Punjab-Haryana High Court
The Commandant Tpt Bn, Itbp, Po … vs Smt. Raj Bala Saini & Ors on 7 April, 2021FAO-7804-2016 (O&M) -1-
FAO-6612-2016
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
1. FAO-7804-2016 (O&M)
The Commandant TPT BN, ITBP PO, Airport, Chandigarh
….Appellant
Vs.
Raj Bala Saini and others
…Respondents
2. FAO-6612-2016
Raj Bala Saini and others
….Appellant
Vs.
Balwinder Singh and another
…Respondents
Date of decision: – 07.04.2021
CORAM : HON’BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present:- Mr. Arun Gosain, Advocate
for the appellant in FAO-7804-2016 and
for respondent No.2 in FAO-6612-2016.
Mr. Ashwani Arora, Advocate
for the appellants in FAO-6612-2016 and
for respondents No.1 and 2 in FAO-7804-2016.
( Through Video Conferencing )
***
HARSIMRAN SINGH SETHI, J. (ORAL)
By this order, two appeals, details of which have been given
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in the heading, are being decided as both the appeals arise out of the same
award dated 08.07.2016, passed by the Motor Accidents Claims Tribunal,
Chandigarh (hereinafter referred as ‘the Tribunal’).
Appeal bearing FAO-7804-2016 has been filed challenging
the above-said award on the ground that the truck, which has been stated
to be involved in the accident, was not actually involved in the accident
and the award passed by the Tribunal is contrary to the facts on record
and hence the same is liable to be set aside. In the alternative, an
argument has been raised by the learned counsel for the appellant therein
that the grant of 50% of the amount under the heading of the future
prospects to the claimants is contrary to the settled principle of law as the
same cannot be more than 40%, the award dated 08.07.2016 passed by
the Tribunal needs to be modified.
The appeal bearing FAO-6612-2016 has been filed by the
appellants-claimants for the enhancement of the award on the ground that
monthly income fixed @ Rs.7,000/- per month by treating the deceased
as unskilled worker is on lower side whereas deceased had skilled
qualifications to her credit at the time of her death.
I have heard learned counsel for the parties and have gone
through the record with their able assistance.
Learned counsel for the appellant in FAO-7804-2016
submits that keeping in view the judgment dated 05.12.2018 (Annexure
A-1), passed by the learned Judicial Magistrate 1st Class, Chandigarh in
respect of FIR No.356 dated 08.09.2015, which was registered in
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pursuance to the accident which allegedly took place on 07.09.2015, it
cannot be said that the truck No.CH01G12155 was involved in the
accident. The prayer of the appellant is for setting aside the impugned
award as the same is contrary to the facts which have come before the
Court while dealing with FIR No.356 dated 08.09.2015.
A bare perusal of the judgment dated 05.12.2018 (Annexure
A-1) passed by the learned Judicial Magistrate 1st Class, Chandigarh in
respect of FIR No.356 dated 08.09.2015, shows that the finding that the
truck bearing No.CH01G12155 was not involved in the accident is
nowhere recorded. It only deals with the fact whether, the driver of the
truck, namely, Balwinder Singh was at fault being negligent in respect of
the accident, which occurred on 07.09.2015, wherein, one Urvashi Saini
unfortunately lost her life and other two girls, namely, Simranjeet Kaur
and Harpreet Kaur received injuries. Further, negligence has not been
proved against the driver by giving him benefit of doubt. Perusal of the
judgment of the Judicial Magistrate 1st Class dated 05.12.2018 proves that
there was an accident involving the truck bearing No.CH01G12155. That
being so, the argument which is being raised by learned counsel for the
appellant in FAO-7804-2016 is not corroborated by the judgment and
hence, cannot be accepted.
Further, the standard of proof required for establishing the
negligence in the criminal case has to be beyond reasonable doubt
whereas, in the cases relating to the claim of compensation in respect of
an accident, the proof/evidence required is to the extent of
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preponderance. Hon’ble Supreme Court of India in Anita Sharma and
others Vs. The New India Assurance Co. Ltd. And another, held as
under :-
“22. Equally, we are concerned over the failure of the
High Court to be cognizant of the fact that strict principles
of evidence and standards of proof like in a criminal trial
are inapplicable in MACT claim cases. The standard of
proof in such like matters is one of preponderance of
probabilities, rather than beyond reasonable doubt. One
needs to be mindful that the approach and role of Courts
while examining evidence in accident claim cases ought not
to be to find fault with non-examination of some best eye-
witnesses, as may happen in a criminal trial; but, instead
should be only to analyze the material placed on record by
the parties to ascertain whether the claimant’s version is
more likely than not true. A somewhat similar situation
arose in Dulcina Fernandes v. Joaquim Xavier
Cruz4 wherein this Court reiterated that:
“7. It would hardly need a mention that the plea of
negligence on the part of the first respondent who was
driving the pickup van as set up by the claimants was
required to be decided by the learned Tribunal on the
touchstone of preponderance of probabilities and
certainly not on the basis of proof beyond reasonable
doubt. (Bimla Devi v. Himachal RTC [(2009) 13 SCC
530 : (2009) 5 SCC (Civ) 189 : (2010) 1 SCC (Cri)
1101] )”
(emphasis supplied)”
Further, learned counsel for the appellant in FAO-7804-2016
has not been able to point out from the evidence on record that any
finding recorded by the Tribunal qua the negligence of the driver, is not
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supported by the evidence on record. Therefore, no benefit of the order
passed by the Judicial Magistrate Ist Class dated 05.12.2018 in respect of
FIR No. 356 dated 08.09.2015 can be granted to the appellants so as to
hold that no accident occurred involving the Truck bearing No.
CH01G12155 or that the driver of the truck was not negligent so as to
deny the benefit of compensation to the claimants.
Learned counsel for the appellant in FAO-7804-2016 further
submits that the award passed by the Tribunal dated 08.07.2016 needs to
be modified as while computing the compensation, 50% of the income
has been taken into account to grant the claimants compensation on
account of loss of future income instead of 40% by relying upon a
judgment in ‘Santosh Devi Vs. National Insurance Company, 2012
STPL (Web) SC 248. Learned counsel appearing on behalf of the
appellant in FAO-7804-2016 submits that as per the settled principle of
law settled by the Hon’ble Supreme Court of India in ‘National
Insurance Company Limited Vs. Pranay Sethi and others’, 2017(4)
PLR 693, the compensation on account of future prospects cannot be
more than 40% of the income assessed. Further, relying upon Pranay
Sethi’s case (supra), learned counsel submits that the funeral expenses,
which have been awarded as Rs. 25,000/-, cannot be more than Rs.
15,000/- and Rs. 25,000/- awarded on account of loss to estate, cannot be
more than Rs. 15,000/-.
Learned counsel appearing on behalf of the respondents-
claimants very fairly concedes that the Award of the Tribunal needs to be
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modified in respect of calculating the future prospects at 50% of the
income assessed as the claimants are only entitled for 40% of the income
assessed as future prospects so as to compute compensation. Learned
counsel for the respondents-claimants also concedes that the funeral
expenses as well as loss to Estate for which Rs. 25,000/- each has been
given to the claimants, be modified to Rs. 15,000/- each and he has no
objection in case, the Award of the Tribunal is modified to the said
extent.
Learned counsel appearing on behalf of the
claimants/appellants in FAO-6612-2016 contends that in the impugned
award dated 08.07.2016, the income of deceased has been assessed at
Rs.7,000/- per month, which is not correct keeping in view the facts and
circumstances of this case. Learned counsel for the appellants-claimants
argues that it has already come on record that though the deceased was
undergoing the graduation course but she had already obtained certificate
in Bakery course, which is a skilled qualification and therefore, monthly
income of the deceased should have been equal to a skilled worker.
Learned counsel for the appellants-claimants further submits that as per
the notification issued by the Chandigarh Administration at the relevant
time, the minimum income of a skilled worker is Rs.8,500/- per month
and therefore, assessing the income for computation of the compensation
@ Rs.7,000/- per month, by the Tribunal, was incorrect. Learned counsel
for the claimants/appellants in FAO-6612-2016 submits that as per the
law laid down by the Hon’ble Supreme Court of India in Pranay Sethi’s
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case (supra), the claimants are entitled for consortium @ Rs. 80,000/-,
which has not been granted by the Tribunal while assessing the
compensation in the Award given.
Learned counsel for respondent No. 2 in FAO-6612-2016
does not dispute the fact that the deceased had undergone the Bakery
course, which is a skilled qualification, certificate of which has already
been produced on record as Ex.P-4. Learned counsel for respondent No. 2
in FAO-6612-2016 only submits that the Tribunal in its wisdom has
rightly assessed the income hence, same needs no modification. Learned
counsel for respondent No. 2 in FAO-6612-2016 is not able to dispute
that as per the settled principle of law settled by the Hon’ble Supreme
Court of India in Pranay Sethi’s case (supra), the claimants are entitled
for consortium @ Rs. 80,000/-.
The claim of the appellants/claimants for enhancement of
compensation is well founded. Once, the deceased had a qualification,
which is a skilled qualification, the same could not be ignored by the
Tribunal so as to treat the deceased as an unskilled worker so as to
compute the income. Nothing has come on record as to why the skilled
qualification of the deceased in respect of a Bakery Course has been
ignored to assess the monthly income. The qualification of the Bakery
Course is good enough to treat the deceased as a skilled worker. Though,
for improving the qualification, the deceased was undergoing Graduation
Course, but merely the said fact is not good enough to ignore the skilled
qualification, which the deceased already possessed at the time of her
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death. In the facts and circumstances of the present case, the deceased
has to be treated as a skilled worker so as to compute her monthly income
and the Award needs to be modified to the said extent and is accordingly
done.
Further, learned counsel for respondent No. 2 in FAO-6612-
2016 has not been able to rebut the fact that as per settled principle of law
in Pranay Sethi’s case (supra), consortium of Rs. 80,000/- is also to be
awarded to the claimants, which has not been computed by the Tribunal
while assessing the compensation. Keeping in view the facts as recorded
hereinbefore, the compensation for which the claimants are entitled as per
the settled principle of law in Pranay Sethi’s case (supra) is as under :-
CALCULATION OF PROPOSED ENHANCED COMPENSATION
By the Tribunal Modified by this Court
Monthly income Rs. 7,000/- Rs. 8,500/- Addition of future 50% of Rs. 7000 = 40% of Rs. 8500 = Rs. 3400
prospect Rs. 3500
Total monthly income Rs. 7000 + Rs. 3500/- = Rs. 8500 + Rs. 3400/- =
after adding Future Rs. 10500/- Rs. 11,900/-
Prospect
Annual income 10500 X 12 = 126000/- 11900 X 12 = 142800/-
Deduction towards 50% of 126000/- = 50% of 142800/- = Rs. 71400/-
Personal expenditure Rs. 63000/-
(50%)
Multiplier applied (18) 63000 X 18 = 11,34,000/- 71400 X 18 = 12,85,200/-
Funeral expenses 25,000/- 15,000/-
Consortium — 80,000/-
Loss to Estate 25,000/- 15,000/-
Total 1134000+25000+25000 = 1285200+15000+80000+15000 =
Rs. 1184000/- Rs. 1395200/-
Less already awarded —- Rs. 1184000/-
by Tribunal
Enhanced —- Rs. 2,11,200/-
compensation
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The Award of the Tribunal is modified as per chart depicted
hereinbefore.
As per the above calculations, the claimants are entitled for the
compensation of Rs.13,95,200/- instead of Rs.11,84,000/- and award
dated 08.07.2016 passed by the Tribunal is accordingly modified and the
rest of the award dealing with the grant of interest remains same.
Compensation as assessed, be paid to the claimants within a period of two
months from the receipt of copy of this order.
In the facts and circumstances of these cases, both the
appeals are being disposed of in above terms.
April 07, 2021 ( HARSIMRAN SINGH SETHI )
naresh.k/kanchan JUDGE
Whether reasoned/speaking? Yes/No
Whether reportable? Yes/No
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