pT t''-^" ^ /^ ^ MV / y / ^/yx ^ /y /-^ ^y^ <*" .^' ^^' /o- ^^ ^^ ^ ^5 ^__6 ^ 7 OF < • rtfi!i '1^6i 'he Oriental Insurance Company Ltd. Through its Branch Manager South Gangotri Supela Chouk 6. Road Bhilai Th.+ Oistrict burg C.6. VersuS Smt. Koushal t)evi W/o Late Kanchedi Lal Aharwal (Late K.L. Aharwal ) Aged 37 Years. Harish Kumar S/o Late Kanchedi Lal K.L. Aharwal ) yesrs. ri,i^qy<i*>w>-f .u.-ftaikumap t5/o Late Aharwal (Late K.L. Aharwat) Aged 27 Years. Ku. Seetanjali &/o Late Kanchedi Lal Aharwal (Late K.L. Aharwal ) Aged 26 Years. Ku. Leena t)/o Aharwal (Late K.L. Years. Ku. Lata D/o Late Kanchedi Lal Aharwal (Late K.L. Aharwai ) Aged 22 Years. Ku. Prgya b/o Late Kanchedi Lal Aharwal (Late K.L Aharwal ) Aqed 12 Years Throuqh hiS quardian Maother Smt. Koushal bevi. A!! RespoRdent R/o 80/ F Rishal Sector Bh!!ai Th-i- District -Durg C.S. Sahu S/o AAanik ^ Billiir "6002/ZZ? ON '±"3N1 'IVMaVSV XNVW3H raHS Hl' iuD4.ni|g o/y jaSDuow L|3uojg i|6nojLjj_ •p+1 Auodwoy ssuDjnsui IDUOI+D^ /Ol •<5>'3 6jnq -4.3iJ4.siq +'LJ_L iD|!L|g ssnoij jsmoc) pDoj-g +s>jJDW '9'W Z£/T o/a SJD3/, gt. ps6y UjppnDiu>| o/g uippnfipN /g •3'3 6JnQ 4.3U4.SIC] +'4J- !D]!l19 D]3dns DjodjD>)uDi|9 0/y SJD3A £fr -. ^- ^o HIGH COURT OF CHHATTISGAKH AT BIU^PUR M.A. (Cl N0. 267 OF 2011 APPELLANT/ Insurer Versus RESPONDENTS The Oriental Insurance Company Ltd. Smt. Koushal Devi and others. APPEAL UNDER SBCTION 173 OF THB MOTOR VEmCLES ACT l.B: HON'BLE SHIR N.K. AGARWAL SB HON'BLE SHRI G. MINHAJUDDIN. JJ. Present: Shri Abhishek Sinha with Shri Shanshyam Patel, counsel for tfae appellant. Shri Punit Ruparel, coiinsel for respondents No. 1 to7. None for respondents No. 8 fis 9 fhough served. Shri B.N. Nande, counsel for respondent No. 10. ORAL ORDER (Passed on 17th day ofAugust, 2011) Per N.K. Aaamal. J. This is an appeal preferred by fhe appeUant - Oriental Insiirance Company against fhe award dated 05- 10-2010 passed by Eighth Additional Motor Accident Claims Tribunal, (F.T.C.). Durg (for short fhe Tribimal') in Claim Case No. 127/2009. 2. As against fhe compensation of Rs.35,00,000/- claiiaed by unfortiinate widow and chUdren of fhe. deceased - Kanchhedi Lal Aharwal by filing an application under Section 166 of the Motor Vehicles Act (hereinafter referred to as the Act% the leamed Tribunal has awarded ^w9^ f/ .y ^. s ^y ^ a total siim of Rs. 17,08,000/- along with interest @ 6% per annum from the date of application till its actual payment. 3. The leamed Tribunal on a close scrutmy of fhe evidence led; held fhat the driver of offending vehicle i.e. TraUer bearing registration No. C.G. 07-C/7170 was guilty of negligence in fhe sald accident to fhe extent of 70%; fhe deceased was also guilly of negligence to the extent of 30%; fhe Insurance Company liable for payment of compensation as it could not establish fhe violation of policy conditions; assessed income of fhe deceased as Rs.30,000/- permonfh; afterdeducting l/4th ofittowards personal and living expenses of the deceased, assessed monfhly loss of dependency as Rs. 22,500/- and yearly loss of dependency as Rs. 2,70,000/-; looking to the age of the deceased as 56 years applied the multiplier of 9 and assessed fhe compensation as Rs. 24,30,000/-. The leamed Tribunal has further awarded Rs. 10,000/- on other heads and fhus awarded a total amount of compensation as Rs. 24,40,000/-. After deducting 30% of it towards contributory negligence of the deceased, awarded Rs. 17,08,000/- as payable compensation to the cJaLmants. - 4. Shri Abhishek Siaha, leamed couhsel appearing for the appeUant would submit fhat the leamed Tribi-inal has grossly erred in holding the deceased Kanchhedi Lal gi-ulty ^ sli8Jill^K ^iiSS^S ^iSBSI^^B of riegllgpnce to the extent of 30% onty. He would fi|iit]^|||^^j| )^®tl?' ^3 SS^:^S suhmlt that as per fhe evidenee adduced in fhe ease^ands|i|;|g||j s ';..;t;<, the F.I.R., fhe deceased was crushed luider fhe rear wlieet of the trafler and therefbre, at least fhe deceased flaS contributed to thecause ofaGcident to fhe extent of50%. 5. On fhe other hand Shri Punit Ruparel, leamed coiinsel appearing for respondents No. 1 to7 supported the award aad would submit, in fhe facts and clrGumstances of the case, the leamed Tribunal has rightly assessed fhe negligence of fhe dece^sed to fhe extent of 30% onty, and theaward needs no interierence. 6. We have leamed counsel for fhe pardes and perused the record offhe Tribiinal including fhe award impugned. 7. As per F.I.R. (Ex. P/4), near raUway crossing, the trailer and fhe motorcycle txifh were gomg on opposite direction. The deceased lost his balance, fell down and crushed by the rear wheel of the trailer. As per statement of eye witness — Kiran KasKyap (AW-3), fhe accident had occurred due to rash andTiegligent driving of the driver of the traUer. As per hlsstatement para 9, there was divider at fhe middle ofthe road,so vehicles are runniag in fheir right direction. He has further stated in para 10, fhat he has not seen fhe motorcycle which was dashed by fhe traUer. In the same way, fhe driver of the traUer has ^ -~\~ stated in para 7 ofhis statement that he is not aware how the acddent had occnrred. 8. In such state of affairs, it has to be inferred from fhe material placed on record, how and what nianner, fhe accident had occurred. In fhe mstant case, fhe accident took place between fhe trailer and fhe inotorcycle and fhe driver of the motorqycle was crushed under the rear wheel of fhe trailer. Bofh were comuig from opposite du-ection and place of accident is railway crossing. Considermg eveiy aspect of fhe matter, tn our considered opinion fhe negligence of the driver of inotorcycle ought to have been held as 40% instead of 30%. 9. For fhe reasons inentioned herein above, in our opinion, the motorcyclist deceased Kanchhedl Lal had contributed to the cause of accident to the extent of 40%. Therefore, the amount of compensation needs re- computation after deducting 40% of the amoiint of compensation assessed by the leamed Tribunal towards 40% negligence of the deceased. The leamed Tribimal has assessed the amount of compensation as Rs. 24,40,000/-. After deducting 40% of it towards contributory negligence of fhe deceased Kanchhedl Lal, the amount of compensation payable to the claimants would be worked outtoRs. 14,64,000/-. ~ •^ ^ 10. Therefore, fhe appeal is aUowed ia part. The amount of compensation payable to the claunants is reduced from Rs. 17,08,000/- to Rs. 14,64,000/-. The award is modtfied to the above extent. Rest of the conditions tn the impugned award shaU remain tntact. 11. No order as to costs. • ——— Sd/- N.K. Agarwal Judge Sd/- G. Minhajuddin Judge ''%'" Kcr