^/ cf^ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILAPSUR Mise. Apoeal {C} No. p 0-3 72010 APPELLANT ^-•' ^ A^ ^•^ ,^^Baiai AUianz General Insurance Coinpany Liinited, Through Branch ^-^<? Manager, Branch Office at Shiv Mohan ^*'" C.i--^ L?\\^' Bhav^i, Vidhan Sabha Road, Pandri, "'W^ ^"r^.V^ "' Raipur (C.G.) (INSURER) ^"" ..^^" VERSUS (Y; .RESPONDENTS J) ^ c^ ^- ^' 6) y 7) ^' Anar Bai Pal Wd/o Late Ashok Kumar Pal aged about 30 years, Occupation- Housewife, Ku. Khushi D/o Late Ashok Kumar Pal, aged about 06 years, Tushar Kumar Pal s/o Late Ashok Kumar Pal, aged about 02 years, Kaushalya Bai Wd/o Late Vishwanath Pal, aged about 55 years, Respondent no. 2 8& 3^ minors through guardian and next friehd niother Anar Bai Pal Wd/o Late Ashok Kumar Pal, AU R/o Rajeev Nagar Brahmadev Chowk, Lakholi Ward No.29, TahsU & District Rajnandgaon (C.G.) (CLAIMANTSI Raju Gautara S/o Patirain Gautam, Caste-Maithilkshatri, aged about 33 years, (DRIVER) Mahendra Kumar Gautam S/o Patiram Gautam, Caste-Maithilkshatri, aged about 25 vears. (OWNER) Both R/o Sikola Basti, Dhamdha Road, Near Police Chowki, In front of Talab, TahsU 8s District Durg (C.G.) Bharat Lal Sahu S/o Hagru Lal Sahu, aged about 33 years, Occupation - House Contractor, R/o Mathpara, Rajnandgaioh, Tahsil 85 District Rajnandgaon (C.G.) MEMORANDUM OF APPEAL UNDER SECTION^[73 OF THE MOTOR VEHICLES ACT 1988 AS AMENDED BY ACT OF 1994 The apnelLan^- ^^xcl^—_-.--- — HI6H COURT OF CHHATTIS^AftH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUD&USI & HON'BLE Wk. PRASHANT KUMAR MISHM. JJ. M.A.fC)No.ll29/2010 • Appcllant BQJQJ Atlianz Senerd Insurance Company Limited Vs ftesoondents Anar Bai Pai & 6 others & M.A. (0 No 900/2010 Anar Bd Pal & others Appellants (Claimants) ftespondents Vs ftaju 6rautam and others Prcsent: Mr. 5.5. Rajput, Advoccrt-e for the appeliant in M.A. (c) No.1129/10 and for respondent No.3 in M.A. (c) No.900/10. Mr. P.ft. Patankar, Advocart-e for re^ondents-ftqju 6autorp & Mahendra Kumar fiautam in both the appeals. Mr. Anumeh Shrivasfava, Advocate for the appellants in M.A. (c) No.900/10 and for respondents No.l to 4 in M.A. (c) No.1129/10. ORDGft (Ord) (6th April, 2011) I.M. Quddusi.J; 1. Heard on I.A. No.l,.an application for condonaTion of delay in prefefring M.A. (C) No.1129/10 as the same has been preferred with a delay of 66 days. 2. Considering the reasons assigned in the application for filing the appeal with delay and further considering the fact that iearned counset for the respondents have no objecTion in allowing this Qppiication, LA< No,l is allowed and the delay in filing M.A. (C) No.1129/10 is condoned. 3. With the consent of the parties, the matter has been heard finally. 4. M<A. (c) No,1129/10 filed by appeJlont-Insuronce Company and MA- (c) No.900/10 filed by theo^pdkmts-claJmants are being disposed of by this common order as both these appeals arose out of ihe award dated 31.3.2010 passed in CiamCase No.50/08 by the learned Additional Motor Accident Claims Tribunal, ftojnandgaon, 5. Facts of the case, in brjef, are that on 16.8.2008, on the occasion of ftaksha Bondhan festival, deceased Ashok Kumar Pal had gone To the house of her sister along with his friend. When they were returning from there and reached necir Village Mahmara Turn, &£. ftoad, a truck bearing registration number C607-LL-1260, which was coming from the opposite direction and being Sriven in rash and negligent manner by its driver, hiT motorcycfe of the deceased os a result said A^hok Kumar Pal sustained grievous injuries and died on the spot Report of the incident was lodged in the Police Outpost-Anjora, Police Station Pulgoon on The basis of which offence under Crime No<311/08 was registered against the driver of ^h4 truck in question. The claim<xnts i*e< widow and children of the deceased, claimed compensation to the tune of Rs.42,77.000/- under various heods on the ground that they were dependent on the deceased and on account of his untimely death in the said accident they have suffered loss of income. 6. The Ckiims Tribunal, after hearing the parties in the mafter and apprecjating The evidence available on record. partiolly allowed cldm appjication of the claimfluits vide impugned award. 7. Mr. Rajput, learned counsel for the appellcint-Insurance Compony hos submifted that the driver ond the owner of offending vehicle had not cross-examined the witnesses on The question of quGinlum i.e. monthly income of the deceased, and even they did not oippear in the witness^box and in these circumstances the Claims Tribunal shoutd have allowed the oipplication filed under Section 170 of the Act, 1988 but The same has been rejected, which is an illegality on the part of the Claims Tribunal as it appears that there was collusion between the claimants, the driver A the owner of the offending vehicle. He has further submitted that from the evidence brought on record by the Insuronce Company it is dpparent that the deceased hinrse+f was responsible for the acddent, but the Cfaims Tribunal without considering material brought on record in this regard hos held That the deceoised was not responsible for the accident He has further submitted that the amount awarded by the Claims Tribunal is too excessive in the facts and circumstances of the case, ^IH^" 8. On the other hand, Mr. Shrivastava, learned counset for the appellants in M.A. (C) No.900/10 filed for enhwcement of the amounT awarded by the Claims Tribunal has submitted that monthly income assessed by the Claims Tribunal is not in consonance with the evidence brought on record by the claimants. He has further submitl'ed that even the multiplier appiied by the Clalms Tribunal is also not in accordance with law. 9. We have heard learned counsel for the parties. We have also perused the ^J r^cords of the tribunal. iO.As far as the first argument advanced by Mr, ftajput, learned counsel for the ctppeiltint is concerned, we are of the opinion that once before The Ciaims Tribund the driver and the owner of offending vehicle did not appear in the witness box ond also did not prefer to examine/cross- examine witnesses on the question of annual income of the deceased,the application filed under SecTion 170 of the Act, 1988 should have been allowed by the Claims Tribunal, However, we have seen that the Claims Tribunal itself has not accepted the evidence regarding monthly income of the deceased, as the claim of the cbimants was that the cteceased was earning Rs,300/- per day i.e. Rs<9000/- p.m., ond assessed the monthly income of the deceased equivalent to an un-skilled labour i.e» fts.3,000/- p,m,, which is the minimum wages for a un-skilled labour. Besides this, the Insurance Compouiy could have adduced eviden<» in support of their aforesaid contention but no one ha$ been produced in the witness box in this regard. 11. So far QS the second argument of Mr. ftajpuT regarding contributory negligence is concerned/Though it was not Ikxble to be considered but since we have already held that the application under Section 170 of the Act, 1988 was wrongly rejected by the Claims Tribunal, we are Jnclined to consider the question of contributory negligence. 12.Bharatlal Sohu, who was traveJing wilti the deceased as pillion rider and only eyewitness of incident, ho^ stated that offending vehicle bearin9 registration number C607-LL-1262/ which was being driven in high speed by its driver, went in the wrong'side <xnd collided with the motorcycle on which he was troveling aspilJion rider resulting m serious accident causing injuries to the deceased driver, He has further stated that due to said accident his motorcycle was damaged bQdiy. He has further stated that Ashok Kumar Pal died on the spot due to injuries sustained by him, This witness was cross-^xamined by learned counsel appearing for the Insuroaice Company as also by learned counsel appearing for the owner and the driver offendin9 vehicle but nothin9 incrrminating could be elicited to impeach the'credibility of this witness- Since it is admitted fact that the offending vehicie was on the wrong side and in high speedl ond the driver of offending vehicle was driving The vehicle rashly and negligery^y, therefore it ccinnot be said that there was any contributory negligence ond as such this contention of the appellant Insurance Company is not sustainable. 13. So far as the quantum is concerned, since the clajmants have also filed an appeal for enhancement of the amount of compensation, we propose to consider the question of quontum afresh. 14<The CJaims Tribunal has cissessed the monthly iricome of the deceased as fts.3,000/- treating him as un-skilled labour though the widow of the deceased has stated that the deceased was getting Rs,300A per day, but in absence of any documentary evidence, we are not considerihg the statement made by the widow of the deceased, however, considering the fact That the deceased was serving in a hotel, his monthly income ccxnnbT be reduced further for the rec^on that minimum wages provided for on un-skiiled labour [s Ks.3,000/- p.m. 15. So far as the stdndard deduction from the income of the deceased is concerned, in the instant cose the total numbers of dependent is four and The Hon'ble Apex Court in Para-30 of the judgment rendered in the matfer of Sarla Verma (Smt.) and others -vs- Delhi Transport Corporation and aiwther reported in (2009) 6 SCC 121 has held that if the dependents are 4-6 in numbers, then l/4th should be deducted towards personoi fiving expenses of the deceased. Therefore, after deducting l/4th from the annual incpme of the deceased i.e. fts.36.000/-, ^ ^ the total Joss of income wouid come to Rs.27,000/-. The deoeased was between the age 9roup of 31 to 35 years, therefore/as per jud9ment of the Hon'ble Apex Court in the matter of Sarb Verma (supra), multiplier of 16 would be applicable. Thus, after applyjng multiplier of 16, the total loss of dependency would come to Rs.4,32,000/- (27000x16). Besides this, widow of the deceased is entitled to get fts.5,000/- towards loss of consortium, the children of the deceased, who are two in number, are entitled to ge-t fts.10,000/- each towards loss of love <& affection, the mother of the deceosed is also entitled to get Rs.5,000/- towards loss of love & affection. The claimants are also entitled for fts.5,000/- towards funeral expenses ouid fts.5,000/- towards loss of estate. Thus, in all the claimants would be entitled for fts.472,000/- as compensation. 16.1ntheresult: • M<A. (c) No<1129/2010 filed by the appellant-Insurcince Compcxny is hereby dismissed being sans merit. • M.A. (C) No.900/2010 filed by the ciaimants is partly allowed and the mpugned award is modified to The extent that now the claimants shall be entiTled for Rs.4,72,000/- as compensaTion in place of Rs.441,000/- as awarded by the Claims Tribunal. Out of this amount of compensation, a sum of Rs.1,50,000/- each shall be deposited in The name of claimants-Kumari Khushl & Tushar jn a fixed deposit scheme of any nationalized bonk for a period of 10 years under the guardianship of their mother i.e. Anar Bai Pal. fts< 1,00,000/- shall be paid to claimaint No.4-Kaushalya Bai, mother of The deceased, ond remaining amounT along with the interest accrued on the amount of compensation © 7% p<a< from the date of filing of application till its actual realization shall be paid to the widow of the deceased i.e. Anar Bai Pal. 17. Certified copy as per ruies. . ^d/. I.M. Quddusi Judge Sd/- pr,ashantKumarWlishra Judge