CHANDRA @ CHANDA @ CHANDRARAM & ANR.versusMUKESH KUMAR YADAV & ORS.

                        [2021] 8 S.C.R. 591


     CHANDRA @ CHANDA @ CHANDRARAM & ANR.
                                 v.
               MUKESH KUMAR YADAV & ORS.
                  (Civil Appeal No. 6152 of 2021)
                        OCTOBER 01, 2021
    [R. SUBHASH REDDY AND HRISHIKESH ROY, JJ.]
       Motor Vehicles Act, 1988: s. 166 – Fatal accident – Victim-
deceased aged 32 years was employed as driver of truck trailer –
He possessed heavy vehicle driving licence – On the fateful day, he
was driving the vehicle when another truck trailer came on the
wrong side and rammed into the vehicle of the deceased resulting
in his death – Claim was filed before the Tribunal by the parents,
wife, minor son, brother and sister of the deceased – It was the
specific case of the claimants that the deceased was possessing
heavy vehicle driving licence and was earning Rs.15000/- per month
– Though wife of the deceased categorically deposed that her
husband deceased was earning Rs.15000/- per month, same was
not considered only on the ground that salary certificate was not
filed – Tribunal fixed the monthly income of the deceased by
adopting minimum wage notified for the skilled labour in the year
2016 – Tribunal awarded compensation of Rs. 10.99 lacs with 6%
PA interest – Appellant-parents alone filed appeal before the High
Court which was dismissed – Hence instant appeal – Held: Although
the minimum wage notification can be a yardstick in absence of
salary certificate, 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 claimants were unable to produce documentary evidence
to show the monthly income of the victim-deceased, same does not
justify adoption of lowest tier of minimum wage while computing
the income – No reason to discard the oral evidence of the wife of
the deceased that the deceased was earning around Rs.15000/- per
month – Keeping in mind the enormous growth of vehicle population
and demand for good drivers and considering oral evidence on
record, the income of the deceased taken at Rs.8000/- per month
                                591
592            SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A     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/
B
      - per month – By applying the multiplier of ‘16’, the claimants are
      entitled for compensation of Rs.14,33,664/- – 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/- – Appellants are also entitled for parental consortium
C     of Rs.40,000/- each.
            Partly allowing the appeal, the Court
            Held: 1. Merely because claimants were unable to produce
      documentary evidence to show the monthly income of the victim-
      deceased same does not justify adoption of lowest tier of minimum
D     wage while computing the income. There is no reason to discard
      the oral evidence of the wife of the deceased who has deposed
      that the deceased was earning around Rs.15000/- per month.
      Keeping in mind the enormous growth of vehicle population and
      demand for good drivers and by considering oral evidence on
E     record the income of the deceased can be taken 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 1/3 rd is to be made
      from the income of the deceased towards his personal expenses.
F     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/-. As an amount of
      Rs.10,99,700/- is already paid towards the loss of dependency,
      the appellant-parents are entitled for differential compensation
G     of Rs.3,33,964/-. The appellants are also entitled for parental
      consortium of Rs.40,000/- each. The finding of the Tribunal that
      parents cannot be treated as dependents runs contrary to
      the judgment of this Court in the case of Sarla Verma.
      [Para 10][595-G-H; 596-A-E]

H
  CHANDRA @ CHANDA @ CHANDRARAM v. MUKESH KUMAR                            593
                      YADAV

       Minu Rout & Anr. v. Satya Pradyumna Mohapatra &                     A
       Ors. (2013) 10 SCC 695 : [2013] 10 SCR 847; Magma
       General Insurance Company Limited v. Nanu
       Ram @ Chuhru Ram & Ors. 2018 SCC OnLine SC
       1546 : (2018) 18 SCC 130 ; Sarla Verma (Smt.) & Ors.
       v. Delhi Transport Corporation & Anr. (2009) 6 SCC
                                                                           B
       121 : [2009] 5 SCR 1098 – relied on.
       Kirti & Anr. v. Oriental Insurance Company Limited
       (2021) 2 SCC 166 – distinguished.
                        Case Law Reference
(2021) 2 SCC 166                distinguished             Para 8           C
[2013] 10 SCR 847               relied on                 Para 10
(2018) 18 SCC 130               relied on                 Para 10
[2009] 5 SCR 1098               relied on                 Para 10
       CIVIL APPELLATE JURISDICTION: Civil Appeal No.6152 of               D
2021
      From the Judgment and Order dated 06.07.2018 of the High Court
of Rajasthan Bench at Jaipur in S.B. Civil Miscellaneous Appeal No.1242
of 2018.
       Aditya Singh, Anubhav Singh, Advs. for the Appellants.              E
     Manish Kumar, Sahil Raveen, Gopal Singh, Advs. for the
Respondents.
       The Judgment of the Court was delivered by
       R. SUBHASH REDDY, J.
                                                                           F
       1. Leave granted.
      2. Unfortunate parents who lost their son aged about 32 years in
the motor vehicle road accident on 27.02.2016, are before this Court
claiming enhancement of compensation arising out of an application filed
under Section 166 of the Motor Vehicles Act, 1988.
                                                                           G
      3. 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
respondent nos.4 to 7 were the applicants in the application filed under
Section 166 of the Motor Vehicles Act, 1988 before the Motor Vehicle
                                                                           H
594            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A     Accident 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 impugned judgment dated 06.07.2018 dismissed the appeal. As such
B
      the appellants are before this Court.
              4. 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 27.02.2016, within the limits of Adarsh Nagar Police Station,
      Ajmer, the vehicle – truck trailer - bearing no.RJ-14-GD-1156, driven by
C     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.
              5. It was the case of the claimants before the Tribunal that
D     deceased Shivpal was in possession of heavy vehicle driving licence and
      was earning Rs.15,000/- per month. 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
E     Rs.5746/- per month has awarded a total compensation of Rs.10,99,700/
      - inclusive of consortium of Rs.40000/- to the wife and minor child. The
      Tribunal had merely awarded an amount of Rs.10000/- each to the
      appellant-parents, of the deceased.
              6. We have heard Sri Aditya Singh, learned counsel for the
F     appellants and Sri Sahil Raveen, learned counsel for respondent no.3.
              7. Mainly it is contended by 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/
G     - per month. It is submitted that wife of the deceased, i.e. respondent
      no.4 has clearly stated in her deposition that deceased was earning
      Rs.15000/- per month. It is submitted that inspite 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 Tribunal has committed error in
H     recording a finding that the appellants are not dependents as they were
     CHANDRA @ CHANDA @ CHANDRARAM v. MUKESH KUMAR                               595
                YADAV [R. SUBHASH REDDY, J.]

living separately. Lastly it is submitted that appellants are also entitled to   A
compensation under the head of ‘loss of consortium’.
       8. 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            B
at Rs.5746/-. By relying on a judgment of this Court in the case of Kirti
& Anr. v. Oriental Insurance Company Limited1, learned counsel
has submitted that there are no grounds to interfere with the impugned
judgment of the High Court.
       9. Having heard the learned counsels on both sides, we have
                                                                                 C
perused the impugned order 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.
       10. It is the specific case of the claimants that the deceased was
possessing heavy vehicle driving licence and was earning Rs.15000/-              D
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.15000/- per month, same was not considered
only on the ground that salary certificate was not filed. The Tribunal has       E
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             F
for assessing the income of the deceased should not be totally detached
from reality. Merely because 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          G
of the deceased who has deposed that late Shivpal was earning around
Rs.15000/- per month. In the case of Minu Rout & Anr. v. Satya
Pradyumna Mohapatra & Ors.2 this Court while dealing with the claim
1
    (2021) 2 SCC 166
2
    (2013) 10 SCC 695                                                            H
596               SUPREME COURT REPORTS                       [2021] 8 S.C.R.


A     relating to an accident which occurred on 08.11.2004 has taken the salary
      of the driver of light motor vehicle at Rs.6000/- per month. In this case
      the accident was on 27.02.2016 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
B
      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 1/3rd is to be made from the income of the
C     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/-. 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
D
      Court in the case of Magma General Insurance Company Limited
      v. Nanu Ram @ Chuhru Ram & Ors.3 the appellants are also entitled
      for parental consortium of Rs.40,000/- each. The finding of the Tribunal
      that parents cannot be treated as dependents runs contrary to the judgment
      of this Court in the case of Sarla Verma (Smt). & Ors. v. Delhi
E     Transport Corporation & Anr.4. The judgment in the case of Kirti &
      Anr. v. Oriental Insurance Company Limited1 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.
             11. For the aforesaid reasons this appeal is allowed and appellants
F     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.
            12. For the aforesaid reasons the appeal is partly allowed, with no
G     order as to costs.

      Devika Gujral                                          Appeal Partly allowed.



      3
          2018 SCC OnLine SC 1546 = (2018) 18 SCC 130
H     4
          (2009) 6 SCC 121