:w. JN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUF M.A.(C)No.- -7 2,0/0 S APPELLANT ^ :-^-"MANAGER, THE ORIENTAL INSURANCE COMPANY LTD., DIVISIONAL . OFFICE, OPPOSITE SIDE OF HIGH COURT, BILASPUR, TAH. & DISTRICT - BILASPUR (C.G.) g POLICY N0.- 153300/2006/9259, PERIOD - 10-12-2005 TO 09-12-2006 (INSURANCE COMPANY, VEHICLE N0.- C.G. 15/A/0479) Vrs, ESPONDENTS/CLAIMANTS:- .....v-'-:; ...•••"". ..^^ ..<•• ^-w ^ 2./ SMT. ANJANA PATHANIYA W/0 LATE HANUMANT SINGH PATHANIYA, AGE 36 YRS. NINAD PATHANIYA S/0 LATE HANUMANT SINGH PATHANIYA, AGE 9 YRS. MINOR, RESPONDENTS N0.- 2 THROUGH GUARDIAN MOTHER SMT. ANJANA PATHANIYA W/0 LATE HANUMANT SINGH PATHANIYA, BOTH RESIDENT PLOT N0.- 42, ROAD-2,PUSHPAK NAGAR, NEAR TO SMRITI NAGAR, TAHSIL & DISTRICT - DURG (C.G.) R^ESPONDENTS/NON-APPLICANTS :- GOPAL PANDEY S/0 KULDEEP PANDEY AGE 38 YRS., RE8IDENT OF VARDHMAN ROAD LINE, RAIPUR ROAD, BILASPUR, TAHSIL & DISTRICT - BILASPUR (C.G.) 3. (^^ (DRIVER OF VEHICLE N0.- C.G. 15/A/ 0479) SATISH KUMAR JAIN S/0 LATE SHRI L.C. JAIN, RESIDENT OF VINOBA NAGAR, BILASPUR, TAH. & DISTRICT - BILASPUR C.G. (OWNER OF VEHICLE N0.- C.G. 15/A/ 0479) (^_^-^^\ .3 ..2.. APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 \^ APPELLANT HIGH COURT OF CHHATTISGARH. BSLASPUR CORAM: Hon'bleShri I.^S. Quddusi, J. & Hon/ble Shri Prashant Kuniar l^ishra, J. MAfC^NoJ30of2008 Manager, The Orientat insurance CompanyLimited. Versus Smt. Anjana Pathaniya and others. APPEAL UNDER SECTiON 173 OF THE MOTOR VEHICLE ACT. 1988 Appearance: Shri Sudhir Agrawal, counsol fortho appeliant. Shri C.K. Sahu, counsel for respondents No. 1 & 2. Shri Goutam Khetrapal, counsel for respondent No. 4. ORAL ORDER (13/01^2011) Foilowing oral order of the Court was passed by !. SVS. Quddusi, J. This appeal has been filed by the Oriental Insurance Company Limited againstthe impugned award dated 21/02/2008 ofthe VII! Additiona! Motor Accident Claims Tribunal (F.T.C.), Durg (C.G.) passed in Claim Case No. 11/2008 by which the claimants have been awarded Rs.12,25,180/'- as tota! compensation. 2. The brief facts of the case are that on 31/10/2006 deceased Hanumant Pathaniya was sitting in Durg Roadways bus bearing registration number C.G. 07 E/0239 anct was coming from Ambjkapur to Durg. At about ?.30 a.m. in the night, when the bus reached near Lodhlpara, Ramkrishna Ashram, Bilaspur the truck bearing registratson No. C.G. 15-A/0479 coming from Bilaspur driven rashly and negligently by non-applicant No.1 dashed the bus due to which a!J the passengers sitting in the bus received injuries and Hanumant Pathaniya received grievous injuries on hls head and he died ?>n the spot. Deceased was aged about 40 years and he was servjng under the Government of Chhattisgarh as Football Coach and District Sports Officer, Ambikapur. His monthly salary was Rs.11,000/-. The clajmants have clalmed compensation of Rs. 6570.000/-. ^^^^^ ^p:'"'A""l"^%> f''^^'^ "^, y" •- 'i -s^ - a - 3. Leamed counse! for the appetlant, Shri Sudhir Agrawal has raised two contentions, the first is that there was contributory negligence on the part of the driver of the bus also and as such the truck driver cannot be heJd totaily responsible or negligent. The second contention is regarding the quantum. 4. Shri Agrawal in support of h'is contention has placed reiiance on the decision of Hon'bJe Supreme Court in the case of Bijoy KumarDugsr vs. Bidyadhar Dutta Qnd others reported in AIR 200B SC 12S5 in which the Hon'ble Apex Court has held contributory negSigence in the circumstance when the Maruti car ciriver was driving the car and saw that the offending bus was coming and the driver was driving jn a zig zag manner the Hon'ble Apex Court has observed in that circumstance that the Marutj car driver shouid have taken due care and precaution to -avoid head on collisjon when he had aiready seen the bus from (ong distance comlng from the opposite djrection, but in the instant case accordlng to the sole evidence of the eye witness i.e. driver, the truck driver was not coming in zjg zag manner and when he saw the truck comjng from opposite side he kept his bus towards extreme ieft as such we are of the opinion that the bus driver had taken due care to avoid any accident and the truck driver which had gone towards his right had driven the truck in a manner that there was head on collislon jn such a manner that the truck driver had successfully escaped with the truck after committing acejdent and he had not been chased, he would have gone scot free. The conduct of the truck drlver a!so shows that there was rash and negiigent driving on his part and he committed accident in an angle that he could run away the truck, therefore the facts ofthe case of Bijoy Kumsr Dugar vs. Biciyscihsr Dutta anci oth^rs (supra) are quite different to the facts ofthe instant case and the same is distinguishabte on the facts. 5. With regard to first contention, according to the statement of the bus driver A.W./2 Mansingh, he was clrivjns the bus and kept slow when he saw the truck comjng from the opposite side and he kept his vehicle towards extreme ieft but there was electric pole due to which jt was not possible for him ,to 90 beyond electric pole which was on the very left side. The truck driver colljded the truck wjth the bus and ran away. Thereafter, truck was chased and foliowed. At that time on the way the truck driver left the truck and ran away. There is no other evjdence contrary to the same and ^''::J^^^ ,^' :< '-<.. " ^ ^.<1" "' '%. 1&^-.;h. 1 ::^..^.'.l..:--.^ II^ therefore on the evidence of the bus driver jt cannot be said that there are chances of contributory negligence. The truck driver was driving the truck rashly and negligentiy and had gone towards hjs right side and codided with the bus and cleveriy ran away. The map prepared by the Police whteh is Ex.P/13 aiso shows the posjtion of the truck and the bus. The bus was towards its left and the distance after running away was from where the truck wasfound. 6. Therefore, the first contention that there was contributory negiigence is not sustainable. 7. Regarding quantum we have seen date of birth of the deceased has been mentioned as 04/04/1966. the date of accident is 31/10/2006, therefore the deceased was below 40 years at the time of accident. His pay slip has been filed as ExP/18 according to which his gross salary was Rs. 10.684/- out of which Rs. 645/- was being deducted as GPF and Rs.200/- as Income Tax and net salary has been shown as Rs. 9839/- but while calculating monthly income the deduction of GPF cannot be counted, however the Income Tax can be taken into consideration, therefore in Rs. 9839/- amount of GPF Rs.645/- is to be added then the monthjy income of the deceased vide bill dated 31/10/2006 was Rs.10,484/- and after deducting 1/3rd for personaj expenses the amount comes to Rs. 6989.33/-. Since the deceased was below 40 years 6 months of age at the time of accident according to the case of Sarfa Verma (Smt) and others vs. De!hl Transport Corpof'ation and snother, reported in (20Q9) 6 S.C.C. f2f the multipiier of 14 is liabie to be appticabie. After deducting 1/3ra, the total annual loss of dependency comes toRs.83,872/-. On applyjng muitiplier of 14 the total ioss of dependency comes to Rs.11 ,74,208/. Besjcles this the future prospects of the servjce are also to be seen and over other heads for toss of consortium Rs.10.000/-. loss of !ove and afyection to the daughter Rs.10,000/-, for funeral expenses Rs.5,000/- and loss of estate Rs.10,000/- tota! comes to Rs.35,000/-. The Tribuna! has awarded Rs.12,25,180/- as compensation. After adding the above amount towards other heads the tota! amount comes to Rs.12,09,208/- without seeing future prospects of service and therefore we are of the opinion that the amount of compensatjon jn any case cannot be said to be excessive. sT-<F^ ^. "••^...-.•..•; -^ 8 However, the Tribunal has jmposed 6% simple jnterest from the date of filing of claim petition, but penal jnterest of 9% has been imposed which js not proper, therefore this part i.e. imposing a penal interest is set-aside. The rest of the award is not interfered with. 9. In the resuit, this appeal is allowed jn part. Penal interest @ 9% shail not be fiabJe to be paid by the appelSant. The appellant wil! pay simpie interest @ 6% throughout from the date of fiting of daim petitlon till payment of compensation is made. Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge tV^ ..^..