r^ HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. HON'BLE SHRI RANGNATH CHANDRAKAR, J Appellant Claimant €- Respondents t: Misc Appeal (C) No. 230 of 2010 Marshal Lugun, s/o Rejen Lugun, age 45 years, r/o village Tuna Pahad, PS Hathibadi, Distt - Sundergarh (Orissa) At present resided - Chakradhar Nagar, Raigarh (CG) VERSUS 1 Shambhu Mahto, s/o Harihar Mahto, age - 32 years, R/o Village - Gervani, Munna Krishi Farm, Gervani, PS Kotwali, Raigarh (CG) 2 Shrj Umashanker Singh, s/o AB Singh, Occupation - Owner, Age - years, R/o Village - Gervani, Munna Krishi Farm, Gervani, PS Kotwali, Raigarh (CG) 3 The New India Insurance Company Limited, through Branch Office, Sattigudi Chowk, Raigarh, Tah & Distt - Raigarh, Chhattisgarh Miscellaneous Appeal under Section 173 of Motor Vehicles Act Present : Shri Amit Sharma, counsel for the appellant. Shri Anumeh Shrivastava, counsel for respondents No. 1 and 2. Shri Shreekumar Agrawal, Senior Advocate with Shri Anand Gupta, counsel for respondent No.3. ORDER ^th (29In September,2011) .-^ •^ ^.fc^jl ^ J/ •^-—^'^ M.A.C.No.230of2010 fc: The following order of the Court was passed by Rajeev Gupta, C.J. This is claimant's appeal for enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Raigarh (for short 'the Tribunal') vide award dated 25.08.2009, passed in Claim CaseNo. 11/2008. 2) As against the compensation of Rs. 12,40,0007- claimed by the appellant/claimant, unfortunate father of deceased Ramjan @ Namjan by filing a claim petition under Section 166 of the Motor Vehicles Act for his death in the motor accident on 20.02.2005, the Tribunal awarded a total sum of Rs.1,62,500/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal on a close scrutiny of the entire evidence led before it held the New India Insurance Company Limited, the insurer of the offending vehicle Dumper bearing registration No.OR-14 A /6066 liable to pay compensation to the claimant. 4) As the insurer of the above offending vehicle Dumper has not filed any appeal against the impugned award challengingthe above finding recorded by the Tribunal, the same, now, has attained finality. 5) The Tribunal assessed the income of the deceased at Rs.30,000/- per annum. By deducting 1/3rd of Rs.30,000/- towards the personal expenses of the deceased, the claimant's dependency was assessed at Rs.20,000/- per annum. By 1 c^y M.A.C.No.230of2010 ^ ^. multiplying the annual dependency of Rs.20,000/- with the multiplier of 8, the compensation was worked out to Rs.1,60,000/-. By awarding further sum of Rs.2,500/- towards funeral expenses, the Tribunal awarded a total sum of Rs.1,62,5007- as compensation to the claimant for the death of his son Ramjan @ Namjan in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,62,500/- @ 6% per annum from the date of th.e filing of the claim petition till the date of actual payment. 6) Shri Amit Sharma, learned counsel for the appellant submitted that the Tribunal has erred in assessing the income of the deceased at Rs.30,000/- per annum only; in selecting the lower multiplier of 8; and in awarding low compensation of Rs.1,62,500/-only. 7) Shri Shreekumar Agrawal, learned Senior Advocate with Shri Anand Gupta, learned counsel for respondent No.3, the New India Insurance Company Limited, the insurer of the offending vehicle Dumper on the other hand supported the award and contended that the compensation of Rs. 1,62,5007- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 8) Shri Anumeh Shrivastava, learned counsel for respondents No.1 Shambhu Mahto and No.2 Umashanker Singh, the driver and owner of the offending vehicle Dumper also supported the award. 9) True, the claimant pleaded that his son Ramjan @ Namjan used to earn Rs.5,000/- per month by working as Khalasi/Helper on .'^ M.A.C.No.230of2010 (l€ ^.... the said Dumber, no cogent and reliable evidence was led before the Tribunal for establishing the income of the deceased to the extent of Rs.5,000/- per month. In this state of evidence, we do not find any fault in the approach of the Tribunal in discarding the claimant's evidence about the income ofthe deceased. 10) Nevertheless, the income of the deceased assessed by the Tribunal at Rs.30,000/- per annum in the year 2005 is certainly on the lower side and requires re-consideration. 11) The Tribunal, in our opinion, while discarding the claimant's evidence about the income of the deceased, ought to have assessed his income on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act. 12) Section 163 - A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows: "[163 A. Special provisions as to payment of compensation on structured formula basis - (1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorized insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation - For the purposes of this sub- section, "permanent disability" shall have the "^ .,<i$S^ 1 «^^ A,...: ^y --,..,,..^^"' M.A.C.No.230of2010 ^ same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under Sub - Section (1), fhe claimant shall not be required to plead or establish that the death or permanent disablement in respect ofwhich the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person. (3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule." 13) The above quoted Sub - Section (3) of Section 163 - A of the Act mandated the Central Government to amend the Second Schedule from time to time keeping in view the cost of living. 14) As the Central Government has failed in amending the Second Schedule as provided in Sub - Section (3) of Section 163 - A of the Act, the Courts / Tribunal can take judicial notice of increase in the prices of essential commodities and the cost of living during the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case. 15) Now, reverting to the present case, the unfortunate accident wherein claimant's son Ramjan @ Namjan lost his life took place in the year 2005. If the increase in the prices of essential commodities and the cost of living between the year 1 994 and the year 2005 are taken into consideration, the notional income of '^ .."^':ii ^'-sffS^. '% •fc^ jl 6 M.A.C.No.230of2010 ^ ^. Rs.15,000/- prescribed in the Second Schedule in the year 1994 would come to Rs.36,000/- in the year 2005. We, therefore, propose to re-compute the compensation taking the income of the deceased at Rs.36,000/- per annum. 16) Considering that deceased Ramjan @ Namjan on the date of the accident was unmarried and the claimant is his father, we deem it proper to deduct 50% of the income of the deceased towards his personal expenses in view of the dicta of the Apex Court in the cases of Syed Basheer Ahamed and others Vs Mohammed Jameel and another reported in (2009) 2 SupremeCourt Cases 225 and Sarla Verma (Smt) and others VersusDelhi Transport Corporation and another reported in (2009) 6 Supreme Court Cases 121 . The claimant's dependency, therefore, is assessed at Rs.18,000/- per annum by deducting 50% of Rs.36,000/- towards the personal expenses ofthe deceased. 17) As the sole claimant in the case is father of the deceased, we are of the opinion that multiplier of 10would be appropriate in view of the dictum of the Apex Court in the case of Municipal Corporation of Greater Bombay Vs Laxman lyer and another, reported in (2003) 8 SCC-731. 18) By multiplying the annual dependency of Rs. 18,000/- with the multiplier of 10, the compensation worksout to Rs.1,80,000/-. The claimant is further entitled to receive Rs.5,000/- towards funeral expenses and Rs.5,000/- for loss of estate. The claimant, thus becomes entitled to receive a total sum of Rs.1,90,000/- as ^•^^::?h '? M.A.C.No.230of2010 ^ ^^- compensation for the death of his son Ramjan @ Namjan in the motor accident. 19) The claimant is awarded further sum of Rs.2,500/- towards quantified amount of interest on the enhanced amount of compensation of Rs.27,500/-. 20) For the foregoing reasons, the appeal filed by the appellanVclaimant for enhancement of the compensation is allowed in part. The compensation of Rs.1,62,500/- awarded by the Tribunal is enhanced to Rs.1,90,000/- with further quantified amount of interest of Rs.2,500/- on the enhanced amount of compensation of Rs.27,500/-. 21) Respondent No.3 the New India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.30,000/- (Rs.27,500/- towards enhanced amount of compensation + Rs.2,500/- towards quantified amount of interest on the enhanced amount of compensation of Rs.27,500/-) before the concerning Claims Tribunal. 22) No order as to costs. Sd/- Chief Justice padma Sd/- -^- R.N. Chandrakar Judge