BEFORE THE Imam HmH COURT OF CHHAITISGARH AT Blmspua Misc. ‘APPEAL NO. {70 OF 2004. PELLgg z?“ Branch Manager, United India inSU- ”w RESPONDENT No. g lléEsPONDENTs 'rance Co. Ltd,” statian Read, Korba (C.G.) , thraugh Branch Manager, United India Insurance Co. Ltd., Raj endré N agar Chowk, Bil aSpur( CgfG) // v E R s U s // :—l. Lileshwari, aged about 2O years, wife of Late Ramsatav @ Satav Bhaddari , Nares'n Kumar, aged 3 months, son of Ramsatav @ Satav, Derha Ram, aged 42 years, son of Shri Ram Prasad Bh‘addari , SaJLrupa Bai, aged 38 years, wife of Shri Derha Ram Bhaddari, (applicant no‘.i2, minor through n atural gu ardi an ,mother, applicant‘ HQoJ‘ .1.) All resident of Village Birebhath, Res, Mohara, District Durgwwscs.) a ammya 5L5} 53$“? Lal Sahu, aged 45 years,: ’? son of Shri Ram sahéy sahumriver) Truck no.4 G..G,.;: 12/ zc/ 1045, resident of Shakti, District Janjgir Champa {6.G.) , present resident of Bhains Khatal, Nehru Nagar, Korba (ChhattiSgarh) 6;.g M/s Jain Sons, Builders, Transport Nagar, Korba (Chhattisgarh) ¢0wner truck no” 343“.“ l2/ ZC/lO45) NON§APPL1C13NTS N0. 1&2 @ C6) ~:2:- 7.? Shri Sanjeev Kumar Yadav, san of Shri VL% B.‘D., Yadav, resident cf Balgikhar, Korba, District Korba (Chhat’tiSgarh) (owner truck no.‘ Q.;G.; l2/-iC/ 1205) Q\./ 8‘0: Divisional Manager, The New India a, Assurance Co. Ltd.‘,Transport nagar, Korba, through the Branch Manager, The New India Assurance Co. Ltd., Raj endra Nagar Chowk, Bil aspur (Chhattisgarh) ( Insurer of truck no.- 0.6.; l2/ZC/ 1205) NGN-WPLICENT N09 § 4 $ 5 a, $EEAL‘UNDER SECTION A73 OP MOTOR VEHICLES ACT .1988 “‘ fl H!GH COURT OF CHHATTISGARH, BILASPUR G CORAM: Hon’ble Shri LM. Quddusi,& APPELLANT Hon’ble Shri Prashant Kumar Mishra, JJ. MA. No. 690 of 2004 Branch Manager, United lndia Insurance Co. Ltd. Versus a . RESPONDENTS ’ Lileshwari and others. APPEAL UNDER SECTIGN 173 OF THE MOT§R VEHICLE ACT, 1988. A'ppearance; Shri HB. Agrawal, Senior Advocate with Miss Sarina Khan. counsel for the appe‘Iiant. ’ Shri Saniay K. Agrawai and $hri Aditya Sharma, counsel for respondents No. 1 to 4. Shri Malay Kumar Bhaduri, counsei for respondent No.7. Shri Srikumar Agrawai, Senior Advocate with Shri Anand Gupta, counsel for respondent No. 8. ORAL ORDER ( 02I02I2011) Following oral order ef the Court was passed by l. M. Quddusi. J. This appeal has been filed by the Branch Manager, United lndia insurance Co. Ltd. against the impugned award dated 31/03/2004 of the IV Additional Meter Accident Claims Tribunal, Bilaspur (C§.) passed in Claim Case No. 73/2003 awarding Rs.5,10,200/- as cempensation to the claimants. 2. The brief facts of the case are that on 17/07/2002 Ramsatavar @ Satav was going to Katghora with his friends in Truck bearing registration No. C.G./12-ZC/1205. The truck was being driven by driver Vishwanath. When they reached near Chetma then truck bearing registration No. C.G.12/ZC/1045 Which urasdriven rashly and negligently dashed t‘ne truck No.C.G.12~ZC/1 205 due to which truck driver Vishwanath and Ramsatavar @ Satav died and also other persons sitting in the cabin of truck got injuries. Deceased Ramsatavar @ Satav was aged about 22 years. He was working as Mason and used to earn Rs.4,200/- per month. The claimants have claimed compensation of Rs.12.90,000/-. A / . . .. ,1 3 Learned counse‘ for the appellant Shri H B Agrawal has raised contentnons that the deceased was a gratuitous passenger and therefore be the Insurance Company rs not lIable to pay compensation He has further urged that rt was a case of contributory negligence but the clarms Trrbunal has not consrdered the same and the last contentron rarsed by Shn Agrawal rs that the quantum has not been fxed by the ctarms Tnbunal property and the same is excessive 4. Wrth regard to the frst contention we have perused the lower eourt recond and found that the deceased was not stttmg In the offending vehicle Insurer of whrch rs the appellant. He was srttmg m the other truck as such hls position was of a third party, therefore the plea that the third party was gratuitous passenger in the other truck is not sustainable in the eye of law. 5. With rega‘rd to the contributory negligence we have found that though the Tribunal has not given a proper finding in the impugned award and has observed only that as the F.l.R. was lodged alleging that driver of the offending vehicle was driving rashly and negligently and there was no F.l.R. fromthe side of the offending vehicle it cannot be said that there was contributory negligence. The determination of contributory negligence cannot be on the basis of F.I.R..The Tribunai had to make its finding on the basis of the documents and the evidence available on record only. Any how, we have considered the case of the contributory negligence and found that the truck No. 0.6.12 ZC/1205 had fatten down from the side of the heiper and the driver of the vehicle died at spot due to coiiision between that vehicle and offending vehicle. Considering the situation of the both the vehicles and in the absence of any evidence produced by the insurance Company or any other party it has not been established that there was contributory negligence and as‘such we hoid that the accident had taken place solely due to the rash and negligent driving of the offending vehicle ie. C.G.12 ZC/1045. 6. Now with regard to quantum we have seen that the Tribunai has assessed the daily income of the deceased who was Mason as Rs.’l40r’- per day. On the date of accident i.e. 17/07/2002 the daily wages of the Mason was not Rs.140/-", therefore we assess the daily wage of the deceased as Rs.'IOO/- in the year 2002. lt is aiso to be noticed that the deceased was not in any reguiar estabiishment and therefore if it is presumed that he was working for almost 25 days in a month the monthly w% in;come come5 to Rs.2500/- and year‘y Rs.30.000I-. After deducting ‘A for p§rsonal and Hving expenses considering the number of daimdnts as 4 in abccrdance with the base of Sarla Verma (Smt.) and others vs. Delhi Xe liransport Corporation and another. reponed in (2009) 6 S.C.C. 721 the 7, Now we come to the age of the deceased. in the post mortem report the age of the deceased has been mentioned as30 years. The doctor who conducted the post mortem has also observed that the deceased was a yogrg man of 30 years Iying on the mortuary table. It has come in the evidence of the companion Mason of the deceased nameiy Nanci Kumar Joshi (AW-2) of the claimants witness that he was working as Mason. The Tribunal has not- discussed any evidence regarding age of the deceased only treated his age as 22 years. This witness was working as Mason about 9-10 years but the deceased was working as Mason since about last three years and therefore we assess the age of the deceased as 25 years, thus according to Sarla Varma‘s case (supra) a multiplier of 18 would be appiicable and Rs.4,05,000/— as loss of dependency. Besides this widow is entitled to get Rs.10,000/— as Ioss of consortium and other three claimants are entitled to get Rs.5,000/—geach for toss of love and affection i.e. ‘ti Rs.15.000/-. Towards funeral expenses the claimants are entitled to get Rs. 5.000/- and towards head toss of estate the claimants are entitied to get Rs.10.000/- thus the total compensation comes to Rs.4.45,000/-. 8. Further the Tribunal has awarded penai interest @ 12% which is also not proper, therefore the part of the award by which penal interest has been awarded is set-aside. 9. in the resuit, this appeai is allowed in part. The amount of compensation fixed by the Tribunal is reduced to the extent that the claimants wouid be entitled to get a totai compensation of Rs.4,45,000/- along with a simple interest @ 9% per annum from the date of filing of the ciaim petition till its payment is made. if the payment has aiready been made in accordance withsttle impugned award of the Tribunai it wilt be open for the appellant to recover the difference of the same. total loss of dependency tomes to Rs.22,500l- per annum. Nggkr i. Sd/_ i. Sdl- i I'M-Quddusi Prash’ant Kumar Mishra Judge a Judge