Case: Pushkar Mehra Vs. Brij Mohan Kushwaha &amp; Others

v. Madan Mohan [(2009) 13 SCC 422] , A. Manavalagan v. A. Krishnamurthy & Ors. [I (2005) ACC 304 ] and Keith Rowe v. Prashant Sagar and Ors. [2011 ACJ 1734 ]. The appellant also referred to the case of Burgess v. Florence Nightingale Hospital [1955(1) Q.B. 349] as cited in the Keith Rowe case (supra). 6. The learned counsel for respondent No. 3, the insurer contended that the amount of compensation to be determined in this case should be just and reasonable and not meager but at the same time it should not be a bonanza. It was further contended that the Tribunal rightly applied the provisions of the Minimum Wages Act for unskilled labour and took the multiplier of 11. It would be clear from the financial background of the claimants that they were not actually dependent on the deceased as the deceaseds wife was earning Rs.11,000/- per month and the son based in the U.S.A. was earning $1,20,000 per annum and the other son based in Mumbai was earning Rs.18,000/- per month besides other perks. All this reveals that the claimants were very well placed in life. It was further contended that the appellant has erroneously placed reliance on the judgments in the cases of Asha Gupta, A. Manavalagan and Keith Rowe referred to supra as the facts are altogether different as in those cases salary was proved by the documentary evidence. 7. We have carefully examined the correctness of the impugned judgment and award passed by the High Court in exercise of its appellate jurisdiction with a view to find out whether the High Court is justified in upholding the quantum of compensation awarded by the Tribunal as legal and valid and further, as to what amount the claimants are entitled to. The Tribunal has regarded the deceased as an unskilled worker and has taken his wages to be Rs.2895/- as per the Minimum Wages Act, 1948, citing absence of evidence as the ground for doing so. The High Court did not interfere with the findings of the Tribunal and dismissed the appeal filed by the appellant requesting enhancement of compensation awarded by the Tribunal. This Court holds that the concurrent finding of the High Court on the determination of quantum of annual income of the deceased by taking Rs.2895/- per month as wages for an unskilled worker is not only an erroneous approach of theirs but also total non-application of mind on their part as it is unlikely that a person who is self-employed in the business of trading in paints and hardware is an unskilled worker. The Tribunal and the High Court should have taken the wages of the deceased to be that of a skilled worker or clerical and non- technical supervisory staff as he was self-employed and running his own business. As per the Order of the Government of NCT of Delhi dated 09.03.2010, the rate applicable in respect of a clerical and non-technical supervisory staff is Rs.7020/- per month. We hold that it would be just and proper for this Court to take Rs.7020/- per month as the income of the deceased, in the absence of evidence to the contrary. The Tribunal has held that since the deceased was aged 54 years, there is no award with respect to future prospects. In this regard, we must refer to the recent case of this Court, of Rajesh & Ors. v. Rajbir Singh & Ors. [2013(6) SCALE 563], wherein a three judge Bench held that, "Having regard to the fact that in case of those self-employed or on fixed wages, where there is normally no age of superannuation, we are of the view that it will only by just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, fair and equitable. There shall normally be no addition thereafter." Thus, we have to add 15% to the monthly income of the deceased as future prospects. We deduct 1/3rd of this amount on account of personal expenses of the deceased which he would have spent had he remained alive. We will apply a multiplier of 11. Following the decision of Rajesh & Ors. v. Rajbir Singh & Ors. (supra), Rs.1,00,000/- must be added under the head of loss of consortium and Rs.25,000/- must be awarded for funeral expenses as this Court in the aforesaid case held that Tribunals have been frugal in the award of compensation under the head funeral expenses. As the Tribunal has awarded Rs.1,00,000/- for loss of love and affection, we will not interfere with the same. The other heads under which we have awarded and the calculation would be as per the table given below: chart 8. Hence, the amount of Rs.9,60,424/- as calculated above, taking into consideration the various heads of losses, should be awarded in favour of appellant. The duty of the Tribunal and the appellate court to determine just, fair and reasonable compensation as held by this Court in a catena of cases is the justification for this Court for awarding compensation in favour of the appellant, when an application for compensation is made under Section 166 of the M.V. Act. We determine just and reasonable compensation by awarding a total sum of Rs.9,60,424/- with interest @ 9% from the date of filing the petition till the date of realization of the amount. We also hold that the compensation amount would first be paid by the respondent No.3 - the Insurance Company who can thereafter recover it from the respondent No.2 - the owner of the offending vehicle on the ground that it has been proved on record that the license possessed by the respondent No.1 - the driver of the offending vehicle was not issued from the concerned RTO and so the insurer is entitled to recovery of the compensation awarded from the owner and thereby we grant right of recovery to the respondent No.3.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. We have carefully examined the correctness of the impugned judgment and award passed by the High Court in exercise of its appellate jurisdiction with a view to find out whetherthe High Court is justified in upholding the quantum of compensation awarded by the Tribunal as legal and valid and further, as to what amount the claimants are entitled to.The Tribunal has regarded the deceased as an unskilled worker and has taken his wages to be Rs.2895/as per the Minimum Wages Act, 1948, citing absence of evidence as the ground for doing so. The High Court did not interfere with the findings of the Tribunal and dismissed the appeal filed by the appellant requesting enhancement of compensation awarded by the Tribunal. This Court holds that the concurrent finding of the High Court on the determination of quantum of annual income of the deceased by taking Rs.2895/per month as wages for an unskilled worker is not only an erroneous approach of theirs but also totalof mind on their part as it is unlikely that a person who isin the business of trading in paints and hardware is an unskilled worker. The Tribunal and the High Court should have taken the wages of the deceased to be that of a skilled worker or clerical and nontechnical supervisory staff as he wasand running his own business. As per the Order of the Government of NCT of Delhi dated 09.03.2010, the rate applicable in respect of a clerical andsupervisory staff is Rs.7020/per month. We hold that it would be just and proper for this Court to take Rs.7020/per month as the income of the deceased, in the absence of evidence to the contrary. The Tribunal has held that since the deceased was aged 54 years, there is no award with respect to future prospects. In this regard, we must refer to the recent case of this Court, of Rajesh & Ors. v. Rajbir Singh & Ors. [2013(6) SCALE 563], wherein a three judge Bench heldregard to the fact that in case of thoseor on fixed wages, where there is normally no age of superannuation, we are of the view that it will only by just and equitable to provide an addition of 15% in the case where the victim is between the age group of 50 to 60 years so as to make the compensation just, fair and equitable. There shall normally be no additionwe have to add 15% to the monthly income of the deceased as future prospects. We deduct 1/3rd of this amount on account of personal expenses of the deceased which he would have spent had he remained alive. We will apply a multiplier of 11. Following the decision of Rajesh & Ors. v. Rajbir Singh & Ors. (supra), Rs.1,00,000/must be added under the head of loss of consortium and Rs.25,000/must be awarded for funeral expenses as this Court in the aforesaid case held that Tribunals have been frugal in the award of compensation under the head funeral expenses. As the Tribunal has awarded Rs.1,00,000/for loss of love and affection, we will not interfere with the same. The other heads under which we have awarded and the calculation would be as per the table given% ofd as future prospectsrd ofal expenses of theer of 11se ofal andss and8. Hence, the amount of Rs.9,60,424/as calculated above, taking into consideration the various heads of losses, should be awarded in favour of appellant. The duty of thehe appellate court to determine just, fair and reasonable compensation as held by this Court in a catena of cases is the justification for this Court for awarding compensation in favour of the appellant, when an application for compensation is made under Section 166 of the M.V. Act. We determine just and reasonable compensation by awarding a total sum of Rs.9,60,424/with interest @ 9% from the date of filing the petition till the date of realization of the amount. We also hold that the compensation amount would first be paid by the respondent No.3the Insurance Company who can thereafter recover it from the respondent No.2 the owner of theoffending vehicle on the ground that it has been proved on record that the license possessed by the respondent No.1the driver of the offending vehicle was not issued from the concerned RTO and so the insurer is entitled to recovery of the compensation awarded from the owner and thereby we grant right of recovery to the respondent No.3.