i.T»ia«! HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, IVl.A.No.1343 of2004 APPELLANT (Non-applicantl RESPONDENTS Claimants Dharam Singh Chaudhri. Versus Darshan Gwal and another. OR D E R For Pronouncement of Order <H .12.2010 Sd/- R.L. Jhanwar Judge 11). 12.2010 ••yei^'^"' HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI R.L.JHANWAR, J. IVIiscellaneous Appeal No. 1343/2004 APPELLANT (Non-applicant) RESPONDENTS Claimant Dharam Singh Chaudhri, Aged about 36 years, S/o Usatram Chaudhari, R/o Village - Tilakpur, P.S. Basna, Distt. Mahasamund (C.G.) VERSUS 1. Dharshan Gwal, S/o Late Dasharu Gwal, Aged about 59 years. 2. Smt. Malina Gwal, W/o Darshan Gwal, Aged about 57 years, Both the respondents are residents of : Village - Jagdishpur, P.S. Basna, Distt. Mahasamund (C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT Appearance: Shri Vivek Rathore, counsel forthe appellant. Shri Vikas Pradhan, counsel for the respondents. ORDER (Passedon 1^.12.2010) This is an appeal filed by the owner of the vehicle against the award dated 21.08.2004 passed by the Additional Motor Accidents Claims Tribunal, Mahasamund in claim case No. 69/2003 whereby the Claims Tribunal has awarded Rs.1,50.000/- as compensation to the claimants/respondents herein in a death case. 2. As against the compensation of Rs.9,50,000/- sought by the daimants by filing claim petition under Section 166 of the Motor Vehicles Act for the death of Atul Gwal in the motor accident occurred on 24.02.2003, the Tribunal awarding Rs.1,72,000/- held that since at the time of incident, the deceased was not holding a valid driving licence and in the absence of such licence, the motor cycle bearing No. C.G. 06/4861 and by holdingsuch, the Tribunal reduced Rs.22,000/- from the total compensation of Rs.1,72,000/- and remaining amount of Rs.1,50,000/- was awarded to the claimants with interest at 9% per annum from the date of filing of claim petition till its realization. The Tribunal directed the ^ ^--^^ respondent (appellant herein) to pay total compensation. It is this order which is under challenge by the appellant by preferring appeal. 3. Learned counsel for the appellant/owner vehemently argued that the respondents/claimants are parents of the deceased son, who was a non-earning member. Despite that, the learned Tribunal has fixed notional income ofthe deceased at 15,000/-, deducted one-third thereofand using multiplier of 17 awarded Rs.1,72,000/-, which is not proper. He further argued that claimants being mother and father, the learned Tribunal ought to have deducted one half and multiplier of 10 ought to have used. On these premises, the learned counsel urged that the compensation amount be reduced. 4. On the other hand, learned counsel for the respondents/claimants submitted that he has filed cross-appeal for enhancement of award. He argued that the Tribunal has erred in assessing the' annual income of the deceased at Rs.15000/- notionally, which is very meager because the accident took place in the year 2003, therefore, the notional income should be at Rs.30,000/- per annum and this Court is fixing such amount in number of cases. The Tribunal has rightly deducted one-third amount therefrom and that may be adopted. The Tribunal has erred in deducting Rs.22,000/- from the total compensation of amount due fo contributory negligence, which is also not proper because the appellant-owner has not proved that at the time of accident, the deceased was not holding proper and valid driving licence. The Tribunal did not award any sum under the head loss of love and affection. On these premises, learned counsel urged that the impugned order so far as it relates to contributory negligence may be set aside and the cross-appeal may be allowed. 5. I have heard learned counsel for the parties at length and perused the impugned order and record ofthe Tribunal. 6. So far as the appeal of the appellant - owner is concerned, it is clear from the evidence ofA.W.1 Darshan Gwal and A.W.2 NitishSagar that the deceased Atul Gwal was driving the motor cyde on 24.02.2003 from Jagdishpur to Basna and on way at near village Khomda Pond's curve, the appellant, who was coming on his motor cyele bearing No.C.G. 04 JN 9840 by driving it rash and negligently, dashed the motor cycle driven by the deceased, as a result of which, both rider and pillion fell .^ :';'^;. ..'': down, in which Atul sustained injuries on his head and other parts of the body so also sustained by Nitish Sagar. He deniedthe suggestion that the appellant stopped his motor cycle on the edge of road and went to attend naturecall and Atul in turn hit his motor cycle. N.A.W.1 Dharam Singh (appellant herein) admitted the fact that on 24.02.2003 accident took place but according to him he was standing on the edge of road and the deceased, who was driving his mbtor cycle very rashly and negligently, dashed him. Thereafter, he lodged Dehati Nalishi wde Ex.P.5. N.A.W.2 Kanhaiya Lal Nayak and N.A.W.3 Ram Lal Patel supported the evidence of N.A.W.1 Dharam Singh, but no questipn was asked to Nitish Sagar A.W.2 that at the time of accident one motor cyclist was also coming from behind the appellant and he took them to the hospital and also about Ram Lal Patel who has not stated as to how he reached the spot. In Ex.P.5 is Dehati Nalishi in which Dharam;Singh mentioned that his motor cycle was also in running condition. In this view of the matter, the evidence of Dharam Singh and his witnesses is not reliable. It is patently make evident that the appellant Dharam Singh was negligent and was driving his motor cycle in a rash and negligent manner. The findings ofthe learned Tribunal are based on purely clinching and legal evidence. 7. As regards notional income is concerned, it is clear that learned Tribunal has fixed Rs.15000/- as notional income. Nevertheless, the notional income of the deceased assessed by the Tribunal at Rs. 15000^ per annum is certainly on the lower side and requires reconsideratjon. The Tribunal while discarding the claimants' evidence about the incoRie of the deceased oughtto have assessed his income on the basis of Rotional income prescribed in Second Schedule under Section 163-A oflhe Motor Vehicles Act. 8. The notional income of Rs.15000/- per annum wgs prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act in the year 1994. The accident in the present case, wherein deceased Atul lost his life, took place in the year 2003. If the increase in the prices of the essential commodities and the cost of living between the year 1994 and the year 2003, the year of accident in the present case, are taken into consideration, the notional income of Rs.15000/- prescribed in the Second Schedule in the year 1994 would certainly corhe to Rs.30,000/- in the year 2002. I, therefore, propose to re-compute the compensation taking the income of the deceased at Rs.30,000/- per annum. The respondents/claimants in the present case are mother and father of the deceased. Therefore, deduction of one-half is proper and after deducting % from the notional income, the annual dependency would come to Rs.15,000/-. The Tribunal applied multiplier of 17, which is on higher side. The deceased was unmarried man in the present case. Therefore, multiplier of 10 is proper, in view of the dictum of the Apex Court in the case of Municipal Corporation of Greater Bombay vs. Laxman lyer & another, (2003) 8 SCC 731 wherein itwas held that in those cases where the claimants are the parents of the deceased, the multiplier should never exceed 10. Accordingly, by multiplying the annual dependency of Rs.15,000/- with the multiplier of 10, the compensation works out to Rs.,1,50.000/-. The Tribunal awarded Rs.2000/- towards funeral expenses but did not award any sum towards lossj of love and affection and loss of estate. The claimants are further entitled to receive Rs.13,000/- towards loss of love and affection and loss of estate. The claimants, thus, become entitled to receive a total compensation of Rs.1,65,000/-. 9 . Taking into consideration the admission of Darshan Gwal in his cross-examination paragraph 9 that his son (since deceased) was not holding valid driving licence, the learned Tribunal in its paragraph 14 recorded a finding that since the motor cycle No.C.G. 06/4861 was b.eing plied by the deceased without having valid driving licence, therefore, the deceased was also responsible for the accident and deducted Rs.22,000/-, which, in my view, is not correct. Instead of Rs.22,000/-, 1 deem it appropriate to deduct Rs.15.000/- from the total compensation of Rs.1,65,000/- and after deduction of Rs.15,000/- from Rs.1,65,000/-, the difference would come to Rs.1,50,000/-. Thus, the claimants are entitled to receive a total sum of Rs.1,50,000/- as compensation for the death of Atul Gwal in the motor accident on 24.02.2003. 10. In the result, the appeal filed by the appellant / owner, being devoid of merit and substance is liable to be and is hereby dismissed. Cross- appeal of the respondents/claimants is partly allowed to the extent indicated above. No order as to costs. Sd/- R.L. .Ihanwar Judge