K HIGH COURT OF CHHATéTISGARH AT BILASPUR DIVISION BENCH 4 CORAM: HON’BLE SHRI RAJEEV GUPTA, CJ.- HON’BLE SHRI SUNIL KUMAR SINHA, J. Misc. Appeal No. 863 of 2003 Appe’Ilants 1. Smt. Kulvinder Kaur, aged about 35 Claimants years Wife of late Bahal Singh. I ‘ ' 2. Ku. Manpritkaur aged about 7 years (minor) I x'3. Ku‘ Gurpritkaur, aged about 5.years‘ ‘ (minor) 4. Ku. Raman Pritkaur aged about 6 V months (minor) SI. No. 2 to 4 are minors d/o late Bahal Singh (through their natural ' ‘ guardian mother Smt. Kulvinder Kaur ' aged about 35 years, w/o late Bahal Singh). U1 Dilip Singh, aged about 69 years s/o ‘ late Shri Tara. Singh. Smt. Swarn' Kaur, aged about 62 years,w/o Dilip Singh ' All are resident of Veer Savarkar Nagar, Heerapur, ' Raipur P.S. Amanaka Tatiband, Raipur C.G. VERSUS O) l l l Respondents 1. Bhupinder Singh S/o Shri Ajit Singh ow"ner of Truck No. HR 37—A 7795)’ resident of village Katahri Post w Lapran, distt. Ludhiyana. . i l § ‘ l 2. ‘ National Insurance Company (insurer of the truck) HR 37-A—7795 through RegionalManager,'Regional’- r _ £ I) . Office, G.E. Road, Madina Building,_, RaipurC.G. MISC. APPEAL UNDER SECTION7173 OF THE MOTOR VEHICLES ACT, 1988 a resent: Shri Malay Kumar Bhaduri, counsel for the appellants. None for respondent No.1. Shri B2N. Nande, counsel fo‘r respondent No.2. P ORDER (29th March, 2011) r! u . The followmg order of the Court was passed by Rajeev Gupta, C.J. "This is ‘ claimants’ appeal for enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal Raipur (for short ‘the Tribunal’) vide award dated O7 08 2003 passed In Claim Case No 27/2003 2) As against the compensation of Rs 10 33 000/- claimed by the appellants/claimants, unfortunate Widow, minor daughters and p§arents of deceased Bahal Singh by ming a claim petition under Section 166 of the Motor Vehicles Act for his death in the motor accident on 09.08.2002, the Tribunal awarded a total sum of Rs.2,24,044/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of a‘ctual payment. 3) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Bahal Singh died on account of the I injuries sustained by him in the motor accident on 09.08.2002; the drivers of both the Trucks bearing registration Nos. HR 37-N77§5 and C.G.04G/1012 were equally responsible for the accident; e as the Truck bearing registration No. H.R. 37—A/7795, on th‘e date of the accident was insured with the National lnSurahce Company Limited and the Insurance Company could not estabiish any breach of the poiicy conditions, the Insurance Company was liable to pay 56% of the compensation assessed to the claimants. 4) The Tribunai assessed the income of the deceased at R's.5,000/- per month. By’deducting 1/3’d of Rs.5‘0‘00/- towards the per‘so‘nal expenses of the deceased, the claimants’ dependency) was assessed at Rs.3,334/- per month and Rs,40,008/— per annum. By multiplying the annual dependency of Rs.40,0‘08/—,with the m‘ultipiier of 11, the compensation was worked out to Rs.4,40,088/—. As the insurer of the Truck bearing registration No. H.R.-37A/7795 w’as heid Iiable to pay 50% of the compensation assessed to the caimants, theiiiability of the Insurance Company was held to the ' extent of Rs.2,20,044/—. By awarding further sumg of Rs.2,00’0/- towards funeral expenses and Rs.2,'OOO/- for Ioss of consortium to, th:e widow, the Tribunal awarded a total sum of Rs.2,24,044/- as . compensation to the claimants for the death of deceased Bah‘al ' Singh in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.2,24,044/- x i @ 6% per annum from the date of tiling of the claim petition till the L date of actual payment. l 5 EShri Malay ‘Kumar Bhaduri, learned counsel for the appellants submitted that‘ in fact present is a case of ‘Composite‘ N'egligence’ and the Tribunal has erred in holding it to be a case of j” n tdriving any of the two Trucks,’ and in restricting payment of only i I ' i I ‘(Pontnbutory Neghgence as admittedly deceased Bahal Singh was o 1 5:0% of the compensation-assessed to the claimants. i i i i D Shri B.N. Nande, Iearned counsel for respondent No.2 the ationai Insurance Company Limited, on the other hand, supported t [e award and contended that the compensation of Rs 2 24 044/— is '9 Ju'st and proper compensation In the facts and Circumstances of the pr sent case 7) So far as the Tribunal’s finding holding it to be a case of contributory negligence and restricting payment of compensation to the claimants to only 50% of the compensation assessed is concerned, the same cannot be legally sustained in View of the dictum of the Apex Court in the case of T.O. Anthony v. Kavarnan and Others, reported in (2008) 3 S.C.C. -748, as admittedly dfeceased Bahal Singh was not driving any of the two Trucks at the tifme of the accident though he was owner of one of the two Trucks. 8i) In View of the dictum of the Apex Court in the case bf l i T.O. Anthony v. Kavarnan and Others (supra) the choice is with the claimants to claim compensation from either of the two r tort feasor. In the present case, the claimants have opted to claim compensation from the owner and Insurer of the Truck bearing , ‘ registration No H R 37 A/7795 The owner and insurer of the I ‘ I above Truck, therefore, are liable to pay the entire amount of ‘ c‘ompensation of Rs.4,40;088/— and the sum ofRs.4,000/— awarded b‘y the Tribunal towards funeral expenses and loss of consortium to 1 ‘ th;e widow. As the insurer of the Truck bearing registration No.H.R. 37l-A/7795 has already paid a sum of Rs.2,24,044/- to the claimants under the impugned award, the Iiabiiity of the Insurance Company ndw is to pay the balance amount of Rs.2,20,044/— along with in erest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 9) For the foregoing reasons, the appeal filed by the appellants/ cla‘i‘r‘n‘ants for enhancement of the compensation is allowed in part. While maintaining the assessment of the compensation by the Tribunal at Rs.4,.40,088/— and further award of Rs.4,000/— towards fuheral expenses and loss of consortium to the widow, the insurer of: the Truck bearing registration No. H.R. 37-A/7795 i.e. respondent No.2 the National Insurance Company Limited is directed to pay the balance amount of Rs.2,20,044/— to the i i i claimants along with interest @ 6% per annum from the date of l i tiling of the claim petition till the date of actual payment. 1Q) Respondent No.2 the National Insurance Company Limited isgranted three months’ time in that behalf. 11) No order as to costs. ‘ Sd/j . «1 S““" Juége r ,..~ r a L . “m$r l Chief Justice