Point of Law : 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.

JUDGMENT :

Both these appeals are being decided by a common judgment, as these arise out of the same judgment and involve common question of facts and law.

2. Appellant in FAO No. 60 of 2017 (shall hereinafter be referred to as ‘insurer’), respondents No. 1 and 2 as ‘claimants’ and respondent No.3 as ‘insured’ for the sake of convenience.

3. The claimants filed petition under Section 166 of the Motor Vehicles Act, 1988 before the Motor Accident Claims Tribunal (for short ‘MACT’), Shimla vide case No.60- S/2 of 2014/12 inter alia claiming compensation to the tune of Rs.15,00,000/- alongwith interest at the rate of 18% per annum on account of death of their son Nikhil Singha (hereinafter referred to as ‘deceased’), who died in the motor vehicle accident involving Mahindra Pick-up No. HP-63B-0540 at 3.00 A.M. during intervening night of 4/5.1.2012 in between Bhatta-kuffar and Sanjauli tunnel. The deceased was 24 years of old and was an occupant of aforesaid vehicle at the time of accident. Vinay Awasthi was driving the vehicle at the time of accident and cause of accident was stated to be rash and negligent driving of Vinay Awasthi. It was alleged that the deceased was an employee of Vinay Awasthi, who was providing DJ services for consideration. The vehicle in question belonged to the insured and was under a contract of insurance with the insurer.

4. On 04.01.2012 the vehicle was hired by Vinay Awasthi and the deceased for carrying their DJ equipment from Bhatta-kuffar store to hotel Wild Flower Hall, Chharabra and also for carrying such articles back after the programme. The insured had employed one Yash Pal as a driver to drive the vehicle. On 04.01.2012 also Yash Pal was the driver of the vehicle, who drove the vehicle with equipment to hotel Wild Flower Hall, Chharabra. Driver Yash Pal handed over the keys of the vehicle to Vinay Awasthi and went to his home at Baldeiyan. After conclusion of programme, the DJ equipment was loaded on the vehicle by Vinay Awasthi and the deceased. Vinay Awasthi drove the vehicle to Bhatta-Kuffar, where the equipment was unloaded and kept in store. Thereafter, Vinay Awasthi and the deceased boarded the vehicle and started towards Sanjauli and met with an accident on the way. Both Vinay Awasthi and the deceased died on the spot.

5. FIR Ext. PW-1/A was lodged on 05.01.2012 at Police Station, Dhalli. During investigation, it was found that there was no article loaded in the vehicle at the time of accident.

6. The insured contested the petition. The factum of the vehicle hired by Vinay Awasthi on 04.01.2012 was admitted. It was also admitted that driver Yash Pal had handed over keys of the vehicle to Vinay Awasthi at hotel Wild Flower Hall, however, with the qualification that the keys were handed over only for the purpose of parking of the vehicle and loading it with DJ equipment. Authorization to drive the vehicle in favour of Vinay Awasthi was denied.

7. Insurer also contested the petition and denied its liability to indemnify the insured on the ground that the vehicle, at the time of accident, was being driven in violation of terms of insurance policy. It was alleged that the deceased as well as Vinay Awasthi were gratuitous passengers. At the time of accident, nothing was loaded in the vehicle. The vehicle could not be said to have been hired at the time of accident. In any case, the authorization of Vinay Awasthi to drive the vehicle was also challenged.

8. On the pleadings of the parties, learned MACT, Shimla, framed the following issues:

1. Whether deceased Nikhil died in motor accident on account of rash and negligent driving of driver of vehicle bearing No. HP-63B -0540, on dated 05.01.2012 at about 3 AM at place Bhattakufar bye pass road, Shimla, as alleged? ..OPP

2. If issue No. 1 is proved in affirmative, then what should be the quantum of compensation and from Whom?..OPP

3. Whether the pet