^^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (C) N0. ^5_5^ / 2009 APPELLANT : INSURER^ RESPONDENT N0. 3 (^ICICI Lombard General Insurance Co. Ltd., ICICI Towers, Bandra Kurla Complex, Bandra (East) Mumbai, Through ifs Legal Manager, 3rd Floor, Lal Ganga Shopping Complex, G.E. Road, Raipur, Chhattisgarh -Q-. VERSUS •^^^\ RESRONDENTS PLAIMANTS ^/ ^^' RESPONDENT N0. 1 1,^ Parvati Rathore, wife of Late Shri Santosh Rathore, aged about 30 years, ^f Manoj Kumar Rathore, son of Late Shri Santosh Rathore, aged about 14 years, ^ Ku. Manisha, daughter of Late Shri Santosh Rathore, aged about 1 1 years, 4. Ku. Lakshmi, daughter of Late Shri •^ Santosh Rathore, aged about 02 years, Respondent Nos. 2 to 4 being minors trough respondent No. 1 being their mother. 5. Purshottam Rathore, son of Late Shri Bhukhan Rathore, aged about 55 years / Duvsiya Bai, wife of Shri Purshottam Rathore, aged about 50 years All residents of Village Sirgitti Dohanpara, Thana Taar Bahar, Tehsil Bilapsur, District Bilaspur, Chhattisgarh 7^ Ashok Kumar, son of Shri Ram Kripal, aged a-bout 40 years, resident of Jaiswal Bus Service, Pendra, Tehsil Pendra, District Bilaspur, Chhattisgarh [ DRIVER ] Ss, Advocate t^S>?o^^em A'o. 2- 8. Pratap Narayan, son of not known to the appellant, resident of Jaiswal Bus Service, Pendra, Tehsil Pendra, District Bilaspur, Chhattisgarh [VEHICLEOWNER] IVIEMORANDUM OF APPEAL UNDER SECTION ifsOF THE MOTOR VEHICLES ACT 1988 .L HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI <& HON'BLE MR. PRASHANT KUMAR MISHRA, JJ. APPELLANT RESPONDENTS M.A.k] N0.559 OF 2009 ICICI Lombard General Insurance Co. Ltd. Versus Smt. Parvati Rathore <& others Present : Mr. Amrito bas, Advocate for the appellant. None for the respondents though served. ORAL ORDER (19th January, 2011) Per I.M. Quddusi. J. 1. The appellant-Insurance Company has preferred this appeal against the award dated 14.01.2009 passed in Claim Case No.119/08 by the learned 6th Additional Motor Accident Claims Tribunal. Bilaspur (CG) (for short 'the Tribunal') allowing the claim application of the claimants. 2. Facts of the case, in brief, are that the appellants/claimants have filed a claim application before the Tribunal under Section 166 of the Motor Vehicles Act, 1988 (for short 'the Act') seeking compensation of Rs.20,68,000/- for the death of Santosh Rathore, who was husband, father & son of the ctaimants respectively, in a motor accident, which took place in the morning of 27.08.08 at about 6.00 a.m. when the offending vehicle. due to rash negligent driving of its driver, dashed the truck bearing registration number CGIO-C-2014 near Sarveshwari Ashram, Koni, which was being driven by the deceased. The claimants/respondents No.l to 6 herein have claimed compensation on the ground that they were dependent on the deceased, who was the sole earning member in the family, and due to his untimely death they have suffered loss of income. 3. The owner and the driver of the offending vehicle remained ex-parte. The appellant herein fited its written statement and denied the claim of the claimants /;^\ % v;^>?^' ^^s^ 4. The learned Tribunal, after considering the issues framed by it, allowed the claim application of the claimants and despite holding that tjacft the accident took place due to rash and hegligent driving of the driver of the offending vehicle has held that the appellant-Insurance Company is liable to satisfy the award. 5. We have heard learned counsel for the parties and perused the records of the Tribunal as also the findings given in the impugned award. 6. Learned counsel for the appellant-Insurance Company has submitted that since the accident was a head-on-collision, the Tribunal should have held that the accident.occurred due to contributory negligence of the drivers of both ^he vehicles and should haveapportioned the liability of the deceased and the driver of offendin9 vehicle in the ratio of 50:50. He has further submitted that the offending vehicle was being plied without valid permit and the same amounts to breach of conditions of the insurance policy and therefore the insurance company is not liable to pay any compensation to theclaimants. He has further submitted that the amount awarded by the Tribunal is too excessive. 7. We have heard learned counsel for the appellant-Insurance Company at length, perused the impugned award and gone through the relevant material ^ ' ; - available on record. 8. So far as the first argument of the learned counsel for the appellant- Insurance Company regarding contributory negligence is concerned, it is by now settled that to determine the question as to who contributed to the happe.ning of the accident, it becomes relevant to ascertain who was driving his vehicle negligeptly and rashly and in case both were so doing who was more responsible for the accident and who of the two had the last opportunity to avpid the accident. In a case when two vehicles are involved in an accident, and one of the drivers' claims that the deceased claimant himself was negligent, then it becomes necessary to consider whether he was solely or partly responsible for the accident and the extent of his liability, that is, his contributory negligence. Where the deceased or injured himself is guilty of some negligence, his claim for damages is not defeated If /' ,.^;:'wsw^" ^..^. '^ ^..3^^ %.. .// <..' merely by reason of the negligence on his part but the damages recoverable on his part stands reduced in proportion to his contributory negligence. 9. In the matter of Bijoy Kumar Dugar Vs. Bidyadhar Dutta & ors reported in AIR 2006 SC 1255 the Hon'ble Supreme Court has held as under:- U12. Adverting to the next contention of the claimants, no doubt the Hi'9h Court has not dealt with the point in issue. However, we have noticed the reasoning and finding of the MACT recorded under Issue No.2. It is the evidence of Rajesh Kumar Gupta-P.W.2 who was travelling in the Maruti car along with the deceased Raj Kumar bugar on the day of the accident that he also suffered some injuries in the said accident._ He stated that while coming from bigboi, the Maruti car being drivenby the deceased met with an / accident at aplace near Kharjan Pol. Before the accident, Raj Kumar Dugar noticed a passenger bus coming from the opposite direction and the movement of the bus was not normal as it was coming in a zigzag manner. The Maruti car being driyen by the deceased Raj Kumar bugar and the offending bus had a head on collision. The MACT has not accepted the evidenceof P.W.2 to prove that the driver of the offending bus was driving the vehicle in abnormal speed; If the bus was being driven by the driver abnormally in a zigzag manner, as P.W. 2 wanted to believe the Court, it was, but natural, as a prudent man for the deceased to have taken due care and precaution to avoid head-on collision when he had dready seen the bus from a long distance coming from i the oppositedirection. It was head on collision in which both the vehicles were damaged and unfortunately, Raj Kumar bugardied'on the spot. The MACT, in our view, has rightly observed that had it been the knocking on one side of the car. the negligence or rashness could have been wholly fastened-7or attributable to the driver of the bus, but when the vehicles had a head-on collision. the drivers of both the vehicles should be held responsible to have contributed equally to the accident. The finding on this issue is a finding of fact and we do not find any cogent and convincin9 reason to disagree with the well-reasoned order of the MACT on this point. The MACT has awarded interest at the rate of 10% per annumon the amount of compensation from the date of filing of the claim application till the date of payment. It is a discretionary relief granted by the MACT and.in our view, the discretion exercised by the MACT cannot be said to be inadequate and inappropriate." ^ :.-<^'-^. 1. vi •••^y^ 10. Inlight of the above judgment, we are of the opinion that since present is a case of head-on-collision, the Tribunal should have held that drivers of both the vehicles are equally responsible to the accident and should have apportioned the liability in the ratio of 50:50. 11. Now coming to the next argument of learned counsel for the appellant that the vehicle was plied in breach of the Insurance Policy. In the instant case, Insurance Policy of the offending vehicle is available on record and perusal of which shows that the policy was effective from 28.12.2007 till midnight of 27.12.2008 and the date of incidentis of 27.8.2008. Further, Xerox copyof temporary permit is also available on the record which wasissued by the RTO, Bilaspur and valid for a period 27.8.2008 to 28.08.2008. Driving licence of the driver of the offending vehicle is also available on record. Thus, in these circumstances, it cannot be sai'd that the offending vehicle was plied in breach of the insurance policy. 12.So farasthe quantum is concerned, we find that to calculate the total loss of dependency the Tribunol has deducted 1/3 from the income of the deceased towards his personal and living expenses and thereafter applied multiplier of 16 on the ground that at the time of accident the deceased was 36 years of age and thus,assessed the total loss of dependency as » Rs.6,40,000/-. However, in view of the decision of the Hon'ble Supreme Court in the matter Sarla Verma (Smt.) and others -vs- belhi Transport Corporation and another reported in (2009) 6 SCC 121 wherein it has been held that if the dependents are 4 to 6 in numbers/then l/4th should be deducted from the monthly income of thedeceased, we are of the opinion that the Tribunal has wrongly deducted l/3rcl towards personal and living expenditure of the deceased and it should have deducted 1/4 . Further, looking to the age of the deceased, which was 36 years at the time of accident, the multiplier apptied by the Tribunal is also not correct and the Tribunal should have applied the multiplier of 15, as held in Sarla Verma's case (supra). The amounts awardedby the Tribunal under various admissible heads are also not in accordance with the amount mentioned in the Second Schedule provided under Section 163A of the Act. In the ^. ^:,:i.'^ te/ /.- .;:.^r' %- circumstances, the impugned awarded granting compensation to the claimants needs to be revised. IS.Taking into consideration the facts and circumstances of the case, in our view, the monthly income of the deceased is fixed at Rs.60,000/- p.a. and if we deduct l/4th from the annual income of the deceased and apply the multiplier of 15 to it, according to Sarla Verma's case (supra), the total loss of dependency would come to Rs.6,75.000-/ (l/4th of 60000x15). /\s we have found that drivers of both the vehicles were equally responsible for the accident and as such the extent of contributory negtigence on the part of driver of the offending in question is only 50%, therefore, the compensation has to be reduced only by 50%. Thus, the net compensation awardabte to the claimants/respondent No.l to 6 will be Rs.3,37,500/- (that isRs.6,75,000/- less 50% thereof). Besides this, as there are six claimants, therefore, we propose to award Rs.10,000/- towards toss of consortium, Rs.10,000/- each to respondent Nos.2 to 4 <& Rs.5,000-/ each to the respondent Nos.5 & 6 towards loss of love & affection, Rs.10,000/- towards loss of estate, and Rs.5,000/- towards funeral expenses. Thus, the total compensation for which the claimants will be entitled for is Rs.4,02,500/- v (Rs.3,37,500+65,000). 14.In the result, we allow this appeal in part, set aside the impugned award to the extent that nouv the claimants/respondents No.l to 6 shall be entitled for totai compensation of Rs.4,02,500/- instead of R^.7,00,000/-, as awarded by the Tribunal. Rests of the conditions of the impu9ned award shall remain intact. The amount already deposited by the appellant- Insurance Company shall be adjusted. 15^Certified coy as per rules. ___-—-- Roshan/- Sd/- ^.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge