mmian Eench HON'BLE 1N THE HIGH COURT OF CHHATTISHGARH AT BILASPUR M.A. No.v- CC”? [35 G/M y“ APPELLANT THE ORIENTAL INSURANCE CO. LTD., DIVISIONAL MANAGER , DIVISIONAL OFFICE, NAHAR BHAVAN MALVIYA NAGAR, DURG C.G. Vrs. HE’SPONDENTS Qi-y/l. ’ A SRIMATI VIMALA KOTHARI AGE BOUT 45 yrs. WIDOW OF SATYAPRAKASH KOTHARI Ly LOKESH KUMAR AGE ABOUT 24 yrs. S/O LATE SATYAPRAKASH KOTHARI @{é‘i KUMARI SWETA AGE“ABOUT 22 yrs. D/ O LATE SATYAPRAKASH KOTHARI k5 4 KUMARI HANI AGE ABOUT 18 yrs. D/O x.....LATE SATYAPRAKASH KOTHARI ¢ t, ' [$5. ABOUT MANENDRA 13 yrs. D/o KUMAR LATE SATYAPRAKASH KOTHARI AGE KOTHARI RESPONDENT NO.-5 IS MINOR THROUGH GUARDIAN RESPONDENT NO.-1 SRIMATI VIMALA KOTHARI ALL RESIDENT OF SADAR ROAD , BALOD, j DISTT.-DURG C.G. £§/ ; ALARAM KHEMLAL SAHU AGE , RESIDENT ABOUT 27 OF yrs., BISAHU S/O TOLA,‘ THANA CHICHOLA, DISTT. RAJNANDGAON C.C. , DRIVER OF MARSHAL JEEP C.G. 07/ZD/6314, LICENSE NO.-‘ K/542/RAJNANDGAON, LIMITATION - 20-7-2021, % 7/ ARVIND LAL W/O SRI SUKELAL, A %ESIDENT OF MAIN ROAD DISTT.- RAJNANDGAON C.G. , OWNER OF MARSHAL JEEP C.G. 07/ZD/6314, 8. BHOGDAS SAHU S/O RAMPRASAD SAHU, RESIDENT OF POTEKOHARA, POST CHICHOLA, THANA CHICHOLA, DISTT.- RAJNANDGAON C.G., OWNER OF MEDATOR NO.- C.G. 04/ZB/l641 , ég’ BRANCH MANAGER,~BRANCH O‘FFICE, NATIONAL INSURANCE CO. PVT. LTD., KAMATHI LINE RAJNANDGAON; TAH. & DISTT.- RAJNANDGAON CG. f ..2.. APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT V\ HIGH COURT OF CHHATTISGARH, BILASPUR CORAM: Hon’ble Shri I. M. Quddusi, & Hon’ble Shri Prashant Kumar Mishra, JJ. M.A. No. 1018 of 2004 APPELLANT Arvindlal. Versus RESPONDENTS Smt. Ramotin Potai and others. Shri S.S, Rajput, counsel for the appellant. Shri Prakash Tiwari, counsel for the respondents No. l to 4. Shri Sudhir Agrawal, counsel for respondent No. 6. Shri Gautam Khetrapal, counsel for respondent No. 8. M.A. No. 664 of 2005 APPELLANTS Smt. Hemlata, Verma and others. VerSlIS RESPONDENTS Khemlal alias Khemu alias Khemchand and others. Shri P.K.C. Tiwari, Senior Advocate with Shri Shashibhushan, counsel for the appellants. Shri S.S. Rajput, counsel for the respondent No. 2. Shri Sudhir Agrawal, counsel for respondent No. 3. M. A. No. 665 of 2005 APPELLANTS Smt. Vijay Tiwary and others Versus RESPONDENTS Khemlal‘alias Khernu alias Khemchand and others. Shn P K C Tlwan, Semor Advocate wrth Shrz Shashlbhushan, counsel for the appellants Shrr S S RaJput counsel for the respondent No 2 Shrx A K Athaley, counsel for respondent No 3 AND M.A. (C) No. 130 of 2006 APPELLAN The Oriental Insurance Co. Ltd. Versus RESPONDENTS Srimati Vimala Kothari and others. Shri Sudhir Agrawal, counsel for the appellant. Shri Anand Prakash Shanna counsel for respondents o. 1 to 5. Shn S S Rajput counsel for the respondent No 7 Shn Snkumar Agrawal Semor Advocate w1th Shn Anand Kumar Gupta counsel for respondent No 9 v T N ORDERJQral) (Passed on this 6th day of April, 201 1) Per I. M. Quddusi, J. The aforementioned four appeals (M.A.Nos. 1018/2004, 664/2005, 665/2005 and M.A.(C) No. 180/2006) are being decided by this common order as they arise from the one and the same accident occurred on 27.1 1.2002 by the Marshal Jeep, bearing registration No. C.G. O7-ZD/6314 and the Metadoor/bearing registration No. C.G. 04ZB/1641. The facts in brief are that on 27.11.2002 'Yashwant Potai, Rajesh Tiwari, Virendra Sahu, Tikamdas Verma and ‘Satya Prakash Kothari were on the visit to Raipur in order to attend axnarriage. After attending the marriage programme they were retuming to Chichola from Raipur by the Marshal Jeep, bearing registration No. C.G. 07—ZD/6314 (old number M.P. 13-C/4735), which was being driven by the non-applicant No.2 (Khemlal). The jeep was owned by non—applicant No.1 (Arvind Lal) and it was insured by 9157‘ non— applicant No.3 (The Oriental Insurance Company Ltd.). The Metadoor, bearing registration No. C.G. 04ZB/ 1641, was standing on the road side at village Tendunala, G.E. Road No.6 as it became out of order. It is alleged that due to rash and negligent driving by Khemlal the Marshal Jeep collided with the stationary Metadoor. In that accident Yashwant Potai, Rajesh Tiwari, Virendra Sahu, Tikamdas Verma and Satya Prakash Kothari died on the spot and driver Khemlal received grievous injuries. The legal heirs of Yashwant Potai filed a claim petition under Section 166 fof the Motor Vehicles Act, 1988 for award of compensation. Learned Claims Tribunal by award dated 4.8.2004, passed in Claim Case No. 28/2003 (Ramotin Potai 85 others Vs. Arvind Lal 85 others) x \\5 ‘ (M.A.No. 1018/2004 ~ Arvind Lal Vs. Smt. Ramotin Potaj 8r, others) awarded a sum of Rs. 10,87,500/- as compensation, holding the non- applicant No.1 (Arvind Lal) as liable to pay the amount of compensation. The legal heirs of Tikam Das filed a claim petition tunder Section 166 of the Motor Vehicles Act, 1988 for award of compensation. Learned Claims Tribunal by award dated 7.4.2005, passed in Claim Case No. 32/2003 (Smt. Hemlata Verma 85 others Vs. Khemlal 8a others) (M.A.No. 664/2005 —— Smt. Hemlata Verms 81, others Vs. Khemlal & others) awarded a sum of Rs. 7,94,848/- as compensation, holding the non-applicants No.1 to 3 as liable to pay the amount of ' compensation. 5. The legal heirs of Rajesh Tiwari filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 for award of. compensation. Learned Claims Tribunal by award‘ dated 7.4.2005, passed in Claim Case No. 51/2003 (Smt. Vijay Tiwari 8% others Vs. Khemlal 83 others) (M.A.No. 665/ 2005 ~ Smt. Vijay Tiwari 8r others Vs. Khemlal 8L others) awarded a sum of Rs. 8,27,536/- as compensation, holding the non— applicants No. l to 3 as. liable to pay the amount of compensation. 6. The legal heirs of Satya Prakash Kothari tiled a claim petition under Section 166 of the Motor Vehicles Act, 1988 for award of compensation. Learned Claims Tribunal by award dated 21.3.2006, passed in Claim Case No. 39/2003 (Smt. Vimla Kothari 85 others Vs. Khemlal 8r others) (M.A. (C) No. 180/2006 —— The Oriental Insurance Co. Ltd; Vs. Smt. Vimala Kothari 8r others) awarded a sum of Rs. l3,35,080/- as compensation, holding the non—applicants; No. 3 (The Oriental Insurance Company and 5 (National Insurance Company) as liable to pay the amount of compensation. g. 7. We have heard learned counsel appearing for the parties and perused the lower Court records available in all the four appeals. 8. The M. A. No. 1018/2004 has been filed by the owner on the question of liability. Learned Claims Tribunal has held that the Marshal Jeep was insured as a private vehicle but it was being used as a commercial vehicle/tad. The owner of the Marshal Jeep did not have permit to ply the vehicle as a taxi, therefore, the owner has been held liable to pay the amount of compensation. 9. n perusal of the record it is evident that the insurance policy was a private car comprehensive policy. The schedule statement attached to the policy provides that subject to the limits of liability as laid idown in the Schedule the company will indemnify the insured in the event of accident caused by or arising out of the use of motor vehicle against all sums which the insured shall become legally liable to pay in respect of death or bodily injury to any person including occupants carried in the motor car provided that such occupants are not carried for hire or reward. There is no evidence on record that the vehicle was being used as a taxi and the deceased occupant were carrying for hire or reward. The driver was having the valid and effective driving licence and there was no breach of the conditions of the insurance policy. Therefore, we are of the considered opinion that learned Tribunal has wrongly fixed the liability on the owner to pay the amount of compensation. 10. In View of the above, the M.A.No. 1018/2004, filed by the owner is allowed. The appellant/owner is exonerated from the liability to pay the amount of compensation as awarded by the Tribunal and it is held that the respondent No.6 Oriental Insurance Company is liable .m to pay the amount of compensation. O of the deceased at the time of accident as 41 years, the multiplier of 14 would be applicable in the present case. Therefore, we award a sum of Rs. 15,54,000/- towards loss of dependency. In addition to that, under the conventional heads, we award Rs. 5000/- towards funeral expenses, Rs. 15,000/— for loss of love and affection to the children and consortium to the widow and Rs. 10,000/- towards loss of estate, the total of which comes to Rs. 30,000/-. Thus, the claimants are entitled to a total sum of Rs. 15,84,000/— as i 1 \ compensation. 13. In view of the above M.A.No. 664/2005 is-allowed. The impugned award is modified to the above extent. Rest of the conditions imposed by the Tribunal shall remain intact. l4. M.A.No. 665/-2005 has been filed by the claimants for enhancement. During the pendency of the instant appeal, appellant No. 1. Smt. Vijay Tiwary died and the appellant No.4 Rishabh Tiwary has attained majority and accordingly the‘ appellants have filed two separate pI applications, dated 6.4.2011. Both the applications are allowed. 15. It is evident that on the basis of the pay slip (EXP/4), learned Claims Tribunal has assessed the monthly income of the deceased Rajesh Tiwari as Rs. 8578/-. After deducting 1/3rd i.e. Rs. 2859/- towards personal and living expenses, Rs. 5719/- as monthly and Rs. 68628/— as yearly loss of dependency was assessed. Taking into account the age of the deceased as 49 years and the future prospects of promotion etc., the multiplier of 12 was applied and thus Rs. 8,23,536/~ has been awarded towards loss of dependency. In addition to that, Rs. 2000/— has been awarded towards funeral expenses and Rs. 2000/- towards consortium to the Widow. Thus, a total compensation of Rs. 8,27,536/- has been awarded by the Tribunal. aw X ’ 16. According to the pay slip for the month of October, 2002 the gros alary of the deceased was Rs. 10078/- and Rs. 1200/- was the deduction towards G.P.F., Rs. 100/- towards G.I.S. and Rs. 200/- towards professional tax. Taking into account the fuau-e prospects i.e. promotion and enhancement in the rate of allowances like D.A., H.R.A. etc. we are of the opinion that there should have been 50% of I the hike in the salary of the deceased and thus we assess the monthly income of the deceased as Rsf 14,000/— per month and Rs. 1,68,000/- per year. After deducting Rs. 20,000/- towards income tax per annum the yearly income of the deceased comes to Rs. 1,48,000/—. By deducting l/4th of the income (Rs. 37,000/-) towards personal and living expenses of the deceased the yearly dependency comes to Rs. 1,11,000/-. According to the decision of Hon’ble Apex Court in Sarla Verna [Smt) and others Vs. Delhi Transport Corporation and another” and looking to the age of the deceased at the time of accident as 49 years, the multiplier of 13 would be applicable in the present case. Therefore, we award a sum of Rs. 14,43,000/- towards loss of dependency. In addition to that, under the conventional heads, we award Rs. 5000/— towards funeral expenses, Rs. 15,000/— for loss of love and affection to the children and consortium to widow and Rs. 10,000/- towards loss of estate, the total of which comes to Rs. 30,000/—. Thus, the claimants are entitled to a total sum of Rs. 14,73,000/— as compensation. 17x a [\s \ In view of the above M.A.No. 665/2005 is allowed. The impugned award is modified to the above extent. Rest of the conditions imposed by the Tribunal shall remain intact. No order as to costs. A we 2 (2009)6 SCC 121 s s W ’ Wmwmcm?mmmmugmWW‘ 18. M.A. (C) No. 180/2006 has been flled by the Oriental Insurance Company. The claimants have fxled the LA. dated 06/04/2011 application for condonatidn of delay and the cross objection for enhancement, today itself. The claimants had filed M.A. No. 914/2006 Which was dismissed as withdrawn with liberty to file cross objection by order dated 2031 August, 2009. Since we have calculated amount regarding enhancement of compensation in connected appeals, let the cross objection be entertained in this appeal so that the claimants may not be deprived of the genuine claim. r" r 19. The objection raised by Shri Sudhir ‘ Agrawal, learned counsel for the 3 _ x$ ‘ appellant is that cross objections are time barred. p r z 20. Having regard to the facts situation, the application for condonation of 1 delay is allowed. ' l. t 21. This appeal has been tiled by the Insurance Company against the impugned award dated 21.3.2006 passed in Claim Case No. 39/2003 (Smt. Vimla Kothari 8a others Vs. Khemlal 8r, others), wherein the i claimants have been granted av sum of Rs. 13,35,000/—<\as total compensation, holding the non—applicants No. 3 and 5 .to pay the amount of compensation. In above two appeals (M.A.Nos. 664 and .. ' s w 665 of 2005) the findings are against the Insurance Company and it j has been held that the Oriental Insurance Company is liable to pay the amount of compensation, awarded by the Tribunal, therefore,_ there cannot be a different finding in respect of the liability part, arising of the same accident. More so, when the Insurance Company has not challenged the above two awards and its findings, therefore, in. our opinion there should be uniformity in the awards and the findings given in the above two awards, giving rise to above two appeals, have been affirmed, therefore, the instant appeai’ds liable to mama”! ~ - N 1 m be dismissed as in above twO awards the Insurance Company has accepted its liability by not challenging the same and not filing the appeal. 22. In view of the above M.A.(C) No. 180/2006 filed by the insurance company on the question of liability is dismissed. However, on the question of quantum and on the question of enhancement of the award, considering the cross-objections, we have further perused the records. 23. It is evident that on the basis of pay slip (Ex.P]12), learned Claims Tribunal has assessed the monthly income of the de'cea'sed Satya Prakash Kothari as Rs. 10,459/— and Rs. 1,25,508/~ as yearly income; After deducting 1/3‘d i.e. Rs. 41,836/- tovvards personal and living expenses, Rs. 83,672/- as yearly loss of dependency was assessed. Taking into account the age of the deceased as 50 years, the multiplier of 15 was applied and thus Rs. 12,55,080/v has been awarded towards loss of dependency. In addition to that, Rs. 20,000/- has been awarded I towards loss of consortium to the widow, Rs. 4Q,OOO/— towards loss of love and affection to the children and Rs. 20,000/— towards funeral expenses, the total of which comes to Rs. 80,000/—. Thus, a total compensation of Rs. 13,35,080/‘— has been awarded by the Tribunal. 24. According to the pay slip for the month of July, 2002 the gross salary of the deceased was Rs. 10459/— and Rsi 850/— was the deduction towards G.P.F., Rs. IOO/- towards G.I.S. and Rs. 200/— towards professional tax. Taking into account the future prospects i.e. promotion and enhancement in the rate of allowances like ‘D.A., H.R.A. etc. we are oithe opinion that there should have been-30% of the hike in the salary of the deceased and thus we assess the monthly income of the deceased as Rs. 14,000/- per month and Rs. 1,68,000/— per year. After deducting Rs. 20,000/- towards income tax per annum the yearly income of the deceased comes to Rs. 1,48,000/-. By deducting Rs. 1/4'1‘ of the vincome (Rs. 37,000/—) towards personal and living expenses of the deceased the yearly dependency comes to Rs. 1,11,000/—. According to the decision of Hon’ble Apex Court in Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another3 and looking to the age of the deceased at the time of accident as 50 years, the multiplier of 13 would be applicable in the present case. Therefore, we award a sum of \ W’Wfil. Rs. 14,43,000/— towards loss of dependency. In addition to that, i ‘ ) under the conventional heads, we award Rs. 5000/- towards funeral expenses, Rs. 25,000/— for loss of love and affection to the children and consortium to widow and Rs. 10,000/— towards loss of estate, the total of which comes to Rs. 40,000/—. Thus, the claimants are entitled to a total sum of Rs. 14,83,000/— as compensation. 25. In view of the above the M.A.(C)No.v 180/2006 filed by the appellant — Insurance Company is dismissed and the cross-objections filed by the claimants are allowed to the above extent. The impugned award is modified to the above extent. Rest of the conditions imposed by 'the \ Tribunal shall remain intact. No order as to costs. 26. Accordingly all the four appeals are finally decided to the extent v1 indicated in the foregoing paragaphs. No order as to costs. / i u Kamde/ Gowri Sd/ l-M- Qud-dusi Judge Sdl- ’ Prashant Kumar Mishra Judge 3 (2009)6 scc 121