HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal No. 906of2005 APPELLANTS Premkala and others ^. RESPONDENTS Versys Naresh Suryawanshi and another AWARD For consideration ^- -12-2011 Sd/- N. K. Agarwal Judge Hon'ble Shri Justice Raieev Gupta J ^L^^Y-^^- Sd/- ChiefJustice \ / ^ j ' ^ Post for pronouncement of Award: -2. -12-2011 Sd/- N.K.Agarwal Judge ^ HIGH COURT OF CHHATTISGARH AT BILASPUR APPELLANTS Claimants MISC. APPEALNo. 906 of 2005 1. Premkala, aged about 42 years, Widow of late Baigaram @ Gangaram Suryawanshi. RESPONDENTS Non-claimants 2. 3. 4. 5. Siyaram, aged about 19 years, S/o Late Baigaram @ Gangaram Suryawanshi. Kum. Sangita, aged about 17 years, D/o Late Baigaram @ Gangaram Suryawanshi. Sujeet Kumar, aged about years, S/o Late Baigaram Gangaram Suryawanshi. 16 Surjeet Kumar, aged about 14 years, S/o Late Baigaram @ Gangaram Suryawanshi. 6. Smeet Kumar, aged about 11 years, S/o Late Baigaram @ Gangaram Suryawanshi. Appellants No. 2 to 6 are minors represented through their mother Premkala (appellant No.l) All the appellants are residents of Ajad Nagar, Godripara, Chirmiri, District: Korea, Chhattisgarh. Versus 1. Naresh Suryawanshi, S/o Teras Suryawanshi, aged about 37 years, permanent address : Village Rasauta, Police Station and Tehsil: Pamgarh, District Janjgir-Champa, Chhattisgarh, Present address Near Jarhabhata Chowk, Bilaspur, Chhattisgarh (Owner of TVS Suzuki bearing registration No. CG-11/7275). 2. The Zonal Manager, United India ^^s^.^ ,^-^'- ^s -^ b Insurance Co. Ltd., Transport Nagar, Korba, Through the Branch Manager, United India Insurance Co. Ltd., Rajendra Nagar Chowk, Bilaspur, Chhattisgarh. APPEAL UNDER SECTION 173 OFTHE MOTOR VBHICLES ACT Corain: Hon. Shri Rajeev Gupta, C.J. & Hon. Shri N.K. Agarwal, J PRBSBNT:- Shri N.P.Chandrawanshi and Ms. Bhagwati Kashyap, counsel for the appellants. Shri H.B.Agrawal, Senior counsel with Smt. Meera Jaiswal, counsel for respondent No.2. ,/' AWARD (Passedon ^ -12-2011) Per N.K. Agarwal, J. This is claimants' appeal seeking enhancement in the amount of compensation awarded by the 1st Additional Motor Accidents Claims Tribunal, Bilaspur in Claim Case No.99/2003 vide itsaward dated 24.03.2005. 2. As against compensation of Rs.50,21,000/- claimed by the unfortunate wife and minor children of deceased - Baigaram @ Gangaram Suryawanshi by filing claim application under Section 166 ofthe Motor Vehicles Act, 1988 (henceforth 'the Act') for his death in the motor accident on 18.12.2002, the Tribunal has awarded a total sum of •^/---y •fc / -^ (S) Rs.5,50,500/- as compensation along with interest @ 9% per annum from the date of award till its actual payment. 3. The Tribunal, on a close scrutiny of the evidence led, held: collision took place between the TVS motorcycle bearing registration No.C.G. 11/7275 and one unknown truck; deceased - Baigaram @ Gangaram Surawanshi, who was sitting on the motorcycle as pillion rider died on account of injuries sustained by him in the accident; both vehicles i.e. motorcycle and driver of unknown truck equally contributed to the cause of accident; assessed the total compensation of Rs.10,41,000/- as compensation payable to the appellants; deducted 50% of it towards negligence of the motorcyclist and awarded Rs.5,50,500/- along with interest and cost to the appellants/claimants. 4. Shri N.P.Chandrawanshi and Ms. Bhagwati Kasyap, learned counsel appearing for the appellants would submit: the deceased was not the driver of the motorcycle but was sitting on the motprcycle as pillion rider. Therefore, the instant case is not a case of contributory negligence but is a case of composite negligence, and thus, the Tribunal has fallen in error in deducting 50% amount of compensation towards contributory negligence. 5. On the other hand, Shri H.B.Agrawal, learned Senior Counsel with Smt. Meera Jaiswal appearing for respondent ^ £; <. No.2/United India Insurance Company Limited contended, plea of negligence is neither raised nor any evidence is led by the appellants/claimants. The claim petition is filed under Section 166 of the Act. In order to maintain the petition under Section 166 of the Act, proof of rashness and negligence on the part of driver of the offending vehicle is sine qua non for maintaining a petition under Section 166 of the Act. The claim petition preferred by the appellants itself was not maintainable. It was further contended, as per statement para - 4 of Smt. Premkala (A.W.l), she has been given compassionate appointment, through which, she is receiving salary of Rs.2500 - 2600/- per month and the same has also not been taken into consideration by the Tribunal while assessing the amount of compensation and in view of aforesaid circumstance, the appeal is liable to be dismissed. 6. We have heard learned counsel for the parties and have perused the record of the Tribunal including the award impugned. 7. The Tribunal, taking into consideration of the salary of the deceased as Rs.1,00,000/- per annum, deducted 1/3rd of it towards personal expenses of deceased and assessed the claimants' annual dependency at Rs.69,400/-. Looking to the age of deceased as 43 years, applied multiplier of 15 and assessed the amountof compensation as Rs. 10,41,OOO/- ^)'^ /V- 1 ^ towards loss of dependency. After deducting 50% of its towards contributory negligence, awarded Rs.05,20,500/- to the appellants/claimants on account of loss of dependency. The Tribunal further awarded Rs.30,000/- on other heads and thus the Tribunal awarded Rs.05,50,500/- as compensation to the appellants/claimants along with interest and cost. 8. The Supreme Court, in the case of Bhakra Beas Management Board v. Kanta Aggarwal (Smt.) and others, reported in 2008 (11) SCC 366, has held that benefits which the claimant receives on account of death or injury have to be duly considered while fixing the compensation and by taking into consideration the compassionate appointment given to the claimant in the case, has awarded a sum ofRs.5,00,000/- in place ofRs.8,48,160/- awarded by the Tribunal. 9. It is also trite law, in a claim petition filed by the claimant under Section 166 of the Act, proof of rashness and negligence on the part of driver of the vehicle is sine qua non for maintaining an application under Section 166 of the Act, as held by the Supreme Court in the case of Oriental Insurance Comoanv Limited v. Premlata Shukla and others, (2007) 13 SCC 476. 10. Indisputably, negligence is neither pleaded nor proved \ by the appellants/claimants, and therefore, the claim petition ^b ^ itself was not maintainable. However, we are not inclined to set aside the award impugned on the above ground as no appeal has been filed by respondent No-2/United India Insurance Company Limited challenging the award, but in the contex of above broad features of the case, we do not find any scope for enhancement of compensation awarded by the Tribunal. 11. For the foregoing, the appeal, being devoid of merit and substance, is liable to be and is hereby dismissed. 12. No order as to costs. Sd/- Chief Justice ^ Sd/- N. K. Agarwal Judge ./' c