IN THE HON'BLE HIGH COURT OF CHHATTISHGARH AT BILASPUR M.A. (C)No- ^ / 6 / ^'v <& ®3!1illB APPELLANT DIVISIONAL MANAGER, THE NEW INDIA INSURANCE COMPANY LTD., POWER HOUSE BHILAI, TAH. & DISTRICT - DURG (C.G.) (INSURER OF VEIIICLE MINIBUS N0.- C.G, 07, E.-0128) Vrs. RESPONDENTS/CLAIMANTS ^ ft&w :-1. MIRZA LATIF BEG S/0 MIRZA AMIRer^ ^ h BEG, AGE ABOUT 42 YRS., SMT. KHURSHIDA BEGUM W/0 MIRZA /. ^ ^ LATIF BEG, AGE ABOUT 40 YRS, OCCUPATION- HOUSEWIFE BOTH RESIDENT OF LUCHAKI PARA, DURG, TAH. & D1STRICT- DURG --y-r ^ RESPONDENTS/NON-APPLICANTS :- 3. BHUSHAN LAL S/0 KEJAURAM SAHU AGE ABOUT 32 YRS. PERMANENT RESIDENT - VILLAGE PIKRIPAR, ' THANA GURUR, TAH. GURUR, DISTRICT- DURG (C.G.) PRESENT RESIDENT OF KASARIDIH, HOUSE OF SURESH GUPTA, ^ KASARIDIH, DURG, TAH. & DISTRICT- DURG (C.G.) (DRIVER OF VEHICLE MINIBUS N0.- C.G. 07, E.- 0128) 4. RAWTISH SINGH S/0 ARJUN SINGH, RESIDENT OF NEHARU NAGAR, EAST 1^' BHILAI, DISTRICT - DURG (C.G.) (OWNER OF VEHICLE MINIBUS N0.- C.G. 07, E.-0128) ^- APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 APPEAL VALUED Rs. 5,20,500/- ( APPEAL BY INSURANCE) COMPENSATION CLAIMED BEFORE TRIBUNAL Rs. 16,05,0007- AWARDED AMOUNT BY TRIBUNAL Rs. 5,20,500/- "^ ..2.. New India HIGH COURT OF CHHATTISGARH : BILASPUR M. A. (C) No. 610 of 2008 Appellant Divisional Manager, the Insurance Company Ltd. Versus Respondents Mirza Latif Beg 8s others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 •DB: Hon'ble Shri Jusdce I. M. Quddusi 8s Hon'ble Shri Justice Prashant Kuaiar Mishra Shri Sudhir Agarwal,Advocate for the appellant. Shri Shashank Thakur, Advocate for the respondents No. 1 aad 2/claimants. None for the respondents No. 3 and 4 though served. ORDER (Oral) ( Passed on this 24U1 day of March, 2011 ) Per I. M. Quddusi, J. 1. This appeal has been filed by the appellant/Insurance Company on the ground of liability and quantum against the impugned award dated 31.12.2007, passed by the 7ul Additional Motor Accident Claims Tribunal (FTC), Durg in Claim Case No. 49/2006, awarding a .sum of Rs. 5,20,500/- along with interest @ 6% per anrium, holding the appellant/Insurance Company as liable to pay the amount of compensafion. 2. We have heard learned counsel appearing for the parties and perused the lower Court record- as well as the findings given in the impugned award. 3. Brief facts, in nutshell, are that deceased Mirza Altaf Beg was engaged as Conductor in Miai Bus, bearing registration No. C.G. x / :^.. '*» ~%.ii ' ^^'"'^ u A •te,-..<<y<? 'i^^. '^-^' ^y ''^A-'*' 7. 07-E/0128. On 30.8.2006 when the bus was going to Raipur, near Janjgiri turning, the bus was stopped and sorae passengers had got down. Soon thereafter when the bus was started and the deceased was trying to enter into the bus, however, due to the rash and negligent driving of its driver (Bhushan Lal Sahu) deceased fell down and one wheel of the bus ran over his body. In this accident he received grievous injuries and succumbed to those injuries on the way to hospital. The offence was registered in the Police Station - Kunihari against the non-applicant No.l for the offence under Section 304-A of the Indian Penal Code. The claimants, being parents of the deceased, filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total coinpensation of Rs. 16,05,000/- under various heads. Permission under Section 170 of the Motor Vehicles Act was refused by the Tribunal but the same has been challenged by the appellant in this appeal. We have perused the order sheets of the proceedings of the Claims Tribunal and found that though the written statement was field by the owner of the vehicle but at a later stage the' proceedings were held ex-parte against the driver and owner and therefore in view of this it cannot be ruled out that there was collusion between the claimants and the owner. Therefore, in our opinion the appellant was entitled to contest on all counts and permission should have been granted under Section 170 of the Motor Vehicles Act, 1988. Therefore, we are inclined to make a scrutiny of the quantum fixed by the Tribunal. With regard to the liability part it has been submitted that the conductor of the bus was not included as insured in the policy but •-V v rt'< x we have seen that it was a package policy in which extra premium was paid for two employees of the bus besides owner cum driver and 20 passengers, for which separate premiums were paid. Therefore, the plea that the premium for conductor was not paid is not sustainable. The Conductor is an employee deputed on the bus and since the preinium. for two employees it taken, it is presunied that the Conductor is insured under the policy. Therefore, the insuranee company has rightly been made liable to pay the amount of coinpensation as there was no breach of the policy. 8. With regard to the quantum part, we have seen that the Claims Tribunal has wrongly calculated the loss of dependency of the deceased, who was aged 22 years and was bachelor, therefore, 50% of his earning should have been deducted towards the personal and living expenses which has not been done. Besides that the average age of the parents should have been taken into consideration while applying the multiplier and that has also not been taken care of. Further, the future prospects of earning of the deceased has also not been ascertained. Therefore, we are inclined to allow this appeal on quantum part subject to reassessment of the quantum by this Court. 9. Hon'ble Supreme Court in Mohd. Atneeruddin and another Vs. United India Insurance Coinpany Litnited and another (2011) 1 SCC 304 in para 7 has held as under : "7. We are unable to appreciate the view taken by the High • ' Court on both counts. First, there was no evidence that the daily allowance of Rs. 50/- was not paid to the deceased every day or even that he was not on work on every day of the month. On the contrary, there is evidence on record that apart from \. ' .3! the monthly salary of Rs. 2500/- he was getting Rs. 50/- as daily allowance. We, therefore, hold that the Tribunal was right in assessing the monthly income of the deceased at Rs. 4000/-" 10. Theincome of the deceased has been assessed by the Tribunal as Rs. 3750/- per month, without taking into consideration the future prospects. Ifwe take the average income of the deceased Conductor, who was aged about 22 years, considering the future prospects as Rs. 5000/- per month, the 50% of the same is to be deducted for his personal and living expenses and then remainder comes to Rs. 30,000/- per annum. The multiplier of 15 would be applicable considering the age of the mother as 40 years, following the decision of Hontile Apex Court in Mohd. Anaeeruddin and another (supra) and thus the total loss of dependency comes to Rs. 4,50,000/-. The Tribunal has wrongly assessed the loss of dependency as Rs. 5,10,OOO/-. The same is liable to be reduced to - the above extent, Besides, this the parents are entitled to get Rs. 5000/- for funeral expenses, Rs. 10,000/- for loss of estate and Rs. 10,000/- each for loss of love and affecdon as the . deceased was their sole son and was aged about 22 years. After adding this amount of total Rs. 35,000/- the claimants are entitled to total compensation ofRs. 4,85,000/-. 11. Therefore, the appeal is allowed in part. The amount of compensation is reduced to that extent of Rs. 4,85,000/-. The claimants would be entitled to get this amount of compensation along with simple interest @ 6% per annum froin the date of filing of the claim petition till its pa}Tnent. 12. Further. we set aside the penal interest imposed by the Tnbunal which is not proper. The amount which has already been paid to •Y t: E 13. the claiinants would be deducted towards the above compensation. If any extra amount is found to have been paid, the same shall be refunded to the appellant. The rest of the conditions of the impugned award shall remain intact. 14. Accordingly, we allow this appeal in part, reduce the araount of coinpensation and raodify the impugned award dated 31.12.2007 to the above extent. No order as to costs. SA'- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge Thakur N \: