c•^^1. IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.fQNo. /J~W /2009 il^-in^ ^—'^ APPELLANT : [NON-APPLICANT N0.2} RESPONDENTS [APPLICANTS^ \^^'\ ...•<::"^y^ , ^•-""^•"^\^ >-^'^"'..^T ^\.^ ^•- The Oriental Insurance Company Limited, Through: Divisional Manager, Oriental Insurance Co. Ltd. Near Bus Stand, Bilaspur (C.G.) VERSUS 1. Smt. Manideepa Wd/o. Late S^K. Nath lv;l<- MO>1<" Aged about 48 years, <^*" 2. Rajishra Nath S/o. ^Late ^K-^^ Nath, aged about 24 years, 3. Devishra Nath S/o Late N-K'^@^.Nath, aged about 16 years, Through Guardian mother Respondent no. 1 Smt. Mandeepa Nath, Wd/o. Late S-K-^ath ^.K-^^- ^^ 4. Smt. Durga Rani Nath Wd/o. K.K. Nath, aged about 72 years, All R/o. L.I.G. 233 Nil Kuti, Pt. DindayalNagar, Deorikhurd, Tahsil & Distt. - Bilaspur (C.G.) 5. Vinod Sidara S/o. Pooran Lal Sidar, aged 24 years, R/o. Main Road, Torwa Tahsil and Distt.- Bilaspur MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT HIGH COURT OF CHHATTISGARH : BILASPUR M. A. (Q No. 1578 of2009 Appellant The Oriental Insurance Company Limited Versus Respondents Smt. Manideepa & others APPEALUNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 DB: Hon'ble Shri Justice I. M. Quddusi 8& Hon'ble Shri Justice Prashant Kumar Mishra \ • Shri A. K. Athley, Advocate for the appellant. Shri P. K. Tulsiyan, Advocate for the respondents No.l to 4. None for the respondent No. 5. ORDER (Oral) ( Passed bn this 18th day ofApril, 2011 ) Per I. M. Quddusi, J. 1. This appeal has been filed by the appellant/Insurance Company against the impugned award dated 1.9.2009 passed by the 6th Addrdonal Motor Accident Claims Tribunal, Bilaspur in Claim Case No. 09/2009, granting a sum ofRs. 12,00,000/- as compensation to the claimants along with interest at the rate of 9% per annum. 2. The claimants have filed cross-objections (I.A.No. 3 dated 21.3.2010) for enhancement ofthe award. 3. We have heard learned counsel appearing for the parties and perused the papers available on record. 4. The, brief facts, in nutshell, as projected by the claimants, are that on 22.3.2008 deceased N. K. Nath was going on his cycle to Deorikhurd. On the Deorikhurd turning the non-applicant No.l driving the motorcycle, bearing registration No. C.G. 10 BC/6633, in a rash and negligent manner, hit the cycle, thereby N. K. Nath received grievous injuries and succumbed to those injuries. The matter was reported in the Police Station Torva and the challan has been filed in the competent criminal Court against the non-applicant No.l. (Vinod Sidara). ^^::s^&> @ 5. The claimants being legal heirs (widow, two sons and mother) of the deceased filed an application under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation of Rs. 34,26,952/- under various heads. 6. Learned Claims Tribunal, having regard to the facts situation and the evidence on record awarded as sum of Rs. 12,00,000/- along with interest at the rate of 9% p.a. from the date of the application i.e. 8.4.2009. 7. Learned counsel for the appellant submits that the deceased was working on the post of Office Superintendent in C.M.P.D.I., Bilaspur. After his death in the accident his son has got compensatory appointment. While making assessment of the loss of dependency the Tribunal has not considered regarding the fact of compensatory appointment. 8. The same issue was considered by Hon'ble Supreme Court in Bhakra Beas Management Board Vs. Smt. Kanta Aggarwal & Ors.1. In that case a claim petition was filed by the widow and the children of the deceased K. C. Aggarwal, who died in a motor accident on 16.11.1994, under Section 166 of the Motor Vehicles Act, 1988. The Tribunal awarded compensation of Rs. 8,48,160/- along with interest @ 9% per annum. An appeal was filed before the High Court, pointing out that widow had been provided with compassionate appointment and her salary was nearly Rs. 4,700/~ per month and a residence was also provided to her. The High Court did not accept that plea and observred that the quantum of compensation has been rightly fixed by the Tribunal. Under these facts situation of the case, referring its earlier decisions in Helen C. Rebello v. Maharashtra S.R.T.C. 1999 (1) SCC 90, Hon'ble Supreme Court in paragraphs 8, 12 and 13 held as under : <(8. Similarly, in Gobald Motor Ser^ice Ltd. and Anr. Vs. R.M.K. Veluswami and Ors. (1962(1) SCR 929 at p.938) it was inter alia obser^ed as follows: ((The general rule which has always prevailed in regard to the assessment of damages under the Fatal Accidents Acts is well settled, namely, that any beneftt i 2008 AIR SCW 5256 ^^fJS^K ^'Q-' ^y^^ //^ ^\ ^as^ \. "^/ '%^y accruing to a dependant by reason of the relevant death must be taken into account Under those Acts the balance of loss and gain to a dependant by the death must be ascertained, the position of each dependants being considered separately." " "12. But we fmd that the High Court lost sight of the fact that the beriefits which the claimant receives on account of the death or injury have to be duly considered while fbcing the compensation. It is pointed out that respondent No.l was getting Rs. 4,700/- p.m. and a residence has been provided to her and actually the compassionate appointment was given immediately after the accident. " 9. <<13. In view of what has been stated above, the High Court's judgment is clearly unsustainable. However, the accident took place more than 14 years back and it would not be desirable to send the matter back to the Tribunal for fresh consideration. A sum of rupees five lakhs has been deposited vide this Court's order dated 1.11.2004. We are of the considered view that in view of the background facts, it is just and proper that the sum of Rupees five lakhs already deposited shall be permitted to be withdrawn by the claimants in full and final settlement of the claim relatable to the death of the deceased. It is for the Tribunal to fix the quantum of fixed deposit and the amount to be released to the claimants.?? In view of the above, we are of the opinion that the Tribunal could have conducted a proper enquiry for determining the actual loss of dependency. Therefore, we have no other way except to remit back the matter to the Tribunal for decision afresh in respect of quantum part only. It is made clear that the findings given by the Tribunal in the impugned award, -except the quantum part, are affirmed and they shall not be reconsidered at all. \ t; •'!''^^^'^^' hiiiiii i ,^^ 10. For the reasons stated herein above, we allow this appeal in part, set-aside the impugned award dated 1.9.2009 in respect of quantum part of the award only and remit back the matter to the Tribunal for decision afresh. No order as to costs. 11. Needless to mention that the parties shall be allowed to amend their pleadings, adduce further evidence again in support of their pleadings and may file further documents and get the documents verified ete. with regard to the point of quantum. Thereafter, the decision shall be made by the Tribunal. 12. In view of the fact that we have remitted back the matter to the Tribunal, it will be open for the claimants to raise the contention before the Tribunal with regard to enhancement of the award. The cross-objections filed by the claimants are disposed of accordingly. 13. Parties shall appear before the Claims Tribunal on 10th May, 2011. 14. The lower Courts record shall be sent back forthwith. Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge Thakur