.^- HIGH COURT OF CHHATTIS6ARH AT BILASPWl M.A.rONo. 331 of 2007 \K.-1 ADpeHants Respondents Smt. Binda Dewangan& ottiers VERSUS Surendra Kumar Jaiswal & othere ^ AWARD For consideration ^T-07-2011 Hon'ble Shri Raieev Gupta i ^- •^^? Sd/- Chief Justice Sd/- Judge 5^-07-2011 Postfor: "7-07-2011 Sd/- N.K. Agarwal Judge s\ '^ 1 ^./ HIGH COURT OF GHHATTISGARH AT BILASPUR MA.fONo. 331 of 2007 u Appellants Claimants Respondents 1. Smt. Blnda Dewangan, Wldow of Late Shri Jhumuk Lal Dewangan, aged about 35 years. 2. Minor Ku. Mamta Dewangan, D/o Late Shri Jhumuk Lal Dewangan, a^sd about16years; 3. Minor Ku. Roopbata Dewangan, D/q Late Shri Jhumuk Lal Dewangan, s^ecl about14years; 4. Minor Yash Kuraar Dewa^gan. Son of Late Shri Jhumuk Lal Dewan^in, s^ed about12years; 5. Minor Ku. Shweta Dewangan, D/o Late Shri Jhumuk Lal Dewangan, aged about10years; . The appellant No. 2 to 5 are mtnors, through their natural guardian Smt. Binda Dewangan Widow of Late Shri Jhumuk Lal Dewangan. All residents of GandN Mandir Ward Bhatapara, Tahsil and Poltee Stetton Bhatapara, Distrtet Raipur (CG). Versus 1. Surendra Kumar Jaiswal, son of Shrt Parasnath Jai®^il, resldent of Mo. Line Bhata, Jail Road l^itghora, Poltoe Statlon and TahsU Katghora. Dlstrict Korba(CG). (Driver of offending vehtele bearing N@. CG.10-A/Q117) 2. Avtar Singh son of Shri Nachhattar Slngh, Resldent of Telipara BUaspur, Tahsil and District BUaspur (CG). (Owner of offending vehlole bearing No. CG. 10^9117) 3. T» Orienital Insurance Company Umttal, Through : The DNslonal Manager, The Orientat Insurance Company Limitect, Kaehahari Chowk, Jail Road Madina Manzil Raipur. Tahisl and District Raipur (CG) (Insurer of offending vehicle bearmg No. CG-10-A^117) ^ (APPEAL UNDER SECTION 173 OF THE MOTOR VEM1CLES ACT) (DB: Hon'bte Mr. Raieev Guiita. CJ & Hon'bteMr.NXAaarwal.JA Present : Shri Prartash Mishra,Advocate forappellants. Shri Sudhir Agrawal & Shri P. Dutta, Advocates for respondent No. 3. AWARD (Deliveredony /07/2011) Per: N.K. Aaarwal.J. 1. This is claimants' appeal seeking enhancement »nthe award dsrted (%.12.2006, passedby the Additional Motor Accident Claims Tribunal, Bhatapara, District Raipur (for short the Tribuna|') in claimcaseNo. 15/06. On 22.12.2005, deceased Jhumuk Lal Dewangan ws®drwing Boxer m<^orcycle bearing regjsh-ation No. CG-04-C-2820 and one Gend Lat Sahu was sltting on the motorcycte as a pttNon ricter. When they reached near Pandey Medteat Store, Simga, due to head-on-collusion took place between motoroycle and Truck bearing registraUon No. CG-10-A-9117, the driver of motoroycte i.e. Jhumuklal Dewangan succumbed to ttie injyries sustained In >e said acddent and pillion rider Gendlal sahu sustained mtritiple injuries. As against Rs. 12,00,000/- claimed by the appellants l.e. legal representath/es of deceased Jhumuk Lal Dewan^in for his death against the driver/owner and insurer of the offendlng Truck, the Tribunal awarded a total sum of Rs. 1,46,000/-. The Tribunal, ^on a close scrutiny pf the evtelence led, held: respondent No; 1 j.e: driver ofthe Truck and deceased JhumuWal <f0 6. i.e. driver of motorcycte, both jointly responsible to the cause pt accident and apportioned irrter-se negljgence teetween them in the ratio of 40:60%; assessed the income ofthe appellant as Rs. 15,000/- perannum as prescribed under lind Se^iedule appended to Se^lon 163-A of MV Act; deducted 1/3rd of it towards personal expens^ of the deceased and assessed the yeariy dependency of the daimants at Rs. 10,000/-,applied multiplier of 16 and assessed the amourA of compensationas Rs. 1,60,000/- on account of |oss of dependency. The Tribunal further awarded Rs. 82,000/- on other heads and thi® awarded total sum of Rs. 2,42,000/-. However, the Trlbunal dedycted 60% of Rs. 1.60,000/- on account of negli^nce @f deceased motorcycte driver, and^hus awarded total amount oy Rs. 1,46.000/- as compensation in favour of the Glaimants along wtth Nere^ @ 9 percent from the date of appliGatlon till tts actual payment. Shri Prakash Mishra, leamed counsel for the appellant woutet submit the Tribunal has erred in assessing the inoome of the deceased as Rs. 15,000/- and in holding deceased responsible ftwGausjng aGddent to the extent of 60% ignoring the evjdence adduoed by the appellants and thus erred in awardtng low amount of compensation which deserves to be suitably enhanced. On the other hand, Shrl Sudhir Agrawal, leamed counsel ap^aring for respondent No. 3/lnsurance Company sMpported ie awsrd impugned and would submit that in the facts and ctrcvmstanoes of ttw case, amount awarded by the Tribunal is just and reasonable and \ needs no interfer^nce. We have heard the learned counsel appearitig for the parties and perused the award impugned. h\ 8. Though, the appellants/claimants have pleaded that deceaeed was working as a Salesman in firm M/s Intemational Scientific Servtee and was getting 5000/- per month salary and was also having Income of Rs. 3000/- per month from agricutture and thus i^edto eam Rs. 8000/- per month, but failed to siA^taNiate the same by ' adducing cogent and cWnching documentary/oral evidenee therefor, therefore, we do not find any Inflrmity in the findtngs reeorded by the Tribunalthat appeltants have faMed to prpve the income ofthe ' deceased as pteaded by them. However, »ieTribunal has errcd in takfng into consideratton the notional income of Rs. 15,000/- as prescribed in Second Schedule in the year 1994a8income ofthe " deceased. 9. Sectton 163-A of the Act where-under the Seeond Sehedute was introduced in the year 1994 reads as under: "163-A. Special provisions as to payment of compensation on structured formute basis.—(1) Nolwithstanding anything contained in thte Aet or in any other law for the time being in force or instrumenl: havlng the foree of law, tiie owner of Uie motdr vehide or the auttiorised insurer shall be liable to psy in VhQ case of death or , permanentdjsabtement dua to accident arising out of the use of motor vehicte, com|»nsatiwi, as indicat^l in the Second Schedule, to the legal heirs or the victim. as ttie case may be. Exptenaffon.—For e purproes of thfes sub-section, "permanent disabJllt/' shall have the same meaning and extent as in the Workmen*s Compensation Ad:, 1923 (8 ef 1923). (2) In any daiin for eompensation under sub-secMon (1), tt»e claimant shall not be required to ptead or establlsh that the death or permanent disabiement in respect of whfch Uw claim has been made vras due to any wrongful act or negtec^ or default of the owner of the vehicte or vehid^ eoncwned or of any other person. (3) The (Sentral Government may, keeping in vtow Uie cost of Kving by no|Sfication in the OfRcIal Gazette, fr@m fime to time amend the Second Schedule." ^' / •-^ 10. The above quoted Sub-Section (3) of Section 163-A of the Act mandated the Central ©ovemmento amend the Seoond Sehectute from ttme to time keeping in vi^w the cost of IMng. 11. As the Central Government ha8 faMed in amending the Seeond Schedule as'provided Sn Sub-Section (3) of Section163-A offhe Act, the Courts/Tribunal can take judicial notice of increase In the prices of essential commodlties and the eost of IMng dyring the period between the introduction of the Second Schedule jr» the year 1994 and the date of acGident in the given case. 12. Now, reverting to the present case, the unfortunate accident wherein claimants' bread eamer Jhumirt< Lal Dewa»igwito^ his IWe took place in the year 2005. If the overatl circumst^nces and increase in the prices of essential commodtties anct the cost cf living between theyear 1994 and 2005 are taken irrt@ consideration, the notional Income of Rs. 15.000/- prescribed in the Second Schedule in the year 1994 would certainly come t©Rs. 36,000/- in the year 2005. We, therefore, propose to re-compute the compensation taking the income of the deeea^d sA Rs. 36,000/-per annum. 13. After deducting usual 1/3rd of it towards perswial expenses of the deceased, appellarrts' annual dependency works out to Rs: 24,000/- per annum. Looking to the age of the deceased as 38 years at the ttme of accident, in the light @f dlcAum ol Supreme Court in case of Saria Verma (Smt.) & others V. Delhi Transport Corporatton arid another, reported in 2009 (6) ^C 121. wherein muttiplier of 15 h&s been prescribed for the age group of 3@-40 :: '?'al 1 iv>"^/ ^ years, we deem it proper to apply muttipller of 15. By multiplyin^ daimants' annual dependency by multiplier <rf 15. (he amount of compensation woukt be Rs. 3,60,000/« (24,0©0 X 15). The claimants are further entttled to Rs. 15,00(y- on other heads (Rs, 5000/- each for loss of consortium, loss of estate and ftineral expenses), and thus become entjtled for total comper®ation<rf Rs. 3,75,000/-. 14. The Tribunal has found, deoeased Jhumuk Lal Dewangan's negHgence In the sald aocident to the extent of 60%, on a (^refU examinatton of evldence and material available on reGord; tt is clear that as per spot map fited by the appellantstelaimants (Ex. A/3), the motorcycle was running to his right skte i.e. on wrong side and due to head-on-collusion took place between Truck and mptorcycte the said accident had occurred resulthig in death of Jhumuk Lal Dewangan. 15. As per Rute 2 of Rules of Road Regulatftons, 1989, the driver of motor vehtele shall drive the motor vehtele as close to teft hand side of the road as may be expedient and shall altow aN traffic which is proceeding in the opposite direction to pass on his right hand side. 16. At the time of accident deceased Jhumuk Lal wae running the motorcycle jn the wrong side i.e. towards his right side of the road and thuswas running motorcycte in breach of trafflc rules. Thus, it appears that, deceased was negligent in driving the motorcycle. It is atso equalty true that whenever a Truck dnver drives a.yehtcte on the main road, he is ateo required to see peoonsorvrtifctecoming ^ from opposite direction. The driver of the offwding Truck, being a driver of heavier vehtele was having ^eater responstbiljty. Therefore, in our opinion, the Tribunals' findings regarding negligence of motorcycte driver to the e)dent of60% is not wrreet. Looking to every aspects of the matter, the motorc^je driver and Truck drwer can be held equalfy responsibte for the accident and therefore it can be said that Truck drwer as well s@ deceasect motorcycle driver have contributed to the cause of accldent to the extent of 50%. 17. After deducting 50% of the amount towards contrlbutory negligence of the deceased, the amount of compensaflon payabte to the claimants becomes Rs. 1,87,500/-. After ctectUjDting the amount awarded by the Tribunal i.e. Rs. 1,46,000/-, additionat amount of compensation payable to the ctaimants works out to Rs. 41,500/-. 18. The claimants are further awarded a sum of Rs. 3500/- towards quantified amount of interest on the enhanced amount of compensation of Rs. 41,500/-. 19. For the foregotng reasons, the appeal filed by the appellants/claimante for enhaneement of the compensation is allowed jn part. The compensation of Rs. 1,46,0€X)/- awarded by the Tribunal (s enhanced to Rs. 1,87,500/- with further qusmtified amount of interest of Rs. 3500/- on the enhanceel amount of Rs. 41,500/-. Rest of the conditions mentioned In the award shal! "'{ remain intact. The award stands modified to the above extent. 8 ^ 20. The respondent No. 3/0riental (nsurance Company Limited, is granted three months' tlme to deposit enhanoed amount of compensation before the concemed ctaims Tribunal. No order as to costs. Sd/- Chief Justice Sd/- N.K. Agarwal Judge Sahu