^V- l-.l-\ -V- HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ. HON'BLE SHRI SUNIL KUMAR SINHA, J. Misc. Appeal No. 1345 of 2005 Appellant United India Insurance Company (Insurance) Limited Division Office, Korba C.G. VERSUS Respondents Claimants Smt. Yashoda Kumre w/o Prem Lal Kumre, aged 42 years. Premlal Kumre s/o Jeevan Lal Kumre, aged 52 years. (Both r/o CSEB Colony, Korba (East), district Korba C.G. DRIVER OWNER Biharilal Pathak s/o Bhagwan Prasad, aged 42 years, r/o Podi Uproda, P.S. Katghora, district Korba, presently r/o Gram Sumedha, Bankimogra, Tehsil Katghora, district Korba C.G. Sarvamangla Construction Corporation through Proprietor Rajkumar Agrawal, r/o 106, T.P. Nagar, Korba/ Mohsin Bhawan, Gurunanank Chowk, Raipur C.G. MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT Present: Shri Abhishek Sinha and Shri Ghanshyam Patel, counsel for the appellant. Shri Govind Dewangan, counsel for respondents No.1 and2. None for respondents No.3 and 4. ^. f^'a-:i '^ Vv< "'°>>.. ?.-.- Appellants Claimants Misc. Appeal No. 16 of2006 1. Smt. Yashoda Kumre w/o Prem Lal Kumre, aged 42 years. 2. Premlal Kumre s/o Jeevan Lal Kumre, aged 52 years. (Both r/o CSEB Colony, Korba (East), district Korba C.G. Respondents VERSUS Biharilal Pathak s/o Bhagwan Prasad, aged 42 years, r/o Podi Uproda, P.S. Katghora, district Korba, presently r/o Gram Sumedha, Bankimogra, Tehsil Katghora, district Korba C.G. Sarva Mangala Construction Corporation through Proprietor Rajkumar Agrawal, r/o 106, T.P. Nagar, Korba/ Mohsin Bhawan, Gurunanank Chowk, Raipur C.G. United India Insurance Co. Ltd. Divisional Office, Korba, Tehsil Korba, district Korba C.G. MEIVIORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT Present: Shri Govind Dewangan, counsel for the appellants. None for respondents No. 1 and 2. Shri Abhishek Sinha and Shri Ghanshyam Patel, counsel for respondent No.3. ORDER •th (25'"April,2011) The following order of the Court was passed by Rajeev Gupta, C.J. .^a.55,^ ^.// '^...'t'''^^ The impugned award dated 30.09.2005 passed in claim case No. 107/2004 has given rise to filing of these two appeals i.e. MA No. 1345/2005 and MA No. 16/2006. MA No. 1345/2005 is at the behest of United India Insurance Company Limited, the insurer of the offending vehicle Truck against the impugned award, whereas MA No. 16/2006 has been filed by the claimants for enhancement of the compensation awarded by the Tribunal. 2) As against the compensation of Rs.70,30,000/- claimed by the parents of deceased Dinesh Kumre by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 23.03.2004, the Tribunal awarded a total sum of Rs.3,74,500/- as compensation along with interest @ 7.5% per annum in the event of the insQrer's failure to deposit the amountof compensation within one month ofthe passing ofthe award. 3) The Tribunal on a close scrutiny of the entire evidence led before it held that the claimants' son Dinesh Kumre died on account of the injuries sustained by him in the motor accident on 23.03.2004; the accidentoccurred due to rash and negligent driving of the driver of the offending vehicle Truck bearing registration No.CG 04-G/1146; as the above offending vehicle Truck on the date of the accident was insured with the United India Insurance Company Limited, and the insurance companycould not establish any breach of the policy cdnditions, the insurance company was liable to pay compensation to the claimants. ^ 4) The Tribunal assessed the income of the deceased at Rs.5,000/- per month and Rs.60,000/- per annum. By deducting 2/3 of Rs.60,000/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.20,000/- per annum. By multiplying the annual dependency of Rs.20,000/- with the multiplier of 18, the compensation was worked out to Rs.3,60,000/-. By awarding further sum of Rs.14,500/- under other heads, the Tribunal awarded a total sum of Rs.3,74,500/- as compensation to the claimants for the death of their son Dinesh Kumre in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.3,74,500/- @ 7.5% per annum in the event of the insurer's failure to deposit the amount of compensation within one month of the passing of the award. 5) Shri Abhishek Sinha and Shri GS Patel,learned counsel for the appellant United India Insurance Company Limited.the insurer ofthe offending vehicle Truck submitted thatthe Tribunal has erred in assessing the income of the deceased at Rs.5,000/- per month without any evidence in that behalf; in selecting the higher multiplier of 18; and in awarding excessive sum of Rs.3,74,500/- as compensation to the claimants. 6) Shri Govind Dewangan, learned counsel for the appellants/ cl^Imants in M.A. No. 16/2006, on the other hand contended that the Tribunal has erred in awarding low compensation of Rs.3,74,500/- only. .y 7) From the above mentioned submissions of learned counsel for the parties it is apparent that though the insurer of the offending vehicle Truck in its memo of appeal has taken several grounds for challenging the impugned award, during the course of hearing it was only the quantum of compensation which was attacked by learned counsel for the Insurance Company. 8) Claimants' son Dinesh Kumre was aged about 21 - 22 years on the date of the accident. He was a student of Polytechnic. The claimants pleaded that their son used to earn Rs.4,500-5,000/- per month from tuitions, no cogent and reliable evidence was led before the Tribunal to establish the income of the deceased to the extent of Rs.5,000/- per month. The Tribunal, therefore, apparently has fallen into error in assessing the income of the deceased at Rs.5,000/- per month and Rs.60,000/- per annum without any cogent and reliable evidence in that behalf. We, therefore, propose to recompute the compensation after assessing the income of the deceased on the basis of the notional income prescribed in the Second Schedule under Section 163-A ofthe Motor Vehicles Act. 9) Section 163-A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows: "[163A. 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 authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising A ^ 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 same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub- section(l), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which 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 oth^r 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." 10) 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. 11) 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 ofaccident in the given case. -12) Now reveri:ing to the present case, the unfortunate accident wherein the claimants' son Dinesh Kumre lost his life took place in the year 2004. If the increase in the prices of the essential commodities and the cost of living between the year 1994 and the ^sw-^. r^sssis^ ^ B»iS'»*» SE';isS»B5i %-»-<^ year 2004 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 2004. We, therefore, assess the income of the deceased at Rs.36,000/- per annum. 13) The deduction of 2/3 of the income of the deceased by the Tribunal towards his personal expenses cannot legally be sustained in view of the recent dictum of the Apex Court in the case of Syed Basheer Ahamed and others Versus Mohammed Jameel and another reported in (2009) 2 Supreme Court Cases 225. We, therefore, assess the claimants' dependency at Rs.18,000/- per annum by deducting 50% of Rs.36,000/- towards the personal expenses of the deceased. 14) As the claimants are parents of the deceased, the appropriate multiplier in the present case would be 10 in view ofthe dictumof the Apex Court in the case of Municipal Corporation of Greater Bombay Vs. Laxman lyer and another, reported in (2003)8SCC-731. 15) By multiplying the annual dependency of Rs.18,000/- with the multiplier of 10, the compensation works out to Rs.1,80,000/-. By adding further sum of Rs.5,000/- towards funeral expenses and .Rs.5,000/- towards loss of estate, the claimants become entitled to receive a total sum of Rs.1,90,000/- as compensation for the death oftheirson Dinesh Kumre in the motoraccident. 1 :.,%.. i •:,?®^ 8 ^ '"'"5 J Jl ? '.., ""'v'y ^ 16) During the course of hearing learned counsel for the Insurance Company pointed out that a sum of Rs.50,000/- was deposited by the Insurance Company before the Tribunal towards 'no fault liability' under Section 140 of the Motor Vehicles Act and a furi:her sum of Rs.1,37,250/- was deposited on 19.04.2006 in compliance of the order dated 21.03.2006 passed in M.A. No. 1345/2005. The Insurance Company, thus, has deposited a total sum of Rs.1,87.250/- before the Tribunal which has already been withdrawn by the claimants. 17) The Tribunal certainly has fallen into error in directing only i conditional payment of interest in the event of insurer's failure to deposit the amount of compensation within one month of the passing ofthe award. The claimants are entitled to receive interest on the amount of Rs.1,40,000/- (Rs.1,90,000/- assessed in this appeal - Rs.50,000/- already received by the claimants under 'no fault liability') for a period of about two years (from 05.05.2004, the date of the filing of the daim petition till 19.04.2006, the date on which Rs.1,37,250/- was deposited by the Insurance Company). 18) Considering all the relevant aspects of the matter, we quantify the amount of interest payable by the Insurance Company to the claimants at Rs.17,250/-. 19) The claimants, thus, now, are entitled to receive a total sum of-Rs.20,000/- (Rs.2,750/- difference between Rs.1,90,000/- and Rs.1,87,250/- + Rs.17,250/- towards quantified amount of interest on Rs.1,40,000/- for the period of about two years). ^.;.:sa> -,:r~' ^ 1 7 20) For the foregoing reasons, the appeal filed by the Insurance Company i.e. M.A. No. 1345/2005 is allowed in part. The compensation of Rs.3,74,500/- awarded by the Tribunal is reduced to Rs.1,90,000/- with further quantified amount of interest of Rs.17,250/-. 21) M.A. No. 16/2006 filed by the claimants for enhancement of the compensation fails and is hereby dismissed. 22) The United India Insurance Company is granted three months' time for depositing the total sum of Rs.20,000/- before the concerning Claims Tribunal. 23) No order as to costs. - SdA 1 Rajeev Gupta -Qu.efJystice Sd/- Sunil Kumar Sinha Judge padma