IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal (C) No. F 2008 ^. APPELLANT NON-CLAIMANT Suresh Agrawal, S/0 late Shri Suraj Bhan Agrawal, aged about 32 years, R/0 Village- Juna Lakhanpur, Police Station- Lakhanpur, Tahsil- Ambikapur, District- Sarguja, (C.G.) VE RS U S RESPONDENTS : 1. CLAIMANTS .A' ^^^.^^' ^T"...--'" ^••••" RESPONDENT 2. 3. Ibrar Khan, S/0 Kifayat Khan, aged about 45 years. Smt. Faijun Bibi W/0 Shri Abrar Khan, aged about 40 years, Both by Case- Mohammaden, R.O Village- Junadih, Police Station- Tahsil- Lakhappur, Ambikapur, Djstrict- Sarguja, (C.G.) T^e.<^ental India Insurance '-> Company, Ambedkar Chowk, Ambikapur, Police ^ \- ^ Station & Tahsil- Ambikapur, District- Sarguja, (C.G.) APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT. HIGH COURT OF CHHATTISGARH : BILASPUR M. A. (C) No. 889 of 2008 Appellant Suresh Aganval Versus Respondents Ibrar Khan 85 others APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 DB: Hontle Shri Justice I. M. Quddusi & Hon'ble Shri Justice Prashant Kumar Mishra, JJ Shri Sunil Sahu, Advocate for the appellant. None for the respondents No. 1 and 2/claimants through Vakalatnama is filed by counsel. Shri Sudhir Aganval, Advocate for.the respondent No. 3/Insurance Company. ORDER (Oral) ( Passed on this 23rd day of March, 2011 ) Per I. M. Quddusi, J. 1. This appeal has been filed by the appellant/owner against the impugned award dated 2nd May, 2008, passed by the Motor Accident Claims Tribunal, Surguja (Ambikapur) in Claim Case No. 103/2005, awarding a sum of Rs. 3,20,000/- along with simple interest @ 9% per annum, holding the appellant/owner as liable to pay the amount of compensation. 2. The challenge has been made on two grounds; firstly, regarding liability and secondly regarding quantum. According to learned counsel for the appellant the liability has wrongly been fbced to pay the amount of compensation on the appellant, whereas the same should have been fbced on the insurance company as there t 1 "^^-11 ^' ^^' "••^ -^ was no breach ofthe insurance policy. Further, the quantum has been fbced on higher side by the claims tribunal. We have heard learned counsel appearing for the parties and perused the lower Court record as well as the findings given in the impugned award. No one appears for the claimants despite service of notice and flling of Vakalatnama by counsel. Brief facts, in nutshell, are that deceased Parwej was engaged as driver in the employment of the appellant to drive the Truck, bearing registration No. C.G. 15-A/1433. On 2.10.2005. Deceased Panvej was going fo Allahabad from Ambikapur by the truck, which was loaded with goods. On tha,t day on G. T. Road, ahead Gopiganj Bazar, near Rajnagar, due to bursting of the front tyre of the truck the Truck got out of control and collided with other vehicle which was stationary on the road side. As a result of this accident deceased Panvej received grievous injuries and died on the spot. The claimants, being legal heirs of the deceased, filed a claim case under Section 166 of the Motor Vehicles Act, 1988 for award of a total compensation ofRs. 3,47,000/- under various heads. With regard to liability fbced by the Tribunal to pay compensation upon the appellant/owner it has come in evidence that the deceased driver was not ready to drive the vehicle as its front right hand side tyre was damaged and even the cotton threads of the tyre was visible because of tear and wear and it was not fit to take on such long journey up to Allahabad and back. The appellant owner came to the driver and said to him to drive up to Allahabad and thereafter the tyre will be changed. The ^ driver was taking precaution and inspecting the tyre after moving at some distance rapidly. The cleaner deputed in the vehicle has given statements to the above effect. Besides this, the father ofthe deceased (AW1) in his cross-examination has stated that the owner of the vehicle came to his house as his son (deceased/driver) was not ready to drive the vehicle due to bad condition of the front right harid side tyre but the owner insisted the deceased to take the vehicle to Allahabad and when he will return from this frip the tyre would be changed. 8. It is evident that the insurance policy was a goods carriage commercial vehicles package policy. In clause 5 conditions of the policy it was inentioned that the insured shall take all reasonable steps to safeguard the vehicle insured from loss or damage and to maintain it in efficient condition and the Company shall have at all times free and full access to examine the vehicle insured or any part thereof or any driver or employee of the insured.In the event of any accidenf or breakdown the vehicle insured shall not be left unattended without proper precautions being taken to prevent further damage or loss and if the vehicle insured be driven before the necessary repairs are effected, any extension of the damage or any further damage to the vehicle shall be entirely at the insured's own risk. 9. Against the above condition, fhe owner, while insisting the driver to drive the vehicle even after seeing the bad condition of the tyre, he had in the mind that if any damage or accident is caused thaf would be born by the insurance company as the vehicle was insured under the package policy. But since the insurance conipany has taken precaution to mention above mentioned "^. '^•,,;;;i-^1-^-^. t ~^S^% s 7 condition in the insurance policy it cannot be said that in the above circumstances the insurance company should be held liable to pay the amount of compensation awarded by the Claims Tribunal. 10. In view of the above the contention regarding wrongly fbcing the liability upon the appellant/owner is not sustainable and this contention is rejected. 11. With regard to the quantum, the owner has not denied the income of the deceased. Baran (A.W.2), who was the paid employee Khalasi/cleaner, deputed on the vehicle, had come in the witness box and has stated that the deceased driver was getting Rs. 7000/- per month as salary from the owner of the vehicle and also Rs. 100/- per day as daily expenses during traveling. Thus, the deceased was getting Rs. 7000/- as salary and Rs. 3000/- as allowance for daily expenses, the total of which comes to Rs. 10,000/-. In the claim petition the salary of the deceased has been shown as Rs. 10,000/- which has not been disputed by the owner/appellant. However, the Tribunal has assessed the income ofthe deceased as Rs. 3000/- per month. 12. We are not considering the enhancement of the amount of compensation, assessed by the Tribunal, therefore treating the monthly income of the deceased as Rs. 3000/- and annual income as Rs. 36,000/- the calculation is made. 13. Since the deceased was a bachelor therefore 50% should be deducted towards personal and living expenses and thus, Rs. 18,000/- would be the annual loss of dependency. Considering the age of the parents as 45 and 40 years, as mentioned in the application the average age would come to 42.5, -\ . ^? 14. 15. however, the Tribunal has assessed the age of the father as 50 years arid mother as 40 years, therefore the average of that comes to 45 years. According to the decision of Hon'ble Apex Court in Sarla Verma (Smt) and others Vs. Delhi Transport Corporation and another1 multiplier of 14 is applicable between the age of 41 to 45 years. Therefore, after applying this multiplier of 14 the total loss of dependency comes to Rs. 2,52,000/-. Besides this, considering the age of the deceased the parents are entitled to get Rs. 10,000/- each for loss of love and affection, Rs. 10,000/- for loss of estate and Rs. 5000/- for funeral expenses. Thus, the total towards other heads comes to Rs. 35,000/-. After adding this amount to the loss of dependency the total comes to Rs. 2,87,000/-. Therefore, we allow this appealin part in respect of quantum part only and reduce the amount of compensation i'rom Rs. 3,20,000/- to Rs. 2,87,000/-. In view of the above, we allow this appeal in part, reduce the amount of compensation and modify the impugned award dated 2.5.2008 to the above extent. It is directed that the claimants ' 'vv - - - • ...- - . • . -^ ^ ^—^^^ , < ..< . .' . would be entitled to get Rs. 2,87,000/- along with simple interest @ 9% p.a. from the date of the claim petition till the payment is made. Rest of the conditions mentioned in the impugned award shall remain intact. The appeal is allowed in part to the above extent. No order as to costs. —- ^^>-_ Sd/- LM.Quddusi Judge Sd/- prashantKumarMishra Judge „_ (2009)68cc 121