^ IN THE HON'BLE HIGH COURT OF CHHAmSGARH AT BILASPUR (C.G.1 M, A.1 C )_NO._He>_D^ _ OF 2011 (D.B.) Oivision Bend APPELLANTS '''' CIAIMANTS <//'' ^ ...-•""$<'-^'"',./- ^^y ../•' ;^* \\ ^^-•"^b ^" RESPONDENJ'S : NON-CLAIMANTS 1. 2. Smt. Rafi Unnisha W/o. late Murtaja Khan, aged about 38 years, Smt. Shayra Begam W/o. Late Mustafa Khan, aged about 65 years, Miss Karishma Khan D/o. Late Murtaja Khan, aged about 15 years, 'TVfaster Afrid Khan S/o. Late Murtaja Khan aged about 12 years; Appellants no.3 to 4 are Minor through their mother Smt. Rafi Unnisha (Appellant No. 1) All are Residence of Jain Mandir road Near Oswal Bhawan, Jagdalpur, District Bastar (C.G.) VERSUS Gopal Kashyap, S/o. Shri Raghunath Kashyap, aged about 22 years Residence of Kumharpara Shriram Prasad Mukharjee ward Sawnra Para, Jagdalpur District Bastar (C.G.) Bhupendra Singh Rajput, S/o. B.S. Rajput, Residence of Sangam Hotel, State bank Chowk, Main road, Jagdalpur, District Bastar (C.G.) The New India Insurance Co. Ltd. Through - Branch Manager, Mahatama Gandhi Road, Near Jhankar Talkies, Jagdalpur District Bastar (C.G.j. MEMO OF APPEALUNDER SECTION 173 f21 OF THE MOTOR VEHICLE ACT, 1988 Y_, -«Ll»nfn^nTn'hllnr.l Bo___J_a_S&JXlCU»^_ 4' HI6H COURT OF CHHATTIS6ARH AT BILASPUR MVISIONBENCH: HON'BLEMR. I.M.QUDDUSI & HON'BLE AAR.6ULAM MINHAJU&OIN. JJ Appellant Respondents Appellant Respondents M.A. Fc1 No.446/2011 The New India Assuronce Company Ltd. Vs Smt. Rafi Unnisha & others & MJA. [cl No.490/2011 5mt. Rafi Unnisha & others Vs 6opal Kashyap A others Present: Mr. Sourabh Sharma, Advocate for the appellant-Insuronce Company. Mr. P.K. Tulsiyan, Adv. for respondent No.l to 4 ouid the oppellants in M.A. (C) No.446/2011 & 490/11 respectively. None for the other respondent-Driver & Owner in both the cppeals. ORDER (Oran (2nd September, 2011) I.M. Quddusi. J; 1. Heard on the applications for condonation of delay in preferring both the appeals. 2. For the reasons stated in the applications, we are of the opinion that the delay has been explained satisfactorily and the opplications deserve to be allowed. Accordingly, the apptications are allowed and dekiy in filing the both the appeals is hereby condoned. 3. With the consent of the parties, the matter is being heard finally. 4. M.A. (C) Nos.446/2011 filed by The appelkint-Insurance Company <& M.A. (C) No.490/11 filed by the claimants are being disposed of by this common order as both these appeals hwe been preferred a9ainst the impugned award dated 07.12.2010 passed by the learned 1 Additional Motor Accident Claims Tribunal, Bostar at "Jagdalpur (for short "the Claims Tribunal') in Claim Case No.37/09. —\ rv 5. The appellant-Insurance Company has challenged the liability fixed by the Claims Tribunal on it. Whereas, the appellant-claimants have prayed for enhouicement of the amount awarded'by the Claims Tribdnal. 6. Facts of the case, in brief, are that the ctaimants, who are wife & children of deceased Murtaza Khan, have filed a ckiim application under Section 166 read with Section 140 of the Motor Vehicle's Act, 1988 (for short the Act, 1988') ckiimin9 compensation to the tune of Rs.18,36,000/- for the death of said MurTaza Khan, who died in a roadaccident which took place on 28.5.2009 when •the motorcycle bearing registration number CS07-LQ- 7825, on which the deceased was retuming to his house situate at Jagdalpur, was dashed by the vehicle bearing registration number OR10-C- 7523, due to radn and negligent driving by its driver, near Village Bhejribadar. The ckiimoyits have claimed compensation on"the ground that they were dependent on the deceased, who wos sole earning member in the family, and due to his death, they have suffered loss of income. 7. The Claims Tribunal vide impugned order partially allowed the cloim application of the claimqnts, awarded a sum of Rs.5,82,030/- os compensation and fastened liability on the appellant herein to pay the said amount of compensation to the claimants. 8. Lecirned counsel for -t+ie appellant submitted that licence issued to the driver of of-fend'mg vehicle was found to be fake, thus there uucts breach of terms and conditions of the insurance policy and •therefore, the impu9ned award possed by the Claims Tribunal is ticdsle to be interfered with. 9. On the other hand, learned counsel for the claimants has submitted that the amount awou'ded by the Claims Tpibunal is too meager to be sustained in the facts and circumstances of the case and it deserves to be enhonced suitably, 10. We have heard learned counsel for the parties. We have perused the record ond the impugned award passed by the Ckiims Tribunal. 11. So far as the oppeal of the Insurance Compony is concemed, we have perused the driving licence avaikible on the record ond found that there is an endorsement dated 15.01.2009 in the driving licence to the effect that the driver is authorized to drive light transport vehicles and the same wds duly signed by the Regional Transport Officer, Jagdalpur. However, later pn, the said endorsement was cancelled by the Regional Transport Officer, Jagdalpur on 9.6.2009 i.e. after the accident which took phce on 28.5.2009, on the 9round that due to some clerical mistake said endorsement wos made on the licence of the driver. Further, the owner of offending vehicle has stated in his statement that he has not only seen and examined the driving licence produced by the driver but also took test of driving of The driver and found that the driver was competent to drive the vehicle and thereafter only he appointed him as driver of the vehicte in question. In these circumstances, it cannot be said that the vehicle was plied in breach of terms and conditions of the insuronce policy as there was no endorsement authorizing the driver to drive light transport vehicles cmd as such, owner of the offending vehicle cannot be held liable. Thus, we ou-e of the opinion that The Claims Tribunal has not committ'ed any illegality or impropriety in absolving owner of the offending vehicle and fastening Inbility on the appeltant Insurance Company. 12. So far as the oppeal of the claimants for enhancement of the amount of compensation is concerned, we have perused the impugned award and found that the Claims Tribunal has not committed any mistake in assessing onnual income of the deceased and deducting standard deduction towards expenditure of the deceosed. t-lowever, multiplier of 8 opplied by the Claims Tribunal is not proper because at the time of accident the deceased was 54 years of age and according to Sarla Venna (Smt.) and others Vs. Oelhi Transport Corporation & another reported in (2009) 6 SCC 121 for the age group of 50 to 55 years' the multiplier of 11 is applicable. Therefore, we propose to assess actual loss of dependency by applying multiplier of 11 to the annual income of the deceased i.e. Rs.70,253/- (93671XT), in place of 8, as applied by the Ckiims Tribundl, <md accordingly, the total loss of dependency would come to Rs.7,72,783/- (70,253x11). Thus, the total compensation for which the clainumts would be entitled now is Rs.7,87,783/- (772783+5000+5000+5000) 13.In the result, * M.A. (c) No.446/11 preferred by the appellant-Insuronce Company has no substance, The sanne deserves to be and is hereby dismissed. • M.A. (c) No.490/11 preferred by the appetlant-claimants is partly allowed and the impugned award is modified to the extent that now the oppellant-claiinants shall be entitled to receive a sum of fts.7,87,783/- as compensation along with 6% simpte interest p.& from the date of fiting of application till actual poyment is made. Rest of the conditions imposed by the Claims Tribunal shall remain intact. / - Sd/- I.M.Quddusl Judge G.^'^" Roshan/- ^tee