplier for the deceased would be 14, as such, the petitioners were entitled to compensation for loss of dependency which comes to (14 x 2,25,000) = Rs.31,50,000/-, loss of consortium = Rs. 40,000/-, funeral expenses = Rs. 15,000/-, Loss of Estate = Rs. 15,000/- i.e., Total = Rs. 32,20,000/-.

Lastly, Issue No. 3 was with regard to the fact that whether the delinquent driver was not holding a valid driving license as on the date of the accident. The offending vehicle was insured with the Insurance Company vide Policy No. 89120371 w.e.f. 12.02.2016 to 11.02.2017. The accident occurred on 16.02.2016 and no evidence has been led by the Insurance Company to show that the terms and conditions of the Policy has been violated.

The Tribunal has decided all the issues elaborately after taking into account the statement of witnesses, evidence and law governing the field. In view of the aforesaid facts and circumstances, the impugned award does not merit any interference. The Appeal is, accordingly, dismissed.