Full Text
HIGH COURT OF DELHI
Date of Decision: 04.08.2025
THE ORIENTAL INSURANCE CO LTD .....Appellant
Through: Mr. Ravi Sabharwal, Advocate
Through: Mr. S.N Parashar, Mr. Palvinder Singh and Mr. S.W Nomani, Advocates for
R-1 to 4 Mr. Yogesh Pachauri, Advocate for R-
6/Owner
JUDGMENT
1. This is an Application filed on behalf of the Appellant seeking condonation of delay of 23 days in filing the Appeal.
2. Learned Counsel appearing on behalf of the Respondents submits that they have no objection if the prayer made in the Application is allowed.
3. In view of the above, the delay is condoned. The Application is disposed of.
4. The present Appeal has been filed on behalf of the Appellant under Section 173 of the Motor Vehicle Act, 1988 impugning the award dated 05.08.2022 [hereinafter referred to as “Impugned Award”] passed by the learned MACT-02 (North), Rohini District Court, Delhi. By the Impugned Award compensation in the sum of Rs. 28,96,000/- has been awarded to the Respondent Nos. 1 to 4/Claimants along with interest at the rate of 9% per annum.
5. The challenge made in the present Appeal by the Appellant/Insurance Company is to the award, wherein the learned Tribunal has assessed the salary of the deceased as Rs. 18,500/- per month for the purpose of calculating compensation and has further held that the father of the deceased be treated as a dependent.
6. Learned Counsel appearing on behalf of the Respondent Nos. 1 to 4/Claimants, on the other hand, submits that there is no infirmity with the Impugned Award. He submits that the salary of the deceased was proved by the Respondent Nos. 1 to 4/Claimants by filing of the requisite documents. He further submits that the deceased was initially drawing a salary of Rs. 20,000/- per month and thereafter, the salary was reduced to Rs. 18,000/- per month. 6.[1] Learned Counsel appearing on behalf of the Respondent Nos. 1 to 4/claimants further submits that the deceased was getting a salary between Rs. 18,000 to Rs. 20,000/- per month and fluctuating on the basis of commission for sales made.
7. A perusal of the record reflects that the Respondent Nos. 1 to 4/Claimants had produced PW[3] Ashok Kumar, who was the real brother and employer of the deceased. He has submitted that he was doing a business of making jeans since 2016 and that the deceased was working with him for the last two and a half years as a Sales Manager. He further submitted that that the deceased was initially drawing a salary of Rs. 18,000/-, which was later increased to Rs. 20,000/- per month. In support thereof, PW[3] produced the attendance register [Ex. PW3/1 Colly.] for the period from 01.04.2017 to 01.06.2018 as well as the voucher book for the payment of salary in cash from 01.04.2017 to 01.03.2018 [Ex. PW3/2 Colly.]. The attendance record and the salary record was exhibited as Ex. PW3/R3X and PW3/R3Y. 7.[1] The learned Trial Court examined the aforesaid documents as well as the judgment of the Supreme Court in Mohammed Sidiqque v. National Insurance Co. Ltd. & Ors[1]. to give a finding that merely because the vouchers were not for a fixed salary does not mean that the deceased was not receiving these amounts. Paragraph 19 to 22 of the Impugned Award in this behalf is set out below:
19. In order to prove the employment and income of deceased, petitioners have examined PW[3] Sh. Ashok Kumar who has deposed in his evidence that he was doing the business of making jeans since 2016. He deposed that Sh. Rajesh Kumar, S/o Sh. Om Dutt Sharma was his real brother. He further deposed that deceased was working with him since last about 2 and 2 ½ years. He produced the attendance register from his office containing the attendance of deceased Rajesh Sharma w.e.f. 01.04.17 to 01.06.18 and exhibited the same as Ex. PW3/1(colly). He also produced the voucher book for the payment of salary given in cash w.e.f. 01.04.17 till 01.03.18 regarding the payment of salary to deceased Rajesh Sharma and exhibited the same as Ex. PW3/2(colly). He further deposed that deceased Sh. Rajesh Sharma was drawing salary of Rs. 20,000/- per month. He further deposed that initially, he had made the payment of Rs. 18,000/- as salary to the deceased. He further deposed that his brother Rajesh was 10th fail. He further deposed that he did not have any document in respect of educational qualification of his deceased brother Rajesh. He further deposed that his deceased brother Rajesh was working as Sales Manager. He produced the attendance record and salary record of staff maintained in his firm and exhibited the same as Ex. PW3/R3X & PW3/R3Y. He further deposed that his firm did not maintain any bank account. He again said that his firm maintained the bank account. He deposed that no salary was ever paid from the bank account of firm. He denied the suggestion that attendance record and salary record produced by him were forged and fabricated. He further denied the suggestion that deceased Rajesh was neither working with him nor salary was being paid to him. He also produced the statement of bank account of S.N.S. Enterprises alongwith computation of income of aforesaid firm for the Assessment Year 2018-19 and exhibited the same as Ex. PW3/R3Z. He further deposed that the documents produced by him did not mention the name of the employees of aforesaid firm and their salaries. He also deposed that he had not brought the computation of income for the Assessment Year 2019-20.
20. After referring to the testimony of PW[3] and the documents filed alongwith the DAR, Ld. Counsel for petitioners vehemently argued that last drawn monthly salary of deceased should be taken as Rs. 20,000/- in Order to calculate the loss of dependency. He further argued that since deceased was not having permanent job and he was aged about 48 years at the time of accident, future prospects @ 25% should also be awarded in favour of the petitioners.
21. On the other hand, Ld. Counsel for the insurance company argued that there is no concrete evidence led by petitioners to establish monthly income of deceased. Thus, loss of dependency should be calculated on the basis of notional income as per Minimum Wages Act applicable during the relevant period.
22. As per the documents produced by PW[3], Sh. Rajesh was working with S.N.S. Enterprises and was getting salary on commission basis. Bare perusal of vouchers produced by PW[3] reveals that deceased was not getting fixed salary in the preeceding months of accident. Like in the month of January, 2018, he received the salary of Rs. 18,700/-, Rs. 18,571/- in the month of February, 2018 and Rs. 18,064/- in the month of March, 2018. In view of the documents produced by PW[3], I deem it fit to accept the monthly salary of deceased as Rs. 18,500/per month on average basis. I am fortified in my view with the decision of Hon'ble Supreme Court passed in case titled “Mohammed Siddique & Anr. Vs. National Insurance Co. Ltd. & Ors.”, Civil Appeal No. 79 of 2020, decided on 08.01.2020. The relevant paragraphs from S.No. 16 to 18 of the aforesaid decision are reproduced as under: xxxxx xxxxx xxxxx xxxxx “16. But unfortunately the High Court thought that the employer should have produced salary vouchers and other records including income tax returns, to substantiate the nature of the employment and the monthly income. On the ground that in the absence of other records, the salary certificate and the oral testimony of the employer could not be accepted, the High Court proceeded to take the minimum wages paid for the unskilled workers at the relevant point of time as the benchmark.
17. But we do not think that the approach adopted by the High court could be approved. To a specific question in cross−examination, calling upon PW−2 to produce the salary vouchers, he seems to have replied that his business establishment had been wound up and that the records are not available. This cannot be a ground for the High Court to hold that the testimony of PW−2 is unacceptable.
18. The High Court ought to have appreciated that the Court of first instance was in a better position to appreciate the oral testimony. So long as the oral testimony of PW−2 remained unshaken and hence believed by the Court of first instance, the High Court ought not to have rejected his evidence. After all, there was no allegation that PW−2 was set up for the purposes of this case. There were also no contradictions in his testimony. As against the testimony of an employer supported by a certificate issued by him, the High Court ought not to have chosen a theoretical presumption relating to the minimum wages fixed for unskilled employment. Therefore, the interference made by the High Court with the findings of the Tribunal with regard to the monthly income of the deceased, was uncalled for. xxx xxx xxx xxx” [Emphasis supplied]
8. This Court has examined the documents referred to above as well as the statement of PW-3, Sh. Ashok Kumar which is annexed with the Trial Court record. PW[3] states that the deceased was working with him for about two and half years. It is further stated that the deceased a salary given in cash and that the salary and the vouchers for the same have been brought on record. The relevant extract of the statement is set out below: “……I am a summoned witness. I am the proprietor of S.N.S. Enterprises having office at F-296, Aman Vihar, Kirari Suleman Nagar, Delhi. I am doing the business of making jeans since 2016. however, I do not remember the exact date of start of the business. It may be in the year October, November of 2016. Sh. Rajesh Kumar, S/o Sh. Om Dutt Sharma (deceased in the present case) was my real brother. The deceased was working with me since last about 2 and 2 ½ years. Again said he was working with me since beginning. I am illiterate person, therefore, I can not tell any date since when deceased was working with me. I have brought the attendance register from my office containing the attendance of deceased Rajesh Sharma w.e.f. 01.04.17 to 01.06.18. Copy of the same is now exhibited as Ex. PW3/1 (Colly). I have also brought the voucher book for the payment of salary given in cash w.e.f. 01.04.17 till 01.03.18 regarding the payment of salary given to deceased Rajesh Sharma. Copy of the same is now exhibited as Ex. PW3/2(Colly). The deceased Rajesh Sharma was drawing salary of Rs. 20,000/- per month. Initially I have made the payment of Rs. 18,000/- as salary to the to deceased…” [Emphasis Supplied]
9. Learned Counsel appearing on behalf of the Appellant, other than contending that the salary vouchers could have been manipulated, has not been able to show any ground for interference with the Impugned Award on the aspect of grant of salary. Thus, in view of the aforegoing, the challenge to the Impugned Award on the ground of grant of salary is found to be without merit.
10. On the second ground of the father of the deceased, being treated as a Dependent, the learned Counsel appearing on behalf of the Appellant/Insurance Company submits that the father of the deceased, cannot be said to be dependent on the deceased.
11. Learned Counsel appearing on behalf of the Respondent Nos. 1 to 4/Claimant submits that the father of the deceased was over 70 years of age and was financially dependent on the deceased for his survival. It is further submitted that no ground of challenge regarding the dependency of the father deceased was raised by the Appellant before the learned Trial Court.
12. The record reflects that the Claim Petition was filed seeking a compensation for the wife, daughter, son and the father of the deceased. The mother of the deceased had pre-deceased him. The statement of PW[1], the widow of the deceased states that at the time of the accident, the following were the legal heirs of the deceased - widowed wife, daughter, son and his father at the time of the accident, all of whom were completely dependent on the earnings of the deceased. The relevant extract of the statement of PW[1] is set out below: “1. That the deceased Rajesh @ Rajesh Sharma was my husband. He was aged about 48 years at the time of accident. He met with an accident on 23.06.2018 with canter bearing no. DL-1M-9547 and died due to the injuries received in the accident. My husband has left behind the following legal heirs: i. Maya -Wife-myself ii. Arti -Daughter iii. Nitin -Son-Minor iv. Om Dutt -Father
2. That my mother-in-law have since died. At the time of accident my husband was doing private service in S.N.S Enterprise situated at A-235, Inder Enclave, Phase-II, Near Aggarwal Dharamshala, Delhi-110086 and was earning Rs. 20,000/- per month. We were completely dependant upon his earnings. He was contributing his entire income for household expenses. My husband was having very good health at the time of accident…”
13. A perusal of the Written Statement as filed by the Appellant/Insurance Company shows that no challenge was raised with respect to the dependency of the Claimants has been made by the Appellant/Insurance Company in its written statement filed before the learned Trial Court. The only ground of challenge was on the grant of recovery rights against the owner of the vehicle. Thus, both grounds of challenges taken by the Appellant were not taken before the learned Tribunal. The relevant extract of the Written Statement of the Appellant/Insurance Company filed before the learned Trial Court is set out below: “1. It is respectfully submitted that the answering respondent is not liable to indemnify the alleged owner of the offending vehicle, until & unless it is strictly proved that the said person was a registered owner of the vehicle in question on the date of the alleged accident and that the person who was actually driving the offending vehicle at the time of accident was holding valid driving license on the relevant date, and was not otherwise disqualified to hold a license under the Motor vehicle Act, 1988.
2. That without prejudice to the preliminary objections to the maintainability of the petition as against answering respondents, the liability of the answering respondent, if any, is also subject to various terms & conditions of the policy and as per the provisions contained in section 149 of Motor vehicle Act, 1988 and in case the owner of the vehicle is found to have committed breach of such terms and conditions, the answering respondent shall Reserve its rights for recovery of the amount from the owner of the vehicle which the answering respondent may have to pay to the claimants by virtue of the interim or final award under the Act.
3. That the petitioner has made owner and the driver of the offending vehicle as parties to the present proceedings. It is respectfully submitted that if at any stage during the proceedings it is observed that both or either of them fails to contest the claim then in that case in terms of the provisions contained in section 170 of the Motor Vehicle Act, the answering respondent in their capacity as insurer be allowed to take defenses of these persons and against whom the claim has been made.
4. That the answering respondent also craves leave of this Hon’ble Court to amend its Written Statement and to file a Supplementary Written Statement as and when new facts are brought to the notice of the answering respondent or are otherwise discovered on investigation by the answering respondent.……” 13.[1] The Written Statement shows that thew only ground taken before the learned Trial Court is on the validity of the driving license.
14. Since the Claim Petition and the statement of PW-I was that the father was completely dependent on the deceased and given his advanced age, there is no reason to doubt the claim. In any event, none has been shown to the Court by the Appellant.
15. Concededly, on the aspect of the quantum, no evidence/documents have been placed on record to interfere with the Impugned Award. Thus, the challenge on the award of quantum of compensation cannot be sustained.
16. In view of the aforegoing, the Appeal is dismissed. Pending Application stands also stands closed.
17. Let the balance awarded amount inclusive of up to date interest, be released in favour of the Respondent Nos. 1 to 4/Claimants. The Registry is directed to release the statutory amount, as deposited, to the Appellant/Insurance Company.