81n|l»Bench IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR AP^ELLANT 7" ..•^.^ ^y^ ..'"'...^'' /' ^1 ^^ RESPONDENTS Misc. Appeal {Cl No. 5^~Q /2011 -Shri Arvind Agrawal S/o Late Radheshyam Agrawal, resident of Ranisagarpa.ra, Raipur, District Raipur, (C.G.) Presently C/o Basant Roadways, Seth Basantlal Marg, Ambikapur, District Surguja (C.G.), (Owner) VERSUS ^ Manvel, son of Patras, aged about 40 years, Caste- Uraon, R/o Thana Shankargarh, Tahsil Shakargarh, District Surguja, (C.G.) (Claimant) 2) Shivshankar Pandey S/o Sitaram Pandey, C/o Arvind Agrawal S/o Late Radheshyam Agrawal, Basant Roadways, Seth Basantlal Marg, Ambikapur Dist.net Surguja (C.G.) (Alleged Driver) Branch Manager, The Oriental Insurance Company Limited, Ambikapur, Branch Office M.D.G. Road, Ambedkar Chowk, Ambikapur, Distirct Surguja (C.G.) (Insurer) 4) Shambhunath S/o Laxman Ram Caste- Kanwar, aged about 45 years, R/o Village Jamhor, Thana Shankargarh, District Surguja (C.G.) Presently through M/s Basant Roadways, Seth Basantlal Marg, Ambikapur, District Surguja (C.G.) (Alleged Driver) MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 AS AMENDED BY ACT OF 1994 HIGH COURT OF CHHATTISGARH. BItASPUR DB: HOM'BLB I. M. QUDDU8I & HOIPBLE G. MIKHAjrUDDIW, JJ APPBLLAKT: RESPONDENTS: MMQ No. 559/2011 M/s. Basant Roadways Vs. Smt Raghani Bai aad 5 others APPBLLAMT: RB8PONDENT8: M.A(Ct No. S60/2011 Arvind Agrawal Vs. Maavcl and 3 ofhers APPBLtAMT: RE8PONDBNTS: MJMa No. S61/2011 Arvind Agrawal Vs. Leonaid and 3 ofhers APPBU.ABT: RB8POKDBMT8: M.AICI No. 562/2011 Arviad Agrawal Vs. Smt Rhoolwati and 3 ofhers MISeBUANBOU& APPBAL8 UNDBR SBCriQK 173 OF THE MOTORVEHICT.ESACr C. R. Bo. IPRt-3002/2011 APPBLLAWF: RE8PONDENT8: -("" Arviad Agranval Vs. Sm.t Phoolwati aad 3 others RBVISIOM (mPBR 8BCTION 115 OF THB CODE OF Cn?IL pitOCBDORB Aypearaace: Mr. Sachia Singh Rqput and Mr. Aoant Bajpai, Counsel for ttie appeUaats in all-fhe appeals and- appliea&tin. fhe Revision. Mr. Rataa Pus1y, coiinsel for the Oriental Insuraace Coxapany/ respondentno.5'iaM.A(C^. No. 559/2011, respondent ao.3 in M.A.(C).560/2011, 561/2011 & 562/2011 and eivfl Rcvisioa (PR)No.3002/2011. Shri Saineer Siugh, coiinsel for respoadent no. 1 ia M.A.C.561/ 2011, M.A.C.560/2011 & MAC 562/2011. Mr. Siuul Tdpafhi, eounsel for respoiident no.4/ Sbiv ShanJsar inCivil Rcvision (PR) No.3002/2011, respondent no.2 in MAC 560,561 & 563 o£201t, spoDdeDt )>4 iu MAC 559/2011. Shri Bhupendia SiDgh; couitsel for respondent no.6/ Shambhunafh ia M.A.(C). No. 559/2011, respondent No.4 in M.A.C. 561/2011, respondent no.2 in Crimunal Revision PR 3002/2011. Mr. Aj^r Kumar Pandey, counselforresponden.ts 1 to 3 iu MAC No.559/2011 PerIja.QODDDSI.J. ORALORDER (20.10.2011) 1. M,A(C). No. 559, 560, 561 &, 562 of 2011 and CivU Revision (PR) No.3002/2011 have beea filcd by fhe owners agamst the comaaon impi^aed awaid dated 11.02.2011 passed by the IV Addittonal Motor Accident Ctaims Tribunal (FTe),/Ambikapur, Distt. Sarguja (C.G) whereby the Uabflity has becn fastened on the owner to pay com.pensation. <f Siace aB ihese appeals and revision arise out of the .fi-- '"• same aecidcnt met wifh.by a Busbearing Regn.No.C.0.15-A/ 5015, fhey aie beingdlsposed rfby this commoa&ider. M.A(C).No.559/2011 relates to Claim Case No. 72/2009 (Smt Ra.gham BcdiWtd others -vs- M/s. Baseanct Roadways) ia which a total cotapensatioa ofRs.9,85,000/- Ims been awanled to the clamiaats of fhe deceased Garamchandra; M.A.(C).No. 560/2011 relates to Claim Case No.73/2009 (Shri Mwwel -vs- Shiv Shankar Pandeg and others^ in which a total cotnpensation ofRs.11,200/- has been awarded to the injtired claiinaut; M.A(C).561/2011 relates to Claim Case No. 75/2009 (Leonard, -vs- Shiv Shankar Pandey and offiers) in which aa amount of Rs.62,000/- Iias been awarded to fhe injured claunaat; M.A(C). 562/2011 relates to Claim Case No.76/2009 (Smt Phoolwati-vs- Sfwv Shankccr Pandey and otheTs/inwhich Rs.20,000/- has toeea awarded to fhe mjuied claimant aad Civil Revisioa (PR) No.3002/2011 relates to Claun Case No.74/2009 (Shamburam: -Vs- Shtanbwwtth and others) ia wfaich Rs.7000/- has becn awarded to theinjured claimant. 2. Brief facts of the ease as per the version of the claimants are fhat on 21.4.2008 Garamchaadra, Constable Madan, Maavel, Shambhiuam, Lconard, Snat. Phoolwati ete., were travelmg ia Bus bearing Regn.No. 15-A/5015 ia bctween Kusmi aad Ambikapur, On fhe way at Ghirai GIiat ftie said bus wtuch was beiag driven by Shiv Shaakar or Shambunath ia rash and negligeut manner becauie uacoatroBcd and overturaed, as a result ofwhich Garamcbandra. and Constable Madan'died aad other passengers iiamety Maavel, Shambhuram, Leonard aad Smt, Phoolwati sustained iajuries due to which permaaent disabiUly was caused to tSem. The legal hcirs/dependcnts of deceased Garamchaadra have filed Claim Petitioa for fhe award of a total compeusation of Rs.55,32,000/- on'various heads vriifireas the other iujured persons have also filed claiin petitk)ns seekir^ conipensation for the permanent disabiBty caused duc to fhe injuries' sustaiaed by fheia iu the said accideat 3. The leacaed Claims Tribunal having regard to fhe facts situation has held that Bus bearmg Rcgn.No.C.G.15-A/5015 drivea by StuvsIiaukar/Shambhuxiath ia a rash and negUgent niaaner niet with accident, as a result of which, deceased Gaiamchaadra died aud Maavel, SliaxabhuTam, Lconard, Siat. Phulwati sustejned grievous iujiiries and became pemiancn.fty disabled and fhere was breach of condittons of the iusurance policy. 4. We have 'heasd leamed coimsel for ISic parties at leugth aud have also gone Uirough fhe recoid of the Tribunal as also record of the criminal case xcgistered agamst the drwer Stiaxnbhunath. S. Mr. Saebin Singb Rajput, learaed coiinsel for the appeUaat has subinitted that fhe Tribiiaal has wrongty giyen the finding fhat Shambhuaatfa driverwas not dnviag thc vehicle on fhe basis of fhe statemcnt of Manvel (A.W.1) ia Claim Case No.73/2009, who was traveBing ia fhc Bus as passengcr but tbi^ witness has only stated in his statement before fhe Investigafmg Officer u/s 161 Cr.P.C. that the drivcrofthe vehicle was driving fhe 1 vchiclc rashly aad aegUgently wifhout disclosiag the naiae of aay dnver. Learaed cozmsel for fhe appdlant has further stated ttiat the documente relied upou in criminal case cannot be ignored ia claun ca3e and it has to be relied upon ia view of ffac judgment of Hon'ble Apex Court m Orfenttrf Jnsurance Comjiany Mndted Vs. frvmlata Shukla antf otfters, (2007) 6. 13 SCC 476. Thereforc the Tribuaal should have heM fhat Shainbhuaafh was ia fact driviag fhc ofBsnding vehiclc, but the finding of fhe Tdbunal is perversc as fhe charge sheet was filed ^ainst Shfliubhunafh in crimmal case after completion. of invest^ation by fhje Invest^ating Officer. Thfi Insztraace Coinpany on its behatf bas examiaed Pawaa Kumar who was worlaag as Assistaat Grade-III ia fhe office of R.T.O. Ainbikapur. On perusal of evideace of ttus witoess, it appears fhat an endorsexaent was made subsequentty by tiifi R.T.0., but fhe aaiount was paid with regard to Shiy Shaakar. Learaed counscl for fhe appcUant has stated fhat evea if,fiw the sake ofargmnents it is prcsumed that it was Shro Shankar who was driviag the vehicle, Shiv Shankar had appUed much before fhe date of accident for addiiig "Publie Service Vehiclrf' also ia his lieence as additioiial vehicle for which fhe amouat was also pajd and fhe licence was also submitted but it was fhe fault of fhe RTO when it was not endorsed ia hte Ucence and it w^ cndorscd inuch after thc accident took placc that is on 03.5.2008 whereas the accident took place on 21.04.2008. Therefore, the appeUant aad driver shoxild not be sufferers for fhe fault of RTO^ holdu^ ttiat Sluv Shankar was not haying valid and effective driving Ucence on date ofaccident Wifh regard to determination of fh& question as to who waa drivmg fhe vetucle, wc have perused the tower court records anA fo-ttnd fliat SlMmbliuaath has fited has written statemeut aud has also appeared in fhc witness box. He has stated ia his evidenee ^ also itt fhe cross examiD.ation conducted by ofher respondents except the appeUant i.e., owner ofthe vehtele, fhat he was deputed to drive anofher vehicle of Basaat Roadways ie., C.G.15-A/3931 which he was dnving ftosa. Ambikapur to Saniari aad oa the way tic saw fhe vehicle in question in aecidental st^e. Hc has also stated fhat the owner of fhe vchiele had writtea to fhe Superiutendent &f PoHee fhat he was aot drivi^; the vehicle but fhat was igaorcd. It is also pcrtinent to xuention here that no cross exaHiiiiatioa bas becn inade to Shambhuiiath and fhus it cauaot be saM fhat his stateinent was chaUenged at aay point of time. Therefore, fhere M no question to disbelieve his statement as it tennamed uncontroverted aad iiachatlenged. 7. Wifh regaid to fhe qiicstion of drivmg by Sh.wshankar who was not having a valid and effective driving Ucence is couceraed, noflung has been brought before us by which tiais coiu-t niay draw aa iaferencc fhat a time limit was prescnbed for addiag fh.c class ofvehicle iu fh.e drivmg Mccnce. Rafher Seetioa 9(6) of fhe Motor Vehicles' Act, 1988 provides fhat fhe test of coaipetencc to drive shatlbe carried out ia avehicle ofthe lype to which applicatton refers. Shlvsbaakar was having a driving Uceace to drise heavy goods velucle but was nbt havmg a driviug Ucence offhc lype of passenger vehicle that is to drive a pubUc service •vehicle-c'or p^seagers canyiag velucle and fh.ei-efotc, ia our opmion, it -waa necessaiy that before m.aldng aa eadorsenient a test of coiupetence to drive was to be coaducted and hence if fhe lype of fhe driviag Ucence l.e., public service vetucle was not added for a long time it cau aot be said fhat fhere was any fa.ult on ffae part of fhe Licensmg Auftlonty/RTO ia absen.ee ofaayprooffhat dnvcr Shivshaakar had earlier appeared to give test or his test of coiupetence to dtive was carried out earlier. 8. tn vicw of the above, the contentioas rateed by the lemned counsel for thc appeUaut are iiot sustauiable aad therefore, no interference ia flie findmg given by fhe TribimaL in fhe impugned awards is reqiured irrespective ofthe Habitily parfc 9. Now coxniag to fhe quaatum, in Claim. Case No.72/2009 relating to M.A(C). No.559/2011, deceascd Garamchandra was workiag as Cook/Peon ia Batak Asbram, Deepadihkala and was dTawteg a inonfhty salaiy of Rs.7106/-. In fhte regaRi, fhe Principa], Govt Higher Secondary School, Deepadihkala, Block Devdopnient Shaalaugarh has issued salaxy slip vide Ex.P-7 aad photocopy of fhc Register vide Ex.P-8. According to fhe salaiy slip, Ex.P-7 he was draiwin^ a mouthly salary of Rs.7106/-. The deceased was agcd about 38 ycars. Thcrefore, 50% promotional avenues that is about Rs.3,500/- is to be added as 6th Pay Coiiimission was appUcabIc, but that benefit was not added. Tfaerefore, after addiag fhe 50% promotioiial aveaues the iaconac of fhe deceased coiaes to Rs.10,500/-. But the Tribunal has assessed fhe mcome at Rs.8000/- pcr mcpith l.e., Rs.96,000/- per«anumwhich does not seem to be excessive and after ^eductnig l/3Td fhe anm.ial loss of dependen<y came to Rs.64,000/- per aTiniini. Considermg fhe ^e ofthe deceased, multiplier 15 wouM be appficable in vkw of fhe decisfam of the Supreme Coiut in Sarte Vennu ^Smfc/ V3- flelht Tronaport Corponrtton <uu( cnoWier niported in (2009) 6 SCC 121 (tahle gloeninPara40). rhcieSoie, on 10. 11. applying imiltiplier 15, fhe total loss of dependency coiaes to Rs.9,60,000/- (64000 x 15), Besidcs fhjs; fhe elaimante are entifled to Rs.l0,000/-for loss ofcoiisorthun (in respect of wif^, Rs.lOflOOf- for toss of estate and Rs5000/- ftmeral cxpcnscs whiclt in all coines to Rs,25,000^/- luider the ofhcr heads. After adding fhis amount, fhe total loss of dependency caiae to Rs.9,85,000/ -. Sm.ee fhc Tribuiial ha»awaided a total ainouat of compensatoa of Rs.9,85,000/- to the clannants of GaEamchandia, no intcrference is caHed for. Howcver the Tribimal has awarded interest @ 9% per n'nsni'im wluch seeias to be on higher side. Theiefore, hoMiaig fhat the amouat of coiapeasatiott is adequate, we reduce fhe rate ofinterest to 6% per aTiniiTn on fhe total amouat of contpensation which fhe \ claunaats arc entitlcd to receroe firoin fhe date of filing of the claixu petition till fhc payment ofthe same is xnade. In Claim CaseNo.73/2009 re]atmgtoM.A(G).560/2011, only Rs.11,200/- bas been awaided to fhe claimaat injured. Sincc tfae amount awaided is not excessive, it caUs for no iaterfcrcnce. Ht)wever, fhe Tribunal Iias awanied 9% iaterest per annnm which is oa tu^ierside. 'Hicrefore, itis redueed to .ff' 6^i> per ann^iTn. In*Claim Casc No.74/2009 relatm^ to Civil Revisfon (PR) No. 3002/2011, a totel coaipensation of Rs.7000/- has becn awardcd to the claimant injured. Since fhe aniouitt awarded is not excesslve, it catlsfor no interferenee. Howeverfhe Tribunal has arfaided 9% interest per annutn whlch is on higher side. Therefore, it is reduced to G% per aanuin. 12. In Clann Case No.75/2009 relating to M.A(e).561/2011, a tcftal compensation of Rs.62,000/- has bcen awarded to the claiinant iajured, which seeins to bc exccssive. Therefore, we reduce the same to Rs.52,000/- and acGording'ty' niodify fhe icOEpiigaed award. The Tribmial has awaxded 9% interest per aBBtuin which is also on. higfaer sidc. Therefore, the rate of interest is reduced to 6% per anniini. 13. In Glaim Case No.76/2009 rclatii^ to M.A(q.562/2011, a total eonipeasation of Rs.20,000/- has been awardcd to fhc claiutaut iajured. Sincc fhe atnount awarded seem.s to be proportioiiate wifh fhe disabilily caused to the claanaat, it caUs for ao iaterference. Howevw the iuterest @ 9% per snmiin graated by the Tribuaal is on higtier side and it is reduced to 6% per nnnnTn. 14. In fhe result, M.A.C.No.559, 560, 561 & 562 of 2011 & C.R (PR) No.3002/2011 aro aMowed mpart. The uapugncdorder dated 11.02.2011 is inodified in fheaboveterms. No cader as tocost(s). ~~' v Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Rao