^9 HIGHCOURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, Misc. Appeal (Cl No.113 of 2009 APPELLANT : NoharSingh RESPONDENTS VERSUS Uttam Chandrakar and two others. ) APPELLANT RESPONDENTS Misc. Appeal (Cl No.173 of 2009 Akbar Sai and others. VERSUS Uttam Chandrakar and others. QRDER For Pronouncement of Order «:S.a_. -..,.» t ' ^.,,- »l* ?....* « .. ».'- •; •»^* |^02.2011 Sd/~ R.L. Jhanwar Judge •^^n--.,?';•";.;'s"^ KJ. ., - T ^^ i€,^' ".,,,^ 1, tt^^iS?^ % ^v^-'/^^ y- ,1^/ c5) HIGH COURT OF CHHATTISGARH : BILASPUR APPELLANT SINGLE BENCH: HON'BLE SHRI R.L.JHANWAR. J. M.A.(ClNo.113of2009 Nohar Singh, S/o Cherku Ram Gond, aged about 35 year, R/o Gubiyagarh, Police Station and Tahsil Mohla, District Rajnandgaon (C.G.) RESPONDENTS APPELLANTS RESPONDENTS N.A 3. VERSUS Uttam Chandrakar, S/o Kanhaiyya Chandrakar, aged about 37 years, R/o Janta Chowk Kurud, Tahsil Kurud, District Dhamtari (C.G.) Ghanshyam Chandrakar, S/o Kanshiram Chandrakar, aged about 38 ye^rs, R/o 'Village Rakhi, Tahsil K^rud, District ^Rhamtari(C.G.) ' The Oriental Insurance Company Limited, Through : Branch Manager, Branch Office - Kamti ; Line, District Rajnsindgaon Rajnandgaon, M.A.(C)No.173of2009 1. Akbar Sai, S/o Gudru Sai, aged about 60 years, 2. Smt. Sukhbati W/o Akbar Sai, aged about 58 years, 3. Aakash Kumar, S/o Late Belarsai, aged about 08 years, : Appellant No.3 Minor Through Next Friend and Grand father Akbar Sai. ' All R/o Village-Kumhari, Police ' Station Manpur, District Rajnandgaon (C.G.) VERSUS 1. Uttam Chandrakar, S/o Kanhaiyya Chandrakar, aged about 37 years, R/o Janta Chowk Kurud, Tahsil Kurud, , DjstrictDhamtari(C.G.) 2. Ghanshyam Chandrakar, S/o Kahshiram Chandrakar, aged about 38 years, R/o Village Rakhi, Tahsil Kurud, District Dhamtari (C.G.) 3. The Oriental Insurance Company Limited, Through : Branch Manager, Branch Office - Kamti Line, Rjajnahdgaon, District .Rajnandgaon (C.G.) ' "^•^ '^.~^ 1 ^y^, ^ Jl^'" •7/ MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLESACT.1988 Appearance (in the above two appeals): Shri P.P.Sahu, counsel forthe appellants. Shri Hanuman Prasad Agrawal, counsel for respondent No.3. NoneforrespondentsNo.1 &2. ORDER (Passedon^"'.02.2011) By this common order, M.A.(C) No. 113 of 2009 and M.A.(C) No.173/2009 are being disposed of as the same arearisin^out of same accident which took place on 12.6.2007. 2; Brieffactsofthecase,inanutshell,are that on 12.06.2007, both Nohar Singh and Belar Sai were going on a motor cycle from the village Khadgaon to Manpur. At about6.30 p.m., due to head on collision with one Martu Van bearing No. C.G.05 A 3342 the said motor cycle met with an accident between the villages Iragaon to Kutrinadi. In the said accident both the persons got injuries:rand dye.to. injuries Belar Sai died instantaneously. 3. On account of injuries sustained by him in the said mptor accident, Nohar Singh filed a claim petition under Section 166 read with 140 of the Motor Vehicles Act (for short 'the Act') claiming compensation of Rs.4,25;000/r:pleadin'gcthatsbn thdid6i1:esdf;accidenttie was aged 35 years; he was earning 100/- per day; due to accident he sustained fracture on right thigh and was unable to perform his duties and also sustained permanent disability. Similarly, on account of death of Belar Sai, claim petitionseeking compensation of Rs. 13,25,0007- was filed whereih it was pleaded by the claimants that the'deceased Belar Sai, oh the date of accident, was aged 27 years; he was earning Rs.4000/- per month by doing the job of driving; he was also earning Rs.50/- per day as daily allowance. 4. The Tribunal in paragraph 13 of the order, after finding the accident due to head on collision; h'eld' both the'drivers of the motor c^cle as well as ~w 1 ^. "^/ C5> Maruti Van liable for the accident meaning thereby there was contributory negligence on the part ofboth the drivers in causing the accident. 5. In claim case No. 70/2008, as against the compensation of Rs.4,25,000/- sought by Nohar Singh for the injuries sustained by him in the motor accident took place on 12.06.2007, the Claims Tribunal, on close scrutiny of the evidence and submissions made bythe respective parties, awarded Rs.40,000/- and since it appears to be a case of contributory negligence, the appellant/claimant is held for Rs.20,000/- as compensation. However, keeping in view the mandatory provisions of the Act, according to which, the appellant should get Rs.25,000/- as compensation under no fault liability, the Tribunal by adding Rs.5000/- to thecompensation of Rs.20,000/- arrivedat earlier by the Tribunal in the case of contributory negligence, theappellant / claimant is heldentitled for <> • ? n ->^-r-, c^"^ ^N^ 70^200^ ''-~~ ":"•:'." "'•• l"";' • Rs.25,000/- as total compensation. i 6. In claim case No. 71/2008, as against the compensation of Rs.13,25,000/- claimed by the legal representatives / claimants, the Claims Tribunat, holding that since there was no documentary proof to show'that /the deceased ?was4W/6rking tractor driver and'was earning through driving, fixed notional income bfRs.15,000/-; deducted dne-third from Rs.15,000/- and after applying multiplier of 17, total dependency was workedout to Rs.1,70,000/-. By adding Rs.22,000/- under! other heads, total sum of Rs.1,92,000/- was worked out as compensation. Since the Tribunal finding the accident due to contributory negligence, :therefore, the claimahts held entitled fo Rs.96,000/-. 7 . Being aggrieved by the order dated 29.12.2008, the claimant i.e. Nohar Singh in claim case No. 70/2008 as well as the claimants i.e legal representatives in claim case No. 71/2008 approached this Court for enhancement of compensatioh aWarded by the Tribunal. The findings of the Tribunal that the accident which took place on 12.06.2007 was occurred because of boththe drivers and as the offending vehicle i.e. Maruti Van was insured with the insurance company, the insurance company was held liable for payment of compensation have been attained finality since there is no appeal for insurance company. :\r. ^<f"^ 8. Shri P.P.Sahu, learned counsel for the appellants argued that the learned Claims Tribunal has erred in taking account the disability certificate showing the appellant Nohar Singh suffered 30% permanent disability; the learned Claims Tribunal has also erred in fixing the income ofinjured Nohar Singh at Rs.2000/- per annum and applied multiplier of 13 on Rs.2000/- determined the loss of income at Rs.26,000/-. After adding Rs.14,000/- underother heads,the Tribunal awarded Rs.40,000/- as compensation which is not sustainable under law. He further argued that the Tribunal has furthered erred in finding the accident because of contributory negligence on the part of both the drivers, whichis based on conjectures and surmises. It was also argued that since the driver of Maruti Van did not enter witness box to rebut the claimant's evidence, the learned Claims Tribunal ought to have held that driver of Maruti Van was responsible for causing accident by driving it rash and recklessly. On these premises, he urged that compensation awarded by the Tribunal be enhanced. 9. Shri P.P.Sahu, learned counsel for the appellants, while arguing on same-footing, submitted in claimcase No. 71/2008 that the driver of motor cycle was not negligeht but the learned Claims Tribunal'has erred in dedding the question that there was contributory negligence'on the part of both the drivers and held them liable for 50% -50%. The Tribunal ought to have declaredthe driver of motorcycle to be not negligent. Reliance was placed in the matter of Andhra Pradesh State Road Transport Corpoir^tiori aric^Wl^h^^^ H^rttlathW aindothers, (2008) 6 SCC 767. He further argued that the learned Claims Tribunal has erred in taking the notational income of Rs.15,000/- which is on lower side whereas it should be Rs.36,000/-. Lastly, he urged that based on the notional income of Rs.36,000/-, the compensation awarded by the Tribunal be enhanced. 10. On the other hand, Shri Hanuman Prasad Agrawal, learned counsel for the insurance company in both the appeals argued in support of the impugned order. He further submitted that after apprecjating the evidence available on record, the learned Claims Tribunal has rightly held both the drivers'liabld foi<*catrsing}<stec;id^nt€Hd'has"Tightlyawarded compertsation. On these premises; he urged that both fhe appeals be dismissed. ^^^2^ .^'J""«.. ""v<^ ,^r^ . ^ ' (<ig£a|j i T :JJ E^ 11. I have heard learned counsel for the parties and perused the record ofthe Claims Tribunal indudihg impugned order. 12. In order to appreciate the arguments advanced on behalf of the parties, 1 shall firs.t deal with the findingas to contributory negligenceby the Tribunal. Injured Nohar Singh has deposed in his evidence that he was going on a motor cyclealong with Belar Sai and due to accident he sustained injuries whereas Belar Sai died on the spot due to injuries. According to him, the incident took place near about 6.30 p.m. in the evidencing between the road of Iragaon and Kutrinadi viliages. In his examination-in-chief, he has not deposed that whether the accident took place midst of the road br any side of the road. He has also'deposed that i-bad 1s rotigh on'both'edQfes'.'^l-l^'h&s'further deposed that he could see the number of offending vehicle being C.G./3342 whereas in F.1. R. there was no mention of number of offending vehicle. In addition to it, in F.1.R. "unknown vehicle" was mentioned. The driver and owner of the offending vehicle did not enter box to depose whether or not the offending vehicle f wasinvolved in the accident.In paragraph 8 of evidence, Nohar Singh .•;Tain?:.-;d i:^.^,1:: wl"Area^ ^^?a?'^"•: w'\.-'" .- :'--- . '^ • "• has deposed that breadth of road is 10 -12 feet and the incident took place due to head on collision. In the present case, since there is no evidence available onrecord, therefore, Nohar Singh is deemed to be the only eye witness of the incident and his evidence inspires confidence and trustworthy. Thus, it is clear that the accident took place due to head on collision between the motor cycle and Maruti Van and the Tribunal has rightly held both the drivers liable for causing accident and has rightly found the accident caused because of contributory negligence. In the 1 matter of Andhra Pradesh State Road Transport Corporation and another v. K. Hemlatha and others (supra) the evidence of both the .1 drivers were adduced and the Court had a chance to see that who was negligent and how much they were liable for accident, then only it could have fixed the proportion. The Supreme Court has also found both the drivers negligent and fixed the proportion at 1:4. In the present case, according to evidence of injured Nohar Singh, the accidentoccurred because of head on collision and therefore, the Tribunal held it as c:'-'"-::n:! i":.''.'..,-r^ th.- n'ot'T- c—'e•:'!i- ' ".': . ;1 '.'^ .•": ' ' ~" •• ' ^' contributory negligence. 1 am of the considered view that the finding of the Tribunal on this point is proper and thus calls for no interference. .3 V I '....' ^y ^^''^.^ . '^ ^ "35 13. So far as the 30% permanent disability of Nohar Singh is concemed, Dr. V.K.Pandey A.W.2 has deposed that his report is Ex.P.8. According to him, he did not treat Nohar Singh and there was no certificate obtained from medical Board. He has deposed that he did not advise him for X-ray immediately and then he will treat him. The injured Nohar Singh has already old X-ray report and based on that report he has determined the injured suffered 30% permanent disability. In cross- examination, he has admitted that if the injured would have taken treatment properly, then certainly the disability suffered by the injured couldbe reduced. A perusal of his evidence would make it clear that he is not treating doctor and has come to conclusion that the appellant—Nohar Singh suffered 30% permanent disability only on the basis of old X-ray report. It has also not cpme in his evjdence that the appellant suffered permanent disability in his body or any part of the body. In this view of the matter, lam of the considered view that the learned Claims Tribunal has rightly disbelieved the fact in so far as it relates to 30% permanent disability which was sufferedby the appellant - Nohar Singh. 14." "fAs"riegards 'injuries'yustfeiined' by' the'appellant -- Nohar' Singh ahd the treatment thereof, a perusal of evidence on record clearly revealed that although the appellant was medially treated butdid not produce any document relating to medical bill, but the learned Tribunal was justified in fixing the amount of Rs.2000/- towards loss of income slnd thereafter applied multiplier of 13. The Tribunalworked out the total loss of income whichcame to Rs.26,000/-. In a'ddition to this, the Tribunal added a sum of Rs.14000/- under other heads. Thus, the total compensation was worked out to Rs.40,000/-. Since the case appears to be contributory negligence, the Tribunal reduced the amount to Rs.20,000/-. However, the Tribunal thought it appropriate to award Rs.25,000/- instead of Rs.20,000/- because the minimum compensation which should be given under Section 140 ofthe Act is Rs.25,000/- in case of injury. Therefore, the claimant - Nohar was held entitled to get Rs.25,000/- forthe injuries sustained by him in motor accident. The findings recorded by the Tribunal are purely basedon legal, clinchingand reliable evidence sustainable under law. R7 "•;,onr;"- •. fn-*'i!t': ,^f% J:%,^»'k I, ^•^•' ^:" 15. For the foregoing reasons, l do not find any illegalityor infirmity in the impugned order requiring interference by this Court. Accordingly, M.A.(C) No. 113 of 2009 for enhancement is liable to be and is hereby dismissed. 16. Asregards compensation of Rs.96,000/- awarded bythe Tribunal for the death Belar Sai in the same accident on 12.6.2007, it has already come in the evidence of Nohar Singh that accident took place due to head on collision between motor cycle and Maruti Van. Since the accident took place due to head on coltision between two vehicles, therefore, the Tribunal held it to be contributory negligence because of negligence on the part ofboththe drivers. It is clear from the evidence ofA.W.1 Akbar Sai that the deceased Belar Sai was hisson, appellant No.2 Sukhmati is his wife 'whereas^'appetlarit' Nd:3"-i' AaKash Kumar is the son of the deceased, who is aged 8 years. It is alsoclear from his evidence that he did not witness the incident as he was not present at the time of accident. Although Shankarlal A.W.2 also did not witness the incident, but he has stated that he was paying Rs.3,000/- per month to the deceased because the deceased was working as driver.under hjm. In.thiscase, the only eye witness who is present at the time of accident is Nohar Singh and according to him, as has already been stated above, the accident took place because of negligence on the part of both the drivers, therefore, the learned Tribunal has rightly held both the drivers liable for cause of accident. H(^;f ^V*^a Yfi tk...»»..3o o>^>J/v^l»c4H[ »NJO.sJ' ••••{• 17. The learnedClaims Tribunal, inter alia holding, fixed the notional income of the deceased at Rs.15000/- per annum. l am of theconsidered view that the Tribunal has erred in fixing the notional iricome of the deceasedat Rs.15000/-. The notional income of Rs.15000/-per annum was prescribed in the Second Schedule under Section 163-AoftheMotor Vehicles Act in the year 1994. The accident in the present case, whereih the deceased Belar Sai lost his life, took place in the year 2007. If the increase in the prices of the essential commodities and the cost of living between the year 1994 and the year 2007, the year of accident in the present case, are taken into consideration, the notional income of Rs.15,000/- prescribed in the Second Schedule in the year 1994 would certainly come to Rs.36,000/- in the year 2007. 1 therefore, propose to re- v^ i:- 1,'^^% 2-7 I^NS^^»^gnl compute the compensation taking the income of the deceased at Rs.36,000/-. 18. As the claimants are mother, father and son (ofthe deceased) and the fact that thedeceased was married person, therefore, his contribution to family would be two-third after deducting one-third towards his personal expenses. The Tribunal has rightly deducted one-third towards his personal expenses. Considering the age of the parents, son and the age of the deceased, it would be appropriate to use multiplier of 17, as was taken bythe Tribunal. Now, after deducting one-third from annual income of Rs.36,000/-, the dependency would come to Rs.24,000/- and after multiplying the same by the multiplier of 17, the total dependehcy works out to Rs.4,08,000/-. By adding Rs.22,000/- under other heads, as awarded by the Tribunal, the total compensation works out to Rs.4,30,000/-. Since there was contributory negligence on the partof both the drivers of the vehicles, the proportion is fixed at 50:50. Therefore, the claimants in this case will get 50% i.e. Rs.2,15,000/- out of the amount of Rs.4,30,000/- from the driver of Maruti Van. As the offending vehicle was insured with respondent No.S/insurancecompany, therefore, the insurance company is also liable to pay compensation. 19. The claimants have already been awarded Rs.96,000/- by the Tribunal. If the amount of Rs.96,000/- is deducted from Rs.2,15,000/-, the a sum of Rs.1,19,000/- would come. Therefore, the enhanced amount which'the claimahts are"ent1l1ed'toge'f Rs.1;19;000/-.' ' 20. Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amoypt pf,;interest on the enhanced ampunt pf compensation may be quantified in this appeal itself. , 21. The accident in the present case, wherein deceased Belar Sai loss his life, took place in the year 2007; the claim petition was filed by the claimants in the year 2008; the impugned award was passed by the I):",ribunal^in,.).t|i!e,!iyeaiL^QRj8;j ^hei.-pr^sent-appeal was filed by the appellants/claimants for enhancement of compensation in the year 2009 and the appeal is being finally decided in the year 2011. Considering all "'^ ^^ the relevant factors including the delay indisposal ofthe claim petition and thepresent appeal and the fact that the Insurance Company alone is not to be blamed for the delay in the matter, 1 quantify the amount of interest on the enhancedamount of compensation of Rs.1,19,000/- at Rs.11,000/-. Thus, total compensation works out to Rs.1,30,000/- 22. For the foregoing reasons, M.A.(C) No. 173/2009 filed by the claimants for enhancement of the compensation is allowed in part. The compensation of Rs.96,000/- awarded by the Tribunal is enhanced to Rs.1,19,000/- with further quantified amount of interest of Rs.11,000/- on the enhanced compensation of Rs.1,19,000/-. ! 23. Respondent No.3 - The Qriental Insurance Company Limited is granted ithree-mptl^s' tirp,9 iforridepositing the total sum of iRs.1,30,000/- (Rupees one lakh thirty thousand only) with the concerning Claims Tribunal. No order as to costs. 24. A copy ofthe orderbe placed in M.A.(C).No. 113/2009. _\ Sd/- R.L. Jhanwar Judge yi.-^.i.^u L<..t^j^; <'t;U[HL< l^hd: \\J1 d£pOLi».*»<C.<t.i'*.^ ..^..c,. ^^..? s... ..\,.. . .,-1