HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI N.K. AGARWAL, J. Misc. Aopeal (0 No. 490 of 2010 Appellants Claimants Smt. Premlata Nagesh w/o late Rohit Kumar Nagesh, caste Gada, aged about 23 years, occupation Housewife. Gajendra Nagesh s/o late Rohit Kumar Nagesh, aged about 05 years. Pankaj Nagesh, s/o late Rohit Kumar Nagesh, aged about 03 years. [appellant No. 2 & 3 being minor on behalf of through their legal guardian motherappellant No.1 Smt. Premlata Nagesh w/o late Rohit Kumar Nagesh] All r/o. village Bundeli, police station Pithoura, tahsil & district Mahasamund C.G. Sewakram Nagesh, s/o late Kamta Nagesh, aged about 53 Smt. Karmoutin Nagesh, w/o Sewakram Nagesh, aged about 49 years, Both r/o. village Kasekera, police station Chhura, tahsil Gariyabandh, district Raipur C.G. VERSUS Respondents r 1 Bharat Kumar Nande, s/o Premshankar, Nande, aged about 26 M.A.C,No.490of 2010 years, r/o village Khadma, police station Chhura, tahsil Gariyabandh, district Raipur C.G. [Driver of vehicle Tractor Trolley bearing registration No.C.G./04/D/ 6441 & C.G./04/D/6442] 2 Vedram Nande s/o late Shriram Nande, aged about 45 years, r/o viliage Sorid Khurd, potice station Fingeshwar, district Raipur C.G. [Regi'stered owner of vehicle Tractor Trolley bearing registration NO.C.G./04/D/6441 & C.G./04/D/ 6442] 3 The Regional Manager, the Bajaj AIIianz General Insurance Company Limited, through Branch Manager, Branch Office, Shiv Mohan Bhawan (wrongly mention as shiv mangal bhawan), Vidhan Sabha Road, Pandri, Raipur, tahsil & district RaipurC.G. [Insurer of vehicle Tractor Trolley bearing registration No.C.G./04/D/ 6441 & C.G./04/D/ 6442] IVIemo ofapDeal under Section 173 ofthe Motor Vehicles Act. ^ Presertt: Shri Shivendu Pandya, counsel for the appellants. Shri Suresh Tandon, counsel for respondents No.1 and 2. Shri S.S. Rajput, counsel for respondent No.3. ORDER (07th December, 2011) The following order of the Court was passed by Rajeev Gupta, C.J. .A.C. No. 490 of 2010 This is claimants' appeal for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Mahasamund (for short 'the Tribunal') vide award dated 22.02.2010, passed in Claim Case No. 165/2009. 2) As against the compensation of Rs.31,00,000/- claimed by the appellants/ctaimants, unfortunate widow, minor chitdren and parents of deceased Rohit Kumar Nagesh, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 01.07.2009, the Tribunal awarded a total sum of Rs.1,55,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 3) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Rohit Kumar Nagesh died on account of the injuries sustained by him in the motor accident on 01.07.2009; the acddent occurred due to the negligence of deceased Rohit Kumar Nagesh who was driving motorcycle (moped) and the driver of the other vehicle Tractor-Trolley bearing registration Nos.C.G.04/D/6441 and C.G.04/D/6442; the negligence of the deceased and the driver of the above Tractor-Trolley was to the extent of 50% each; as the above Tractor-Trolley on the date of the accidenf was insured with the Bajaj Allianz General Insurance Company Limited and the Insurance Company coutd not establish any breach of the policy conditions, the Insurance Company was liable to pay 50% of the compensation assessed to the claimants. \ l.A.C. No. 490 of 2010 II 4) Shri Shivendu Pandya, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.2,000/- per month only; and in awarding low compensation of Rs.1,55,000/- only. 5) Shri S.S. Rajput, learned counsel for respondent No.3 the Bajaj Allianz General Insurance Company Limited, the insurer of the tractor-trolley, on the other hand, supported the award and contended that as deceased Rohit Kumar Nagesh was driving the motorcycle (moped) after consuming liquor, the Tribunal has rightly held it to be a case of contributory negligence where the deceased also equally contributed to the accident; the compensation of Rs.3,10,000/- assessed by the Tribunal and Rs.1,55,000/- awarded by the Tribunal are just and proper compensation in the facts and circumstances of the present case. 6) Shri Suresh Tandon, learned counsel for respondent No.1 Bharat Kumar Nande and respondent No.2 Vedram Nande, the driver and owner of the Tractor-Trolley also supported the award. 7) Though learned counsel for the appellants has not challenged the finding recorded by the Tribunal holding that deceased Rohit •Kumar Nagesh also equally contributed to the accident, for our satisfaction, we have examined the entire material available in the Tribunal's records, We gather from the contents of the postmortem report that the autopsy surgeon has categorically mentioned in the report that smell of liquor was coming from the contents of the stomach of the deceased. From the above contents of the -.^ M.A.C. No. 490 of 2010 postmortem report, it is apparent that deceased Rohit Kumar Nagesh was driving his motorcycle (moped) at the time of the accident after consuming liquor. 8) Considering the nature and manner of the accident and the fact that the deceased was driving his motorcycle (moped) after consuming liquor, we are satisfied that the finding recorded by the Tribunal holding that deceased Rohit Kumar Nagesh also equally contributed to the accident does not suffer from any infirmity whatsoever. 9) Now, we shall examine as to whether the compensation of Rs.3,10,000/- assessed by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 10) True, the claimants pleaded that deceased Rohit Kumar Nagesh used to earn Rs.7,000/- per month by working as labour and also from his networking business, no cogent and reliable evidence was led before the Tribunal for establishing the income of the deceased to the extent of Rs.7,000/- per month. In this state of evidence, we do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased. 11)" Nevertheless, the income of the deceased assessed by the Tribunal at Rs.2,000/- per month in the year 2009 is certainly on the lower side and requires reconsideration. 12) The Tribunal, in our opinion, while discarding the claimants' evidence about the income of the deceased, ought to have assessed his income on the basis the notional income prescribed in ^ 1 kS^ I.A.C. No. 490 of 2010 the Second Schedule under Section 163-A of the Motor Vehicles Act. 13) Section 163-A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows : "[163A. Special provisions as to payment of compensation on structured formula basis.—(1) Notwithstanding anything contained in this Act or in any other law for the time being' in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be. Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923). (2) In any claim for compensation under sub- section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehlcles concerned or of any other person. (3) The Central Government may, keeping in view the c.ost of living by notification in the Official Gazette, from time to.time amend the Second Schedule." 14) The above quoted Sub- section (3) of Section 163-A of the Act mandated the Central Government to amend the Second Schedule from time to time keeping in view the cost of living. 15) As the Central Government has failed in amending the Second Schedule as provided in Sub-section (3) of Section 163-A of >lil"s®^.^ n° .A.C. No. 490 of 2010 the Act, the Courts/ Tribunal can take judicial notice of increase in the prices of essential commodities and the cost of living during the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case. 16) Now reverting to the present case, the unfortunate accident wherein deceased Rohit Kumar Nagesh lost his life took place in the year 2009. If the increase in the prices of the essential commodities and the cost of living between the year 1994 and the year 2009 are taken into consideration, the notional income of Rs.15,000/- prescribed in the Second Schedule in the year 1994 would ceri:ainly come to atleast Rs.36,000/- in the year 2009. We, therefore, propose to recompute the compensation taking the income of the deceased at Rs.3,000/- per month and Rs.36,000/- per annum. 17) By deducting the usual 1/3rd of Rs.36,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.24,0007- per annum. 18) Considering that deceased Rohit Kumar Nagesh was aged about 27 years as shown in his postmortem report, we are of the opinion that multiplier of 17 would be appropriate in the present case ip view of the dictum of the Apex Court in the case of Sarla Verma (Smt) and Others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 wherein multiplier of 17 has been prescribed for the age group between 26-30 years. 19) By multiplying the annual dependency of Rs.24,000/- with the multiplier of 17, the compensation works out to Rs.4,08,000/-. •¥'?. N M.A.C. No. 490 of 2010 T 20) As deceased Rohit Kumar Nagesh has been held responsible for the accident to the extent of 50%, the claimants are entitled to get 50% of Rs.4,08,000/- i.e. Rs.2,04,000/- towards loss of dependency. The claimants are further entitled to receive Rs.5,000/- for funeral expenses; Rs.5,000/- for loss of estate; and Rs.5,000/- for loss of consortium to thewidow. The claimants, thus, become entitled to receive a total sum o^Rs.2,19,000/- as compensation for the death of deceased Rohit Kumar Nagesh in the motor accident. 21) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties before the Tribunal about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself. 22) Considering all the relevant aspects of the matter, including the delay in disposal of the claim petition, and the present appeal and the fact that the Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.64,000/- at Rs.6,000/-. 23) For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. While maintaining the finding of contributory negligence recorded by the Tribunal holding that deceased Rohit Kumar Nagesh also equally contributed to the accident, the compensation of Rs.1,55,000/- awarded by the Tribunal is enhanced to Rs.2,19,000/- •^ »"' M.A.C. No. 490 of 2010 with further quantified amount of interest of Rs.6,000/- on the enhanced amount of compensation of Rs.64,000/-. 24) Respondent No.3 the Bajaj Allianz General Insurance Company Limited is granted three months' time for depositing the total sum of Rs.70,000/- (Rs.64,000/- towards enhanced amount of compensation + Rs.6,000/- towards quantified amount of interest on .the enhanced amount of compensation of Rs.64,000/-) before the concerning Claims Tribunal. 25) No order as to costs. Sd/- Chief Justice Sd/- N.K. Agarwai Judge subbu