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2019 DIGILAW 386 (MP)

Oriental Insurance Co. Ltd. v. Jaambai

2019-05-14

VEVEK AGARWAL

body2019
ORDER 1. This miscellaneous appeal has been filed by the Insurance Company being aggrieved by award dated 1.9.2012 passed by the Court of First Additional Member to First Additional Motor Accident Claims Tribunal, Guna in Claim Case No. 15/2011. 2. The only ground to contest the claim is that income of the deceased, who was a vegetable vendor, has been wrongly computed at Rs. 300/- per day merely on the basis of the statements given by claimant No. 1- Jaambai. It is submitted that this statement has been accepted on the touch-stone of the fact that she was not effectively cross-examined on the aspect of income and therefore, the compensation needs to be revised downward. 3. It is submitted that as per the law laid down in the case of United Insurance Company v. Vesta, as reported in 1992 (I) MPWN Short Note 193, wherein it has been held as under: "After hearing counsel on both sides, I am of opinion that the awards in all the fours cases have to be set aside and the cases remitted to the Tribunal. The law is settled that in assessing evidence it is not open to the Court to look into and rely on documents not properly proved. It is only on admissible and legal evidence that the Court must Act. It may also be stated that in considering the evidence, the Court will not be bound to accept the statement of witnesses only because they have not been effectively cross-examined or evidence in rebuttal has not been adduced. The Judges are not computers. In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life. As Judge of fact it was open to the appellant Judge to test the evidence placed before him on the basis of probabilities. (See Chaturbuj Pande v. Collector, Raigarh, AIR 1969 SC 255 , and Modi P.R. v. Collector, 1975 JLJ 595 (DB)." It is submitted that even Honb'le Supreme Court in the case of New India Assurance Company Ltd. v. Yogesh Devi and others, as reported in (2012) 3 SCC 613 in para 8 has held that the Tribunal is required to make a just and reasonable award determining the compensation to be paid to the dependents of the victim of a fatal motor accident. 4. 4. It is submitted that minimum wages earned by a skilled person engaged in agricultural activities was Rs. 150.17/- per day and arbitrarily such wages have been taken to be Rs. 300/- per day, therefore, computing such income at Rs. 9,000/- per month is on the higher side. 5. Learned counsel for the claimants/respondents on the other hand submits that there is difference in the income earned from salary or wages as a labourer and the income earned through self employment. Therefore, once there is no counter evidence to treat income of the deceased at the rate of Rs. 300/- per day to be exorbitant or unrealistic, no interference is called for. It is also submitted that Claims Tribunal has awarded only a sum of Rs. 13,000/- under miscellaneous heads, whereas it should have been Rs. 70,000/-, as has been laid down by the Hon'ble Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi, as reported in 2018 (1) JLJ 200 = AIR 2017 (16) SCC 680 . It is submitted that law laid down in the case of Vesta (supra) and also in the case of Yogesh Devi (supra) is to take all the facts in correct prospective and a duty has been enjoined on the Courts and Tribunal to weigh the various factors and quantify the amount of compensation, would be just. It is submitted that even income of Rs. 300/- per day was not taxable and therefore, there was no occasion for filing any income tax return to prove the income. 6. As has been discussed above, even if concept of minimum wages is made applicable, then monthly income of the deceased will come out to Rs. 4,505.1/-. If 1/4th amount is deducted as there are four dependents on the deceased, then disposable income spent on family will come out to Rs. 3,378.825/- or Rs. 3,379/- per month. When future prospects at the rate of 25% is added, then it will come out to Rs. 4,223.75/- per month rounded of to Rs. 4,224/- per month and annual income will come out to Rs. 50,688/- When multiplier of 14 is applied as per the law laid down in the case of Sarla Verma (Smt.) and others v. Delhi Transport Corporation and anr. as reported in (2009) 6 SCC 121 , then total compensation on the loss of earning will come out to Rs. 7,09,632/-. 50,688/- When multiplier of 14 is applied as per the law laid down in the case of Sarla Verma (Smt.) and others v. Delhi Transport Corporation and anr. as reported in (2009) 6 SCC 121 , then total compensation on the loss of earning will come out to Rs. 7,09,632/-. Claimants will also be entitled to a sum of Rs. 70,000/- under miscellaneous heads taking total compensation to Rs. 7,79,632/- in place of Rs. 9,49,000/- as has been awarded by the Claims Tribunal. Thus, there will be reduction to the extent of Rs. 1,69,368/- in the amount awarded by the Claims Tribunal. 7. Accordingly, appeal is allowed to the aforesaid extent. It is directed that the Insurance Company shall pay a sum of Rs. 7,79,632/- to the claimants alongwith the interest at the rate of 7% from the date of filing of the claim i.e. 1.6.2011 till the actual date of payment. Other terms and conditions of the award shall remain intact.