Smt. Pushpa Devi and Others vs Sh. Chhedi Lal and Others

Kailash Gambhir, J.—By way of the present appeal, the appellant seeks to challenge the impugned award dated 7.12.2007 so as to claim enhancement in the compensation amount over and above the amount of Rs. 2,37,760/- awarded by the Tribunal.

The present appeal filed by the appellant can be disposed of at the stage of admission itself. Mr. Kanwal Chaudhary, Advocate is present on behalf of respondent No. 3. Respondent Nos. 1 and 2 are the owner and driver of the offending vehicle. There is no need to direct notice upon them as notice upon them will unnecessarily delay the disposal of the present appeal. This is also on account of the fact that the offending vehicle was duly insured with respondent No. 3, insurance company and respondent No. 3 alone has been the main contestant before the Tribunal.

Brief summary of facts are that the deceased Shri Ashok Kumar was crossing the road at Badarpur Stock, Shastri Market, on 1.12.1995 at about 3:30 p.m. when he was hit by a truck bearing registration No. DEG 4099 which was being driven by Sh. Chhedi Lal respondent No. 1 at a terrific speed and rashly because of which, the deceased Sh. Ashok Kumar fell down on the road and died instantly.

Mr. Amit Kumar Pandey, counsel appearing for the appellant mainly contends that the Tribunal has not granted any increase in the income of the deceased which, was assessed under the Minimum Wages Act. Contention of learned Counsel for the appellant is that this Court has taken a consistent view that wherever income is assessed under the Minimum Wages Act then the increase should also be taken into consideration.

Another grievance raised by the counsel for the appellant is that the Tribunal has wrongly allowed deduction of 1/3rd of the income of the deceased from the said earnings although deceased was survived by large family comprising of his widow, two children and parents. The mother of the deceased has died intervening the period after passing of award and prior to filing of the present appeal. Another grievance of appellant is that the Tribunal has not awarded adequate amount towards loss of consortium and loss of estate.

Per contra, Mr. Kanwal Chaudhary, counsel appearing for respondent No. 3 submits that considering the facts and circumstances of the case, the Tribunal has granted a just, fair and reasonable compensation in favour of the appellant and as per him there is no scope for any further enhancement.

I have heard counsel for the parties and have perused the record.

Perusal of the record shows that the deceased was 37 years of age and he died in the said unfortunate accident involving the offending truck bearing registration No. DEG 4099 which is duly insured with respondent No. 3 insurance company.

In the claim petition, the appellants claimed that the deceased was employed in a printing press and besides that he was also taking private tuitions and from both said sources, his earning was Rs. 6,000/- per month. The widow of the deceased who entered in the witness box had disclosed income of the deceased at Rs. 6,000/- per month but PW2 Sh. Ajay Kumar, brother of the deceased contradicted the statement given by the widow by disclosing the income of deceased at Rs. 3,000/- per month.

Considering the said inconsistency between two statements given by PW1 and PW2 and in the absence of any documentary evidence placed on record by the appellant, the Tribunal had taken recourse to Minimum Wages Act so as to assess the income of deceased. The income of the deceased has been taken in the category of unskilled workman @ Rs. 1,545/- per month but since he was employed in a private printing press so safely his income as that of a skilled workman can be taken into consideration.

PW1 Smt. Pushpa Devi, in her evidence, clearly stated that the deceased was employed in a printing press and was also taking tuitions from which he was earning about Rs. 6,000/-. There is no cross examination of the said witness by any of the respondents including the insurance company.

Mr. Kanwal Chaudhary, counsel appearing for the insurance company has strenuously opposed to consider the deceased in the category of skilled workman as no such ground has been taken by the appellant in the present appeal as well as in the evidence. I do not find any merit in the submissions of counsel for the insurance company as there is not even a single suggestion put to the said witness by the insurance company that he was not employed in a printing press and was also not taking tuitions. Testimony of PW1 and PW2 to this effect remains unimpeached. In all such cases where recourse is taken to Minimum Wages Act the category under which income of the deceased/victim is to be considered has also to be mentioned. It is a settled legal position that no weightage can alone be given to the bald statements made by the claimants or witnesses unless such statements are supported and substantiated with the help of some cogent material. However, in the absence of any cross examination by the contesting respondent at least category of workman under the Minimum Wages Act, being claimed by the claimants can be easily believed. Since the deceased, as per the deposition made by the said witness, was rendering tuitions and was also working in a private printing press then at least his category either as that of a skilled workman or under the category of qualified person upto metric level can be taken into consideration for properly assessing the income of the deceased.

I do not agree with the contention of counsel for the respondent that since no such ground has been taken by the appellant, this Court is powerless to consider such a ground suo moto.

It is a settled legal position that this Court has to see that just and fair compensation is awarded in favour of the claimants as envisaged u/s 168 of the Motor Vehicles Act. Arguments of the counsel for the respondent are rejected on this aspect, also.

The income of the skilled workman as on the relevant date of accident under the Minimum Wages Act was Rs. 1969 and making the same double, it would come to Rs. 3938/- and after taking average of the same, monthly income of the deceased will come to Rs. 2953.50. The Tribunal also fell in error by allowing deduction of 1/3 of the income from his said earnings ignoring the fact that the deceased was survived by a large family of five members behind him. Since the mother has already died after passing of the award and before filing the present appeal, therefore, 1/4 of the income from the earnings of the deceased towards personal expenses is allowed. The Tribunal has also granted inadequate amount towards loss of consortium. The same is enhanced to Rs. 50,000/-. However, I do not feel inclined to interfere in the compensation awarded towards loss of estate.

Differential amount shall be paid by respondent No. 3 insurance company with interest @ 6% per annum from the date of filing of the claim petition till 31.12.1999 and at the rate of 7.5% per annum from 1.1.2000 till realization.

The matter is remanded back to the tribunal to pass directions for apportionment of the enhanced compensation amount amongst the claimants.

With these directions, the present appeal is disposed of.