© \f). c^^.;" BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH AT 8ILASPUR MISC. APPEAL FC1 N0. §)^3 /2008 Oivision Bencff MISC. APPEAL UNDER SECTIONY73 OF THE MOTOR VEHICLE ACT. 1988 ^•><>' .^" .B> ^y APPELLANT INSURER ...-^' ^^-'; ^^ ..•••' <^ ' Q<^ •yya /-ICICI Lombard, General Insurance Company Limited, Registered office: ICICI Bank Towers. Bandra- Kurla, Complex, Mumbai, 4000 51, through its Legal Manager, ICICI Lombard General Insurance Company Limited Lal Ganga Shopping Mall, 3rd Floor, G.E. Road, Raipur (C.G.). VERSUS RESPONDENTS CLAlMANTS /v 1. O^NER ^ > Smt. Priya Konher Wd/o Late Gangadhar Rao Konher, aged about 49 years. Kumari Parul Konher D/o Late Gangadhar Rao Konher, aged about 18 years, occupation-student. Both Resident of A-l, Mahavir Apartment, infront of Panchdham, Hanuman Mandir, Hee'-apur Road, Tatibandh, Raipur, District Raipur (Chhattisgarh) Prakash Yadav s/o Gajanand Yadav, aged about 37 years, R/o Danteshwari Chowk, Purani Basti, Raipur (Chhattisgarh) 4 Laxmikant Yadav, S/o late Madan Lal Yadav, aged about 38 years, R/o Danteshwari Chowk, Gopiya para, Purani Basti, Raipur (Chhattisgarh). .-^^"' CLAIM IN APPEAL VALUED AT RS. 8.00.000/- '-?J; OF AJ MR. JJ. M.A. 3d ICICI Lombard Company UmJted. Genem] Insurance Smt Prjy.a Konher & others A4r. Saurabh Sharma, Advocate for the appeJlGnt. Mr< S.S. Agarwal, Advocate for re^pondents No.l & 2. Mr. Raja Sharma, Advocate for respondents No3 & 4. (uroi'j (irh March, I,M. Qyddusi. J; 1. h'eard. 2- This is an insurer's appeai. 3. By way of this under Section 173 of the Motor Vehicies Act, 1988 (for short sthe Act'), the appeltant-lnsurance Company has impugned the award doted 08.05.2008 passed by ths iea.rned 1ST AAotor Accident Ciaims Trjbunai, BilasBur (C6) (for short c'the CtQJms Trjbunai') in Ciaim NoJ/2008 aibwing the ciaim applscation of the ciaiinants, awarding a compensation of Rs.8,00,000/" to the claimants and fastening ijabiijty on the appeSiant-Insurance CQmpany to satisfy the award. 4. Facts of the case, in brief, are that on 18.06.2007 Paresh and his fnend Meshram comin'g Bhiiai from on a motorcycje. The travefing on th@ motorcycte as pJJiion ridcr and his friend drivjng it< His two other friends aiso coming with them in anothe?"1 motorcycle. When they reached near Sheetal Chhaya Kestaurant situated &E Road, RaJnandQaon ViilaQB Chhatona, at that tjme a car'bearinQ registration number C&04/h'/96y4, being d'riven in rash ond nealigcnt manner by its driver, their motorcycJes as a resuit the and his friends' sustained grjevous injuries, The to the 5overnment HospJtai. Rajnandgaon from ^^v^ •y^^ '^ I ^^'3h x \^ 3s he was referred to Sectora-9 Hospitai, he deciared Report of the incident by Ashish AAeshram in the Poiice Station Somni, Djstrict Rajnandaaon on which the poiice filed charge aaainst the respondent No.3 herein in the Court of Chjef Judicjal Maaistrate, Rajnandgaon, The ciajmants, who are ynfortunate mother and of the have fjied a cfaim Detition the Ciaims Trjbunal seeking compensation to the tune of Rs,4,50,60,OOOA under various heads. 5. On the pjeadings of the parties, the CJaims Tribunai has framed as nfiany as four and after hcarinQ the parties and considenng the matersai availabJe o.n record5, arrived at a conclusion that the ci2aimants are entitJed for compensation and accordingiy, albwed the and a of Rs.8,00,000/- as compensation interest @6% p<a.- 6..- for the appeilant-Insurance Company has that driver of the vehicle on the travetina as piilion rid-er. hims@!f for the as he driyinQ the vehicle jn a negiigent manner. He further subrnits that application under. 170 of the Act, wrongjy by. the Clainis TribunaJ. . Last!y, he submits the fjxed by the Ciaitns Tribuna! on the. of the ,@ R^J,80,000/m D.a., student of 3rd year of Engineering course, is arbitrary- 7, On the other hand, counsel for respondents have the jmpugned2 awaro5. 8. 'We heard for the partses and the records of the CJQJms Tribunai as also the findlnqs given in the impugned award. 9. So far as the first argument of tearned counse! for the appeJiant.regarding negliQence of the driver of vehicle on which the traveling as pii-iion rider js concerned, we have the of eyewitness and found that nothinq couid out frorn their statenients by which it can be presumed that driver of the said vehicle was negfigent, otherwise, driver of the offendinq Prakash Yadav came into the box and a-dmitted t'hat .he ron from the the The . —~ /:./ ^^...•^'••'^. ^ ^' ^ @ evidence avaiJabte on record further the driver had aone towards wrong and accident. Therefore, it cannot be that drjver of the yehicle in which the trave!in.g as piiljon nder negliaent jn drjving the vehjcie, rathe.r it the driyer of offending i^ho dnvina rashiy and negJigentiy. 10. Now coming to the argument by for the appelSant iwong rejection of the appJication under Section 170 of the Act, 1988. of the order rejecting appiJcQtion that the Qppfication vide order 09,04.2008 on the ground that the dr'iver and the owner of tiie offending vehicle contestinq the However, we that they contesting the with an intention that no JiabiJit^ of payinQ compensation is fastened on them. They had fiied copy of jnsurance poJicy and drlving iicence, 11, above, we have also examined the quanturn fixed by the CJaims TribunGJ and found that the Ciaims Tribunai has inconie. of the and the deductions by the CJairns Tribunal from the income of the towards his cxpenditure is jncorrect. l2.In the matter of of Haryana & another Vs. Jasblr Kourand others reported In 7 the Mon'bie Apex Court has he!d that "^e Tribuna! canstitutcd undser the Acta^ proyided in 168 is remfred to an detcrmining the amount of f^ ta be m thc real scnse "damages" In turn to it ta be s'/i/st and reas^nab/e^ Ithss to bc m that far affimb^ €?r life can hardfy bc In But at the ff tff be borne in m'nd thatthe compensathn is not expected to a wlndfall for fhe yictim. Statutory pravisian^ dearly thc campensatlan must bc 5%justsf and ff cannot be a not a af prafit but ff?€ shaafd not be a pfftance. The caurt^ and tnbunal^ Q duty ta weigh ffi€wriaus factorst and qusntify thc amount af wmpen^atian, shaufd hc ju^t bc "ju^ i^ a wc^tlan. There can be no to alf for thc •^^ ^.••-^, ^ © ^f hi/man life or a iimb. of cannot be arnvcd at by prease irsathematica! cafculatlons. It would depend upon ifie particulars fact^ and clrcumstance^ and attendmg peculiar ar feature^ if any. Ei/ery ar for ha^ ta be m the of 'just' which is the pivatal cw^/dcratfan, Thaugh by use af the 'which ta it ta be Just!f a di^crctian i^ in thc TnbLinai, the determination has ta be rat/^na/, ta be by a Judiclau^ not thc of whlm^ wifd and arbitranne^. The exprc^/on s'ju^tf! equitabllity, fairne^ and' rea^anablene^ and nan-arbitrary. If It is not sa it t be just. "B 13.In the instant mse, the Claims Tribunal has the incosifie of the deceased, who student of 3rd yeor of mechanica! enginesring course, as Rs-1,80,000/- p.a- and deducted l/3r'<:i from it towards persona! Ijving of the deceased. Thereafter, the Ciaiins TrjbunQ! has further decSucted 1/3 from of. holdin9 that afters marrjage the deceased would spent l/3rd on his family and accordingiy, the of income at Ks,60,000/-a oniy, which, to our opinion is arbitrary, as the Ctaims Trjbu.nQJ hos not discussBd in the.impugned award as to It has the income of the as to how i/3rd deduction towards personal' and Jsving of the and thar'aafter l/3rd deduction toword th® which th@ would have incurred after his marriaae have made. Therefore, in Jight of The Qforesaid JudgmBnt, we have no other way To reconsider the 14.In th©prssent case, the a bachelor ond student of 3rd year mechanicoJ engineering course.In the State &ovemm€nt the pay-scaie of the Assistant Engjneer is Rs.8000-13500/- as qiven jn the C.G. A4unjcjpahties L4ppojntment & Condltion of Service of Officers & Servants) Ruies, 200Z It js also true that many enaineers do not get Bmpioyment m the govemment departments or local bodsies as Assistant or sometimes they a@t appointrnent on the of Junior Engineer also. But at the it is an admitted fact that of the enainBers get 33 empbyment jn the pnvate orgcinizations al'so where the perks are on the higher Therefore, if the averaqe income of th@ deceased, after spending two more years in studies, is assessed as Rs.l0,000/-being the technical hand\, the same wouid suffice tha purpose and thus, the annual jncome of the would RsJ.20.000/" and if we deduct 50% from fhis income .towards personal.and tjving Qf the deceased, as he bachebr, .the total of incorBe would to Rs.60,000/Ba. Further, the father of the had already died and the cJaini appijcation has fiied by th© mother and of the who 49 & 18 of aqe at the reievant time and therefore, consJcJering fhe age of the mother of the L€. 49 years, the multipjjer of 13 would be appijcable in the present ca.se, Thus, after appiyino the niuitiplier of 13, the tota! of dependency wouid to Rs.780000/- (&0000xl3), as we have not jn the any of incoiTie of the widow mother or of the l5.The CJaims TribunQl2 has also the totai of dependency at RsJSO.OOO/-. Therefore, in our opinjon, there cannot be any m the of dependency though the me1+iod adopted by the Cbims TribunaJ for caicubtjng the of wrong. 16. For the foregoina anafysjs, we do not find any force in this the faiJs and hereby djsrnjssed. No order as to costs. RoshanA Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge