Heard Sri Adarsh Bhushan, learned counsel for the appellant-insurance company and Sri Ram Singh, learned counsel for the claimants- respondents.
This appeal is filed under Section 173 of the Motor Vehicles Act, 1988 against the judgment and award dated 08.05.2018 passed by the Motor Accident Claims Tribunal / Additional District Judge, Court No. 1, District Bareilly in M.A.C.P. No. 511 of 2015.
Learned counsel for the appellant has submitted that the impugned judgment is not acceptable as the Tribunal has not considered the plea of the insurance company with regard to the delay in lodging the First Information Report which was lodged after 55 days from the date of incidence.
Per contra, learned counsel for the claimants/respondents has pointed out that after the accident, which took place on 24.10.2014, the victim-deceased was hospitalised in District Hospital, Uddham Singh Nagar, thereafter he was shifted at Kailash Hospital, Rudrapur and then Lok Nayak Hospital, New Delhi, where he was treated till 13.12.2014 and since the doctors noticed that there was no recovery then a discharge slip was issued and it was advised to the claimants to take the victim-deceased at home and provide the nursing which is required. After discharge from the hospital of New Delhi on 13.12.2014 the victim-deceased died at his home on 18.12.2014 i.e. after a gap of about 55 days and immediately after last funeral rites the First Information Report was lodged by the Son of the deceased, in pursuance of the order passed under Section 156(3) Cr.P.C. by the competent Magistrate of Baheri, District Bareilly.
The facts of the case, as indicated and mentioned by the Tribunal and in the claim petition, reveals that due to accident the victim-deceased sustained serious injuries and his one leg was completely became dis-order and several other body parts are also became in dis-order conditions. The complainant, son of the deceased namely Gufran Ahmad has reached at the hospital immediately when he received the information of the said accident.
Learned counsel for the appellant-insurance company has pointed out that admittedly the victim deceased died on 18.12.2014 but no postmortem was done.
The counsel for the claimant contended that there was no need to conduct the postmortem as admittedly the family members of the deceased were not interested for postmortem as the body of the deceased was became in bad shape and condition.
Learned counsel for the appellant has not disputed that an accident took place and the victim deceased sustained serious injuries and was hospitalised for about 50 days and thereafter was discharged from the Lok Nayak Hospital, New Delhi and the discharge slip has been issued. After release from the hospital the victim-deceased was cared by the family members at home, where he died.
In my opinion in such peculiar facts, if the postmortem is not done, there is no wrong either on the part of the family members of the deceased or the police.
Learned counsel for the appellant thereafter has pointed out that while fixing the notional income @ Rs. 9,000/- per month the Tribunal has neither considered the various decision of this Court as well as of the Hon'ble Apex Court, where in the case of a skilled labour or a person claims to earn a sum of Rs. 10,000/-, the notional income normally is fixed in between Rs. 4,500/- to Rs. 6,000/-.
The submission of the learned counsel for the appellant in this regard appears to be reasonable.
The Tribunal has not recorded any finding whatsoever while arriving at figure of Rs. 9,000/- per month being the notional income of victim-deceased where in the instant case it is claimed that the deceased was a Munshi and in support of his income a simple certificate is obtained and filed showing the same as Rs. 5,000/- per month.
The Hon'ble Apex Court held in the case of Arun Kumar Agrawal and Another vs. National Insurance Co. Ltd. and Others reported in 2010 ACJ 2161, as follows:-
"23. In India, the Courts have recognised that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with the services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is employed and is required to attend the employer's work for particular hours. She takes care of all the requirements of husband and children including the cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or a maidservant can do the household work such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.
32. In our view, it is highly unfair, unjust and inappropriate to compute the compensation payable to the dependants of a deceased wife/mother, who does not have regular income, by comparing her services with that of a housekeeper or a servant or an employee who works for a fixed period. The gratuitous services rendered by wife/mother to the husband and children cannot be equated with the services of an employee and no evidence or date can possibly be produced for estimating the value of such services. It is virtually impossible to measure in terms of money the loss of personal care and attention suffered by the husband and children on the demise of the house wife. It its wisdom, the legislature had, as early as in 1994, fixed the notional income of a non-earning person at Rs. 15,000/- per annum and in case of spouse, 1/3rd income of the earning/surviving spouse for the purpose of computing the compensation. Though section 163-A does not, in terms apply to the cases in which claim for compensation is filed under Section 166 of the Act, in the absence of any other definite criteria for determination of compensation payable to the dependants of a non-earning housewife/mother, it would be reasonable to rely upon the criteria specified in clause (6) of the Second Schedule and then apply appropriate multiplier keeping in view the judgments of this Court in General Manger, Kerala State Road Trans. Corpn. v. Susamma Thomas, 1994 ACJ 1 (SC); U.P. State Road Trans. Corpn. v. Trilok Chandra, 1996 ACJ 831 (SC) and Sarla Verma v. Delhi Trans. Corpn., 2009 ACJ 1298 (SC) and also take guidance from the judgment in Lata Wadhwa's case, 2001 ACJ 1735 (SC). Approach adopted by different Benches of Delhi High Court to compute the compensation by relying upon the minimum wages payable to a skilled worker does not commend out approval because it is most unrealistic to compare the gratutous services of the housewife/mother with work of a skilled worker."
The Hon'ble Apex Court in the case of Ramchandrappa vs. Manager, Royal Sundaram Alliance Insurance Company Ltd. reported in 2011 (13) SCC 236 while fixing the notional income has observed as follows:-
"14. In the instant case, it is not in dispute that the appellant was aged about 35 years and was working as coolie and was earning 4500/- per month at the time of accident. This claim is reduced by the Tribunal to a sum of 3000/- only on the assumption that wages of the labourer during the relevant period viz. in the year 2004, was 100/- per day. This assumption in our view has no basis. Before the Tribunal, though Insurance Company was served, it did not choose to appear before the Court nor did it repudiated the claim of the claimant. Therefore, there was no reason for the Tribunal to have reduced the claim of the claimant and determined the monthly earning a sum of 3000/- per month. Secondly, the appellant was working as a coolie and therefore, we cannot expect him to produce any documentary evidence to substantiate his claim. In the absence of any other evidence contrary to the claim made by the claimant, in our view, in the facts of the present case, the Tribunal should have accepted the claim of the claimant. We hasten to add that in all cases and in all circumstances, the Tribunal need not accept the claim of the claimant in the absence of supporting material. It depends on the facts of each case. In a given case, if the claim made is so exorbitant or if the claim made is contrary to ground realities, the Tribunal may not accept the claim and may proceed to determine the possible income by resorting to some guess work, which may include the ground realities prevailing at the relevant point of time. In the present case, appellant was working as a Coolie and in and around the date of the accident, the wage of the labourer was between 100/- to 150/- per day or 4500/- per month. In our view, the claim was honest and bonafide and, therefore, there was no reason for the Tribunal to have reduced the monthly earning of the appellant from 4500/- to 3000/- per month. We, therefore, accept his statement that his monthly earning was 4500/-."
In the case of Hansnath Yadav and Others vs. U.P. State Road Transport Corporation Lko reported in 2015 (1) TAC 219 (All.), this Court has observed as follows:-
"14. In the present case, evidence has been led on behalf of the claimants to the effect that the deceased was engaged in operating a PCO and she was earning Rs. 2500/- per month. This Court while deciding the claim under Section 166 of the Act is not to be guided by the amount claimed, rather, the determination will have to be made, of just compensation, and if in enquiry under Section 168 (2) of the Act the Court determines higher compensation than what was claimed, as being just compensation, it would be the duty of the Court to award such higher compensation. It is true that no proof of income was placed on record, but the evidence supporting her skills have not been controverted by leading contra evidence by the respondent-UPSRTC. The services rendered by her to the family as wife and mother are also undisputed. The services provided by the deceased to her minor daughters and husband need not be further elaborated in view of the observations made in Arun Kumar Agarwal (supra). Even though the gratuitous services rendered to the husband and children at home cannot be compesated in terms of the money but judicial notice can always be taken of the skills possessed and employed by her in extending the services to the family and loss suffered due to her death. The claimants are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. Although proof of income is not substantiated on record, yet deceased's income in light of the aforesaid discussions and the evidence brought on record cannot be counted as less than the income of a person who was engaged in performing the skilled activities. The least, which a Court of law can thus do is to assess her income as not being less than the income of a skilled person.
15. Hon'ble Supreme Court while dealing with the determination of income of a skilled worker, in the context of current scenario has determined minimum income of a skilled worker as Rs. 5000/- to 6000/- per month.
17. In the present case, the deceased Smt. Rajmati Yadav was aged about 54 years and was performing the functions of skilled worker/self-employed, in addition to her contribution to the family as wife or mother, who died in the accident occurred in the year 2002. Her income in such circumstances could not be assessed at less than Rs. 5,000/- per month."
In the case of New India Assurance Company Ltd. vs. Smt. Resha Devi and Others reported in 2017 (3) ADJ 685, the Division Bench of this Court in para 9, 10 and 11 of the reports has observed as under:-
"9. The next submission of the learned counsel for the appellant that income of Rs. 100/- per day presumed by the Tribunal is extremely on higher side is without any force and not liable to be accepted. Tribunal in recording the said claim has relied upon the judgment of the Hon'ble Apex Court in the case of Laxmi Devi and Another v. Mohammad Tabbar and Others, 2008 (2) TAC 394 SC wherein notional income to unskilled labour was presumed to be Rs. 100/- per day. Much water has flown since 2008. It is a matter of common knowledge that with the rise in price index, there has been considerable increase in the wages of salaries as well as self employed person. The average income of even a daily labour in 2014 when the accident took place cannot be presumed to be less than Rs. 200/- per day. In our considered opinion, the Tribunal committed a manifest error of law in presuming the notional income of the deceased to be Rs. 100/- per day.
10. In the case of Santosh Devi v. National Insurance Company Limited and Others (2012) 6 SCC-421 in paragraph 17 of the reports has observed as under:
"17. Although the wages/income of those employed in organised sectors has not registered a corresponding increase and has not kept pace with the increase in the salaries of the Government employees and those employed in private sectors, but it cannot be denied that there has been incremental enhancement in the income of those who are self-employed and even those engaged on daily basis, monthly basis of even seasonal basis. We can take judicial notice of the fact that with a view to meet the challenges posed by high cost of living, the persons falling in the latter category periodically increase the cost of their labour. In this contest, it may be useful to given an example of a tailor who earns his livelihood by stitching clothes. If the cost of living increases and the prices of essentials go up, it is but natural for him to increase the cost of his labour. So will be the cases of ordinary skilled and unskilled labour, like, barber, blacksmith, cobbler, mason, etc."
11. There can be no exact uniform rule for measuring the value of the human life and the measure of damages cannot be arrived at by precise mathematical calculations. Obviously award of damages would depend upon the particular facts and circumstances of the case but the element of fairness in the amount of compensation so determined is the ultimate guiding factor. In such view of the matter, presumption of Rs. 100/- per day as notional income even for a unskilled labour in the year 2014 appears to us to be frugal and by no stretch of imagination to be just even the minimum wages fixed by the State Government is much higher than that looking to the rise in cost index. We are of the considered upon that notional income of an unskilled labour could not be less than Rs. 200/- per day."
Learned counsel for the claimants, Sri Ram Singh has pointed out that the Tribunal has committed an error while applying the multiplier of 8, whereas in the instant case when the Tribunal arrived at a conclusion in determining the age of victim-deceased as 55 years and fixing the age of victim-deceased as 55 years, the multiplier ought to have been applied as 9 instead of 8.
In the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, 2009 (6) SCC 121, the Hon'ble Apex Court has fixed the multiplier of 9 in the case where the age of the victim is in between 55 to 60 years.
In view of the aforesaid, this aspect may also be considered by the Tribunal while determining the multiplier.
Learned counsel for the appellant, however, has disputed that while fixing the age, no justifiable finding is recorded. I am not satisfied with the said claim of the appellant Insurance Company, the Tribunal has fully justified while determined the age of the victim.
In view of the aforesaid, the matter is remitted to the Tribunal only so far as to modify its order while determining the notional income of the victim-deceased and applying the multiplier after considering the above noted judgments after affording the opportunity to the respective parties, positively within a period of one month from the date of production of certified copy of this order, which the appellant undertake to produce within two weeks from today.
The appeal is disposed of.
Any amount deposited in this Court shall be remitted to the concerned Tribunal within two weeks.
Order Date :- 27.8.2018 SK Srivastava