HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, Misc. Appeal (C) No.1192 of 2007 APPELLANTS : Soniya and others. APPLICANTS RESPONDENTS NON-APPLICANTS VERSUS Santosh Ram Deewan and others Misc. Appeal (C)No.139Q of 2007 APPELLANT RESPONDENTS A r'."^ Fr- The Oriental Insurance Co. Ltd., Branch Main Road, Jagdalpur, Distt. Bastar VERSUS Sonia and others O^R^E^ For Pronouncement of Order ^.02.2011 Sd/- R.L. Jhanwar Judge VJ- ^.. i-.^ •!-.: '••\ -——s ••'i" .^' ,,^?.. ^ t |:| %&£^SS ^.^ ^ HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH: HON'BLE SHRI R.L.JHANWAR. J. APPELLANTS APPLICANTS Misc. Appeal (Cl No.1192 of 2007 1. Soniya, S/o Late Firangi, age;^ sbbut 50 years. 2. Ramchand S/o Soniya, aged about 22 years, 3. Jagdai, S/o Soniya, aged about 18 years, 4. Jagati, S/o J?niya, aged about 15 years. 5. Amaru, S/o Soniya, Aged about 10 years. Appellants No. 4 & 5 are minor, through their legal guardian Soniya, W/o late Firangi, aged about 50 yeafs. ' All the above residents bf KHandam, Tahsil Kondagaon, District Bastaf (CG) r^l^JU^i -^^ : .\.-.! . ;. • - . • <,^^ VERSUS RESPONDENTS NON-APPLICANTS t APPELLANT RESPONDENTS 1. Santosh Ram Deewan, S/o Jaitram Deewan, Aged about 23 years, R/o VillageDahikonga, Tahsil Kondagaon, District Bastar (CG) ........Driver' 2. Santosh Jain, S/o V.L Jain, R/o Sonpur '' Road, Narayanpur, District-Bastar (CG) .Owner1 3. The Oriental Insurance Company Limited, Branch - Main Road, Jagdalpur, District Bastar (CG) ' Misc. Appeal <Cl No.1390 of 2007 ; ' The Oriental Insurance Co. Ltd.,.Branch Main Road, Jagdalpur, Distt. Bastar (C.G.) VERSUS : 1. Sonia S/o late Firangi, age about 50 yrs., } 2. Ramchand S/o Sonia, age about 22 yrs., 3. Jagdai,, Father Sonia,; age about 18 years. 4. Jagati Father Sonia, age about 15;years. 5. Amaru S/o Sonia, age about 10yrs., All Caste Muriya, Respondent No.1 to 5 are residents of Khanda, Tahsil Kondagaon, Distt. Bastar (C.G.) 6. Santosh Ram Diwan, S/o Jaitram^Diwan, , age about 32 years, caste "Kalar, resident of. village Dahikonga, f Tah. Kondagaon, Distt. Bastar (Driver of ^d-y^^^ a ....^^ @)' Vehicle) 7. Santosh Jain, S/o V.L Jain, Resident of Sonpur Road, Narayanpur; Distt. Bastar C.G. (OwnerofVehicle) MISCELLANEOUS APPEAL UNDERSECTION 173 OF THE MOTOR VEHICLES ACT. 1988 Appearance: Shri Vikram Dixit, counsel f6> *he appellants and respondents No. 1 to 5 (in both the appeals) Shri Sudhir Agrawal with Shri P. Dutta, counse! for respondent No.3 and for the appellant (in both the appeals. Shri Vishnu Koshta, counsel for respondent No.1 and for respondent No.6 (in both the appeals) ORDER (Passedon jo .2.2011) ^;r^.r.p| ; ^-,.^r\jjG ,,Pp?r^j -,)Ni"H:-->'::r;.'"- •'' • "'":•- ••" I-': ••< ;.tfc!'''^ M.A.(C) No.1192/2002, and M.A.(C) No. 1390/2007 are being disposed of by this common order since they are arising out of same claim caseNo. 78/2007. 2. Brief facts, in a nutshell, are that on fateful day of 15.04.2006 at about'8:30'a.m'.'inthe'morrtirl9BykIi'Bai(sincedeceased)aridsdmeother persons were going in Commander Jeep bearing C.G.17 ZD/0392 (henceforth 'the Jeep') for attending a function. The said jeep was being driven by Santosh Ramin a rash and reckless manner,as a result of which, the said jeep turned turtle at the forest situate nearby Chargaon curve. Due to such accident, Bukli Bai received injuries on hjs head,chest and stomach. Ultimately, she succumbed due to injuries sustained by her. 3. On account of death of Bukli Bai,claim petition was filed seeking compensation of 22,38,000/- on various head filed. In the claim petition, it was pleaded that at the time of accident Bukli Bai was aged 48 years and Was • earnrng 'Rs.200/- • iper"dayL'by 'selling- vegetables; Respondents - Santosh Ram and Santosh Jain, being driver and owner df the vehicle, filed written statement denying all the averrnents. If was specifically pleaded by them that the said Jeep was insured with :respondent / insurance company, therefore, the insurancecompany wa's responsibte for payrrient of compensation. By filing written statement, the in^urance company also dehied the averments made in the claim' petitjon and ^^i uLiV 'jy ;. 1,: ] C<«*<-"-t t.t^-'^ ^*&-ateNL "^ "^ ^M^-:. » ^/ ;"3£) <s? pleaded that the driver of the said Jeep was not holding a valid and effective driving licence and that the Jeep was being driven in breachof policy of insurance. It was also pleaded that although the risk cover was made under Section 64 VB of the Insurance Act, but the driver did not comply with the Section134 of the Motor Vehicles Act. On these premises, the insurance company js not responsible for payment of compensation. 4. All the parties ledtheir evidence before the Tribunal. On close scrutiny of the evidence available on record and submissions made by respective parties, the Tribunal inter alia held fixed the jncome of the deceased at Rs.50/- per day. The Tribunal held that the deceased must be getting work for four days in a week, determined the working days of the deceased as 16 days out ofa month; multiplied the samfe with Rs.50/- and then worked out the income! of the deceased to Rs.800/- per month arid Rs.9600/- per year. After deducting one-third amdunt from the monthly incomeof Rs.9600/-, the annual dependency ofthe'appellants was worked out by the Tribunal to Rs.6400/-. Thereafter, the Tribunal, taking into consideration the age ofthe deceased at 48, as mentioned in post-mortem, used multiplier pf 13. By multiplying the annual dependency sc<r?'iMtv (.?•• 'ff eviu^nc^ ^vauabte Of' ?'^<f:'f..^t' '^'7" <''->-'t";"-'-u-'t"'';,:'.n: ;;. of Rs.6400/- with the multiplier of 13, the compensation was worked out by the Tribunal to Rs.83,200/-. By adding Rs.5000/- towards loss of consortium and Rs.2000/- towards funeral expenses, total compensation came to Rs.90,200/-, which the claimants are entitled for the death of Bukli {[ Bai. The Tribunal fastened the liability to pay compensation on the respondents - owner, driverand insurer, with a direction to pay interest at 6% per annum on the compensation amount from the date of filing of i . '. claim petition till its realization. It is this order, which is under challenge by the insurer as well as by the claimants by filing separate appeals. 5. Shri Sudhir Agrawal, learned counsel for the insurer ai'gued :that the offehding Jeep is a'private car arid was insured only for that purpose, as per policy Ex.D.1. According to the statements given by the parties, it is clear that offending jeep, being private car, was given on rent for attending engagement function. On these premises, the insurer is not responsible to paycompensation. : VL t<^'-:.'0''~s<J<-^tP.-' — \jvv< t^? . •s^ )v^( ctF'C1 U )ot»<'-,-:•)" v\'<>--1'—' i'—-^'•:•.," : ••' •^^^ :--^--"'•--; • ;: of^:-.;.;!iiYS .1.:.-^'- '^, a s'.-;vnte c'^ ::^:J .;.- 6. Shri Vikram Dixit, learnedcounsel appearing for the claimants argued that the Tribunal has erred in awarding meager compensation. The Tribunal should have taken the income on the basis of notional income or the income fixed by the State Government to the labourers. He further argued that if notional income would have been taken by the Tribunal, then the compensation would certainly have gone on the higher side. The provisions of Motor Vehicles Act are benevolent provisions and the Tribunal has erred in fixing the income of the deceased based on notional income ignoring benevolent provisions. He urged that compensation awarded by the Tribunal may be enhanced by taking notional income basis. i ; 7. I have heard learned counsel for the parties at length and perused the record oftheTribunal including impugned judgment. j 1 8. Spnia A.W.1, husband.pf thedeceased Bukli Bai, has stated in his deposition that he, his wife and some 4-5 persons were travefling in the offending vehicle i.e. Jeep for attending engagement party situated at village Bungaon and the said offending Jeep was being driv^n by Santosh Deewan in a rash and reckless manner, due to which, the Jeep turned turtle^i A9,.9. .re^Mtt, ,p{,jaQp^d^t. of^b.e, .said Jeep,^ Bukli-.B9j.,got, serious injuries pn her head, chest and stomach and she succumbed due to such injuries on the spot. In his cross-examination, it emerged that rent for Rs.1000/- for going to Bungaon was determined, but due to'accident they did not pay even single pennyto the owner ofthe offending vehicle. Since it has come in his cross-examination that rent of Rs.1000/- was determined, therefore, it is clear that the Jeep was taken on rent and was not used for private purpose. According to Vinod Sharma, N.A.W.1, it is clearthat Santosh Jain is the owner ofthe vehicle, who had appointed him as a Mukhtiar i.e. power of attorney holder and since the offending jeep is kept in his workshop, therefore, Santosh Jain had given power to look after that vehicle. According to him, one couple Sonwati and Bangaram ( Sodhi came to him and asked for the offending Jeep for attending engagement purpose. Since this witness and Santosh Jain hadfamily relationship with Sonwati and Bangaram Sodhi and on the basis ofpower < . .• .- • • •• . .•,..•.. .;' . , .' of attorney given by Santosh Jain, he permitted them to take the offending Jeep fpr attending en^agement functipn and for that purpose he did not d{:;:''fi'nin<:'d i:hv.:'..^:.).r-;.^! ^'c'^^;" th.;.;' ;:. - ..'•-- •- •- :/ '•" . ' • . • : ; take even single penny towards rent nor did charge towards diesel C«..i^. *.I'»L<1 wd..^l>J. /^•^tjt^tti'i-^ 10 t «».i», - C. •.i- ...-^ >.-«-..-.^ ^>.,;, ..'.,•<:. ,.,( ^ ; expenses. In his cross-examination, it has come that power of attorney was given to him on 14.08.2006. He has also stated that before powerof attorney was given to him, he was not in possession of that Jeep. He admitted that accident took place on 15.04.2006 andat that time he was not given any power of attorney. In this manner, it is clear from his evidencethat on the date of accident he was not powerof attorney holder to look after the said Jeep. Thus, the evidence of this witness isof no value because the date of accidentwas 15.4.2006 and power of attorney was given to this witness on 14.08.2006 meaning thereby there was approximately four months time gap between the accident and handing over of power of attorney. In these circumstances, it can safely be s . : inferred that he had no right to talk to claimants for sending the said Jeep on hire purpose and had no power to give the said offending vehicle; In c.ro his c^ examination, he himself stated that he did not know any person in 1 ' ' ' the name of Sonia, which also shows that he was not in the picture when t'tv ^?ver ^f(\- f.)owttf 01 ^ttocnev ll< ^?i^ ...---.^?/..-;';•(-•.-• •i-:;?!:; - the offending Jeep was taken for engagement purpose, otherwise he ! ^ .. ' . . .; : - ; • ^ ..^ ' •' : I:' -•• ., ' should have deposed that Sonia is well known to him. Similarly, the evidence of N.A.W.2 Bangaram Sodhi is also not reliable evidence because he has stated that daimants have come to Vinod Sharma N.A.W.1 and askedfor offending Jeep for attending engagement function andthat Jeep was given to them without taking any rent. When Vinod Sharma was not the owner of the offending jeep, then there was no necessity for Sonia to goto Vinod Sharma and asked for the said Jeep. If the above evidence is taken at its face value, then the owner of the offending Jeep i.e. Santpsh Jain is under obligation to pay compensation amount because he did npt enter the witness box to rebut the above witnessoe^-The evidence ofShailendra Kumar N.A.W.3, BranchManager ^ . . . . .. . . - : of insurance company also shows that the vehicle was insured for private purpose and not for commercial purpose and no premium was paid for any passenger. If the evidence of Sonia A.W.1 that the Jeep was taken on rent of Rs.1000/- coupled with the evidence of Shailendra Kumar N.A.W.3 is considered together, it can safely be inferred that the said Jeep was usedforcommercial purpose and notfor private purpose. More over, the owner of the offending Jeep has not been able to prove that that Jeep was used for private purpose and not for commercial purpose. „ ?v ..'• •:"" T;":.,"'.'^: y-)'^» '^ ^ 9. In view of the above, it is held that since the owner has not been able to prove that the said Jeep was used for private purpose and not for commercial purpose,the insurance company is not liable for payment of compensation. The learned Tribunal has not considered the above aspect of the evidence and has wrongly fastened the liability to pay compensation upon the insurer. Accordingly, M.A.(C) No.1390/2007 is allowed and the insurance company is exonerated from its liabjlity topay compensation. 10. So far as arguments of the learned counsel for the claimants is concerned, as already discussed in paragraph 4 of this order, the approach of the Tribunal in mechanically fixing the income of the deceased is not proper. The notional income of Rs.15,000/- per annum was prescribed in the Second Schedule to Section 163-A ofthe Act in the year1994. The accident in the present case, wherein the deceasedlbst her tife, took place in the'year; 2006. If the increase in theLprices- of the essential commodities and the cost of living between the year1994 and the year 2006, the year of accident in the present case are taken into consideration, the notional income of Rs.15,000/- prescribed in the Second Schedule to Section 163-A of the Act in the year 1994 would certainly come to Rs.36,000/- in the year 2005. I, therefore, propose to 5^':w'r;7e^^'''^/^^S^'TcT^^^r;^s^T <:"";--~7":"-r-' ':'W'T'T-'^' r'^r^w^^" recompute the compensation by taking the income of the deceased at Rs.30,000/- per annum. 11. So far as the deduction from the income of the deceased towards his personal expenses is concerhed, it will depend upon the facts'pf each case and no straight jacket formula can be framed. In the facts of the present ;case, 1 am of the opinion that one-half should'be deducted because the dependentis the husband of the deceased and he hnust be earning member so also appellants/claimants No.2 & 3 are major and must be earning. Accordingly, taking the above aspect into consideration, one-half amount is deducted out of Rs.30,000/-. ThLis, the total dependehcy'connes to Rs.15000/-.' So far as multiplier of13 used by the Tribunal,' the Tribunal has rightly used the multiplier. If the total dependency of Rs.15000/- is multiplied by 13, then compensation works out to Rs.1,95,000/-. By adding further amount of Rs.7,000/-, as aWarded by the Tribunal undel- other heads like loss of consortium and funeral expenses, the tofal compensation works out to Rs.2,02,000/-. The' Tribunal awarded total compensation of Rs.90,200/- and if the same is deducted from Rs.2,02,000/-, then the difference comes to Rs.1,11,800/-. 12. Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the periodifor which the claimants are entitled to receive interest on the enhanced amountof compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself. 13. The accident in the present case, wherein deceased Bukli Bai lost her life, took place in the year 2006; the claim petition was filed by the claimants in the year 2006; the impugned award came to be passed in the year 2007 and the present appeal for enhancement of the compensation was filed by the appellants in the year 2007 and the appeal is being finally decided in the year 2011. Cbnsidering all the relevant factors 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, 1 quantify the amount of interest on fhe ehhanced amount of compensation of Rs.1,11,800/- at Rs.10,000/-. Thus, the claimants are entitled to receive enhanced amount Rs.1,22,800/-, in addition to compensation awarded by the Tribunal for the death of Bukli Bai in the motor accident. 14. For the foregoing reasons indicated as above, M.A.(C).No. 1192/2007 is allowed. The impugned award dated 31st July; 2007 passed by the Tribunal is partly modified by exonerating the insurer from the liability to pay compensation. 'The liability to pay comp'ensation ahd interest awarded by the Tribunal rests with respondent / owner - Santosh Jain. The appellant / insurer may initiate proceedings for recovery of compensation, if any, paid by it from theowner. No order as to costs. <~>- 8d/- R.L. Jhanwar Judge