HIGH COURT OF CHHATTISGARH ATBILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Misc. Appeal (C) No. 769 of 2010 ^ Appellants Claimants 1 Raturam, s/o Ghasiram Aged about 55 years 2 Kokyiya Bai, w/oRaturam, aged about 50 years Both above r/o Harnadadar, Post Ghunchapali, Police Station Bagbahra, Tahsil Mahasamund, District Mahasamund (CG) VERSUS f^ Respondents 1 Indrajeet Singh Randhawa, s/o Kishan Singh, aged about 24 years, r/o Pilibheet, Police Station Gajrola, Uttar Pradesh At present r/o BFC Transport, Tatibandh, Raipur, Tahsil & District Raipur (CG) (Driver of offending vehicle bearing registration No.04/A- 3905) 2 Kulwant Singh, S/o Preetam Singh, R/o Transport, Tatibandh, Raipur, Tahsil & District Raipur (CG) (Owner of offending vehicle bearing registration No.04/A-3905) 3 The Oriental Insurance Company Limited, Division Office No.2, Chawla Complex, Jail Road, Raipur District Raipur (CG) (Insurer of offending vehicle bearing registration No.04/A- 3905) Memo of appeal under Section 173 of Motor Vehicle Act MAC.No. 769 of 2010 Present: Shri Manoj Paranjape and Shri Vikram Dixit, counsel for the appellants. Shri Sudhir Agrawal and Shri P Dutta, counsel for respondent No.3. ORDER (20th October, 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 Motor Accidents Claims Tribunal, Mahasamund (for short 'the Tribunal') vide award dated 28.04.2010, passed in Claim Case No.74/2008. 2) As against the compensation of Rs. 11,29,0007- claimed by the appellants/ claimants, unfortunate parents of deceased Kalia @ Gopsingh, by filing a claim petition under Section 166 of the Motor Vehicles Act; for his death in the motor accident on 06.10.2007, the Tribunal awarded a total sum of Rs.1,13,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3) Initially the claimants' claim petition was dismissed by the Tribunal vide award dated 01.04.2009. In the appeal filed by the claimants against the dismissal of their claim petition, the matter was remanded to the Tribunal vide order dated 03.12.2009 passed in MAC No.912 of 2009 with a direction for consideration of the case afresh after examination of the documents and other "% .^'.-" ff ft'.,,^^&, 1 11 ^g^:-x%.j t. ^^./ '%'-:3y MAC.No. 769 of 2010 attending circumstances. In the above background, the Tribunal has passed the impugned award dated 28.04.2010. 4) The Tribunal on a close scrutiny of the entire evidence led before it held that claimants' son Kalia @ Gopsingh died on account of the injuries sustained by him in the motor accident on 06.10.2007; the accident occurred due to negligence of the deceased himself and the driver of the offending vehicle Truck bearing registration No.CG-04 J/3905; the extent of negligence of the deceased and the Truck driver was to the extent of 50% each; as the above Truck 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 Company was liable to pay 50% of the compensation assessed to the claimants. 5) The Tribunal assessed the income of the deceased at Rs.2,000/- per month and Rs.24,000/- per annum. By deducting 50% of the income of the deceased towards his personal expenses, the claimants' dependency was assessed at Rs.12,000/- per annum. By multiplying the annual dependency of Rs.12,000/- with the multiplier of 17, the compensation was worked out to Rs.2,04,000/-. By awarding further sum of Rs.22,000/- under other heads, the Tribunal assessed the total compensation at Rs.2,26,000/-. As the driver of the Truck was held liable for the accident to the extent of 50%, the insurer of the Truck was directed to pay Rs.1,13,000/- i.e. 50% of Rs.2,26,000/- as compensation to the claimants for the death of their son Kalia MAC.No. 769 of 2010 @ Gopsingh in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,13,000/- @ 6% per annum from the date offiling ofthe claim petition till the date of actual payment. 6) Shri Manoj Paranjape and Shri Vikram Dixit, learned counsel for the appellants submitted that, though the Tribunal has rightly assessed the income of the deceased at Rs.2,000/- per month and Rs.24,000/- per annum and the claimants' dependency at Rs.12,000/- per annum and the compensation also has been rightly assessed at Rs.2,26,000/-, it has erred in holding that deceased Kalia @ Gopsingh also equally contributed to the accident to the extent of 50%. Learned counsel submitted that in the factual scenario of the present case, the contributory negligence of the deceased coulci not have been assessed at more than 25%. 7) Shri Sudhir Agrawal and Shri P Dutta, learned counsel for respondent No.3, the Oriental Insurance Company Limited, the insurer of the offending vehicle Truck on the other hand supported the award and contended that the compensation of Rs.2,26,000/- assessed by the Tribunal and Rs. 1,13,0007- awarded to the claimants are just and proper compensation in the facts and circumstances of the present case. 8) As learned counsel for the appellants have not challenged the assessment of the income of the deceased; the claimants' dependency; assessment of total compensation by the Tribunal at Rs.2,26,000/-, we have not examined these aspects ofthe matter. '•••^Y-.\ "<'^' !m^ \^ ^^ MAC.No. 769 of 2010 9) The only submission advanced on behalf of the appellants/claimants before us in this appeal is relating to the finding of contributory negligence recorded by the Tribunal holding that deceased Kalia @ Gopsingh also equally contributed to the accident to the extent of 50%. Learned counsel for the appellants submitted that in the factual scenario of the present case, the extent of contributory negligence of the deceased in the accident could not have been assessed at more than 25%. 10) Unfortunately, the claimants did not examine any eyewitness of the accident before the Tribunal. From the pleadings of the claimants in the claim petition and the details of the accident apparent from the site plan (spot map), it appears that deceased Kalia @ Gopsingh was loitering on the road unmindful of the heavy vehicles moving on the road, which was a Highway. Considering that deceased Kalia @ Gopsingh was only a pedestrian and was not driving any vehicle at the time of the accident and it is nobody's case that he suddenly appeared on the road for crossing the road, we are of the opinion that though the Tribunal has rightly held that the deceased also contributed to the accident, but the Tribunal's finding about the extent of contributory negligence to the extent of 50% cannot legally be sustained. 11) In our opinion, the extent of negligence of deceased Kalia @ Gopsingh in the factual scenario of the present case should have been assessed at 25%. 12) We, therefore, set aside the Tribunal's finding holding that deceased Kalia @ Gopsingh also contributed to the accident to ;^:" MAC.No. 769 of 2010 the extent of 50% and we hold that the extent of contributory negligence of the deceased was to the extent of 25% and that of the Truck driver was 75%. 13) The liability of the insurer of the Truck, therefore, would be to pay 75% of the compensation assessed to the claimants. 14) For the foregoing reasons, the appeal filed by the appellants/claimants for enhancement of the compensation is allowed in part. While maintaining the quantum of total compensation assessed by the Tribunal at Rs.2,26,000/-, the insurer of the Truck is held liable to pay 75% of Rs.2,26,000/-, which comes to Rs.1,69,500/-. As the insurer of the Truck has already paid Rs.1,13,000/- under the impugned award, the further liability of the insurance company is to pay Rs.56,500/- to the claimants. The claimants are further awarded Rs.5,500/- towards quantified amount of interest on the above enhanced amount of Rs.56,500/-. 15) Respondent No.3 the Oriental Insurance Company Limited is granted three months' time for depositing the total sum of Rs.62,000/- (Rupees sixty-two thousand only) (Rs.56,500/- towards enhanced amount of compensation + Rs.5,500/- towards quantified amount of interest on the enhanced amount of compensation of Rs.56,500/-) before the concerning Claims Tribunal. 16) No order as to costs. Sd/- Chief Justice Sd/- R.N. Chandrakar Judge