HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON’BLE SHRI RAJEEV GUPTA, C.J. & HON’BLE SHRI N.K. AGARWAL, J. Misc. Appeal No. 326 of 2002 Appellants 1. Smt. Dashoda Bai, aged about 25 Claimants years, wd/o Durga Nishad, occupation House wife. Ku. Sadhana, aged about 1 year, d/o late Durga Nishad. {N 3. Smt. Gauri Nishad, aged about 48 years, w/o Ratiram Nishad, 4. Ratiram Nishad, aged about 5O years, s/o Paharuram Nishad, Appellant No.2vthough legal guardian mother Dashoda Bai, appellant No.1. All are resident of village Bagdipara, Arang, tahsil and Arang, distt. Raipur C.G. VERSUS Respondents 1. Jay Narayan Singh Thakur, aged Non-applicants about 42 years, s/o Rajjusingh Thakur, rlo Chhattisgarh Road Carrier, Station Road, Raipur, tah. & distt. Raipur C.G. 2. Amarpal Singh s/o late - Sardar Kudrat Singh, Chhattisgarh Road Carriers, Station Road, Raipur, Tah. & distt. Raipur. 3. The United lndia insurance Co. Ltd., Branch Office Rajnandgaon, through Divisional Manager, Divisional Office, Kachhari Chauk, Jail Road, Raipur C.G. “w 2 M.A. No. 326 of 2002 Appeal under Section 173 of the Motor Vehicles Act Present : Shri A.L. Singraul, counsel for the appellants. Shri H.B. Agrawal, Senior Counsel with Smt. Meera Jaiswal, counsel for respondent No.3. ORDER (16th September, 2011) The following order of the Court was passed by Rajeev Gupta, C.J. This is claimants’ appeal for enhancement of the compensation awarded by the Additional Motor Accident Claims Tribunal, Raipur (for short ‘the Tribunal’) vide award dated 21.01.2002, passed in Claim Case No.37/2000. 2) As against the compensation of Rs.35,00,000/— claimed by the appeliantsl claimants, unfortunate widow, minor daughter and parents of deceased Durga Nishad, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 07.10.2000, the Tribunal assessed the total compensation payable to the claimants at Rs.1,67,000/— and by deducting 20% of the above amount on account of the ‘Contributory Negligence’ of the deceased to the extent of 20%, the Tribunal awarded a total sum of Rs.1 ,33,600/— as compensation for the death of deceased Durga Nishad in the motor accident along with interest @ 9% 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 deCeased Durga Nishad died on account of the injuries sustained by him in the motor accident on 07.10.2000; the x 77g s 3 “M M.A. No. 326 of 2002 / deceased himself who was driving the scooter at the time of the accident and the driver of the other vehicle Truck bearing registration No. M.O.T.-9728 contributed to the accident to the extent of 20% and 80% respectively; as the above Truck on the date of the accident was insured with the United India Insurance Company Limited and the Insurance Company could not establish any breach of the policy conditions, the Insurance Company was Iiable to pay 80% of the compensation assessed by the Tribunal 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 1/3rd of Rs.15,000/— towards the personal expenses of the deceased, the claimants’ dependency was assessed at Rs.10,000/— per annum. By multiplying the annual dependency of Rs.10,000/— with the multiplier of 16, the compensation was worked out to Rs.1,60,000/—. By awarding further sum of Rs.7,000/- under other heads, the Tribunal assessed the total compensation at Rs.1 ,67,000/—. As the driver of the Truck was held Iiable for the accident to the extent of 80%, the Tribunal directed the United India Insurance Company Limited, the insurer of the above Truck to pay 80% of Rs.1,67,000/— i.e. Rs.1,33,600/— as compensation to the claimants for the death of deceased Durga Nishad in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,33,600/— @ 9% per annum from the date of tiling of the claim petition till the date of actual payment. 1/1 s\L 4 M.A. No. 326 of 2002 ¢ 5) Shri A.L. Singraul, learned counsel for the appellants submitted that the Tribunal has erred in holding that deceased Durga Nishad also contributed to the accident to the extent of 20%; in not accepting the claimants’ evidence about the income of the deceased; in deducting 1/3rd of the income of the deceased towards his personal expenses; in selecting the lower multiplier of 16; and in awarding low compensation of Rs.1 ,33,6OOI— only. 6) Shri H.B. Agrawal, learned Senior Counsel with Smt. Meera Jaiswal, learned counsel for respondent No.3, the United lndia Insurance Company Limited, the insurer of the Truck, on the other hand, supported the award and contended that the Tribunal has rightly held it to be a case of ‘Contributory Negligence’; the compensation of Rs.1,33,600l— awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present Case. 7) So far as the finding about the ‘Contributory Negligence’ recorded by the Tribunal is concerned, it is apparent that deceased Durga Nishad himself was driving the scooter at the time of the accident and there were two pillion-riders on the said two-wheeler. Considering the nature and manner of the accident and the fact that there were in all three persons on the scooter at the time of the accident which was meant for carrying two persons only, we do not nnd any infirmity in the above finding recorded by the Tribunal holding that deceased Durga Nishad also contributed to the accident to the extent of 20%. 5 M.A. No. 326 of 2002 8) Now we shall examine as to whether the compensation of Rs.1,67,000/— assessed by the Tribunal and Rs.1,33,600/- awarded to the claimants are just and proper compensation in the facts and circumstances of the. present case. 9) True, the claimants pleaded that deceased Durga Nishad, used to earn Rs.200/— per day from his cycle repairing shop, no cogent and reliable evidence was led before the Tribunal for establishing the income of the deceased to the extent of Rs.200/— per day. In this state of evidence, we do not find any fault in the approach of the Tribunal in discarding the claimants’ evidence about the income of the deceased. 10) Nevertheless, the income of the deceased assessed by the Tribunal 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, in the year 2000, is certainly on the lower side and requires reconsideration. 11) Section 163—A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows : a , “[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. l 6 M.A‘ No. 326 of 2002 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 the 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) of Section 163-A of the Act, the Courts/ Tribunal can take judicial notice of increase in the prices of essential commodities and the cost of living during 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 deceased Durga Nishad lost his life took place in the year 2000. lf the increase in the prices of the essential commodities and the cost of living between the year 1994 and the year 2000 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.30,000/— in the year 2000. We, therefore, propose to .77.. g s 7 M.A. No. 326 of 2002 @ recompute the compensation taking the income of the deceased at Rs.30,000/— per annum. 15) By deducting the usuai 1/3rd of Rs.30,000/— towards the personai expenses of the deceased, the claimants’ dependency is assessed at Rs.20,000/— per annum. 16) Considering that deceased Durga Nishad was aged about 35 years on the date of the accident, the multiplier of 16, selected by the Tribunal, in our opinion is appropriate in view of the dictum of the Apex Court in the case of Sarla Verma (Smt) and Others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 wherein multiplier of 16 has been prescribed for the age group between 31—35 years. 17) By multiplying the annual dependency of Rs.20,000/- with the multiplier of 16, the compensation works out to Rs.3,20,000/—. The claimants are further entitled to receive Rs.5,000/-v towards funeral expenses; Rs.5,000/~ for loss of estate; and Rs.5,000/- for loss of consortium to the widow. The total compensation, thus, works out to Rs.3,35,000/-. 18) As deceased Durga Nishad himself has been found responsible for the accident to the extent of 20% and the liability of the insurer of the Truck has been held to the extent of 80%, the claimants are entitled to receive only 80% of Rs.3,35,000/— i.e. Rs.2,68,000/—. 19) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties before the Tribunal about the period for which the claimants are entitled to receive 8 M.A. No. 326 of 2002 “at! interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeai itself. 20) Considering all the relevant aspects of the matter, inciuding the delay in disposal of the claim petition, and the present appeal and the fact that the insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.1,34,400/— at Rs.1 5,600/—. 21) For the foregoing reasons, the appeal tiled by the appellants/ claimants for enhancement of the compensation is allowed in part. While maintaining the hnding of ‘Contributory Negligence’ recorded by the Tribunal, the compensation of Rs.1,33,600/— awarded by the Tribunal is enhanced to Rs.2,68,000/— with further quantified amount of interest of Rs.15,600/— on the enhanced amount of compensation of Rs.1 ,34,400/-. 22) Respondent No.3 the United India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.1,50,000/— (Rs.1,34,400/— towards enhanced amount of compensation + Rs.15,600l— towards quantified amount of interest on the enhanced amount of compensation of Rs.1,34,400l—) before the concerning Claims Tribunal. nlmml 23) No order as to costs. \l/r-f. Sdl- Ra chief Justice l ' ' l i/-