CHANDRA @ CHANDA @ CHANDRARAM & ANR. versus MUKESH KUMAR YADAV & ORS. on 1 October 2021

Conclusion

1. Leave granted.

2. Unfortunate parents who lost their son aged about 32 years inthe motor vehicle road accident on 27.02.2016, are before this Courtclaiming enhancement of compensation arising out of an application filedunder Section 166 of the Motor Vehicles Act, 1988.

3. The appellants are the parents; 4[th] respondent is the wife; 5[th]respondent is the minor son; 6[th] respondent is the brother; and 7[th]respondent is the sister of the deceased Shivpal. The appellants andrespondent nos.4 to 7 were the applicants in the application filed underSection 166 of the Motor Vehicles Act, 1988 before the Motor Vehicle A

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AAccident Claims Tribunal, Ajmer, Rajasthan (for short, ‘the Tribunal’)claiming compensation of Rs.93,08,000/- with interest @ 15% p.a. TheTribunal by judgment dated 25.11.2017 has awarded the totalcompensation of Rs.10,99,700/- with interest @ 6% p.a. The appellant-parents alone have filed appeal before the High Court. The High Courtby impugned judgment dated 06.07.2018 dismissed the appeal. As suchBthe appellants are before this Court.

4. The deceased Shivpal was employed as driver on the vehicle,i.e., truck trailer bearing No.RJ-06-GA-6576. When he was driving thevehicle on 27.02.2016, within the limits of Adarsh Nagar Police Station,Ajmer, the vehicle – truck trailer - bearing no.RJ-14-GD-1156, driven byCthe 1[st] respondent; belonging to the 2[nd] respondent; and insured with the3[rd] respondent, came on the wrong side and rammed into the vehicle ofthe deceased resulting in the accident, as a result of which Shivpal diedin the said accident.

5. It was the case of the claimants before the Tribunal thatDdeceased Shivpal was in possession of heavy vehicle driving licence andwas earning Rs.15,000/- per month. Apart from the claim on account ofloss of dependency, they also claimed compensation on all otherconventional heads. The Tribunal has held that accident occurred due torash and negligent driving of the vehicle, driven by the 1[st] respondent.The Tribunal by taking into account the income of the deceased atERs.5746/- per month has awarded a total compensation of Rs.10,99,700/- inclusive of consortium of Rs.40000/- to the wife and minor child. TheTribunal had merely awarded an amount of Rs.10000/- each to theappellant-parents, of the deceased.

6. We have heard Sri Aditya Singh, learned counsel for theFappellants and Sri Sahil Raveen, learned counsel for respondent no.3.

7. Mainly it is contended by learned counsel for the appellantsthat though the deceased was earning Rs.15,000/- per month, being aheavy vehicle driver, the Tribunal has awarded compensation on accountof loss of dependency by taking the income of the deceased at Rs.5746/G- per month. It is submitted that wife of the deceased, i.e. respondentno.4 has clearly stated in her deposition that deceased was earningRs.15000/- per month. It is submitted that inspite of such evidence onrecord the Tribunal has committed error in taking the income of thedeceased at Rs.5746/- as per the minimum wage notified to the skilledlabour. Further it is submitted that Tribunal has committed error inHrecording a finding that the appellants are not dependents as they were CHANDRA @ CHANDA @ CHANDRARAM v. MUKESH KUMARYADAV [R. SUBHASH REDDY, J.]

living separately. Lastly it is submitted that appellants are also entitled tocompensation under the head of ‘loss of consortium’.

8. The learned counsel appearing for the 3[rd] respondent hassubmitted that in absence of any documentary evidence on record toshow the salary of the deceased at Rs.15,000/- per month the Tribunalhas correctly taken into account the monthly earnings of the deceasedat Rs.5746/-. By relying on a judgment of this Court in the case of Kirti& Anr. v. Oriental Insurance Company Limited[1], learned counselhas submitted that there are no grounds to interfere with the impugnedjudgment of the High Court.

9. Having heard the learned counsels on both sides, we haveperused the impugned order and other material placed on record. At theoutset, we may note that the High Court by a cryptic order dismissed theappeal preferred by the appellants without considering the various groundsraised in the appeal.

10. It is the specific case of the claimants that the deceased waspossessing heavy vehicle driving licence and was earning Rs.15000/-per month. Possessing such licence and driving of heavy vehicle on thedate of accident is proved from the evidence on record. Though thewife of the deceased has categorically deposed as AW-1 that her husbandShivpal was earning Rs.15000/- per month, same was not consideredonly on the ground that salary certificate was not filed. The Tribunal hasfixed the monthly income of the deceased by adopting minimum wagenotified for the skilled labour in the year 2016. In absence of salarycertificate the minimum wage notification can be a yardstick but at thesame time cannot be an absolute one to fix the income of the deceased.In absence of documentary evidence on record some amount ofguesswork is required to be done. But at the same time the guessworkfor assessing the income of the deceased should not be totally detachedfrom reality. Merely because claimants were unable to producedocumentary evidence to show the monthly income of Shivpal, samedoes not justify adoption of lowest tier of minimum wage while computingthe income. There is no reason to discard the oral evidence of the wifeof the deceased who has deposed that late Shivpal was earning aroundRs.15000/- per month. In the case of Minu Rout & Anr. v. SatyaPradyumna Mohapatra & Ors.[2 ]this Court while dealing with the claim 1 (2021) 2 SCC 166

2 (2013) 10 SCC 695

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Arelating to an accident which occurred on 08.11.2004 has taken the salaryof the driver of light motor vehicle at Rs.6000/- per month. In this casethe accident was on 27.02.2016 and it is clearly proved that the deceasedwas in possession of heavy vehicle driving licence and was driving suchvehicle on the day of accident. Keeping in mind the enormous growth ofvehicle population and demand for good drivers and by considering oralBevidence on record we may take the income of the deceased at Rs.8000/- per month for the purpose of loss of dependency. Deceased was agedabout 32 years on the date of the accident and as he was on fixed salary,40% enhancement is to be made towards loss of future prospects. Atthe same time deduction of 1/3[rd] is to be made from the income of theCdeceased towards his personal expenses. Accordingly the income of thedeceased can be arrived at Rs.7467/- per month. By applying the multiplierof ‘16’ the claimants are entitled for compensation of Rs.14,33,664/-. Asan amount of Rs.10,99,700/- is already paid towards the loss ofdependency the appellant-parents are entitled for differential compensation of Rs.3,33,964/-. Further in view of the judgment of thisDCourt in the case of Magma General Insurance Company Limitedv. Nanu Ram @ Chuhru Ram & Ors.[3] the appellants are also entitledfor parental consortium of Rs.40,000/- each. The finding of the Tribunalthat parents cannot be treated as dependents runs contrary to the judgmentof this Court in the case of Sarla Verma (Smt). & Ors. v. DelhiETransport Corporation & Anr.[4]. The judgment in the case of Kirti &Anr. v. Oriental Insurance Company Limited[1] relied on by the counselfor the respondent would not render any assistance in support of hiscase having regard to facts of the case and the evidence on record.

11. For the aforesaid reasons this appeal is allowed and appellantsFare entitled for further compensation amount of Rs.3,33,964/- on accountof loss of dependency and consortium amount of Rs.40,000/- each. Thustotal compensation payable to the appellants is fixed at Rs.4,13,964/-with interest @ 6% p.a. from the date of filing of claim petition.

12. For the aforesaid reasons the appeal is partly allowed, with noGorder as to costs.

Devika Gujral

Appeal Partly allowed.

3 2018 SCC OnLine SC 1546 = (2018) 18 SCC 130H4 (2009) 6 SCC 121