^ HlGHCOURtOFCHHAmSGARHATBILASPUR DIVISIONBENCH CORAM: MON'BLE SHRI RAJEEVGUPTA, CJ. HON'BLE SHRI SUNIL KUMAR 51NHA, J Wlisc.ADDeal N0.6S8 of 2004 APPELLANTS Glaimants/ Applicants ../J. ResDQndents Non-dpplicants 1. Mohan Lal Dewangan aged about 50 years s/0 late Shri Shukal Dewangan. 2. Smt.Phool Bai agedabQut48years, w/o Shri Mohan Lal Dewangan; 3. Ky. Anita Dewangan aged about 20 years, d/o Shri MOHan Ual Dewahgan. i Alt r/0. Dahteshwari Para, Ward No.2, Dongargarh, Tah, & P.S. Dongargarh, distt. Rajnandgaon. l VERSUS 1. Sunil Kumar Murty s/o Jiwan Prakash, aged about 37 years, r/o. near Railway School, Dongargarh, distriGtRajnandgaon C.G. Driver Komal Party. 2. Sukhadayalram S/o. Jukharam R/o. .Khairagarh Road near Petra Niwas Dongargarh distt. Rajnandgaon C.G, Owner Formal Party. 3. Branch Manager, the Oriental Insurance Co. Kamathi Line, Rajnandgaon (C.G.) Contesting Party (Insurer) MISC.APPEAL UNDER SECTION173 OF THE MOTOR VEHICLESACT Present: Shri Amiyakant Tiwari, counsel for the appellants. ShhA.K. Athaley, counselfor respondent No.3. t'l"H'. ^:ri^H' • f ...4 4;.-;:.. Ms BIStllS! lwH'i"'*ti it:; l' :11:: I: - />! ^ l' ORDER (9th March, 2011) The fbllowihg order of the Court was passed' ^:^\^]^^ Rajeev Gupta, C.J. ^ This is claimants' appeal for enhancement of the ^ 1 compensation awarded by the Motor Accident Claims Tribunal, 1 Rajnandgaon (for short 'fhe Tribunal') vide award dated 20.12.2003, passed in Claim CaseNo.197/2002. 2) As against the compensation of Rs.12,10,000/-Glaimed by j ;i ^ the appellants/ Glaimants, unfortuhate parents and younger sister of : deceased Sarvesh Kumar, by filing a claim petition urider Section ; ^N 166 of the Motor Vehicles Act, for his death in the motor accidetit ; on 19.05.2002, the Tribunal awarded a totalsum of Rs.79,750/- as compensation along with interest @ 6% per annum from the date offiling ofthe claim petjtiontillthe date ofactual payment. ^;; 3) The Tribunal on a close scrutiny of the entire eviderice led j before it held that deceased Sarvesh Kumar died on account of thfe injuries sustained by him in the motor accident on 19.05.2002; the~4^ accident occurred due to rash and negligent driving of the driver of the offending vehicle Metador bearihg registration No.MOR-8676 ; : . and the negligence of the deceased himself; the extent of^ Slg^Rlli negligence of the deceased and the drivei" of the Metador was |;| • 50 : 50; as theabove offendingvehicle Metadoron the date ofltlte ^ , 1.11; -^..^!:"'1-1;.: accidentwas insuredwith the Orientallnsurance Compahy Limit^d^^ ^f@!||| -[.••'•^^^•v^ ahd the Insurahce Company could hot establish any breach of'the • .• ||;|jp vm. '"^'8y -^^i,""/Jy ltf.:il II itlE policy conditions, the Insurance Company was liable to pay 50% of the Gompensation assessed to the claimants. 4) The Tribunal assessed the income of the deceased at Rs.15,000/- per annum. By deducting 1/3rd of Rs.15,000/- towards the personal expenses ofthe deceased, the claimants'dependency wasassessedat Rs.10,000/- per anhum. By multiplying the annual dependency of Rs.10,000/- with the multiplier of 15, the compensation was worked out to Rs.1,50,000/-. By awarding further sum of Rs.9,500/- under other heads, the Tribunal assessed the totalcompensation at Rs.1,59,500/-. As the driver of the Metadorwas held liable for accident to theextent of 50%, the ihsurerof the Metador was directed to pay 50% of Rs.1,59,500/- i.e. Rs.79,750/- as compensation tothe claimants. The Tribunal further directed payment of interest on the above amount of compensation of Rs.79,750/- @ 6% per annum from the date of filing ofthe claim petition till the date of actual payment. 5) Shri Amiyakant Tiwari, learned counsel for the appellarits submitted that the Tribunal has erred in holding that deceased Sarvesh Kumar also contributed to the accident to extent of 50%; and in awardirig low compensafion OfRs.79,750/- only. 6) Shri A.K. Athaley, learned counsel for respondehTNd.3, the Orientallnsurance Company Limited,on the other hand.supported the finding recorded by the Tribunal that the deceased also cohtributed to the aceident tb fhe extent of 50% and'furtMer submitted that the compehsation of Rs.79,750/- awarded jby the; ^^""ir-THBiniNiaii 'sSK ..ri (^ ^ Tribunal is just and proper compensation in the faets and circumstances ofthe presentcase. V 7) As learned counsel for the appellants has not challengjed : y^ before us the assessment ofthe ihcome ofthe deceased anil^lTie ^ K claimants' dependency by the Tribuhal; and the multiplier selected ;! while assessihg the compenisation, weclo ndt deemit necessary to examinethatpart oftheaward. '\'::'^^ :. ''/ /'[^^ 8) So far as the finding recorded by the Triburial about iy contributory negligenGe of deceased Barvesh Kumar to the exfenf : ] of 50% is Goncemed, on a pierusal of paras 10 t6 12 of the ?'f impugned award, we gather that the above finding of Gontributory ; negligence is mairily based on fhe evidence of NAW-2 Sunil . ^ i Kumar, the driver ofthe Metador. A bare perusal of the evidence of ;N NAW-2 Sunil Kumar reveals that deceased Sarvesh Kumar was sitting on the middle of the seat and not at the corner ofthe seaf near window and as such, the above finding reooraed By the ,IK; Tribunal that fhe deceased also cohtributed to the accident cannot " legally be sustained. We, therefore, set aside the above finding t|;| recorded by the Tribunal and hold that the accidentoccurred due t6 ;; .^L f| the sole negligence of the driver of the Metador. In view of our l^ above finding, the insurer ofthe Metador is liable to pay the entirg ^ | amountofcon'ipensationtotheclaimants. j . ^::'^WK 9) For the fbregoing reasons, fhe appeal filed by the appellarits/ , ] j | |i claimants fbr enMancement ofthe Gompehsation is allowed in part.ir^ y^{||i By setting aside th®fihding recorded by the Tribunail abblitithe|^H?tt||g -i—u-j-.ijjAa C?^) il: !; !: I:.1] contributory negligence of deceased Sarvesh Kumar to theextent of 50%, the claimants are held entitled to receive the entire amount of compensation of Rs.1,59,500/- assessed by the Tribunal. Asthe insurer of the Metador has already paid 50% of Rs.1,59,500/-i.6. Rs.79,750/- to the claimants under the impugned award, the claimants are now ehtitled to receive the balance amount of Rs.79,750/- from respondentNo.3 the Oriental Insurance Company Limited, the insurer of the Metador. 10) A further amount of Rs.10,250/- is awarded to the claimants as quantified amount of interest on the balance amount of Rs.79,750/-. , 11) Respondent No.3 the Oriental Insurance Company Limited is grahted three months' time for depositing the total sum of Rs.90,000/- (Rs.79,750/- towards balance amountof Rs.1,59,500/- assessed bythe Tribunal + Rs.10,250/- towards quantified ambunt of interest on the amount ofRs.79,750/-) before the conGerhing ClaimsTribunal. 12) No order as to costs. s&f- Chief Jusdce Sd/- Sunil Kumar Sinha Judge lil v ' subbu :lU-!fci!t r'n»>iiiniiii(riii •WSM