3^^ "' ^~^ "%, r #., .__, S! 'SB^^t! g '%Si3*si T^ r- i— ^?^•^-^. HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Misc. Appeal (C) No. 1234 of2009 Appellants Respondents Smt. Sushma w/o Chintamani Bhosle, aged about 45 years, Chintamani Rao Bhosle aged about 51 years, s/o late Narayan Rao Bhosle Both are resident of Marathapara Dhamtari Tahsil & District Dhamtari C.G. VERSUS Harish Kumar Sahu, s/o Panna Lal Sahu r/o vil'age Loharsi Police Station Arjuni, tahsil & distt. Dhamtari C.G. Bhagirathi Sahu s/o Narottam Sahu, age about 39 years, r/o village Mujgahan Tahsil & district Dhamtari C.G. The Branch Manager, the Oriental Insurance company Ltd., Bilaspur district Bilaspur C.G. h/lemo of appeal under Section 173 of hflotor Vehicle Act ^.X. Present: Shri Vivek Rathore, counsel for the appellants. Shri AdityaKumar, counsel for respondents No.1 and2. Shri A.K. Athaley, counsel for respondentNo.3. ^ .A.C.No. 1234 of 2009 ORDER •th "f^- (05'"September,2Q11) The following order of the Court was passed by Rajeev Gupta, C.J. The unfortunate parents of deceased Ku. Ruchita Bhosle are the appellants before us in this appeal for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Dhamtari, (for short 'the Tribunal') vide award dated 09.03.2009, passed in Claim Case No.101/2006. 2) As against the compensation of Rs.24,25,0007- claimed by the appellants/ claimants, unfortunate parents of deceased Ku. Ruchita Bhosle, by filing a claim petition under Section 166 of the Motor Vehicles Act, for her death in the motor accident on 23.05.2006, the Tribunal awarded a total sum of Rs.52,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal on a close scrutiny of the entire evidence led before it held that claimants' daughter Ku. Ruchita Bhosle died on account of the injuries sustained by her in the motor accident on 23.05.2006; the deceased herself who was driving her Scooty at the time of the accident and the driver of the other vehicle Tractpr bearing registration No.CG-05/0702 equally cohtributed to the accident to the extent of 50% each; as the above Tractor on the date of the accident was insured with the Oriental Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance <-'J'L. MAC.No. 1234 of 2009 f-.i=. Company was liable to pay 50% of the compensation assessed to the claimants. 4) The Tribunal assessed the income of the deceased at Rs.15,000/-per annum on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act. By deducting 2/3 of the income of the deceased towards her personal expenses, the claimants' dependency was assessed at Rs.5,000/- per annum. By multiplying the annual dependency of Rs.5,000/- with the multiplier of 10, the compensation was worked out to Rs.50,000/-. By awarding further sum of Rs.20,000/- under other heads, the Tribunal assessed the total compensation payable to the claimants at Rs.70,000/-. As the insurer of the Tractor was held liable to pay 50% of the compensation assessed to the claimants, the Tribunal though assessed the compensation payable to the claimants at Rs.35,000/- i.e. 50% of Rs.70,000/-, but considering that under 'no fault liability' under Section 140 of the Motor Vehicles Act, a minimum sum of Rs.50,000/- is payable as compensation to the claimants, the Tribunal directed the insurer of the Tractor to pay Rs.52,000/- as compensation to the claimants including Rs.2,000/- towards funerat expenses forihe death of their daughter Ku. Ruchita Bhosle in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.52,000/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment. w •^-K-^S^VWV @ •^sg /r"^ \ i| ^SES-i;s"-a J? v ^?^'' '""'^sg:^®^' MAC.No. 1234 of 2009 5) Shri Vivek Rathore, learned counsel for the appellants submitted that the Tribunal has erred in holding that deceased Ku. Ruchita Bhosle also equally contributed to the accident to the extent of 50%; in not accepting the claimants' evidence about the income of the deceased and in assessing her income at Rs.15,000/- per annum only; in deducting 2/3 ofthe income of the deceased towards her personal expenses; in selecting the lower multiplier of 10; and in awarding low compensation of Rs.52,000/- only. 6) Shri A.K. Athaley, tearned counsel for respondent No.3, the Oriental Insurance Company Limited, the insurer of the Tractor, on the other hand, suppori:ed the award and contended that the Tribunal has rightly held that deceased Ku. Ruchita Bhosle also contributed to the accident to the extent of 50%; and the compensation of Rs.52,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 7). Shri Aditya Kumar, learned counsel for respondents No.1 and 2 also supported the award. 8) So far as the finding recorded by the Tribunal holding deceased Ku. Ruchita Bhosle also responsible for the accident to the extent of 50% is concerned, it is apparent from the site-plan/ spot-map prepared by the Police in the criminal case.filed by the claimants themselves before the Tribunal that the deceased was coming from a lane and joining the Raipur-Jagdalpur Highway. Even according to the claimants, the Tractor dashed the Scooty ''SK^SEe-swewsswewglSgi^^^ii^S^^^s^ AC.No. 1234 of 2009 f-t of the deceased from back side. Since the deceased was coming from a lane and was joining the Highway, it was her duty under the Motor Vehicle Rules to see the traffic coming from both the sides on the joining point and only then proceed further. If the deceased would have taken due care and caution and would have joined the Highway only after passing of the Tractor, she could have very well avoided the accident. As the deceased apparently did not act in the above manner and the unfortunate accident occurred resulting in her death, we do not find any infirmity in the above finding recorded by the Tribunal holding it to be a case of contributory negligence wherein the deceased herself also contributed to the accident to the extent of 50%. 9) Now we shall examine as to whether the compensation assessed and awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 10) True, the claimants pleaded that their daughter deceased Ku. Ruchita Bhosle, aged about 22 years, used to earn Rs.9,000/- per month, no cogent and reliable evidence was led b'efore the Tribunal for establishing the income of the deceased to the extent of Rs.9,000/- per month. The Tribunal, therefore, appears to have assessed the income of the deceased Rs.15,000/- per annum on the basis of the'notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehides Act. 11) Section 163-A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows : M.A.C.No. 1234 of 2009 "[163A. Special provisions as to payment of compensation on structured formula basis.—(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub- section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule." ^ 12) The above quoted Sub- section (3) of Section 163-A of the Act mandated the Central Government to amend ffie Second Schedule from time to time keeping in view the cost of living. 13) As the Central Government has failed in amending the Second Schedule as provided in Sub-section (3) ofSection 163-A of the Act, the Courts/ Tribunal can take judicial notice of increase in theprices of essential commodities and the cost of living during s—mni^Bncuaias.lEiaaa.uu.sB.MEa-'SBU;! .A.C.No. 1234 of 2009 pc the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case. 14) Now reverting to the present case, the unfortunate accident wherein the claimants' daughter Ku. Ruchita Bhosle lost her life took place in the year 2006. If the increase in the prices of the essential 'commodities and the cost of living between the year 1994 and the year 2006 are taken into consideration, the notional income of Rs.15,000/- prescribed in the Second Schedule in the year 1994 would certainly come to Rs.36,000/- in the year 2006. We, therefore, propose to recompute the compensation taking the income ofthe deceasedat Rs.36,000/- per annum. 15) Considering that deceased Ku. Ruchita Bhosle on the date of the accident was unmarried and the claimants are her parents, we are of the opinion that deduction of 50% of Rs.36,000/- towards the personal expenses of the deceased would be appropriate in view of the dicta of the Apex Court in the cases of Syed Basheer Ahamed and others Versus hflohammed Jameel and another reported in (2009) 2 Supreme Court Cases 225 and Sarla Verma (Smt) and Others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121. We, therefore, assess the claimants' dependency at Rs.18,000/- per annum by deduoting 50% of Rs.36,000/- towards the personal expenses ofthe deceased. 16) The muitiplier of 10 selected by the Tribunal cannot be found fault with considering that the claimants are parents of the deceased and in view of the dictum of the Apex Court in the case •a>,1 1 fe"fe>.-Sa || 1'^Il^ %^.. 'vy sSf MAC.No. 1234 of 2009 ^?. of Municipal Corporation of Greater Bombay Vs. Laxman lyer and another, reported in (2003) 8 SCC-731, wherein it was held that in those cases where the claimants are parents of the deceased, the multiplier should never exceed 10. 17) By multiplying the annual dependency of Rs.18,000/- with the multiplier of 10, the compensation works out to Rs.1,80,000/-. The claimants are further awarded Rs.5,000/- towards funeral expenses and Rs.5,000/- for loss of estate. The total compensation, thus, works out to Rs.1,90,000/-. As the driver of the Tractor was responsible for the accident to the extent of 50%, the liability of the insurer of the Tractor is to the extent of 50% of Rs.1,90,000/- i.e. Rs.95,000/-. 18) The claimants are further awarded Rs.5,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.43,000/-. 19) For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in pari:. While maintaining the finding about the contributory negligence, the compensation of Rs.52,000/- awarded by the Tribunal is enhanced to Rs.95,000/- with further quantified amount of interest of Rs.5,000/- on the enhan.ced amount of compensation of Rs.43,000/-. 20) Respondent No.3 the Oriental Insurance Company Limited is granted three months' time for depositing the total sum of Rs..48,000/- (Rs.43,000/- towards enhanced amount of compensation + Rs.5,000/- towards quantified amount of interest ||it;-l?>aT;':^t^.:.". :^^^^Sl^^.lB^~«^<A*UU-4ui.,^H., MAC.No. 1234 of 2009 ^^ on the enhanced amount of compensation of Rs.43,000/-) before the concerning Claims Tribunal. 21) No order as to costs. Sd/- Chief Jiistiee Sd/- Rangnath Chandrakar Judge subbu ^-