.V-i."L"L '^ t.T.T.Y^~^-v-^-i,-i.1_Y-L-L-n.T.'..-^~^'~.Y--'U;'>^-. -^ '"l:,l. ttngle 8encfc IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR M. A. rCtNO. 353 /2011 APPEUJWtS ;LAIMANTS RESPONDENTS »bN- -^PPLICANTS •^/y'/' A^/^ \ z ^' /' -y/^/^' .•^' K y/'/ <'.*y /^ e ^ Ku. Milotin Kawade ^&/o Late Laxman Kscwa.de ,aged about SSyears Kamal Singh Kawade S/o Laxman Kawade,aged about 26 years Both Appellants , R/o Village Dhantulsi, Po.- Pidhaapal, Tahsil Se^District -Kanker (C.G.) Roop Rai @Fingeshwer dhanelia S/o Baishakhu Ram, aged about 35 years R/o Bardewari, Thana 65. District - Kanker (C.G.) (VEHICLE DRIVER) Baleshwer Jain S/o Udayram Jain, , aged about — years, R/o Kokanpur, Thana /, Tahsil SE - District—Kanker.fC.G.) (VEHICLE OWNER) ^The Oriental Insurance Company Ltd., Near Adarsh Bal Mandir, In Front of Main Road, Dhamtari, Distrit - Dhamtari (C.G.) (INSURER) MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 € <!"- l< CA HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANTS CLAiMANTS RESPONDENTS M.A. (CtNo. 958 of 2011 Ku. Milotin Kawade & another. Versus ROOD Rai @ FJnaeshwer Dhanelia and others. Miscellaneous appeal under Secdon 173 of the Motor Vehictes Act. 1988 (SB: Hon'ble Mr. N.K. Aaarwal. J.) Present : Mr. A.L Singraul, counsel for the appeliants. Mr. Md. Taresk l-1aider, counsel for respondents No. 1 & 2. • Mr. H.P. Agrawal, counsei for respondent No.3. ORALORDER (08.12.2011) 1. This is claimant's appeal seeking enhancement in the amount of compensation awarded by the Motor Accident Clalms Tribunal, Kanker (for short the Tribunal') in Claim Case No. 36/2009 vide its award dated 10.11.2009. 2. As against compen^tion of Rs. 06,41,000/- claimed by elder sister and major brother of deceased Kamluram by filing ctaim petition under Section 166 of the Motor Vehicles Act, 1988 (for short 'the MV Act')) for the death of deceased on 2.11.2008 in the motor accident dated 31.10.2008, the Tribunat awarded a total sum of Rs.85,500/- as compensation along with interest @ 6% per annum from the date of filing of claim petition tiil its actual payment. 3. The Tnlaynal, on a close scrutiny of theevidence led before it, held; the accident had bccurred due to rash and negligent driving of jeep bearing registration No. C.G.19-T/0158 by its «**: driver i.e. respondent No.1; deceased Kamluram died on account of jnjuries sustained by him in the said accident; respondent No.S/lnsurance Company liable for payment of compensation as it could not establish the violation of policy condffions; assessed and awarded aforesaid sum as compensation to the appellants/claimants. Z.0" <^ 4. Shri A.L. Singraul, learned counsel appearing for the appellants/claimants would submit: the Tribunal has erred in awarding low amount of compensation of Rs.85,500/- which deserves to be suitably enhanced. 5. On the other hand; learned counsel aDpearing for the respondents would submit: the appellants/claimants are not dependent upon the deceased; the Tribunal has awarded entire amount of medical expenses incurred in the treatment of deceased before his death; the Tribunal wrongty awarded Rs.10,000/- towards pam and suffering which is not awardable in death cases and thus the amount of compensation of Rs.85,500/- awarded by the Tribunal cannot be found fault with. 6. I have heard learned counsel for the parties and perused the material available on record including award impugned. 7. The appellant No.1 is major elder sister, aged about 35 years and appellant No.2 is major brother, aged about 26 years of deceased Kamluram. As per evidence of appellant No.1, each of the appellants is earning Rs.92/- per day and maintaining themselves, meaning thereby thev were not dependent upon the deceased. 8. The Supreme Court in case of Manjuri Bera (Smt) vs. Oriental Insurance Company Ltd., has observed in paragraphs 13 to 15 as under: "13. There are several factors which have to be noted. The liability under Section 140 of the Act . does not cease because there is absence of dependency. • The right to file a claim application has to be considered in the background of right to entittement. While SSSSSSiny'^uc qu3iuurn, ine iTiuitipiiei SySicm iS applied because of deprivation of dependency. In other words, muitiplier is a measure. There are three stages while assessing the question of entitlement. Firstly the liability of the person who is liable and the person who is to indemnify <*' iFie iiauiiiiy, ii 5ny. RCAI ja inc iju5i1iiiiC5iiOn 5riu Section 166 is Drimarilv in the nature of 12007 (10) SCC 643 ^. 9. 10. 11 12. recovery proceedings. As noted above, liability in terms of Sectton 140 of the Act does not cease because of absence of dependency. 14. Section 165 of the Act also throws some light on the controversy. The Explanation includes the liability under Sections 140 and 163-A. 15. Judged in that background where a legal representative who is not dependant files an application for compensation, the quantum cannot be iess than the 'iJabiiity referabie {o Section 140 of the Act. Therefore, even if there is iiu iuaa ui uepeilueiIUy iiic Uidiliidiit ii iie ui she is a legal representative will be entitled to uui 1 ipei i&aiiuu, uie i.|uciiiiuiii ui OTIIIUI &iieiii Ue not less than the liabilitv flowina from Section 140 of the Act. The appeal is allowed to the aforesaid extent. There will be no order as to costs. We record our appreciatton for the able assistance rendered by Shri Jayant Bhushan, the learned amlcus curiae." The Tribunal awarded Rs.50,000/- to the appellants which is awardable under Section 140 of the Motor Vehicles Act. Besides above Tribunal awarded Rs.23,500/- towards medical expenses incurred in treatment of deceased before his death; Rs.10,000/- for pain and suffering and Rs.2,000/- for conveyance, and thus has awarded a total sum of Rs.85,500/-. The amount of compensation of Rs.85,500/- awarded by the Tribunal when examined in the light of above broad features of the case and in the tight of above referred judgment of the Supreme Court, in my opinion, there is no scope for enhancement of compensation awarded bv the Tribunal. Consequently, the appeal being devoid of merit is liable to be and is hereby dismissed.. No order as4o costs^ Sd/- N.K. Agarwal Judge D/- .(«'