c^' -/ IN THE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR (C.G.1 W»l- MISCELLANEOUS APPEAL fC) N0.fo < 7/0 TT' ^ APPELLANT : Non-Applicant Np.,2 ..'..^•^ »...-^^tl^ w^^^ •ft ^" Aajuram Sahu, S/o Dukaluram, aged about 60 years, R/o Village Karmu, Police Station Khamhariya, Djstrict Durg (C.G.) (Tractor Owner) VERSUS RESPONDENTS : 1. Smt. Dhaneshwari Devi, W/o late ^^//0"-/^^M Chintaram Bhuarya, aged about 38 l^ V years, 2. Ku. Ranjna Bhuarya, D/o late Chintaram Bhuarya, aged about 18 years, 3. 4. /./c^ f////r0^^- 6. (7^^ 1^° ^^ ^ Ku. Manisha, D/o late Chintaram Bhuarya, aged about 16 years, Ku. Jiteshwari, D/o late Chintaram Bhuarya/aged about 12 years, Master Durgesh S/o late Chintaram, aged about 10 years, Respondent No. 3 to 5 are Minor, Through their natural guardian mother Dhaneshwari, All R/o Village Devarbija, Tahsil Berla, District Durg (C.G.) Horilal, S/o Aajuram Gond, aged about 23 years, R/o Village Karmu, »- U^^..^.S. ^ Police Station Khamhariya, Tahsil Saja, District Durg (C.G.) 7. Laldas Dahariya, S/o Ramchandra, aged about not known, R/o Village Sirsa, Tahsil Berla, District Durg (C.G.) 8. Branch Manager, New India Insurance Company Limited Branch Civil Line, Balodabazar, District Raipur (C.G.) Claimed before Tribunal : Rs. 41,28,800/- ^ Amount awarded by the learned Tribunal : Rs. 7,27,020/-.- Claimed in this Memo of Appeal : Rs. 7,27,020/- MISCELLANEOUS APPEAL UNDER SECTION 173 OFTHEJ^QTQR VEHICLE ACT. 1988 ^.-''-<-u:-<^,...;, •^f HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. IVIINHAJUDDIN. JJ. Appellant Non-applicant No.2 Respondents M.A.rclNo. 61/2010 Aajuram Sahu Vs Smt. Dhaneshwari Devi and others ORDER FOR CONSIDERATION HON'BLE SHRI I.M. QUDDUSI. J ^ Sd/- G. Minhajuddin Judge ^ .11.2011 Sd/- I.M.Quddusi Judge 1^11.2011 POST FOR ORDER ON 1 ? NOVEMBER. 2011 Sd/- G. Minhajuddin Judge ^ ^^y HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON'BLE MR. I.M.QUDDUSI & HON'BLE MR. G. MINHAJUDDIN. JJ. Appellant Non-apDlicant No.2 Respondents M.A.MNo. 61/2010 Aajuram Sahu Vs Smt. Dhaneshwari Devi and others Present: Mr. PP Sahu, counsel for the appellant. Mr. Goutam Khetrapal, counsel for respondent No. 1. rMr. RajAwasthi, counsel for respondent No.8. O RD E R (Passed on ^ ? November, 2011) Per I.M. Quddusi. J; 1. This appeal has been filed by the appellant/owner under Section 173 of the Motor Vehicles Act, 1988 against the award dated 28.3.2009 passed by Additional Motor Accident Claims Tribunal (FTC), Bemetara, Distt. Durg (in short "the Tribunal"), in Claim Case No.65/08, so far as it relates to fastening of liability to pay compensation to the respondents/claimants. 2. Brief facts of the case, as per version of the claimants in the claim petition, are that on 10.6.2008 at about 10.45 am, Chintaram, was going to Durg from Devarbeeja on a motorcycle Hero Honda bearing registration No. CG 07/LJ-7234, as a pillion rider along with Paltanram Sahu and Laldas Daharia. However, at that time, the driver of tractor bearing registration No. CG 07/D-2838 (hereinafter referred to as "the offending vehicle"), who was coming from opposite direction, by driving the said tractor in a rash and negligent manner, dashed the motorcycle of Chjntaram, as a result of which Chintaram sustained grievous injuries and ultimately died on 10.6.2008 during treatment. At the time of accident, the offending vehicle was being driven by respondent No.6, owned by the appellant and the motorcycle was being driven and owned by respondent No.7 and insured with respondent No.8. .•t..r^ ^^ ^ (?i ^\ \"^""^ ^, <wv^ 3. At the time of accident, the deceased was 42 years of age, w^rkffiig as Head Master in Middle School, Kodva and was drawing a salary of Rs.14,870/- per month. Therefore, the claimants, who are widow and children of the deceased, being his legal heirs/dependents filed a claim petition under Section 166 of the Motor Vehicles Act, 1988 (in short "the Act, 1988") before the Tribunal for a total compensation of Rs.41,28,800/- against the death of Chintaram under various heads. 4. However, learned Tribunal, after close scrutiny of the evidence adduced by the parties before it, awarded a total compensation of Rs.7,27,020/- fastening the liability, jointly and severally, upon the appellanVown^r and driver of the offending vehicle. 5. Heard learned counsel for the parties, perused the LCR as also the impugned award. 6. Contention of learned counsel for the appellanVowner of the tractor & trolley is that the vehicle tractor owned by the appellant was not involved in the accident and the accident had taken place with an unknown matador vehicle, which is evident from the statements of Paltanram Sahu and Laldas Daharia, who have been examined as NAW-2 and NAW-3 on behalf of the owner/driver of the tractor & trolley and the said witnesses were riding on the motorcycle along with deceased Chintaram at the time of accident. There was no reason for these witnesses Paltanram Sahu and Laldas Daharia to exculpate the driver of the tractor & trolley and to give statements that the accident had occurred with an unknown matador vehicle, especially when these witnesses themselves have sustained injuries in the accident. 7. Learned counsel has further contended that the first informant Mukesh Shrivastava, who has been examined as claimant's witness No.2, could not have seen the accident as his field, where at the relevant time he was working, was far off from the site of the accident and in his comparison, the persons Paltanram and Laldas are more reliable, who were themselves riding on the motorcycle along with the deceased and have also sustained injuries in the same accident. —~—-—-~ ikl^ \ rr-yy^s-. y -^:/ 8. On the contrary, learned counsel for the respondents/claimants and learned counsel for respondent No.S/insurance company have supported the impugned award and submitted that the tractor & trolley owned by the appellant has been rightly held to be involved in the accident and the liability has been rightly fastened upon the appellant. 9. So far as involvement of the tractor & trolley owned by the appellant is concerned, it is not in dispute that the accident had occurred on 10.6.2008 at about 10.45 am when the deceased along with Paltanram and Laldas Daharia was going from the side of Village - Devarbeeja to Berla via Durg. It has been categorically stated by Mukesh Shrivastava (AW-2) that on the date of accident i.e. 10.6.2008 at about 10.45 am, he was clearing the thorns from his field situated near the site of accident and on hearing the sound of collision between two vehicles, that he turned towards the road and saw that a collision had taken place between the tractor & trolley bearing registration No. CG 07 B-2838 and a motorcycle. He immediately ran towards the spot and saw three persons i.e. deceased Chintaram, Paltanram Sahu and Laldas Daharia lying by the side of the road in injured condition and the driver (respondent No.6) of the tractor & trolley, after causing the accident, had not stopped there, but was going away towards Village - Devarbeeja. After chasing the driver, he (Mukesh Shrivastava) had stopped the driver along with the tractor & trolley. This witness has stated that immediately he had intimated to the concerned police station on telephone about the accident and had sent all the three injured persons in ajeep for treatment to Sector-9 Hospital, Bhilai. 10.8mt. Dhaneshwari (respondent No.1), widow ofthe deceased, had filed certified photocopy of the documents filed in the criminal case pending against the driver of the tractor & trolley - respondent No.6 Horilal. The statement of Mukesh Shrivastava (AW-2), who is the first informant, is corroborated by the documents Ex.P/1 to P/13. From perusal of certified photocopy of the spot map (Ex.P/3), it is clear that the field of Mukesh Shrivastava is near the site of accident and as such, his presence, at the relevant point of time, in his field was natural and the same has not been challenged on behalf of the ^^^-'^^. ^s:""%, ^'wii 3.f ,v'-^^^.Y-t- appellanVowner and driver respondent No.6. From the spot map (Ex.P/3), it is also clear that whilegoing from the side of Village - Devarbeeja towards Durg, the motorcycle bearing registration No. CG 07/LJ-7234, driven by Paltanram Sahu, was on the extreme left side of the road and the offending vehicle had caused the accident by going on the wrong side i.e. on going to its right side of the road. Thus, in view of the above, the rashness and negligence on the part of driver of the offending vehicle i.e. tractor & trolley stands proved. 11. It is no doubt true that Paltanram and Laldas, who have been examined as NAW-2 and NAW-3 respectively on behalf of the appellant/owner and driver respondent No.6, have stated that they were dashed by an unknown matador vehicle and not by the tractor & trolley owned by the appellant and driven by respondent No.6 Horilal. 12.Record ofthe criminal case bearing No.945/08 pending against the driver respondent No.6 Horilal of the tractor & trolley has been summoned and on perusal of the same, it is clear from the statements of Paltanram and Laldas, which were recorded by the investigating officer under Section 161 of CrPC, that these two witnesses have stated before the investigating officer that their motorcycle was dashed by the driver respondent No.6 Horilal, who was, at the relevant point of time, driving the tractor & trolley, owned by the appellant. Driver/respondent No.6 Horilal has been examined as NAW-1 before the Tribunal and from his statement, it is clear that on the date of accident i.e. 10.6.2008, he was driving the tractor & trolley, which was owned by the appellant and after being made an accused and arrested, he had never complained to any higher authorities that the vehicle driven by him was not involved in the accident and he has been falsely implicated. As such, from the evidence adduced, it stands established that the tractor & trolley owned by the appellant and driven by respondent No.6 Horilal in a rash and negligent manner had committed the accident, in which Chintaram died, and Paltanram Sahu and Laldas Daharia sustained injuries. It is not in dispute that the said offending vehicle was not insured on the date of accident i.e. 10.6.2008. Consequently, the driver/respondent No.6 Horilal and the owner/appellant Aajuram have rightly been held liable by the Tribunal for payment of compensation to the claimants. 13.So far as quantum part of the impugned award is concemed, learned counsel for the appellant has contended that the compensation has been assessed exorbitantly on the higher side as the salary, which respondent No.1 - widow of the deceased - is receiving on her compassionate appointment, has not been deducted and a higher multiplier has been applied. 14. From perusal of para 15 of the impugned award, it is clear that salary of Rs.6,000/- drawn by respondent No.1 on account of her compassionate appointment has been deducted and thereafter only the loss of monthly dependency has been assessed as Rs.3,914/-. In para 16 of the impugned award, it has been mentioned that as per postmortem report (Ex.P/13) of the deceased, he was aged 42 years and as per Second Schedule of the Act, 1988, the claims Tribunal has applied a multiplier of 15. 15.1n the instant case, the claim petition has not been filed under Section 163A, but under Section 166 of the Act, 1988 and as such, Second Schedule of the Act, 1988 is not applicable. According to the table as identified by the Hon'ble Supreme Court in the matter of Sar/a Verma (Smt) Vs. Delhi Transport Corporation and another, AIR 2009 SC 3104, when the deceased is within the age group of 41-45 years, then a multiplier of 14 has to be applied. Thus, the claims Tribunal was not justified in applying the multiplier of 15 for calculating the compensation. Therefore, after applying the multiplier of 14, the annual loss of dependency comes to Rs.6,57,552/- (46,968 x 14). After adding the amount of Rs.22,500/- awarded by the Tribunal under other heads, the total compensation comes to Rs.6,80,052/-. However, the Tribunal has awarded a total compensation of Rs.7,27,020/-, which is definitely on the higher side and deserves to be reduced to Rs.6,80,052/-. 16. In the result, the appeal is allowed in part. While maintaining liability of the appellant/owner of the tractor & trolley to pay compensation to the claimants, the impugned award is modified to the extent that the claimants shall be entitled to get compensation of Rs.6,80,052/-, ^^^^^ /s'".^^ ^ instead of Rs.7,27,020/-, from the appellant/owner and respondent No.6/driver, jointly and severally, along with interest @ 6% per annum from the date of presentation of the claim petition till its realization. However, rest of the conditions regarding apportionment of the amount of compensation shall remain intact. 17. The appellant/owner shall be entitled to recover the excess amount paid in pursuance of the impugned award from the claimants. 18. No order as to costs. Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge