'^ BEFORE THE HON'BLE HIGH COURT OF CHHATTISGARH ATBILASPUR M.A.(C)No.^5> /200^ APPELLANT ^EFENDANT N0.4 ,u)....^ .......^^ ^y'"y ^T..^" ^•"" GENERAL COMPANY ;.1. IFFCO- TOKIO INSURANCE LIMITED, 'through the Branch Manager, ^^ Iffco- Tokio General Insurance Co.Ltd, 3rd Floor 345-347, Lalganga Shopping Mal , G.E Road Raipur (CG) VERSUS 1 .1^ a iil 1 RESPONDENTN0.1 CLAIMANT N0. 1 /~ RESPONDENT N0.2 .&LAIMANT N0. 2 RESPONDENT N0.3 ^CLAIMANT N0. 3 /• RESPONDENT N0.4 4. CLAIMANT N0. 4 Smt. Agan Bai W/o Hari Prasad, Aged about 51 years. Ku. Diveshwari Bai, D/o Late Dwarika Prasad, Aged about 12 years (Minor) Ku. Archana Kumari, D/o Late Dwarika Prasad, Aged about 10 years (Minor) Narendra Kumar, D/o Late Dwarika Prasad, Aged about 08 years (Minor) •^^ il M ia Respondent no. 2,3 and 4 minor, represented through - respondent no.1. All resident ofVillage Godhi, Post - Dagori, Thana and Tehsil Bilha, District - Bitaspur (C.G.) @ f?F«=? ^^ 3 'CSSK'S?- \&^S' RESPONDENT N0.5 DEFENDANTN0.1 5. ^" Hari Prasad Miri S/o Phutukram Miri, Aged about 58 years, Resident of Village - Gaudi, Thana and Tehsil—Bilha , District Bilaspur (C.G.) (Owner of Tractor havjng registration no CG 4 D 6326) RESPONDENT N0.6 DEFENDANT N0. 2 6. ..'•'" Santosi Bai, W/o Pyarelal Dahariya RESPONDENT N0.6 DEFENDANTNO. 3 Laxman Kumar, S/o Dwarika Prasad, Guardian Santosi Bai Respondent No.6 and 7 , both resident of Village - Parsada, Post - Nagdha, Thana - Nandghat, District - Durg, Parmanent Resident of Village Nawagaon, Tehsil - Bilha, DJstrict -Bjlaspur(C.G.) MISCELLANEOUS APPEAL UNDER SECTION173 OF THE MOTOR VEHICLE ACT. 1988 -% '^s^-% j '^^ ^-^ ^;'^%ri^ ^ (S) HIGHCQURTQFCHHATTISGARH.BILASPUR DB: Hon'ble I. M. QUDDU8I & Hon*ble G. MINHAJUDDIN, JJ APPELLANTS: RBSPQNDBNTS: M. A (C) No.563 72008 ** IFFCO TOKIO GENERAL INSURANCE COMPANY LIMITED Vs. Srat, Agaa Bai aad ofhers MISC. APPBAL UNDER SECTION 173 OF THB MOTOR VEHICLBS ACT.1988 Appearsuice: Mr. Vikrant Siagh, counsel for fhe appellant. ORAL ORDER (22.07.2011) Per I.M. QUDDUSI. J. 1. This appeal has been filed by fhe Insurance Coinpaay agaiast fhe tmpugned award dated 13.07.2007 passed by the VI Additional Motor Accident Claiois Tribunal Bilaspur, Distt, Bilaspur, Chhattisgarh in Claim Case No.35/2006 so fai' as it relates to fasteniag of liabiUty to pay coinpensation upon fhe AppeUaat. The appeUaat had also got permission u/s 170 of fhe Motor Vehicles Act to challenge fhe quaatuin also. 2. Brief facts of fhe case as per fhe version of fhe clamiants are that on 02.08.2004 at about 4.00 p.m. Dwarika Prasad had gone to fhe field of Virendra by driviag fhe tractor bearing Regn.No.C,G.04-D/6326 belonged to respondent no.5, where the Tractor tumed turfle due to inechaiiical defect ia flie Tractor, as a resiilt of which, driver Dwarika Prasad was crushed under fhe Tractor aad died. At the ttme of accident he '^•'^. J7 was aged about 30 years. He was eaming Rs.12000/- by drivmg fhe tractor. The claunants beiag dependents/legal representatives have filed cladra petition u/s 163-A offhe Motor Vehicles Act, for fhe award of total compensation of Rs.26,92,000/- on vadous heads. Leamed Clauns Tribunal havmg regard to fhe facts situation aad inaterial aad evidence on record, held fhat on 02.08.2004 Dwanka Prasad died whUe usiag Tractor beanng No.C.G.04" D/6326 aad haviag thus held, it has awarded a total compensation of Rs.4,30,000/- wifh mterest @ 9% per aanum which the claimaats/respondents 1 to 4 as also respondents 6 & 7 are entifled to receive froin fhe appeUaat aad respondent no.5 jouitiy aad severaUy. We have perused ftie lower Coiirt records as well as fhe impugned award, Wifh regard to liabillty part, learaed counsel for fhe appeUant has subndtted fhat siace the Tractor tumed tiulle, the legal heirs offhe driver cannot claun coinpensation u/s 163-A ofthe MVA aad further tiie deceased was driviag fhe Tractor of his fafher aad he has stepped into fhe shoes of fhe fatiier, fliereforc, appUcation u/s 163-A was not mLabitamable. So far as it relations to fhe contention fhat tiie deceased was driviag fhe tractor of his fafher, it appears fhat fhe deceased was engaged by ftie faftier to drive the Tractor aiid it has conie on evidence that he was gettiag reinuneration for fhat. Therefore, tf fhe Tractor belonged to the fafher of fhe deceased, it caanot be said that he caoiiot get employment/ engagement of his fafher. Instead of getting employment elsewhere he preferred to J?^ 6. get fhe einploynient under his fafher. The iatention was to eam fhe aaiount by driving ftie Tractor aad his father engaged liim who was fhus eamiag as he was havuig his fuU-fledged family aad was not dependent upon his fafher. In view of fhe above, tlie prmciple that ftie deceased has stepped into fhe shoes of fhe owner would not be appUcable ia the iastaat case. Learaed counsel further contends that that fhere was own negUgence on fhe part of fhe victmi (deceased). In case of Deeped Qirishbai Sani Vs. United India Insureince Convpeuiy LtAy (2004) 5 SCC 38S, a three judge bench of Hon^ble the Suprenie Cozirt has laid down ia Para 66 fhat "section 163-A offhe Act covers cases where even negUgence is on fhe part of ftie victmi. It is by way of an exception to Section 166 and fhe concept of social justice has been duly taken care of.w Therefore, boffci fhe contentions are not sustauiable. Now we conie to titie quantuia part. The deceased iacoiae has been assessed as Rs.3000/- per inontii by fhe Clamis Tribunal. It is necessary to be noticed fhat in ftie iastaD^t case, Second Schedxile appended to ttie Motor Vehicles Act, 1988 woiild be appUcable but fhe Clainis Tribunal has not foUowed fhe second schedule m decidiag fhe quaatum. Therefore, we are of fhe opiaion fhat the matter requires recalculation ia accordaace wifh fhe second schedule, The Tnbunal has assed the inonfhlv iacorae as Rs.3000/- per inontii and fhus fhe aanual iaconie coraes to Rs.36,000/- which tiie learaed counsel for the appeUaat does not dispute, After deductiag l/3rd towards personal aad Uving expenses, fhe reniuider i.e., loss ofaanual dependency comes to Rs.24,000/-. Accordmg to fhe Second Schedule, multiplier 17 would be applicable for ftie persons between fhe age group of 31-35 years and fhe deceased was certainly below 35 years aad above 30 years. Therefore, on multiplyiag multipUer 17, fhe total loss ofdependency comes to Rs.4,08,000/-. Besides this, the claimants wiU be entiUed to get Rs,2000/- for funeral expenses aad Rs.2500/- for loss of estate aad thus after adding Rs.4500/- under the other heads, fhe total amount of compensation comes to Rs.4,12,500/-. Therefore, fhe awaid ofthe Tribmial i.e., Rs.4,30,000/- is Uable to be aad is hercby rcduced to Rs.4,12,500/-. This award shall also cany mterest @ 6% per aanum from the date of filuig of the claim application tiU its payment is made. In fhe result, fhe appeal is allowed in part. The impugned award dated 13.07.2007 is modi&ed to the above extent. No Rao order as to cost. ^L Sd/- LM.Quddusi Judge Sd/- G. Minhajuddin Judge