c •f-^ . /l l\II\J!^¥:'j11:^^! j^"u^l^C:AU r-1fc 'sPAGE No, IN THE HIGH COURT OF CHHATISGARH AT BILASPUR (C.G.l MISC. APPEAL [C] No. \^,. /2009 D.B. Binct APPELLANT: - Venu Gopal lyyer, Age:-45 Yrs. [Non-applicant no. 1] ,,,...-Y,^(AI' S/0: - Shri Madan Gopal Tyyer, ..s^&fs .y^." t ^ .••'•* ^ ^- w ^^^^v .-.<•"" R/0:-Quarter No. 31, Karmchari Nagar, Durg, District: - Durg (C.G.) [Owner & Driver ofthe Offending Vehicle Maruti Car-Soo No. €.€.-07/2250] :VERSUS: RESPONDENTS: - (Claimant) (Claimant) (Claimant) (Claimantl (Claimant) (Claimant) <7 1. 2. ^ > 3. 4. -s 5. ^ 6.s Sunifa More, Age:-29 Yrs, W/0 Late Rajkumar More, Ku. Manisha More, Age:-l2 Yrs, Minor D/0 Late Rajkumar More, Shubham More, Aged about:-10 Yrs,Minor S/0 Late Rajkumar More, Gopal More, Age:-12 Yrs, Minor S/0 Late Rajkumar More, Ashish More, Age:-04 Yrs, Minor S/0 Late Rajkumar More, Ku. Bharti More, Age:-04 Yrs, Mmor D/0 Late Rajkumar More, All the above respondent no.02 to 06 are Minor & being represented by the respondent No. 01 Smt. Sunita More who is Mother in relation All the above Respondent No.Ol to 06 R/0:- Pushpak Nagar, Near Chouhan Water World, Below the By-pass Road, Chowki Junwani, P.S. Supela-Bhilai, District:- Durg (C.G.) j ^4 i'l I '^ £A Ij^jt j ^AGE ^ J • ^ 7. Rajni Bai More, W/0 Late Moti Ram More, A^ed about-55 Years, Milpara, Diprapara, Durg, Distt. Durg [C.G.] Mother of the deceased Rajkumar More ?-8. [Non-applicant no.2] The New India Insurance Com.Ltd. Branch Office Bhilai, Durg, Distt. Durg [C.G.] [Ins. Com. ofthe Offending Vehicle Maruti Car-Soo No. C.G.-07/2250] -: MEMO OF MISC.APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT. :- *"^ HKHLCOURT OF CHHATTISGARH. BILASPUR DB: HON'BLE I.M. QUDDUSI & HON*BLB N. K. AGRAWAL, JJ MISC. APPBAL (Cl No. 1070F 2009 Vs. APPBAL UNDBR SECTION 173 OF THE MOTOR VBHICLB8 ACT, 1988 APPBARANCE: Mr. J. A. Lohani, counsel for the appeUaats. Mr, Saurabh Shanna, counsel for respondent no.S/The New India Insuraace Coinpao.y Ltd. Per I.M. OUDDUSI, J ORDBR (ORAL) (16.09.2010) Even when fhe Ust was revised, no one is present for fhe claunaats/ respondents 1 to 7. However, learaed couusel for the appeUaat as also learaed counsel for respondent no.S/Insuraace Coinpany are present, fherefore, they are heard finally. This appeal has been filed agamst fhe impugned award dated 25.10.2008 passed by fhe II Motor Accident Claims Tribunal, Durg, in Claim Case No.76/2008. The brief facts of the case are that Rajkumar More (deceased) was working as chaiainan ia fhe ofi&ce of town aad countay plaaning aad was eamiag Rs,6554/- per inonfh. On 07.10,2007 fhe appeUaat who was the of&cer of Rajkuinar's section came to the house of Raj Kumar wifh Vehicle bearing Regn.no. C.G. 07/2250 owned by fhe appeUaat aad teUiag fhat fhey are required to go to Benietara on official duty, botii of fhem had left for Bemetai'a. The vehicle was driving /-" "'~' --?^r^—^ i??T's^^.^^-^.-^^^<»^?-:?S5---;;: APPBLLANTS Venu Gopal I}yer RBSPONDBNTS Smiita More and others w^^^ .^o..^..^..-..^^ its control and feU down ia a caaal due to rash and negUgent driviag of its driver that is appeUant hereia. As a rcsult of which, Raj Kuniar More who was sitting along-wifhi fhe appeUaat ia the vehicle sustaiaed iajuries aad was brought to the hospital. Thereafter, lookmg to fhe gravity of iiyuri.es, he was adniitted in ApoUo hospital where he died on 14,10.2007. The vehicle of appeUant was iasured wifh respoudent no.8. The clamiaiits beiag legal heirs of fhe deceased has filed clami petition clamung to Uie tune of Rs.18,65,072/- on differcnt heads. The Tnbunal opiaed fhat fh.e accident has occurred on account of rash and negUgent driviag of fhe vehicle No.C.G.07/2250 driven by fhe appeUant (owner), as a resiilt ofwhich, the Vehicle met with aa accident on 07.10.2007 at about 10.30 a.m. near caaal of Niaava viUage. The Tribunal has awarded total coinpensation of Rs.8,79,900/- to fhe clamiaats by applyuig fhe inultipUer of 16 as fhe age of deceased was 37 years and fastened fh.e Uabitity solely on fhe owner fhat is appeUaat, The deceased was workmg as Chainmaa in fhe directorate of Town and country Planning, Chliattisgarh. The appeUaat has filed aa additional docum.ent which is a copy of aa order dated 27.09.2008 providiag coinpassionate appoiatment to fhe widow of deceased who is also one of the clamiaats. Besides fhe widow of deceased, fhere are six ofher clauiiants iacludmg mofher of fhe deceased, aged about 55 years as weU as 5 children aged about 10 nionflis, 4 years, 8 years, 10 years aad 12 years at fhe tixne of fiting of the claim petition Le. 28.04.2008. The award was inade on 25.10.2008. Hence, we are offhe opiaion that tfae Tribunal has not properly calculated the coinpensation under fhe head of loss of dependency as it has not considered fhe aspect of benefit of conipassionate appoiataient given to fhe clahnaat wife. T ....adrt*-^.. y^—^3 "^^ ^sS^iSs.. "i °^^./ ^-^•^" 7. In case of Bhakra Beas Management Bocund -vs' Smt. Kanta Agrawal and others, 2008 ADt SCW 5256, Hon'ble fhe Apex Court has held fhat the deductions are admissible frora fhe amoiuit of conipensation ia case fhe claimaat receives fhe benefit as a consequence of iajuries sustaiaed, which ofherwise he would not have been entifled to. It does not cover the case where fhe payinent rcceived is not dependent on uijuries sustafcned on ineetiag wifh aa accident. In fhe said case, the Apex Court refemng to fhe decision of three-Judge Bench m GoAaM Matars Seruice Linvited Vs. R. M.K. Veluswemd 1962 (1) SCR 929 quoted the observations made by the House efLords in Dewles V. Powell Duffryn Associated Collieries Ltd. (1942 AC 601) which reads as foUows: ((The general rule which has always prevailed in regard to the cissessment of damages under the Fatal Aoddenis is well settled, namely, that any benefit accruing to a dependent by reason ofihe relevant death mztst be taken into acoount Under those Acts the balance of loss and gain to a dependent by the death mzist be ascertained, the position of each dependeni being considered separately.9 8. Besides the above, we have found fhat fhere was package poUcy of the Insuraace Coinpaay aad as such fhe Tribunal has wrongly exonerated the Insuraace Compaay. 9. In view of what has been discussed above, we are of fhe opmion that this is a fit case for remaad. 10. In fhe result we allow the appeal ia part aad remit fhe matter back to fhe Tribunal for decision afresh. We uphold fhe findiags given by fhe Tribunal but for fhe purpose of calculation of coxnpensation, takuig iato consideration fhe conipassionate appoiatment given to one of the dependents of Che deceased, fhe corapensation shall be reassessed ia the Ught of fhe decision of fhe Apex Court as discussed above. For fhat purpose fhe pardes shaU be atlowed to adduce additional evidence, if fhey so desire, and fhereafter fhe inatter shaU be fiaaUzed. We further hold fhat bofh fhe ffl --^r' ..^^.^—^•^ r Rcuo owner aad fhe iasiirance corapaay are jointiy or severaUy responsible for fhe payinent of conipensation. 11. It is also directed fhat whatever amount has been deposited by fhe owner shall be allowed to be wiftidrawn by fhe claimants. It wUl be open for fhe owner to recover fhe sarae froni the Insiiraace Coinpaiiy by niovuig an appUcation before the MACT concemed. The part offhe award by which fhe amount of conipensation has been fixed is set aside. As a consequence of fhe same, fhe part of fhe quaatiun is set aside. The records of the Tnbunal sent back forthwifh. Sd/- I.M.Quddusi Judge Sd/- N.K. Agrawal Judge T