NEW INDIA ASSURANCE COMPANY LTD. Vs. KAUSHALYA DEVI

JUDGEMENT

(1.) THIS civil misc. appeal under section 173 of the Motor Vehicles Act, 1988 has been filed against the Judgment & Award dated 11.3.2003 passed by the Judge, Motor Accident Claims Tribunal, Ajmer (hereinafter 'the Claims Tribunal') whereby the respondent No.6 Jabbar Khan - the owner of the Truck -HR -55/2782 as also the appellant insurance company with whom the aforesaid vehicle was insured have been held jointly and severally liable to pay compensation to the claimants respondents No.1 to 5 (hereinafter 'the claimants') in a sum of Rs.9,63,656/ - along -with interest 9% p.a from the date of presentation of the claim petition.

(2.) COUNSEL appearing for the appellant Insurance Company has confined his arguments to the quantum of the compensation granted by the Claims Tribunal. He has submitted that without any credible evidence the salary of the deceased - Bheem Singh Yadav was taken by the Claims Tribunal at Rs.5,000/ - p.m only on the basis of the statement of AW -1 - Smt. Kaushalya Devi (wife of the deceased) and AW -2 Ram Lal Yadav - owner of the truck insured with the insurance company. He has submitted that in -fact the evidence of AW2 - Ram Lal Yadav was garbled and incredible and the conclusions of the Claims Tribunal as to the wages of the deceased workman Bheem Singh Yadav based on his evidence are perverse in nature. It has been submitted that AW2 Ram Lal Yadav admitted in the cross -examination that he never personally made payment of Rs.5,000/ - p.m to the deceased Bheem Singh Yadav as wages. Counsel has submitted that without any other credible proof of income /wages of the deceased Bheem Singh Yadav as driver on the vehicle insured with the insurance company his wages ought to have been determined as minimum wages and compensation determined should have been based thereon. It has been further submitted that even otherwise the compensation as granted was extremely excessive in the context of the principle of law enunciated by the Hon'ble Apex Court that "just compensation" is to be determined interalia with reference to the interest in the first year on the compensation awarded being approximately equal to the yearly dependancy of the claimants. Counsel has submitted that with reference to the aforesaid principle, the compensation of Rs.9,63,656/ - along -with interest thereon in the context of the salary of the deceased Bheem Singh Yadav @ Rs.5,000/ - p.m and dependancy at Rs.4091/ - as found by the Claims Tribunal was wholly excessive.

(3.) I have heard the counsel for the appellant Insurance Company as also the counsel appearing for the respondents claimants. The factum of the employment of the deceased Bheem Singh Yadav with the owner of the truck insured with the insurance company is not in dispute. The age of the deceased Bheem Singh Yadav has been established from the evidence on record before the Claims Tribunal as 26 years at the time of his death. The only dispute raised by the appellant Insurance Company is with regard to the monthly salary of the deceased at the time of his death. In my considered opinion, in the context of the fact that there was unchallenged testimony of the wife of the deceased Bheem Singh Yadav as AW2 - Smt. Kaushalya Devi with regard to the salary of the deceased at Rs.5,000/ - p.m as also the statement to this effect, albeit garbled, by the owner of the insured vehicle as Ram Lal Yadav as AW2, there can be no occasion for debunking the entire evidence as to the salary /wages of the deceased Bheem Singh Yadav at the time of his death on the mere argument of doubt agitated by the counsel for the appellant and resorting to the minimum wages at the relevant time for determining compensation to which the claimants are entitled. It is universally acknowledged that the job of the driver of a heavy vehicle is a skilled job and it would be most unfair to evaluate the salary of such a driver with reference to the minimum wages prevailing at the relevant time. In my considered view, in the facts obtaining the Claims Tribunal has not committed any perversity in taking the wages of the deceased Bheem Singh Yadav @ Rs.5,000/ - p.m at the time of his death. Further taking into consideration the meager salary of the deceased and his obligation to sustain his young wife, minor son, his parents and grand - father, a small deduction of Rs.909/ - was made by the Tribunal and dependancy of the claimants fixed at Rs. 4091/ - p.m. Nothing perverse can thus be found with the determination of compensation by the Tribunal.