IN_^HE HIGH COURT OF CHHATTISlGARH AT BILASPUR M.A. (Q N0. 2^Z)^ /2006 ENsl APBELLANTS ^ON-APPLICANTS -.?^ RESPONDENTS APPLICANTS \:.<^ ^- ..-•".^'^^ ^•^^"' ^ ^y- '^^••" Ajay Kumar, S/o. Ram Gulal Rawate, Caste Halba, Aged about 27 years, R/o. Village Danitola, Post, Tahsil & P.S. Balod, District Durg (C.G.). (Driver of the Vehicle No. C.G. 07ZD2250 85 Trolley No. 2251) Ram Gulal, S/o. Mehtaru Ram Rawate, Aged about 45 years, R/o. Village Danitola, Post, Tahsil & P.S. Balod, District Durg (C.G.j. (Owner of the Vehicle No. C.G. 07ZD2250 8s Trolley No. 2251) VERSUS ".. c^ Pitambar Singh, S/o. Ghunu Ram Rawate, Aged about 50 years. 2\ Ku. Kala Bai, D/o. Pitambar ^ Singh Rawate, Aged about 14 years. 3.3.^ Kamal Kishore, S/o. Pitambar Singh Rawate, Aged about 7 years. ^ c^^^^^^ql^t; NON-APPLICANT 4. ® All resident of village Markamtola, P.S. Lohara, P.0. Chipra, Tahsil Dondilohara, District Durg (C.G.). (Respondent No.2 & 3 are Minor and are being represented through father the Respondent No. 1) The United India Insurance Company Ltd., Rajnandgaon, Through Divisional Manager, Divisional Office - In front of District Court, Raipur, Tahsil & District Raipur (C.G.) (Insurance No. B.P.L.R.O. - 692080) MISCELLENEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT 1988. HIGiLCQURT OI? CHHATTISGARH : BILASPUR \ M. A. ('Q No. 482 of 2008 Appellants Ajay Kumar and another Versus Respondents Pitambar Singh & others APPEAL UNI)ER^ECT!QTU73 OF THE MQTQR VEHICLES ACT, 1988 DB: Hon'ble Shri I. M. Quddusi & Hon'ble Shri Prashant Kumar Mishra, JJ Shri Pawan Kesherwani, Advocate for the appellants. Shri Anurag Jha, Advocate for the respondents No. 1 to 3. Shri Rankaj Agarwal, Advocate for the respondent No.4. ORDER (Oral) ( Passed on this 20th day of September, 2010 ) ' Per I. M. Quddusi, J. This appeal arises from the awarddated 7.11*2006, passed by the Additional Motor Accident Claims Tribunal, Balod, District - Durg in Claim Case No. 68/2004. The/brief facts, in nutshell, are that the claimants had filed a claim case before the Tribunal on the submission that they are legal heirs ofdeceased BarantinBai, who died in a motor accident occurredon 4.5.2004. According to the allegation, on 4.5.2004 the deceased was sitting along with others in the Tractor-Trolley, bearing registrationNo. C.G.07/ZD/2250-2251.Near Panbaras depot, due to rash and negligent driving of the appellant No.l/Dn/rier, the trolley turned down, thus the deceasedBarantin Bai received grievous injuries. She was taken to the hospital, where she was declared as dead. The claimants/legal heirs had filed a claim case for award of total compensation of Rs. 6,46,000/~ under various heads. Learned Tribunal having examined the evidence on record has taken into consideration the per day income of the deceased as Rs. 100/-, thereby monthly income as Rs. 3000/- and the yearly Tnpome as Rs. 36,000/- as ^ssessed. After deducting l/3rd of the araount, Rs. 24,000/- was assessed as yearly dependency. Applying the multiplier as 13, the Tribunal has awarded k i^^w&y 7. 8. Rs. 3,12,000/-. In addltion to that, Rs. 10,000/- has been awarded as consortium, Rs. 10,000/- towards love and affection and Rs. 10,000/- towards funeral expenses. Thus, the total award of Rs. 3,42,000/~ was passed with 6% interest from the date of filing of the claim petition i.e. 15.9.2004. Learned Tribunal has directed that the claimants are entitled to get the amount of compensation from the Insurance Company, which, in turn, may recover from the driver and owner (appellants herein). Being aggrieved by the impugned award dated 7.11.2006 the appellants (driver and owner, respectively) have filed the instanf appeal. We have heard learned counsel appearing for the parties and perused the record. Learned counsel for the appellants has raised a contention that the claimant No.l, the husband of the deceased, was employee in Bhilai .Steel Plant and was earning but this fact was not considered by the Tribunal and the compensation has been awarded calculating the total loss of dependency. We have perused the records of the M.A.C.T. concerned. In paragraph 23 of the claim petition it has been mentioned that u ^r^ ^ ^r ^ldi^N1 ^t ^rra cprr ^t-^ ^f XTRT c^ 1iRnR%q ^^v^ ^g^ ^ ^R1crT T^f) SPT^ qf^K ^t 3IPT ^' ^f??ThT ^i^ft aft ^tT ^R^ <5^T wft ^TRTqT ^ 3l|^ch^|u| cff^T ^t 7P? I ?\ Further, in the statement of Pitamber, claimant witness No.l, he has shown his occupation as Labour in BSP (Bhilai Steel Plant). Therefore, in his own statement the claimant No.l has shown his occupation as Labour in the Bhilai Steel Plant and in paragraph 23 of the claim petition he has admitted that he was having earning and the deceased was giving him. help in income as his income was very less and his health was also not good. In paragraph 23 of the written statement filed on behalf of the respondent No.l it has been inter alia mendoned that the husband of the deceased was employee of BSP and the deceased as well as claimants No. 2 & 3 were dependent upon the claimant No. 1 and the deceased was doing only the domestic work. i • l&!i ^^' ^ 9. In the case of Madhya Pradesh State Road Transport Corporatoin, Bairagarh, Bhopal Vs. Sudhakar and others etc.1 (Civil Appeals Nos. 2254 and 2255 of 1968, decided on 15.4.1977), wherein on the claim filed by the husband due to death of his wife Mrs. Usha Kotasthane in an accident occurred on 23rd June, 196 1 by the bus owned by the M.P.S.R.T.C. the Tribunal granted Rs. 15,000/- as compensation; on appeal for enhancement, the High Court enhanced the amount of compensation to Rs. 50,000/, in that case, Hon'ble Apex Court set aside the judgment of the High Court and restored the award of the Tribunal. Hon'ble Apex Court in para 2 of the judgment observed as under : •"2. As regards the death of Mrs. Usha Kostasthane, the claim tribunal awarded Rs. 15,000/- as damages to her husband Sudhakar. At the time of her death she was employed as Physical Instructress in a school at Indore, getting a salary of Rs. 190/- per month, in the grade of Rs. 150-10-250. Admittedly Sudhakar remarried within a year of the death of his first wife. This is how fhe tribunal dealt with the claim: aln the present case, it is a case of the death of the wife. The husband was not dependent on the earning of his wife. He was himself earning independently. The applicant has nowhere .stated that on account of the death of his former wife, he has been deprived of her income, nor that he was dependent upon her. It is true, that the wife of the applicant was educated, healthy, employed, and earning, As far as, the loss of companionship is concerned, it is again true that he faced this loss for nearly 11 months, after which, he married for the second time. No cross-examination has been led by the non-applicant on the point that the second wife is as accomplished, educated, and healthy as the former one was. The death of the wife of the applicant must have caused him mental shock, pain and inconvenience in his household. The work in the house, which he could take from his wife in looking to the household was also not available to the applicant during this period of 11 months. The advantage ofestablished married - life with a child in the lap, was also lost to the applicant during 1AIR 19778.C. 1189 s, ^^^^^ "K'-^"f this time. Taking into consideration all thesefacts, in favour of the applicant, and the fact, against him that he was married again after 11 months, of the death of his wife, I think, it will beproper to award damages amounting to Rs. 15000/- for the loss of life of his wife, which resulted into conditions of inconvenience, suffering shock derangement in house and the life, for a period of nearly 11 months/5 Both Sudhakar Kotasthane and Madhya Pradesh State Road Transport Corporation preferred appeals to the high Court from the decision of the tribunal. The High Court proceeded as follows. The "span of her earning life^ was counted as 35 years taking 58 years as the age of superannuation. For the first six years from the date of accident, the High Court took Rs. 300/- as the average monthly income, and for the remaining twenty- nine years of service the average income per month was fixed at Rs. 250/-. On this basis the High Court computed her total earnings fo be Rs. 96,000/-. Giving allowance for her own expenses and also taking into account the promotions and consequently the increased salary she might have earned, the High Court thought that she could have "easily spared?? half of this amount for the household and estimated the loss of income on account of her death, in round figures, at Rs. 50,000/-. The High Court enhanced the compensation 'accordingly. Regarding Sudhakar's second marriage, the High Court observed: (<But even so, the second marriage cannot be said to be a substitute for the first one. The second wife is not an earning member ofthe family nor is it shown that Sudhakar has in any way benefited from the second marriage financially. Therefore, the financial loss would be there despite the second marriage. On these findings the High Court allowed the appeal filed by Sudhakar Kotasthane and dismissed that preferred by the Madhya Pradesh State Road Transport Corporation/' 10. In the above case, Hon'ble Apex Court has observed that the method of assessing damages is to calculate the net pecuniary loss upon an annual basis and to arrive at the total award by ^....^^"^^ ^ y' ^ multiplying the figure assessed as the amount of the annual dependency by a number. of year's purchase, fhat is, fhe number of years the benefit was expected to last, taking into consideration fhe imponderable factors infixing either the multiplier or the multiplicand. The husband may not be dependent on the wife's income, the basis of assessing the damages payable to the husband for the death of his wife would be similar. Thus, the appeal filed by the M.P.S.R.T.C. was allowed and judgment of the High Court was set aside and the award of the Tribunal was restored. 11. In the instant matter, the Tribunal has not considered this fact that the claimant No.l was an earning member and therefore the matter requires reconsideration at the level of the Tribunal. 12. Therefore, we allow this appeal in part, set aside the impugned award dated 7.11.2006 and remit the matter back to the Tribunal for decision afresh, The claim petition shall be restored to its original number and the same will be decided after providing opportunity to adduce further evidence to the parties concerned, if any.No order as to costs. 13. Needless to mention that the Tribunal shall decide the claim as early as possible, preferably within a period of four months from the date ofthe appearance ofthe parties. 14. It is directed that the parties shall appear before the Tribunal on 19.10.2010. 15. Learned counsel for the Insurance Company has ppinted out that though the award has been made against the owner but the Insurance Company has paid the full award with interest 16. It is directed that in case the amount of award deposited by the Insurance Company as well as the owner is still in deposit, the same shall not be disbursed till the award is made by the Tribunal. 17. The Registry is directed to send back the papers, requisitioned from the Tribunal, forthwith. Thalmr Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge