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

ow is the wife of the deceased who, along with the mother and the children of the deceased, filed claim petition before the Tribunal under Sections 166 and 140 of the Motor Vehicles Act, 1988 (for short "the Act") claiming compensation amounting to Rs.25,00,000/due to the death of her husband namely, Swadhin Mehra in a motor vehicle accident, which took place on 23.10.2004 at about 4.45 p.m. when the deceased was crossing the road. At this time the offending vehicle dumper (bearing8284) loaded with concrete came very fast and stopped, after which the driver of the dumper reversed the vehicle in a rash and negligent manner as a result of which the deceased was crushed under the right side tyre of the dumper causing his death on the spot. The annual income of the deceased was claimed to be Rs.1,25,000/per annum as he wasin the business of trading in paints and hardware. The claim was contested by the respondents, oral and documentary evidence was produced by the parties in support of their case. The Tribunal accepted the case of the claimants and held that there was rash and negligent driving by respondentdriver of the offending vehicle which was owned by respondentowner and insured with respondent No.3the insurer. The Tribunal awarded total compensation of Rs.Under the head of loss of dependency, the Tribunal has held that there was no documentary evidence produced by the appellant on record in support of the income of the deceased, and therefore, it has taken his salary to be Rs.2894.90/per month (which was rounded off to Rs.2895/per month) as per the wages for unskilled labour under the Minimum Wages Act, 1948. As the deceased was above 50 years old, a multiplier of 11 was applied to quantify the loss of dependency of the appellant. The dependency was taken to be only of two members i.e. the widow and his mother and so 1/3rd of the amount was deducted on account of personal expenses of the deceased. Thus, the amount under the head of loss of dependency came to Rs.Under the conventional heads the Tribunal has awarded Rs.10,000/for loss of consortium, Rs.10,000/for loss of estate, Rs.1,00,000/on account of love and affection and Rs.10,000/for funeral expenses. Thus, the Tribunal awarded a total sum of Rs.3,84,760/as compensation with interest at the rate of 7.5% per annum on the award amount from the date of filing of the petition till the notice of the deposit of the award amount under Order 21, Rule 1 of C.P.C. with detailedwithin 30 days of the dispatch/receipt of order whichever is earlier. The Tribunal also held 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 the 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 for recovery of the compensation awarded and directed to pay to the appellant as provided under Section 149(2)of the M.V.Act from the owner.4. The said judgment and award was challenged by the appellant in the High Court seeking enhancement of compensation granted by the Tribunal questioning the correctness of the compensation awarded. The appellant contended that deceaseds income was Rs.1,25,000/per annum as he wascarrying on the business of paints and hardware. It was urged by the learned counsel for the appellant that even if there is no evidence to prove that the deceased had an income of Rs.1,25,000/the fact that the deceased had brought up two sons who were very well placed would be sufficient to show that he had substantial income. It was contended that even if the appellants case is considered under Sectionof the Act, 1/3rd income of the surviving spouse can be taken as the income of the deceased. The High Court stated that neither was it the case of the appellant that the deceased was anassessee nor was any document placed on record to show that anywas paid by the deceased. The High Court held as under1/3rd of the income of the surviving spouse cannot be taken as the income of the deceased for the reason that this petition was not filed under Sectionof the Motor Vehicles Act.Moreover there is a limit of Rs.40,000/as income if any claimant approaches the Court under Sectionof the Act.6. The Tribunal rightly took the deceaseds income as per the Minimum Wages Act. Since there was no dependent on the deceased, in fact there is no loss of dependency and the appellant was entitled to compensation under the head of loss of his estate on the basis of the judgment of Karnataka High Court in A. Manavalagon v. A. Krishnamurthy & Ors. (2005) ACC 304  and of this Court in Keith Rowe v. Prashant Sagar & Ors. MAC App. No.601/2007 decided onthe High Court held that the compensation awarded by the Tribunal was more than adequate and dismissed the appeal.5. Aggrieved by the impugned judgment and award passed by the High Court in M.A.C. Appeal No. 830 of 2010, the present appeal is filed by the appellant before this Court urging various grounds.

Reasoning:
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.