Smt. Rekha vs The State and Others

Kailash Gambhir, J.—By way of this appeal, the appellants seek to challenge the impugned award dated 18.5.2004 primarily on the ground that the Tribunal has not correctly assessed the income of the deceased respondent. The award is also challenged on the ground that the Tribunal has not considered grant of future prospects and also on account of the fact that a meagre amount of compensation of Rs. 10,000/- has been granted by the Tribunal towards loss of consortium and no compensation has been granted towards loss of love and affection.

Before adverting to deal with the contentions of the parties, it would be appropriate to give brief facts of the case as under:

On 25.1.2002, the deceased Mr. Dinesh along with Mr. Phool Chand was returning back in a bus bearing registration No. DL-1PA-3289 from New Delhi Railway Station. At about 10.00 pm., when the aforesaid bus crossed Desh Bandhu Gupta Road bus stand, which was driven at a very high speed and in a rash and negligent manner and to avoid accident of the bus, the driver of the bus applied sudden breaks due to which the deceased fell down from the bus and received serious injuries. The deceased was taken to Hindu Rao Hospital where he was declared as ''brought dead''.

Counsel for the appellant contends that the deceased was earning Rs. 4,800/- p.m. as he was working in a printing press. The contention of counsel for the appellant is that the Tribunal has not taken into consideration the testimony of PW-1 and PW-2 who in their deposition had categorically stated the said income of the deceased. The contention of counsel for the appellant is that there was no effective cross-examination by the respondent insurance company to rebut the said deposition of the witnesses on the aspect of monthly income of the deceased. Counsel also contends that the Tribunal has not taken into account the future prospects of the deceased. The contention of counsel for the appellant is that the deceased would have grown in his business, Therefore, the Tribunal ought to have applied the criteria laid down in Smt. Sarla Dixit and another Vs. Balwant Yadav and others, . Counsel for the appellant contends that the meagre amount of Rs. 10,000/- has been granted for loss of consortium and besides that no amount has been granted in favor of the appellants towards loss of love and affection.

Counsel appearing for the respondent on the other hand, states that there is no infirmity or illegality in the impugned award. Counsel contends that in the absence of any cogent evidence led by the appellant, the Tribunal had rightly assessed the income of the deceased, based on the Minimum Wages Act. Counsel further contends that even the Tribunal has taken into consideration the increase in the wages from the date of accident and its enhancement as on the date of passing of the award. Counsel also contends that just and fair compensation has been granted by the Tribunal towards loss of consortium.

I have heard learned Counsel for the parties and have perused the record.

Perusal of the record shows that the appellants had failed to prove the income of the deceased by producing any documentary evidence. It is a settled legal position that for proving the income of the deceased, the claimants have to place on record sufficient material and it is only with the help of such a material, the Tribunal can arrive at a finding to correctly assess the income of the deceased. A bald statement by any of the witnesses cannot help in assessing the income of the deceased. In this regard in The Oriental Insurance Company Limited Vs. Meena Variyal and Others, , the Hon''ble Apex Court has given following observations:

It was necessary for the claimants to establish what was the monthly income and what was the dependency on the basis of which the compensation could be adjudged as payable. Should not any Tribunal trained in law ask the claimants to produce evidence in support of the monthly salary or income earned by the deceased from his employer company? Is there anything in the Motor Vehicles Act which stands in the way of the Tribunal asking for the best evidence, acceptable evidence? We think not. Here again, the position that the Motor Vehicles Act vis-�-vis claim for compensation arising out of an accident is a beneficent piece of legislation, cannot lead a Tribunal trained in law to forget all basic principles of establishing liability and establishing the quantum of compensation payable. The Tribunal, in this case, has chosen to merely go by the oral evidence of the widow when without any difficulty the claimants could have got the employer Company to produce the relevant documents to show the income that was being derived by the deceased from his employment.

The Tribunal has clearly observed that the appellants have not placed any documentary evidence regarding income of the deceased, Therefore, I do not find any infirmity in the said finding of the Tribunal. The Tribunal has taken recourse to the Minimum Wages Act for assessing the income of the deceased as prevailing on the date of accident. The Tribunal has merely given an increase of Rs. 2,000/- in the salary by taking the date of accident and the date of award into consideration. Since in the present case, the multiplier of 16 has been applied and this Court has already taken a view that the income under the Minimum Wages Act for this category of non-matriculate workers gets more than double within a period of 10 years, so safely the said increase in the wages can also be taken into consideration for assessing the correct income of the deceased. As on the date of accident, the deceased can be taken to have been earning a sum of Rs. 2,860 being non-matriculate and doubling the same and taking an average of the same, it would come to Rs. 4,290/-. Deducting 1/3rd of the said amount towards personal expenses of the deceased, the annual income of the deceased would come to Rs. 34,320/-, multiplying the said income with the multiplier of 16, the loss of dependency would come to Rs. 5,49,120/-. The compensation for loss of dependency is thus enhanced from Rs. 3,84,000/- to Rs. 5,49,120/-.

I also find that the Tribunal has granted a meagre amount of Rs. 10,000/- towards loss of consortium and no amount has been granted towards loss of love and affection. The amount of loss of consortium is enhanced from Rs. 10,000/- to Rs. 50,000/- as the deceased died at a very young age and is survived by his young widow. Further for loss of love and affection the compensation for a sum of Rs. 15,000/- is granted in favor of the appellants.

Respondent No. 4 shall pay the differential amount of compensation along with up to date interest at the rate of 7% from the date of filing of the petition till its realization.

With these directions, the present appeal is disposed of.