EPELLw 'NON-APPLlCpNT No.3 Uni-ted India insurance Com any Thrcugm Branch Manager, United India Insurance Conpany, Raj endra Nagar, ¥ Bil aSpur (C. G. ) . VERSUS ”<5: Ganésh Bahadur, driver o‘f hehicle No. MP—26—C/5909, son of Nagesh. iRESPONDENTs g; 1. Smt. Shiv Kumari, aged 28 years, Widow of Bihari Lal, Navin Kumar, aged 1.6 years. Pravin‘Kumar aged 14 years. Kumari Suman aged 10 years. Kumari Rajni aged o8 years. Kumari Régni aged 06 years, Kumari Ranjna aged O4 years. ’ 9% No. 2 to 7 an s'onof late Bihaxi (Rg La1, all 2 to 7 minors through- magséyy’ aw“ c? ééxQ; hatural guaridan Smt. Shiv Kumari mfe . of late Blharl . . lal, Wm: «$°;¢;P‘I9%‘ Kata, Tahsil Kata, Distt. Bil aspur (C.G‘.). .. .. CLAxMpNTs Q: 8. Bhola Prasad son of M.P. sharma K Bus owner, of bus No. Mf.’ 26 645909, R/o. Vyapar Vihar, District Bil aspur (C. G.) . - HIGH COURT OF CHHA’I’I‘ISGARH, BILASPUR HON’BLE LM. QUDDUSI & HON’BLE N.K. AGRAWAL, JJ MISC. APPEAL "0.1188 OF 2003 APPEALW UNDER SECTION 173 OF THE MOTOR VEHICLES ACT 1988 APPEARANCE: Mr. Pankaj Agrawal, counsel for the appellant. Mr. Indrasen Sahu, counsel for the respondents 1 to 7. ORDER (ORAL; (07.09.2010) Per LM. QUDDUSI, J 1. This appeal has been filed by the Insurance Company against the impugned award passed by the Addl. Motor Accident Claims Txibunal, Biiaspur (C.G) in Claim Case No.1 of 2002. The award has been challenged on the ground of fastening liability on the Insurance Company and also quantum of award. 2. he blief facts are as under: T (i) One Biharilal Shrivastava (deceased) was working as conductor in Mini Bus beating Regn.No.M.P.26- ‘C/5909. On 25.04.2001 the said Bus was coming ham Kota to Bilaspur and said Biharilal was on duty. On the way, at about 10.30'a.ni., when the bus has reached in between Pipartarai andMohanbhata the speed of the vehicle became unbridled due to rash and negligent s i APPELLANT 7L 1 United India xnsurance Company Ltd? Vs. LRESPONDENTS l I Smt. Shiv Kuman' and others driving of its driver and it dashed against a tree and turned turtle, as a result 0f this accident, Biharihl died on the spot. (ii) The learned Tribunal has treated the age of the deceased as 35 years and applied multiplier 17. Further the monthly income has been observed as Rs.4500/ - whereas in the statement of witnesses, it has come that the deceased was a Bus Oonductor and was getting Rs.50/— per day as his wages and Rs.40/- per day as the daily allowance to meet his personal expenses towards meals etc., as he was discharg‘ng duty in the travelling bus. '(iii) The learned Tribunal has assessed the monthly income of the deceased £3 Rs.4500/— by taking into account the monthly wages and allowance that is Rs.3000/ — plus Rs. 1500/ - respectively. After deducting 1/3 towards personal expenses nom Rs.4,500/— the dependency was worked out to Rs.3000/- per month and Rs.36,000/ - per annum. 'The Tribunal has applied multiplier 17 holding that he was in the age group of 30 — 35 years. Thus by multiplying the annual dependency with the multiplier 17, the total dependency was worked out to Rs.6,12,000/— which the claimants are entitled as compensation. Besides this, the Tribunal has granted Rs.2000/— for funeral expenses, Rs. 10,000/ -» for loss of consortium to the wife, Rs.60,000/— for loss of love and \\X affection to the children and Rs. 10,000/— to the father of d€cea5€d on account of loss and love and aEection. Thus a total sum of Rs.82,000/- has been granted by the Tribunal under other heads. As such, the Tribunal has fixed the total compensation of Rs.6,94,000/- (that is Rs.6, 12,000/— plus Rs.82,000/-). 3. Learned counsel for the Appellant-Insurance Company submits that the driver of the vehicle was not having valid and etl‘ective driving license. He has drawn the attention of this Court towards the age of the eldest son of the deceased which was mentioned as 16 years. The accident in question took place on 25.04.2001 and the claim petition was tiled on 23.6.2001. His submission is that a person aged about 35 years cannot have a son of 16 years old; therefore, the age of the deceased ought to have been held as more than 35 years and in that regard the multiplier has wrongly been applied. His further submission is that the daily allowance which was being gven to the deceased was for his expenses during the course of his duty in the travelling bus which could not have been counted towards income of the deceased. He has further submitted that the additional amount of Rs.82,000/- in all under other heads towards loss of love and an‘ecu‘on etc., is also excessive. According to him, the interest part i.e. 12% is also excessive and it is penal in nature. 4. With regard to the iirst contention that the driver was not having eifecu've and valid driving licence, the burden was on the appellant to prove the same in the Court but they have failed to prove the same. The driver liled the copy of the driving license. The appellant could not show before the Tribunal any defect in the driving license. Therefore, the contention of the learned counsel that the driver of Mini Bus was not having a valid driving license, is not sustainable. 5. However, with regard to the quantum part, we feel that the allowance which was being gven to the deceased during the course of his duty in the travelling Bus was . for his daily expenses and it could not have been counted towards his income. When the deceased was no more in service, there was no question of spending any amount towards his meal and therefore, that amount could not have been treated as his income. Further, as the deceased was getting Rs. 100/— per day, an average income would come to Rs.3000/— per month and Rs.36,000/— per annum. After deducting l/3rd towards his self‘maintenance, the annual dependency~comes to Rs.24,000/- per annum. Looking to the age of the eldest son of the deceased at the time of accident the deceased would have been in the age goup of 35 — 4O years, therefore, the appropriate multiplier would be 16 which has been prescribed for the age of above 35 years not exceeding 4O years. Thus the multiplier 16 should A . a «v ' //l/ 777/ ‘ti' be made applicable instead of 17 and by multiplying the annual dependency i.e., 24,000/— With multiplier 16, the total dependency comes to Rs.3,84,000/- which the claimants are entitled as compensation. If it is presumed that from the daily allowance given to him to ' meet the expenses for meals etc., he was able to save some amount for that purpose; we are of the opinion that Rs.4 lakhs in a round figure would be appropriate compensation. Besides this, we allow Rs.2000/- for funeral expenses, Rs.30,000/— to the children towards loss of love and affection (that is Rs.5000/— for each of Children); Rs.5000/- loss of consortium for wife and Rs.5000/— for loss of estate, which in all come to Rs.42,000/-. Thus we award total compensation of Rs.4,42,000/- (Rs.4,oo,000/— plus Rs.42,000/—) which the claimants are entitled with interest. 6. With regard to interest part, we think that 9% interest will be adequate for all the time that is from the date of filing the claim application till the date of its realisation and therefore, that portion of the order by which 12% interest has been granted is set aside. Towards the counsel fee, we fix Rs. 1000/— instead of Rs.300/— fixed by the Tribunal. The amount shall be deposited within two months: 7. Out of the above amount of Rs.4 lakhs, Rs.50,000/— shall remain in hxed deposit in the nameW_ IA,“ s daughter i‘e., Ku. Suma, Ku, Rajni, Ku. Ragli and Ku. Ranjna. The sons namely Navin Kumar and Pravin Kumar are entitled to Rs.50,000/— each and Rs.1 lakh shall remain in flxed deposit in the name of Smt. Shiv Kumari for a period of 5 yearsjn a nationalized Bank. If it will be‘required for the use of marriage purpose of daughters, it will be open for the claimant-respondents to move an application before the MAC’I‘ concerned for Withdrawal of the amount. Rest of the amount shall be paid to respondent no. 1. A In View of the above, we allow this appeal in» part and modify the award to the above extent. x Sdl- I.M.Quddusi Judge \ x Sé‘! ‘ N. K. Mama‘ Judge (we * l