Nirodad Thakuria and Ors. vs ICICI Lombard General Insurance Co. Ltd. and Ors.

Heard Mr. P. Sarmah, the learned counsel for the appellants. Also heard Mr. A. J. Saikia, the learned counsel for the respondent No. 1 as well as Ms. N. Goswami, the learned counsel for the respondent Nos. 3 and 4.

This appeal, under Section 173 of Motor Vehicles Act, 1988, has been preferred by the appellants/claimants impugning the judgment and award dated 15.02.2025, passed in MAC Case No. 1739/2018 by the Motor Accident Claims Tribunal No. 2, Kamrup(M), Guwahati, whereby the Insurance Company was directed to pay a compensation amount of Rs.13,75,852.92/- (Rupees Thirteen Lakh Seventy Five Thousand Eight Hundred Fifty Two and Ninety Two Paisa) along with an interest at the rate of 9% per annum to the claimants. The appellants are mainly aggrieved with the quantum of compensation awarded to them by the Motor Accident Claims Tribunal in the impugned judgment and award.

The facts relevant for consideration of the instant appeal, in brief, are that on 07.04.2018 at about 12:00 noon, the husband of the appellant No. 1, namely, Girish Thakuriamet with an accident in front of Fancy Bazar Police Outpost, Guwahati with a Maruti Omni Van bearing Registration No. AS-01-MB-7328,driven by respondent No. 3, in a rash and negligent manner, hit him causing serious injuries on his person and resulting in his death. After the death of the husband of the appellant No. 1, the present appellants approached the Motor Accident Claims Tribunal No. 2, Kamrup (M), Guwahati by filing an application under Section 166 of the Motor Vehicles Act, 1988 seeking compensation for death of their husband/father in the aforementioned motor vehicular accident. The said claim case was registered as MAC Case No. 1739/2018.

After receipt of notices from the Motor Accident Claims Tribunal, the Insurance Company as well as owner and driver of the offending vehicle appeared entrance and submitted their written statementwherein they denied their liability to pay any compensation to the present appellants.

On the basis of pleadings of the parties, following two issues were framed by the Motor Accident Claims Tribunal: -

In support of their claim, the claimants adduced the evidence of five witnesses marked as PW-1 to PW-5. Whereas, the Insurance Company did not adduce any evidence against the claim of the present appellants. Ultimately, by the judgment and award which has been impugned in this appeal, the Motor Accident Claims Tribunal No. 2, Kamrup(M) allowed the claim case by awarding the compensation to the present appellants in the manner as has been discussed in the foregoing paragraphs of this judgment.

Mr. P. Sarmah, the learned counsel for the appellants has submitted that the Motor Accident Claims Tribunal No. 2, Kamrup (M) had erred in passing the impugned judgment and award by awarding compensation to the claimants/appellants on a lower side. He submits that the Motor Accident Claims Tribunal No. 2, Kamrup (M) erred in not taking into consideration the salary certificate of the deceased, which was exhibited as Exhibit- 11 merely on the ground that no official from Inland Water Department was examined to exhibit the said document.

He further submits that in spite of having the salary certificate exhibited before it as Exhibit- 11, the Tribunal erred in assessing the monthly income of the deceased on the basis of minimum wages of unskilled workmen notified as per the Government notification dated 7^th December, 2018. He further submits that when salary certificate of a Government servant is marked as proof of income as exhibited in an inquiry before the Motor Accident Claims Tribunal in a claim case, it has to be given credence. He submits that the Tribunal has erred in ignoring the said exhibit. In support of his submission, the learned counsel for the appellant has cited a ruling of the High Court of Madras in the case of “Managing Director, Tamil Nadu State Transport Corporation (V) Vs. M. Kalaialagan” (judgment dated 11.04.2017, in CMA No. 847/2015).

He further submits that the PW-1 and PW-2 also categorically stated regarding the income of the deceased in their oral testimony and they were not cross-examined on that point by the Insurance Company. He submits that there was no reason for the Tribunal to discard the testimony of PW- 1 and PW- 2 wherein they have stated about the monthly salary of the deceased categorically. He submits that in view of the oral testimony of PW- 1 and PW- 2 as well as Exhibit-11, the Tribunal was not justified in adopting the lowest tier of minimum wages while computing the monthly income of the deceased. In support of his submission, the learned counsel for the appellant has cited a ruling of the Supreme Court of India in the case of “Chandra @ Chanda @Chandraram and another Vs. Mukesh Kumar Yadav and others” reported in “(2022) 1 SCC 198”.

He further submits that the Tribunal ought to have taken into consideration the fact that as regards the evidence of monthly income of the deceased, the PW- 1 and PW- 2 were not cross-examined and as such their uncontroverted testimony ought to have been taken into consideration as the standard of proof adopted in an inquiry before Motor Accident Claims Tribunal is of preponderance of probability rather than proof beyond reasonable doubt. To support this submission, the learned counsel for the appellant has cited ruling of the Apex Court in the case of “Anita Sharma and others Vs. New India Assurance Company Limited and another” reported in “(2021) 1 SCC 171”.

The learned counsel for the appellants further submits that the Tribunal also erred in adding only ten percent of the income of the deceased towards future prospect. He submits that same is contrary to the guideline issued by the Apex Court in the case of “National Insurance Company Limited Vs. Pranay Sethi and others”, reported in “(2017) 16 SCC 682”, which categorically laid down that when the deceased was between the age of fifty and sixty years, an addition towards future prospect should be 15% of the actual income. He, therefore, submits that the impugned judgment and award of the Tribunal is required to be interfered with and modified by granting the enhanced compensation to the present appellants by taking into account the actual salary of the deceased as reflected in Exhibit-11 as well as adding correct percentage of income of the deceased towards future prospect.

On the other hand, Mr. A. J. Saikia, the learned counsel for the Insurance Company, has submitted that the Tribunal has correctly assessed the income of the deceased, as the salary certificate which was exhibited as Exhibit-11 could not be proved by any witness from the department in which the deceased was employed, and as such, the Tribunal rightly applied the principles of the Minimum Wages Act for an unskilled worker to assess the monthly income of the deceased.

He submits that no infirmity is there in the Tribunal assessing the earning of the deceased at Rs.7,584.30/- per month on the basis of wages for an unskilled workman as per notification of the Government of Assam dated 7^th December, 2018. He, therefore, submits that the impugned judgment and award needs no interference by this Court, and as such, prays for dismissal of the instant appeal.

I have considered the submissions made by the learned counsel for both sides and have gone through the materials on record. I have also gone through the rulings cited by learned counsel for the parties in support of their respective submissions.

It appears that the limited question for determination in this appeal is as to whether the Motor Accident Claims Tribunal had correctly assessed the income of the deceased for the purpose of computing compensation to be awarded to the claimants, and whether it was correct in adding only 10% of the actual income of the deceased towards future prospects.

It appears that the claimants, during the course of inquiry, had exhibited the salary certificate of the deceased wherein the monthly salary of the deceased has been shown to be Rs. 31,150/-. It also appears that said salary certificate was issued by the Joint Director, Inland Water Transport Department, Government of Assam, Ulubari, indicating the monthly salary of the deceased for the month of March, 2018.It also appears that a deduction of Rs. 208/- was also made towards professional tax from the said earning of the deceased.

It also appears that the said certificate was exhibited by the PW-2, who is the son of the deceased, and during his cross-examination, the only question asked regarding Exhibit-11 was that he has not brought any witness to prove the said salary certificate. The contention that the deceased was a government employee working as a Khalasi in the Inland Water Transport Department of the Government of Assam is not in dispute.

This Court is of considered opinion that the Tribunal has erred in not taking into consideration the Exhibit 11 income certificate, wherein the monthly income of the deceased was indicated as Rs. 31,150/-, as it is a settled proposition of law that in an inquiry conducted under Section 166 of the Motor Vehicles Act for ascertaining the claim of the claimants in a case arising out of a motor vehicular accident, the standard of proof to be adopted by the Tribunal during such inquiry is on the touchstone of preponderance of probability and not on the basis of proof beyond reasonable doubt.

This Court is of considered opinion that there were no valid reasons for the Tribunal to discard the oral testimony of PW-1 and PW-2, wherein they have categorically deposed that the deceased was getting a monthly salary of Rs.31,150/-. As such, taking into consideration the Exhibit-11 with the oral testimony of PW-1 and PW-2, which remained uncontroverted, the claimants were able to prove on the basis of touchstone of preponderance of probability that the deceased was getting a monthly salary of Rs. 31,150/-. As such, the Tribunal ought not to have assessed the monthly income of the deceased on the basis of minimum wage is payable to an unskilled worker but should have assessed his income on the basis of the materials before it, that is at Rs. 31,150/-.

In the case of “Pranay Sethi” (supra), the Apex Court has observed that while determining the income, an addition of 15% of the actual salary to the income of deceased towards future prospects has to be made in case where the deceased was between the age of 50 to 60 years.

In the instant case, the deceased was more than 50 years of age. However, the Tribunal has erred in adding only 10% of his actual income towards future prospects, which is not in conformity with the guidelines issued by the Apex Court in the case of Pranay Sethi (supra). As such, an addition of 15% of the actual income of the deceased has to be made towards future prospects to assess the income of the deceased for computing the quantum of compensation payable to the claimants.

In view of the discussions made in the foregoing paragraphs, the compensation payable to the claimants is assessed as follows: -

In view of the above discussion and reasons stated, the claimants are entitled to compensation amount of Rs. 28,01,489/- in addition to what has already been paid to them, with an interest at the rate of 9% per annum from the date of filing of the claim petition till realization. There shall be no interest payable on the amount added towards future prospects of the deceased.

The Insurance Company is directed to deposit the aforesaid amount before the Registry of this Court within a period of six weeks from the date of this judgment. On such deposit being made, the said amount shall be disbursed to the claimants after proper verification.

This appeal is accordingly allowed in terms of observations made hereinabove.

Let the records of MAC Case No. 1739/2018 be sent back to the concerned Tribunal along with a copy of this judgment.