The Judgment of the Court was delivered by
R. Subhash Reddy, J.— Leave granted. Unfortunate parents who lost their son aged about 32 years in the motor vehicle road accident on 27-2-2016, are before this Court claiming enhancement of compensation arising out of an application filed under Section 166 of the Motor Vehicles Act, 1988.
2. The appellants are the parents; 4th respondent is the wife; 5th respondent is the minor son; 6th respondent is the brother; and 7th respondent is the sister of the deceased Shivpal. The appellants and Respondents 4 to 7 were the applicants in the application filed under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accidents Claims Tribunal, Ajmer, Rajasthan (for short “the Tribunal”) claiming compensation of Rs 93,08,000 with interest @ 15% p.a. The Tribunal by judgment dated 25-11-2017 has awarded the total compensation of Rs 10,99,700 with interest @ 6% p.a. The appellant parents alone have filed appeal before the High Court. The High Court by the impugned judgment dated 6-7-2018 CMA No. 1242 of 2018 dismissed the appeal. As such the appellants are before this Court.
3. The deceased Shivpal was employed as driver on the vehicle i.e. truck trailer bearing No. RJ-06-GA-6576. When he was driving the vehicle on 27-2-2016, within the limits of Adarsh Nagar Police Station, Ajmer, the vehicle — truck trailer — bearing No. RJ-14-GD-1156, driven by the 1st respondent; belonging to the 2nd respondent; and insured with the 3rd respondent, came on the wrong side and rammed into the vehicle of the deceased resulting in the accident, as a result of which Shivpal died in the said accident.
4. It was the case of the claimants before the Tribunal that deceased Shivpal was in possession of heavy vehicle driving licence and was earning Rs 15,000 p.m. Apart from the claim on account of loss of dependency, they also claimed compensation on all other conventional heads. The Tribunal has held that accident occurred due to rash and negligent driving of the vehicle, driven by the 1st respondent. The Tribunal by taking into account the income of the deceased at Rs 5746 p.m. has awarded a total compensation of Rs 10,99,700 inclusive of consortium of Rs 40,000 to the wife and minor child. The Tribunal had merely awarded an amount of Rs 10,000 each to the appellant parents, of the deceased.
5. We have heard Shri Aditya Singh, learned counsel for the appellants and Shri Sahil Raveen, learned counsel for Respondent 3.
6. Mainly it is contended by the learned counsel for the appellants that though the deceased was earning Rs 15,000 per month, being a heavy vehicle driver, the Tribunal has awarded compensation on account of loss of dependency by taking the income of the deceased at Rs 5746 per month. It is submitted that wife of the deceased i.e. Respondent 4 has clearly stated in her deposition that the deceased was earning Rs 15,000 per month. It is submitted that in spite of such evidence on record the Tribunal has committed error in taking the income of the deceased at Rs 5746 as per the minimum wage notified to the skilled labour. Further it is submitted that the Tribunal has committed error in recording a finding that the appellants are not dependants as they were living separately. Lastly, it is submitted that appellants are also entitled to compensation under the head of “loss of consortium”.
7. The learned counsel appearing for the 3rd respondent has submitted that in absence of any documentary evidence on record to show the salary of the deceased at Rs 15,000 per month the Tribunal has correctly taken into account the monthly earnings of the deceased at Rs 5746. By relying on a judgment of this Court in Kirti v. Oriental Insurance Co. Ltd. (2021) 2 SCC 166, the learned counsel has submitted that there are no grounds to interfere with the impugned judgment CMA No. 1242 of 2018 of the High Court.
8. Having heard the learned counsel on both sides, we have perused the impugned order CMA No. 1242 of 2018 and other material placed on record. At the outset, we may note that the High Court by a cryptic order dismissed the appeal preferred by the appellants without considering the various grounds raised in the appeal.
9. It is the specific case of the claimants that the deceased was possessing heavy vehicle driving licence and was earning Rs 15,000 per month. Possessing such licence and driving of heavy vehicle on the date of accident is proved from the evidence on record. Though the wife of the deceased has categorically deposed as AW 1 that her husband Shivpal was earning Rs 15,000 per month, same was not considered only on the ground that salary certificate was not filed. The Tribunal has fixed the monthly income of the deceased by adopting minimum wage notified for the skilled labour in the year 2016. In absence of salary certificate the minimum wage notification can be a yardstick but at the same time cannot be an absolute one to fix the income of the deceased. In absence of documentary evidence on record some amount of guesswork is required to be done. But at the same time the guesswork for assessing the income of the deceased should not be totally detached from reality. Merely because the claimants were unable to produce documentary evidence to show the monthly income of Shivpal, same does not justify adoption of lowest tier of minimum wage while computing the income. There is no reason to discard the oral evidence of the wife of the deceased who has deposed that late Shivpal was earning around Rs 15,000 per month.
10. In Minu Rout v. Satya Pradyumna Mohapatra (2013) 10 SCC 695 this Court while dealing with the claim relating to an accident which occurred on 8-11-2004 has taken the salary of the driver of light motor vehicle at Rs 6000 per month. In this case the accident was on 27-2-2016 and it is clearly proved that the deceased was in possession of heavy vehicle driving licence and was driving such vehicle on the day of accident. Keeping in mind the enormous growth of vehicle population and demand for good drivers and by considering oral evidence on record we may take the income of the deceased at Rs 8000 per month for the purpose of loss of dependency. Deceased was aged about 32 years on the date of the accident and as he was on fixed salary, 40% enhancement is to be made towards loss of future prospects. At the same time deduction of one-third is to be made from the income of the deceased towards his personal expenses. Accordingly, the income of the deceased can be arrived at Rs 7467 per month. By applying the multiplier of ‘16’ the claimants are entitled for compensation of Rs 14,33,664.
11. As an amount of Rs 10,99,700 is already paid towards the loss of dependency the appellant parents are entitled for differential compensation of Rs 3,33,964. Further in view of the judgment of this Court in Magma General Insurance Co. Ltd. v. Nanu Ram (2018) 18 SCC 130 the appellants are also entitled for parental consortium of Rs 40,000 each. The finding of the Tribunal that parents cannot be treated as dependants runs contrary to the judgment of this Court in Sarla Verma v. DTC (2009) 6 SCC 121. The judgment in Kirti v. Oriental Insurance Co. Ltd. (2021) 2 SCC 166 relied on by the counsel for the respondent would not render any assistance in support of his case having regard to facts of the case and the evidence on record.
12. For the aforesaid reasons this appeal is allowed and appellants are entitled for further compensation amount of Rs 3,33,964 on account of loss of dependency and consortium amount of Rs 40,000 each. Thus total compensation payable to the appellants is fixed at Rs 4,13,964 with interest @ 6% p.a. from the date of filing of claim petition.
13. For the aforesaid reasons the appeal is partly allowed, with no order as to costs.