/"\-.-^"L."^.''^~'. IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.) MISCELLANEOUS APPEAL (C) NC^7^-/09 APPEL_LANT^_^, ^^^^^^ ^^s^-l -DHANRAJ S/0 SUGAM CHAND JAIN <S^ RESIDENT OF POST BERLA, THANA BERLA, DIST- DURG (C.G.) ^u^^5 VERSUS (g^< RESPONDENTS 3)-3-<1»5> f^l^-l^v::!^/^M(CC\^S -1. KAVEM BAI W/0 LATE MAHENDRA KUAMR SAHU, AGED 23 YEAR, f^€S^J^-^/^^ ^ffjUcei^ ^S-ts. » J. ^^ ^'S^^^^C^^ .2. DINDAYAL S/0 KHORBAHRA «T<s-<3 ^sQr- -----„--—--—— SAHU,AGE 44 YEAR -3. CHAITIBAI W/0 DINDAYAL SAHU AGE 44 YEAR THROUGH MOTHERKAVERI BAI , ALL ABOVE RESIDENT OF GUDYARI, RAIPUR, DIST.- RAIPUR (C.G.) -4. BALRAM S/0 BHURE LAL BARLE ) RESIDENCE OF VILLAGE BANSA POST- BERLA THANA BERLA DIST.- DURG (C.G.). DRIVER OF VEHICLE MATADOR N0. C.G.-04/ZB/1506 -5.1.C.I.C.I. LOMBARD GENERAL INSURANCE CO.LTD. THROUGH INCHARGE OFFICER I.C.I.CI. LOMBARD GENRAL INSURANCE CO. LTD, LAL GANGA SHOPING MALL , RAIPUR (C.G.) MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT,J_988 1— 2-^> HI&H COURT OF CHH^TTISe<4ftH AT BIUSPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI 4 HONeBLE MR. PMSHANT KUMAR MISHRA. JJ. Appellant Respondents I^.A. Fc1 No.515/2009 Dhanraj Vs Kaverl Bd Aothers Present; Mr. C.R. Sahu, Advocate for the appellant. Mr\ SQurabh Sharma, Advocate for respondents No.5. None fcr the othcr respondents. ORbER (OraD (11th Jonuary, 2011) I.M. Quddusi. J; 1. Heard. 2. This is an owner's appeal. 3. The instant appeal under Section 173 of the Motor Vehicles Act, 1988 (for short "the Act') is filed by the appellant against the award dated 29.11.2008 passed bythe learned 11th Aclditional Motor Accidsnt Claims TribunaE, Raipur (C&) (for short the Trtbunal') in Claim Case No.110/2007 partly allowing the ciaim application of the ciaimants/ awarding a compensation of Rs.4,36,200/-" to the claimants and fastening liability on the owner and driver of th@ vehicle to satisfy the award. 4. Facts of the case, in brief, are that the claimants/respondent No.l to 3, who are unfortunate widow and parents of deceased Mahendra Kumar Sahu, have fifed a claim applicatjon before the Tribunal under Section 166 of the Act seekina compensation of Rs.11,80,000/-, for the accidental death of said Mahendrd Kumar Sahu, stating that on 4.9.2007 at about 1.30 a.m. in the night, matador bearing registration number C604-ZB-1506, in which the said Mahendra Kumar Sahu was traveling as labourer, overturned due to rash and negligent driving of its driver and as a resutt said Mahendra Kumar Sahu sustained grievous injuries and after sometime he died. Matter was reported to the Police Station Berla, District Raipur (C&). The claimants/ respondents f/r^ r^^ i ^ y,j ^^"y /:' i ''..5^1 i ^7 -^ No-1 to 3 have claimed compensation on the ground that they were dependent on the deceased, who was the sole earnin9 member in family, and due to his death, they have suffered loss of income. 5, Non<<ipplicant No,l did not appear before the Tribunal and therefore ex- parte order was passed against him. Non-applicant No.2 filed his written statement denying the averments made in the claim petition and stated that at the time of accident the vehicle was insured with the appelloint-Insuronce Company* The claimoints have not sustamed any (oss and their claim application is liable to be dismissed. 6. Non-applicant No.S-Insurance Compony has also filed its written statement in which it has been mentioned that driver of the vehicle was not having valid and effective drivinq licence at the time of incident and therefore, the insurance company is not iiable to pay the amount of compensation. 7. On the pleadings of the parties, the Tribunal framed as many as four issues and after hearing the parties in the matter and considering the material availabie on record awarded a sum of fts,4,36,200/- as compensation to the claimants and fastened the liability on the driver & owner of the vehicte to pay the compensation by holding that the accident has taken piace due to rash and negligent driving of the driver of vehicle in question, 8. Learned coun^l for 1+ie appeibnt has submitted that at the time of accident the vehicle was insured with the respondent No.S-Insurance Company and thus, 1+ie Tribunal has committed a mistake in absolving the insurance company. He has further submitted that the computation and basis of compensation is erroneous oind excessive. 9. On the other hond, learned counsel for the respondent No.5 has supported the impugned award. 10,We have heard learned counsel for the parties and perused the records of 1+ie case. 11, So far cis the argument of learned counsel for the appellant that respondent No.S-Insurance Company should not have been exonerated is concerned, we have perused the insurance policy and according to which risk of any other ^' 'v^!"^^ //'^^ \ t^^-^^ 1 •5^- •^. ^ ^•-,.' y" ^' ;-'?^' '"•^:'^~^y: ^& -3- person including any of 1+ie employee except the paid driver is not covered therein^ TTierefore, in our opinion the Tribunal has rightly relieved the Insurance Company from its liabiiity as the category of the decea^d was not insured^ 12. Now coming to the next argument of iearned counsei for -ttie cypellant that the amount awarded by the Tribunal is excesssve, the Tribunal has assessed the monthly income of the deceased as fts.2,600/- i.e. Rs.31,200/- p.a. and after deductin9 1/4 towards personal ©xpensesof the deceased, assessed 1+ie annual loss of income as fts<23,400/- and by applying the muitiplier of 18, assessed the total loss of dependency as fts.4,21,000/-. However, cxs per the decision of the Hon'ble Apex Court in the maner of Sarla Verma (Smt.) and others -vs- Delhi Transporf- Corpwation and another reported in ^009) 6 SCC 121, the Tribunal should have deducted l/3rd towards personal expenditur®of the deceased instead of l/4th. Thus, after deducting 1/3 , -Hi@ cnnua.l loss of income would com®to Rs.20,800/-. Further/the Tribunal has applied wrong multiplier in the present case and as per Sarla Verma's case (supra), the multiplier applicable in the facts and circumstances of the present oase is 17. 13,Accordingly, after applying muitiplier of 17 in the annual loss of income i.e. Rs.20,800/-, the total loss of dependency would come to fts.3,53,600/- (20,800x17). Besicies this, widow of the deceased is entitled for Rs.5,000/- towards loss of consortium and the parents are entitled to qet Rs.5,000/- each towards loss of love ond affection. TTiey are also entitled for Rs.5000/- for Joss of estate and Rs.5,000/- for funeral expenses. Tlius, after adding the amounts awarded under other heads, the total amount of compensation for which the claimants are entitled for is fts.3,78,600/- along with interest ©6% p.a< from the date of filing of oppljaition till its realizQtion^ 14.0n the bosis of above discussions, the appeaJ is allowed in part. Tlie impugned award is modify to the extent that now the claimants shaJI be entitled for compensation of Rs.3,78,600/- in place of Rs.4,36,200/-, as awarded by the Tribunal. The claimants shall also be entitled for simple ^,^^^^ :i%.. 's?3^'^, t- .^sr^ ^ Roshan/- k»NNr. interest © 6% p.a. on the modified awarded amount from the date of fifmg of claim petition till the payment is made, Rest of the conditions mentioned in the impugned award shdll remain intact. 15. The appeal is allowed in part to the extent indicate above. 16. Certified cppy as per rules. Sd/- Prashant Kumar Mishra Judge Sd/- LM.Quddusi Judge