fi' ^ HON'BLE EV THE HIGH COURT OF CHHATTISHGARH AT BILASPUR IVI.A^o.- ^og fLjyo^ APPELLANT ~7~ ^i<'!<· ^••^x;-' ^ys^ .-••'"o^ ^l TAN ^•".i.X?l.y' ^•1< ^•".^•"~' .-•v ^ XHE ORIENTAL INSURANCE CO. LTD., REGISTERED & HEAD OFFICE- ASHIF ALIROAD, NEW DELHI, THROUGH DIVISIONAL MANAGER , DIVISIONAL OFFIGE , MALVIYA NAGAR DURG, TAH. & DISTT.- DURG (C.G.) AND DIVISIONAL MANAGER , DIVISIONAL OFFICE, ADARSH BAL MANDIR, MAIN ROAD, DHAMTARI, TAH. & DISTT.- DHAMTARI (C.G.) INSURANCE POLFCY N0.- 2006/8907, LIMITED DATED- 25-2-2006 TO 24-2-2007 (INSURER OF VEHICLE TRUCK N0.- C.G.-04 J/0212) Vrs. RESPONDENTS :-1. SMT. MEENA BAI THAKUR AGE ABOUT 46 YRS. ^ W/0 LATE MANJHI RAM THAKUR, CASTE- HALBA, 2. JANAKI THAKUR AGE ABOUT 25 YRS. D/0 LATE '•'!' MANJHI RAM THAKUR, CASTE- HALBA, RESPONDENT N0.- 1 & 2 RESIDENT OF VILLAGE KOTGAON, POST OFFICE- CHANDARBIRHI, THANA ARJUNDA , TAH. GUNDARDEHI, DISTT.- DURG(C.G.) 3. SHANKAR DHRUV AGE ABOUT 44 YRS. S/0 JETHURAM DHRUV, OCCUPATION - VEHICLE TRUCK N0.- C.G. 04/J/0212 OF DRIVER, RESIDENT OF SANDESH GANJ WARD, DHAMTARI, TAH.& DISTT.- DHAMTARI (C.G.), THROUGH MOHAMMAD AKRAM S/0 MOHAMMAD SAFI, R/0 NEAR OF BAFNA MARKET, SADAR BAZAR DHAMTARI, TAH. & DISTT.- DHAMTARI C.G. (VEHICLE TRUCK NO.-C.G. 04/J/0212 OF DRIVER) 4. MOHD. AKRAM AGE ABOUT 45 YRS. S/0 MOHHlMAD SAFI, OCCUPATION - VEHICLE TRUCK N0.- C.G. 04/J/0212 OF REGISTERED OWNER, R/0 NEAR OF BAFNA MARKET, SADAR BAZAR DHAMTARI, TAH. & DISTT.- DHAMTARI C.G. (VEHICLE TRUCK N0.- C.G. 04/J/0212 OF REGISTERED) ..2.. HI6H COURT OF CHHATTIS6ARH AT BILASPUR MVISION BENCH: HON'BLE MR. I.M.QU&DUSI & HON'BLE Mft.PRASHANT KUMAR MISHRA. JJ. Appellant Respondents M.A.td No.808/2007 The Oriental Insurance Compony Ltd. Vs Meena Bai & olhers Present: Mr. Sudhir Agarwal, Advocate for the dppellant. Mr. C.R. Sahu, Advocate for respondent No. 1 <& 2. Mr. Jitendra Supta, Advocate for respondent No.3 <& 4. ORDER fOnO (10th Decunber. 2010) I.M. Quddusi. J; 1. Heard. 2. The cppelkint-insurunce compony has filed this appeal challenging the award ckrted 11.4.2007 passed by the leamed 5 Additional Motor Accident Claims Tribunal, Durg (for short the tribunal') in Cfaim Case No.177/06 thereby awarding a compensation of Rs.6.38,500/- along with interest © 6% p.a. to the claimants. The tribunal has also directed that in case of default in making payment of amount awcirded within time, the claimants diall be entitled for interest @ 9% p.a. 3. Permission under Section 170 of -the Motor Vehicles Act, 1988 (for short the Act, 1988') to contest -the ctaim on all available defences was gronted to -the appeltant-insuronce company. 4. Brief facts of the case are that the ckiimants. who are unfor'fainate mother and sister of deceased Bhupesh Kumar Thakur, have fjteda claim oipplication under Section 166 of the Act, 1988 claiming compensation of Rs.6,59,000/- for the deorrii of said Bhupesh Kumar in the motor accident which took place on 13.9.2006 atabout 21.00 hrs when the motor cycle, in which the deceased w<is traveling as pillion rider, wus dadied by the truck bearing registration number C604-J-0212 on account of rash and ne9ligent driving of -the said truck by its driver. 'l ^i.. — 2 5. The cfaims tribunal, on -the pleadings of -Hie part-ies, has held that the accident took pldce diK to rash and negligent of the offending truck by jts driver and accordingly awarded a ajm of Rs.6,38,5(X)/- as compensation under various heads alongwith interest @ 6% p.a. The tribunal has further directed that in case the payment of onvard is not made within the stiputated period, ttie ckiimcnts shall be entitled for interest © 9% p.a. 6. Learned counsel for the appellont-insuronce company argued that in the facts and circumstances of the case the tribunal has erred in calculating •Hie loss of dependency by deducting 1/3 towards personal and living e?q)enditure of -the deceased. He further submitt'ed that the insurance policy was issued in regpect of a truck, whereas in the present case it has come in the statements of -the independent witnesses that the accident was caused by the Matador. He also submits -that in absence of any provision regarding penal interest in the Act, 1988, the tribunal has committed a mistake in directing -the cppellont that if -the amount awarded is not paid within time. mterest © 9% shall be payabte 7. We have heard leamed counsel for the part-ies dnd perused •the impugned award as also records of the tribunal below. 8. So far as the argument of learned counsel for the appellant regardin9 calculation of loss of dependency is concemed, the deceased was bachelor at the time of accident and therefore as per judgment of the Hon'ble Supreme Court- in -tiie maUer of Sc»4a Vei'wa (Smt.) and ortwrs -vs- Delhl Transpwt Carporation amd another reporl-ed v\ (2009) 6 SCC. the tribunat should have assessed the loss of dependency after deductinQ 50% towards personal ond livin9 expenditure. Therefore, if we deduct 50% from the monthly income of the deceased i.e. Rs.6,000/- p.m., the totnl loss of income would come to Rs.3,CKX)/- i.e. Rs.36,000/- per annum and after applying the multiptier of 13, Ihe total loss of dependency would come to Rs.4,68.000/- (36000x13). Besides this the chimoints are entitled to get Rs.5,000/- each towards loss of love & affection. They ore also entitled to get Rs.5,000/- for loss of estate ond^ Rs.5,000/- for funeral expenses. Thus, total compensation for which the ctaimonts would be entitled for is Rs.4,88,000/- (468000+ 10000+ 5000 + 5000). 9. So far os the argument of leamed counsel for the respondent that the policy was in respect of truck and not the Matador is concerned, from perusal of 1he claim petition it is evident that in the ctaim petition the offending vehicle has been mentioned as truck', but the same vws of Eicher company. It is true that the witnesses have stated that the truck doshed 1+ie motorcycle but Ihey are layman and they could be confused in respect of the model of the vehicle. Further, the insuronce company has not produced any photogroph of the vehicle in support' of -rtieir plea ond therefore, the finding of tribunal in this regard connot be disturbed. 10. So far as the orgument of learned counsel for the appeltant regarding penal interest © 9% is concemed, we feel that the same is not proper in view of 1he law laid dowi by -the Hon'ble Supreme Court in the matter of National Insurance Compony Ltd. Vs. Keshav Bahadur wid others reported in (2004) 2 SCC 370 wherein the Hon'ble Supreme Court- has held •riiat direction in the awwd for retrospective enhancement of interest for default in payment of the compensation together with interest payable -thereon virhjally amounts to imposition of penalty which is not statutorily envisaged and prescribed, the tribunal has erred in awarding penal interest. ll.In the result, the appeal is partly allowed, •the impugned award is modified to the extent that now •the claimants diall be entitled for compensation of Rs.4,88,000/- along with interest @ 6% p.a., as stated above. Further, penat interest imposed by the tribunal is hereby set aside. 12. The oppeal is allowed in part to the extent indicated above. No order as to cost. IS.&rtified copYasper rules. Sd/- I.M.Quddusl Judge Sd/- / Prashant Kumar Mishra / Judge