^s^^'^^^^^s^.s^^^^'^^i,^ : .;i^ §^1 ^^,» a U»|£a©ii'Siiy»UGit IN THE HON'BLE HIGHCOURT OF CHHATTISGARH AT BILASPUR s^<> M.A.fCI No. \ J ' /2008 APPELLANTS/ OWNER Driver '°«•'•''".; 'afi^ tfS "^'•^€^:\&- \.\-'" sv l.^'- y ^' 1. Vishnu Pratap Agrawal, S/o Late Chandagi Ram agrawal, aged about 50 years, Occupation-Business, R/o Basant Lal Marg, Nagar, P.S. & Tahsil Ambikapur, Distt. Sarguja (C.G.) 2. Rakesh Kumar Dubey @ Lala S/Q Shri Ambika Prasad Dubey aged about 24 years, Occupation Driver, R/o Village Jamthan, P.S. & Tahsil Jankpur, Distt. Korea (C.G.) Presently R/o Shikari Road ( Baouripara ) Ambikapur, Nagar, P.S. & Tahsil Ambikapur, Distt. Sarguja (C.G.) VERSUS RESPONDENTS CLAIMANTS Smt. Kendali Bai Wd/o Late Mahendra Minz, aged about 26 years, Occupation-No Akash Deep S/o Late Late Mahendra Minz, aged about 6 years, ^ (2) 3. Vikas Deep S/o Late Mahendra Minz, aged about 4 years , No. 2 & 3 are Minors through natural guardian Mother, Smt. ^ Kedali Bai Wd/o Mahendra Minz, Late All R/o Village Madan Nagar ( Jhor ), P.S. & Tahsil Pratappur, Distt. Sargyja (C.G.) presently R/oVillage Bachvar, Post & P.S. Shankergarh, Tahsil Samri ( Kusmi) Distt. Sarguja (C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLEACT_1988 1:s ~'\ w HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. M.A. rcl No. 1525/2008 Appellants/ Owner Respondents/ Claimants ^ishnu Pratap Agrawal and another Vs Smt. Kendali Bai and others ORDER FOR CONSIDERATION Sd/- JUbGE ^ .10.2011 HON'BLE SHRI I.M. QUDDUSI. J ^ °3 Sd/- I-M.Quddusi Judge POST FOR ORDER ON ^~\ OCTOBER. 2011 G.Minhajju Judge ^ .10.2011 ..^"yvss .-fy'" .s\ (Sfa""'"»'~& '<'iiii»iB-—'<il ^ '^r ''4»-;3®t HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellants/ Owner Respondents/ Claimants M.A. Fcl No. 1525/2008 Vishnu Pratap Agrawal and another Vs Smt. Kendali Bai and others ^{ Present: Mr. D.N. Prajapati, counsel forthe appellants, Mr. V.K. Pandey,counsel for respondent No. 1 to 3/claimants. ORDER (Passedon 2-\ October, 2011) Per G. Minhaiuddin. J; 1. This appeal has been filed by the appellants/owner & driver under Section 173 of the Motor Vehicles Act, 1988 against the award of the Additional Motor Accident Claims Tribunal, Ambikapur, Distt. Surguja (in short "the Tribunal") dated 15.10.2008 passed in Claim Case No.33/07 whereby and whereunder liability has been fastened upon the appellants/owner and driver to pay compensation to respondents No. 1 to 3/claimants. 2. Brief facts of the case, as per averments made in the claim petition, are that on 25.12.2005 at about 4 pm, Mahendra Minj along with Arjun Ram was going to his residence from Buda Bageecha Rajpur by Hero Honda motorcycte. At that time, on the way, the driver/appellant No.2 by driving the vehicle Dumper bearing registration No. CG 12 ZC/2271 (hereinafter referred to as "the offending vehicle") rashly and negligently, dashed the motorcycle of Mahendra Minj from opposite direction, as a result of which Mahendra Minj fell down on the road and his head was crushed by the rear wheel of the Dumper, resulting_in his death on the spot. x":.'~"'%:' 7-^ 1 1^. ~""^.^// '-SS^.Eg^ 2. .-^ <' f'.. 3. At the time of accident, the deceased was 27 years of age and was earning Rs.4500/- per month by working as mason. Therefore, the claimants, who are widow and minor children of the deceased, being his legal heirs filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") for a total compensation of Rs.17,06,000/- against the death of Mahendra Minj under various heads. 4. However, learned Tribunal, after hearing counsel for respective parties, after close scrutiny of the evidence adduced by the parties before it, awarded a total compensation of Rs.5,79,600/- in favour of the claimants, fastening the liability upon the appellants/owner and driver of the offending vehicle jointly and severally. 5. We have heard learned counsel for the parties, perused the LCR as also the impugned award, 6. Contention of learned counsel for the appellants is that the Tribuna! has committed a manifest error of law, in fact, in fastening the liability on the appellants, who are owner and driver respectively of the Dumper Truck No. CG 12 ZC 2271, whereas as per FIR lodged by an witnesses immediately after the accident, the number of the offending vehicle had been mentloned as CG 15 ZC 1158 and the appellants had no relation with the said Dumper i.e. CG 15 ZC 1158. He has further contended that Criminal Case No. 12/06 for the offence under Section 304A, 279 and 336 of the IPC has also been registered involving Dumper Truck No. CG 15 ZC 1158. 7. Learned counsel for the appellants has also contended that the Tribunal has further committed error in awarding an exorbitant amount as compensation by assessing the income of the deceased on the higher side and by applying a wrong multiplier. 8. On the other hand, learned counsel for respondents No.1 to 3/claimants has supported the impugned award and submitted that it is quite legal and proper and calls for no interference by this Court. 9. !t is not in dispute that the Dumper Truck No. CG 12 ZC 2271 is owned by appellant No.1 and on the date and time of accident i.e. 3 - .^^&^ A- •Ksy-SS, < ^ 25.12.2005 at about 4 pm, the same was being driven by appellant No.2, as is evident even from the statement of appeliant No.2 Rakesh Kumar Dubey (NAW-1) himself. It is also not in dispute that Cr.No. 133/05 for the offence under Sections 304A, 279 and 336 of the IPC was registered against appellant No.2 Rakesh Kumar Dubey as driver of Dumper Truck No. CG 15 ZC 1158, and appellant No.1 Vishnu Pratap Agrawal had moved an application under Section 457 of the CrPC for obtaining the Dumper Truck No. CG 12 ZC 2271 in the interim custody (Supurdnama) and after enquiry, the same was handed over to driver/appellant No.2 on behatf of owner/appellant No.1. It is no doubt true that FIR was lodged within about 45 minutes of the accident, in which number of the offending vehicle was mentioned as Dumper Truck No. CG 15 ZC 1158. Initially, in the claim petition under Section 166 ofthe Act, 1988, number of the offending vehicle was mentioned as CG 15 ZC 1158, which was subsequently changed by the claimants as CG 12 ZC 2271, vide order of the Tribunal dated 1 9.2.2008. ). Thus, from the discussion made in para-10 of the impugned award by the Tribunal, it is crystal clear that on the date and time of the accident i.e. 25.12.2005 at about 4 pm, vehicle beartng Dumper No. CG 12 ZC 2271, owned by appellant No.1 Vishnu Pratap Agrawal, was being plied by appellant No.2 replacing the original numfaer by No. CG 15 ZC 1158 and in that condition, the accident had occurred on account of rash and negligent driving of the driver/appeltant No.2. As such, in the seizure memo (Ex.A/3), the Dumper Truck No. CG 15 ZC 1158 has been shown as the vehtele seized, which was natural in the circumstances because at that time there was no reason for the eyewitnesses, the firet informant and the police officers recording F1R (Ex.A/1) and preparing the seizure memo (Ex.A/3) to believe that in fact the Dumper Truck No.CG 12 ZC 2271 was being plied with the fake No. CG 15ZC 1158. 11. Further, it is not in dispute that appellant No.l/owner is not the owner of Dumper Truck No. CG 15 ZC 1158. If appellant No.1 was not owner of the vehicle bearing No. CG 15 ZC 1158, then there was no reason for appellant No.1 to move an application for ?"~*-..1" '•-.-s;r", •^^ •.:" ?.y ^ obtaining the said vehicle on Supurdnama before the Court of the concerned Magistrate. Moreover, a criminal case bearing No. 12/06 has also been instituted against appellant No.2 Rakesh Kumar Dubey/driver before the Judicial Magistrate First Class, Ambikapur by the police for driving the vehicle Dumper Truck No. CG 12 ZC 2271 with fake number i.e. CG 15 ZC 1158. 12. In view of the above and from the discussions made in paras 9, & 11 of the impugned award, it is clear that in fact, the accident had been caused by rash and negligent driving of Dumper Truck No. CG 12 ZC 2271, owned by appellant No.1, which was, at the relevant point of time, being driven by appeltant No.2 with the fake number i.e. CG 15 ZC 1158. It is also clear that while taking interim custody of the vehicle in question on behalf of appellant No.1 , the driver appeltant No.2 Rakesh Kumar Dubey had given an undertaking that he is taking vehicle No. CG 12 ZC 2271 on Supurdnama on behalf of the owner appellant No.1 , which bears No. CG 15ZC 11 58. 13. In view of this, it has been proved beyond all doubt that the accident had occurred with Dumper Truck No. CG 12 ZC 2271, owned by appellant No.1 and driven by appellant No.2. This is also not in dispute that the said vehicle was not insured on the date of accident i.e. 25.12.2005. As such, there is no illegality or infirmity in the findings recorded by the claims Tribunal fastening the liability, jointly and severally, upon the appellants/owner and driver of the offending vehicle i.e. CG 12 ZC 2271 and the same deserves to be affirmed. 14. So far as quantum part is concerned, the claims Tribunal has assessed age of the deceased as between 27 to 30 years, on the basis of postmortem report and averments made by the claimants in this regard and his monthly income as 3,900/- i.e. Rs.^,800/- per annum. After deducting 1/3 toward personal and living expenses, the annual loss of dependency comes to Rs.31,200/-. Thus, following the princjples of taw laid down by the Hon'ble Apex Court in the matters of Saria Venna (Smt.) Vs. Delhl Transport Corporaffon and another, reported in (2009) 6 SCC 121, the multiplier of 17 should have been apptied instead of 18. Therefore, '»*. •-^.' 6' 4tf> after applying multiplier of 1 7, the total loss of dependency comes to Rs.5,30,400/-. Besides this, the widow of the deceased is entitled to Rs.5,000/- towards loss of consortium. The claimants would also be entitled to Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. Thus, after adding this amount of Rs.20,000/-, the total compensation comes to Rs.5,50,400/-, which the claimants are held entitled to receive from the appetlants/owner and driver with interest @ 9% per annum Trom the date of filing of claim petition till its payment is made. However, the Tribunal has awarded a total compensation of Rs.5,79,600/-, which appears to be on higher side and deserves to be reduced accordingly. 15. In the result, the appeal is partly attowed. While maintaining fiability of the appetlants/owner & driver of the offending vehicle for payment of compensation, the impugned award dated 15.10.^)08 passed by the Tribunal is hereby modified to the extent that respondents No. 1 to 3/claimants shall be entitled to receive a total sum of Rs. 5,50,400/- with interest @ 9% per annum from the date of filing of claim petition till its payment is made from the appellants/owner & driver. However, apportionment of the amount of compensation between respondents No. 1 to 3/ctaimants shall be made as mentioned in the impugned award. 16. No order as to costs. GJ Sd/- I.M.Quddusi Judge Judge ain t<,