First Appeal No.581 of 2006

2nd August, 2017.

Petitioner Counsel: Mrs. R.S. DEWANI
Respondent Counsel: Shri D.N. KUKDAY

Cases Cited:
Sanobanu Nazirbhai Mirza and Others Vs. Ahmedabad Municipal Transport Service, 2013(6) ALL MR 981 (S.C.)=(2013) 16 SCC 719 [Para 14]
Sedu Ram Vs. Mali Ram, LEX (RAJ) 2011 187 [Para 15]
Sedak Ali Vs. Divisional Manager, The Oriental Insurance Company Ltd., 2011 SCC OnLine Cal 1845 [Para 18]
Rajesh and Others Vs. Rajbir Singh and Others, 2014 ALL SCR 2434=2014(1) Mh.L.J. 79 [Para 19]

JUDGMENT

JUDGMENT :- This appeal is preferred by the original claimants, being dissatisfied with the amount of compensation awarded by the Motor Accident Claims Tribunal, Nagpur, in Claim Petition No.328/2001 vide its judgment and award dated 26.04.2006.

2. Brief facts of the appeal can be stated as follows :

Appellant No.1 is widow, appellant No.2 is minor son and appellant No.3 is the father of deceased Navneet, who has succumbed to death in a motor vehicle accident, which occurred on 5th January, 2002 at Giripeth Wardhaman Nagar Road, Nagpur. While he was driving his motorcycle bearing No.MH-31/ X-9552 alongwith his cousin Gopika Shyamkumar Chhangani, Truck bearing No. MH-31/ A-361 came from behind in rash and negligent manner and gave dash to the motorcycle of the deceased. In that accident, deceased succumbed to the injuries. The offence came to be registered against the Truck driver. The offending Truck is owned by the respondent No.1 and insured with respondent No.2.

3. As per the case of Appellant, deceased was working as an Accountant in Hari Vishnu Packaging Limited at Nagpur and drawing salary of Rs.10,000/- p. m.. On account of his death, they have lost their source of income and also the support and love and affection, hence, the appellants claimed compensation of Rs.15,56,070/- from the respondent Nos.1 and 2 jointly and severally.

4. This petition came to be resisted by respondent No.2 alone as respondent No.1 failed to remain present, despite due service of notice. The respondent No.2 admitted the insurance of the Truck but denied the cause of accident as rash and negligent driving of that Truck. It was also contended that the amount claimed was exorbitant and excessive.

5. On these respective pleadings of the parties, the Tribunal framed necessary issues at Exh.23. In support of their case, the appellant No.3 examined himself and also led the evidence of Director of Hari Vishnu Packaging Limited - Brijkishor Ramlal Maniyar.

6. On appreciation of their evidence, the learned Tribunal was pleased to hold that, as the appellants have failed to produce on record the required documents, like salary slip, muster roll, income tax return etc., the appellants have failed to prove that deceased was earning the salary of Rs.10,000/- per month. The learned Tribunal, therefore, held the income of the deceased as notional income of Rs.2,000/- per month and yearly income of Rs.24,000/-. Accordingly calculated the total amount of compensation as Rs.2,90,000/- inclusive of no fault liability amount of Rs.50,000/-.

7. This judgment of Tribunal is the subject matter of this appeal. According to the learned counsel for the appellants, the Tribunal has committed an error in holding that the appellants have failed to prove the income of the deceased. By placing reliance on the judgment of various High Courts; it is submitted that the evidence produced in the case is sufficient to prove the income of the deceased, as in this proceeding strict rules of evidence are not applicable and the Court should adopt liberal approach having regard to beneficial object of the legislation. It is submitted that, in the light of the oral evidence, coupled with the appointment letter and salary certificate of the deceased, the Tribunal should have accepted that evidence and awarded the compensation accordingly. Further it is submitted that the Tribunal has not awarded fair and just amount of compensation on additional heads like loss of love and affection, loss of consortium etc. According to learned counsel for the appellants, therefore, the impugned judgment and award of the Tribunal needs to be modified by enhancing the amount of compensation, as claimed by the appellants.

8. Per contra, learned counsel for the respondent No.2 has supported the judgment of the Tribunal by submitting that not a single piece of evidence is brought on record to show that deceased was actually working in the said Company and drawing the salary of Rs.10,000/- per month. It is pointed out that neither the muster roll is produced, nor the Salary Disbursement Officer is examined, nor the salary slips are produced and thus, according to the learned counsel for the respondent No.2, no fault can be found in the impugned judgment of the Tribunal, if the Tribunal has considered the notional income of the deceased as Rs.2,000/- per month and awarded the amount of compensation accordingly.

9. At this stage, it may be stated that as the finding of the Tribunal that cause of accident was the rash and negligent driving of the Truck owned by the respondent No.1 and the said Truck was insured with respondent No.2, is not challenged, it has attained finality. Moreover that finding is also based on the evidence on record and therefore, the only point which arises for my determination in this appeal is, whether the amount of compensation as awarded by the Tribunal is just, adequate, fair or it calls for any enhancement?

10. In this case, it is deposed by appellant No.3, the father of the deceased that deceased was doing service with M/s. Hari Vishnu Packaging Limited as Accountant, he used to receive monthly salary of Rs.10,000/-. He has produced on record the salary certificate and appointment letter of the deceased. According to his evidence, deceased used to maintain their whole house. Appellant No.1 - widow and appellant No.2 - minor son were completely dependent on the income of deceased. He himself and his wife were also dependent on the deceased. However, in his cross-examination, he has admitted that he has retired from Reserve Bank of India and getting gross pension of Rs.8,000/-. He has also admitted that he was not dependent on his son from financial point of view.

11. In his cross-examination, he has denied the suggestion that deceased never served with M/s. Hari Vishnu Packaging Limited and nor he has received any salary.

12. The appellants have then examined Brijkishor Ramlal Maniyar in whose Company deceased was serving as Account Officer. According to his evidence, the basic pay of the deceased was Rs.9,500/- per month and amount of Rs.500/- was given towards his house rent allowance. Amount of Rs.175/- used to be monthly deduction from his salary as per rules. He has proved on record the appointment letter of the deceased dated 28th March, 2000, according to which, deceased was directed to join his duty by 1st April, 2000. It is pertinent to note that the appointment letter (Exh.46) bears the signature of the deceased and therefore, it cannot be said that the said letter was created subsequently as evidence to prove that deceased was serving in this Company. In the letter itself it is clearly mentioned that deceased was engaged on the monthly salary of Rs.10,000/-. Even the salary certificate of the deceased is also produced on record at Exh.45. From both these documents, the fact that deceased was serving in his Company is sufficiently proved on record by this witness Brijkishor Ramlal Maniyar, who was Director or responsible Officer of that Company.

13. It may be true that in his cross-examination, he has admitted that he has not brought the muster roll to the Court, however, his evidence shows that in the muster roll maintained by the Company, name of deceased used to be maintained. Moreover, when the salary certificate is produced on record, in my considered opinion, it is not necessary to examine the Salary Disbursement Officer of the Company, who used to obtain the signature of the deceased on the salary receipt or muster roll. His evidence and two documents, like appointment letter of the deceased and the salary certificate are, in my considered opinion more than sufficient to prove that deceased was serving in the said Company and earning salary of Rs.10,000/- per month. There is absolutely nothing to disbelieve the evidence of this witness and no rebutting or controverting the evidence is produced on record. Admittedly deceased was Graduate and also being married and having a son, therefore, it follows that he must be doing some job and proof of that job and the income which he was earning from the said job is also produced on record, by examining the concerned person with whom the deceased was serving.

14. The learned counsel for the appellants has, in these circumstances, relied upon the judgment of the Hon'ble Supreme Court in the case of Sanobanu Nazirbhai Mirza and Others ..vs.. Ahmedabad Municipal Transport Service, (2013) 16 Supreme Court Cases 719 : [2013(6) ALL MR 981 (S.C.)], to submit that when there is sufficient evidence on record produced by the claimant about his income, without assigning any reason for not accepting the said evidence on record, tribunal and the High Court in that case, has committed an error, by taking the notional income of the deceased for assessment of compensation. Here in the case also, it has to be held that in the face of evidence produced by the appellants, the Tribunal should not have rejected the same and held his notional income as Rs.2,000/- per month.

15. Learned counsel for the respondent No.2 has, however, relied upon the judgment on Rajasthan High Court in Sedu Ram ..vs.. Mali Ram, LEX (RAJ) 2011 187, wherein it was held that, the concept of notional income has been invented to meet out a few contingencies like where the income of the victim is either unknown, or has not been proven, or from the facts it emerges that the victim was unemployed, either because of his age or otherwise. In order to meet out such situation, a legal fiction has been created about the "deemed income" of the victim.

16. There can absolutely be no two opinions about the legal proposition laid down in this authority. However, as held in the authority itself, notional income can be considered where the income of the victim is unknown or has not been proved or on the facts it emerges that he was unemployed. Here in the case on facts, it is sufficiently proved on record that deceased was very much employed, even his income is proved through the evidence of witness Brijkishor Ramlal Maniyar. In such situation, there is no scope at all for considering the income of the deceased as notional income.

17. Learned counsel for respondent No.2 has then submitted that in this case, the salary was, according to the evidence of witness Brijkishor Ramlal Maniyar, paid in cash and there was no proof of the payment of that salary, therefore, as regards the income, there is no proof and therefore, the Tribunal has rightly considered the notional income. However, in my considered opinion, the evidence of this witness Brijkishor Ramlal Maniyar cannot be disbelieved totally. Even assuming that he has not been able to give bifurcation of the amount of salary paid to the deceased or he has not been the eye witness to actual payment of the salary to the deceased, the fact remains that deceased was working with him and as per the appointment letter, deceased was employed at the salary of Rs.10,000/- per month. The salary certificate to that effect is also produced on record. In the absence of any controverting documentary evidence, the oral evidence of this witness cannot be brushed aside.

18. In this respect, learned counsel for the appellants has rightly relied on the judgment on Calcutta High Court in the case of Sedak Ali ..vs.. Divisional Manager, The Oriental Insurance Company Ltd., 2011 SCC OnLine Cal 1845, wherein it was held that, "the position is now well settled that where there is even slightest mention of income, the person cannot be classified in the "no income group" or notional income". Here in the case, there is not only slightest mention of the income of the deceased but there is documentary evidence like appointment letter and the salary certificate of the deceased, coupled with the oral evidence of the person, who has engaged the deceased, to prove the income of the deceased as Rs.10,000/- per month.

19. As rightly submitted by the learned counsel for respondent No.2, considering the deduction towards the income tax and other deductions, the net salary of the deceased can be considered to Rs.8,500/- per month. From that income, 1/3rd needs to be deducted towards his personal expenses. Considering his age appropriate multiplier is '16'. The appellants are also entitled for the fair amount of compensation towards loss of love and affection, loss of consortium and funeral expenses, as per the recent trend reflected in the judgment of Rajesh and Others ..vs.. Rajbir Singh and Others, 2014(1) Mh.L.J. 79 : [2014 ALL SCR 2434].

20. Thus, the total amount of compensation to which the appellants become entitled can be reassessed as follows :

No.	HEADS	CALCULATION
(i)	Income from business	Rs.5,500/- per month
(ii)	1/3rd of the same to be deducted as personal expenses of the deceased	Rs.8,500 Rs. 2833 = Rs.5,667/-
(iii)	Compensation after multiplier of 16 is applied	Rs.5,667 x 12 x 16 = Rs.10,88,064/-
(iv)	Loss of consortium to appellant No.1	Rs.1,00,000/-
(v)	Loss of love and affection to appellant No.2	Rs.50,000/-
(vi)	Loss of love and affection to appellant No.3	Rs.25,000/-
(vii)	Funeral expenses + medical expenses as awarded by the Tribunal	Rs.20,000/-
	TOTAL COMPENSATION AWARDED	Rs.12,83,064/

21. The total amount of compensation to which the appellants thus become entitled comes to Rs.12,83,064/-. The impugned judgment and award of the Tribunal, therefore, needs to be modified, accordingly by allowing this appeal.

22. The appeal is allowed with no order as to the costs. The impugned judgment and award of the Tribunal is modified to the extent that the appellants are held entitled to get the amount of Rs.12,83,064/- from respondent Nos.1 and 2 jointly and severally.

23. Rest of the judgment of the Tribunal stands confirmed.

Appeal allowed.