HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal (Q No.923 of 2007 APPELLANTS (Applicants) RESPONDENTS (Non-applicants) Saroj and others. Versus Vinod Kumar and others. AWARD 1 For consideration (^ -9-2011 ; . SdA Judge ^. -9-2011 Hon'ble Shri Justice Raieev Gupta ^L Sd/- ChififJustice Post for pronouncement ofAward: "J -9-2011 Sd/- N.K. Agarwal Judge Ji-i ^ '•^'•^^. '^ '''s\y.-^ ~':^<-^'^t-l^. ^ f- " r-.^^®v-L'y^-^, ^ \^y/ ...^ •^-^'yfy HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (Q No. 923 of2007 APPELLANTS (Applicants) RESPONDENTS (Non-applicants) 1. 2. Saroj, W/o Late Panchudas, age - 32 years, Mukesh Das, S/o Panchudas, age-18 years. 3. Rustam Das, S/o Panchudas, age-12 years. Late Late 4. Ku. Kiran, D/o Late Panchudas, age-14 years. 2 to 4 are minor through natural guardian applicant No.l-mother Saroj. All R/o Ward No. 22, J.P. Nagar, Near Guru Ghasidas Mandir, Behind Shrawan Kiraha Stores, Power House, Camp-2, Bhilai, Thana-Chhawni, Tahsil & District - Durg (C.G.) Versus 1. Vinod Kumar, S/o Hiralal Khaparde, age-36 years, R/o Ward No. 43, Lakholinaka, Rajnandgaon, District- Rajnandgaon (C.G.) (Driver of Vehicle Ta.to. Metador No. C.G./08/Z.C./0658) 2. Kanhaiya Lal Daga, S/o Kedar Nath Daga, age-34 years, R/o Lakholi Road, Rajnandgaon, C.G. (Owner of Vehicle Tata Metador No. C.G./08/Z.C./0658) 3. Manager, The New India Insurance Company Limited, Kamthi Line, Rajnandgaon (C.G. ) through Branch Offic^-Thakkar Chambers, Infront of-i Project Automobile, Power House, Bhilai, \'<<. •••^ Tahsil & District-Durg (C.G.) (Insurance Company of Vehicle Metador No. C.G./08/Z.C./0658) (Police No. 451202/31/05/01511) (Limitation Period-17.8.05 to 16.8.06) 4. Manager, M/s Atul Gases, R/o 70A, Industrial Estate, Nandini Road, Bhilai, Tahsil & District- Durg (C.G.) (Owner of Vehicle Truck No. C.G./07/C/0701) 5. Manager, National Insurance Company Limited, Address- Branch Office No.Ol, Bhutani Complex, G.E. Road, Power House, Bhilai, Tahsil & District - Durg, C.G. (Insurer Compnay Truck No. C.G.07/C/0701) (Policy No.320904/31/056300002919) (Limitation Period 22.07.05 to 21.07.06) APPBAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT,1988 Corain: Hon. Shri Rajeev Gupta, C.J. 85 Hon. Shri N.K. Agarwal, J PRESENT:- Shri Uttam Pandey, counsel for the appellants. Shri Sudhir Agrawal and Shri P. Dutta, 1 counsel for respondent No.3. Shri Raj Awasthi, counsel for respondent No.5 AWARD (Passedony -9-2011) Per N.K. Assarwal, J. This is' claimants' appeal seeking enhancement of \^ compensation awarded by the 5th Additional Motor Accidents l-r- ^^7^^^ €y~s!':^^, ^.^^•^ ^TJ] •^/ Claims Tribunal, Durg (for short 'the learned Tribunal') vide its award dated 03.05.2007 in Claim Case No.205/2006. 2. As against compensation of Rs.22,62,000/- claimed by the unfortunate widow and 3 children of the deceased - Panchudas by filing claim application under Section 166of the Motor Vehicles Act, 1988 (henceforth 'the Act') for his death in the motor accident on 21.06.06, the learned Tribunal has awarded a total sum of Rs.1,74,170/- as compensation along with interest @ 6% per annum from the date of application till its actual payment. 3. The learned Tribunal, on a close scrutiny of the evidence led, held: the accident had occurred due to head on collision between TATA Matador bearing registration No.C.G. 08/ZC-0658 being driven by respondent No.l and Truck bearing registration No.C.G.07/C-0701 being driven by deceased himself at the time of accident: deceased and respondent No.l equally contributed to the cause of acddent; respondent No.S/the New India Insurance Company Limited liable for payment of compensation as it has failed to establish breach of policy conditions; assessed amount of compensation; after deducting 50% of it towards contributory negligence of deceased, awarded Rs.1,74,170/- as compensation to the appellants/claimants for the death of '^ Panchudas along 'with interest @ 6% per annum from the ? ^•"•'•'"""" '^.;1 .^ date of application till its actual payment against respondents No.l to3. 4. Respondent No.S/the New India Insurance Company Liniited has also preferred cross-appeal/objection (I.A.No.l) challenging the award impugned on the ground that deceased Panchudas was solely responsible for the accident and the learned Tribunal has erred in awarding Rs.1,74,170/- as compensation to the claimants in the facts and circumstances of the case. 5. Shri Uttam Pandey, learned counsel appearing for the appellants would submit: the learned Tribunal has fallen in error in holding deceased Panchudas also equally responsible for the cause of accident and in reducing the amount of compensation accordingly; the learned Tribunal has further erred in deducting one-third of income of the deceased in place of l/4th towards his personal and living expenses and thus has fallen in error in awarding low amount of compensation. 6. On the other hand, Shri Sudhir Agrawal with Shri P. Dutta, learned counsel appearing for respondent No.3 - insurance company subinit: the accident had occurred due to entire negligence of deceased Panchudas and thus the learned Tribunal has fallen error in holding d^ceased ^N—' |»»N—11 Panchudas negligent to the extent of 50% only and thus has fallen in error in awarding Rs.1,74,170/- as compensation. 6. We have heard learned counsel for the parties and have perused the record of the Tribunal including the award impugned. 7. The appellants/claimants have examined Saroj Bai, wife of deceased Panchudas as their witness. Indisputably, she was not eye witness. On the other hand, respondent No.3 i.e. the New India Insurance Company Limited has examined respondent No.l i.e. driver of TATA Matador bearing registration No. C.G.08/ZC/0658 as its witness, who has categorically deposed in para - 1 of his statement that he was driving the TATA Matador bearing registration No. C.G.08/ZC-0658 in his left side at the moderate speed of 25- 30 kilometers per hour and Truck bearing registration No.C.G.07/C-0701, after overtaking other vehicle, dashed his vehicle and in the above accident, he also sustained injuries. 8. True, respondent No. 1 did not file any written statement and was proceeded ex parte, but he was examined by respondent No.S/the New India Insurance Company Limited as its witness, no question has been asked by the appellants/claimants regarding his not filing of the written statement to discard his testimony. "\ < \.^ f^j 9, The Supreme Court, in the case of Oriental Insurance Company Lim-ited v. Premlata Shukla and Others, reported in 2007 (13) SCC 476, has held: proof rashness and negligence on the part of the driver of the vehicle is sine quo non for maintaining an application under Section 166 of the Act. Admittedly, in the instant case, appellant/claimants have not examined any witness in order to prove rashness and negligence driving of driver of TATA Matador bearing registration No.C.G.08/ZC-0658. 10. Therefore, if we consider the submission of Shri Uttam Pandey in the light of the fact that appellants/cl9.imants did not examine any witness to prove negligence of the driver of Matador in order to maintain application under Section 166 of the Act, as held by the Supreme Court in the case of Oriental Insurance Company Limited v. Premlata Shukla (supra), then in our opinion, the Tribunal was quite liberal in awarding the compensation to the appellants for the death of Panchudas by applying the principle of res ipsa loquitor and by holding deceased equally negligent to the cause of accident inasmuch as by applying principle of law laid down by the Supreme Court in the facts and circumstances of the present case, the Tribunal could have dismissed the claim application. , \^ M' 11. For the reasons mentioned hereinabove, in our considered opinion, the Tribunal has not committed any illegality in holding deceased Panchudas responsible for contributory negligence to the extent of 50% and in deducting 50% of compensation towards contributory negligence of deceased. 12. So far as amount of compensation is concerned, the learned Tribunal has assessed the. income of the deceased as Rs.2530/- per month based on the evidence of K. Suja (N.A.W.4) i.e. Manager of Atul Gases Company, respondent No.4 herein, where deceased was serving as driver; looking to the age of the deceased as 36 years applied multiplier of 16, which is somewhat on higher side, in the light of dictum of Supreme Court in the case of Sarla Verma (Smt.) and others v. Delhi Transport . Corporation and another, (2009) 6 SCC 121; out of the claimants, one son is major, therefore, we do not find any infirmity in the approach of the Tribunal in deducting l/3rd of the income of the deceased towards his personal and living expenses. The learned Tribunal was quite liberal in awarding Rs.24,500/- towards other heads and in awarding total compensation of Rs,3,48,340/-, and therefore, the amount awarded by the learned Tribunal isjust and proper compensation in the facts ^and circumstances of the case and no fault can be^pund in it. 1 '^ 13. As regards cross-appeal/objection (I.A.No.l) preferred by respondent No.S/the New India Insurance Company Limited is concerned, the insurance company itself has argued before the Tribunal that both the drivers are negligent for cause of accident and the learned Tribunal, accepting the plea of respondent No.3, has held both the drivers equally negligent for cause of accident. Therefore, cross- appeal/objection preferred by respondent No.S/insurance company is also devoid merit and substance and is liable to be disniissed. 14. For the foregoing reasons, the appeal for enhancement as well as I.A.No.l i.e. cross-appeal/objection filed by the insurance company, being devoid of merit and substance, are dismissed. 15. No order as to costs. Sd/- QuefJustice Sd/- N.K. Agarwal Jiidge ^^i