:A: -»^.^^^\»^. AFK HIGH COURT OF CHHATTISGARH, BILASPUR CORAM : Hon'ble Shri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J MISC. APPEAL (Cl No. 981 of 2009 The oriental Insurance Company Limited Vs. Haridwari Lal Sharma and others ORDBR For consideration Sd/- Sunil Kumar Sinha Judge HON'BLE SHRI JUSTICE RAJEEV GUPTA ;^ Sd/- Cbief Justtce Post for Order: ^./03/J2010 1 Sd/- Sunil Kumar Sinha • Judge ^c (^SaS^ HIGH COURT OF CHHATTISGARH, BILASPUR \y CORAM : Hon»bleShri Raieev Gupta, C.J. & Hon'ble Shri Sunil Kumar Sinha, J M. A (Ct. No. 981 of2009 APPELANT The Oriental Insurance Company Limited, Divisional Office, Jail Road, Madina Building, Raipur (C.G.) Versus RESPONDENTS 1. Haridwari Lal Sharma, s/o Shri Ghanshyam Das Sharma, aged about 50 years 2. Smt. Rajdulari Sharma, w/o Shri Haridwarilal Sharma, aged about 48 years Claimants Both residents of Aatabira, District Bargarh (Orissa). 3. Baliram Kumhar, s/o Nathu Ram Kumhar, aged about 30 years, resident of Shankar Nagar, Raipur (C.G). Non-applicant No. 1 4. Amrik Singh Rana, s/o Tikka Singh Rana, Pankhojiya Roadlines, Ring Road No.l, Near Mining Office, Raipur Non-Applicant No.2 APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT» 1988 Appearance: Mr. Sudhir Agrawal, counsel for the appellant. Mr. Sanjay Agrawal, counsel for the claimants/ respondents 1 & 2. M.ArQ.No.981 of 2009 ^. ORDER ( ^.03.2010) Following order of the Court was delivered by Sunil Kumar Sinha, J. (1) Being aggrieved with the award dated 21.04.2009 passed in Claim Case No.60/2008 by the Chief Motor Accident Claims Tribunal, Raipur, the Insurer has filed this appeal. (2) The facts, briefly stated, are as under:- Respondents 1 & 2/claimants are the parents of deceased Amit Sharma. They filed a claim petition u/s 166 of the Motor Vehicles Act claiming compensation of Rs.15 lakhs for the death of their son in the motor accident which took place on 24.02.2008 when the Truck bearing Regn.No.C.G.04- J/0587, in which the deceased was traveling as the owner of his goods, met with an accident on account of rash and negligent driving of the driver of the said vehicle. The claimants pleaded that the deceased was doing business of dry fruits. On 24.02.2008, he was coming with currant (Kismis) from Nasik which was loaded in the said Truck which met with accident on National Highway No.6 when it dashed against a Banyan tree. The deceased was aged about 27 years. He was unmarried. According to the claimants, he was earning Rs.10,000/- per month. The owner and driver of the vehicle remained ex- parte. The appellant/insurance company filed its written statement. The insurance company was granted perniission u/s 170 of the Motor Vehicles Act by order dated 31.03.2009 to contest the claim on all possible grounds. While admitting the factum of insurance, it ^ —(pleaded that the driver of the vehicle was having no valid M.AfQ.No.981 of 2009 driving licence; the claimants have filed exaggerated claim and the deceased being a passenger in goods vehicle was not covered under the insurance policy. The claimants examined Haridwari Lal Sharma (A.W.l Claimant no.l himself) and Ranjit Singh Ahuja (A.W.2) in support of their claim petition, whereas the insurance company examined Mohd. Salim Nagaria (N.A.W.l)inrebuttal. The Tribunal recorded the finding that the accident occurred on account of rash and negligent driving of the offending vehicle by its driver. The deceased was traveling in the vehicle as a owner of the goods and his liability was covered under the policy, therefore, the driver, owner and insurer were jointly and severally liable to pay compensation. The Tribunal held that the deceased was earning Rs.3000/- per month and Rs.36,000/- per annum. By deducting 1/3 towards personal expenses of the deceased, the annual dependency was worked out to Rs.24,000/-. By applying multiplier of 18 to the annual dependency of Rs.24,000/- the compensation was worked out to Rs.4,32,OQO/-. By adding a further sum of Rs.15,000/- under other heads, the total amount of compensation was worked to Rs.4,47,000/-. The Tribunal also awarded interest @ 6% per annum from the date of filing of the claim petition that is from 12.11.2008 till its realization. (3) Mr. Sudhir Agrawal, learned counsel appearing on behalf of the appellant/lnsurance Company, argued that the liability has been wrongly fastened on the insurance company; the income has wrongly been assessed; the deduction towards personal expenses is not correct and higher multiplier has been applied. ""^ M.A(C).No.981 of2009 (4) On the other hand, Mr. Sanjay Agrawal, learned counsel appearing on behalf the claimants/respondents 1 85 2 opposed these arguments and supported the award passed by the Tribunal. (5) We have heard the learned counsel for the parties at length and have also perused the records ofthe claim case. (6) Admittedly, the vehicle was insured with the appellant. It was insured under a package policy as "Goods carrying comniercial vehicle?\ The policy has been proved as Ex.D-1. According to the Policy, a sum of Rs.6260/- has been realized as premium towards basic liability. It comes in the evidence of father of deceased (A.W.l) that on 24.02.2008, his son was bringing currant (Kismis) from Nasik as he was doing the business of dry-fruits. After the accident the dead body of his son was taken-out from the vehicle after cutting front portion of the vehicle. Ranjeet Singh-Ahuja (A.W.2) also deposed that the person who died in the motor accident was sitting beside the conductor. He was pressed due to collusion ofthe vehicle against the tree. On account of the above un-rebutted evidence, it was established that the deceased, who was coming along-with his goods, was sitting in the cabin of vehicle at the time of the accident.In police papers also, we find that the police has seized the currant (Kismis). ,^.f-^., ,^'^ a M.AfO.No.981 of2009 (7) In National Insurance Co. Ltd. -vs- Cholleti Bharatamma & others (2008) 1 SCC 423, the Supreme Court held that so far as the goods carriage is concerned, passengers traveling in goods carriage whether gratuitous or othenvise were not covered u/s 147 of the Motor Vehicles Act, 1988. It further held that the owner of the goods must travel only in the cabin of the vehicle and hot with the goods so as to be covered ^L/S 147 of the Act and it was necessary to prove that the deceased was traveling in the Lorry (goods carriage) along-with the driver or the cleaner as the owner of the goods. Traveling with the goods itself would not entitle anyone to protection u/s 147. In the present case, as stated above, the deceased was traveling alongwith his goods and was sitting in the cabin by the side of cleaner, therefore, the Tribunal has rightly held that the liability would be on the Insurance Company to pay compensation. (8) So far as the income of the deceased is concerned, the Tribunal has disbelieved the evidence of the father of the deceased. The Tribunal on his own assessment, on the basis of Rs.100/- per day usually paid to the labourers, determined that the deceased must be earning Rs.3000/- per month and Rs.36,000/- per annum. We do not find any fault in such assessment made by the Tribunal. (9) So far as the deduction is concerned, the deceased was unmarried, therefore, the deduction of 1/3 towards his .;.-^.^. ^1^'. I ^iS^^, 1 ""^'^'^Sv'^ ''"?.'• ^ // |gN» '^ M.AfQ.No.981 of2009 personal expenses appears to be unreasonable. The Tribunal ought to have deducted 50% from the income of the deceased in view of the principles laid down in Sved Basheer Ahvned and others -vs- Mohammed Jameel and another (2009) 2 SCC 225 wherein the Supreme Court held that in absence of any evidence to the contrary, the practice is to deduct towards personal and living expenses of the deceased, one-third of the income in case he was married and one-half (50%) if he was a bachelor. (10) So far as multiplier is concerned, looking to the fact that the claimants are the parents and claimant no.l was aged about 50 years and claimant no.2 was aged about 48 years, the multiplier of 18 also appears to be higher. Considering the overall facts and circumstances of the case, in our opinion, the multiplier of 15 would be the appropriate multiplier in this case. Therefore, we recompute the amount of compensation as follows :- (11) By deducting 50% from the annual income of Rs.36,000/-, the annual dependency works out to Rs.18,000/-. By multiplying the said annual dependency of Rs.18000/- with the multiplier of 15, the compensation comes to Rs.2,70,000/-. By adding further sum of Rs.10,000/- under other permissible heads, the total amount comes to Rs.2,80,000/- which the claimants are entitled to receive as compensation on account of death of their son in the motor accident. The claimants would also M.AfQ.No.981 of2009 be entitled to receive interest @ 6% per annum from the date of filing of the claim petition till realization. It is stated at bar that Claimant no.l is a cancer patient. We therefore direct that a sum of Rs.l lakh shall be paid immediately to claimant no.l and the remaining amount of compensation shall be deposited in a fbsed deposit in the name of claimant no.2 (mother of deceased) on the terms and conditions mentioned in Para 22 of the Award. (12) The appeal filed by the Insurance Company is allowed to the extent indicated above. There shall be no orders as to cost. Sd/- Chief Justice Sd/- Sunil Kumar Sinha Judge Rao