HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, Misc. Appeal (Cl No.930 of 2009 APPELLANTS : Smt. Satrupa Baghel and others. RESPONDENTS VERSUS Dakeshwar and others. Misc. Appeal (Cl No.931 of 2009 APPELLANT : Smt. Rajmotin Bai and others. RESPONDENTS VERSUS Dakeshwar and others. ORDER ForPronouncementofOrder 99 .02.2011 Sd/- R.L. Jhanwar Judge ^/'C .02.2011 HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, iVI.A.fC)No.930/2009 APPELLANTS RESPONDENTS 1. Smt. Satrupa Baghel, W/o Shivnandan Baghel, aged about 25 years, 2. Satyam Baghel, S/o Late Shivnandan Baghel, aged about 04 years. 3. Sameer Baghel, S/o Late Shivnandan Baghel, aged about 01 year 6 months. 4. Smt, Janki Baghel, Widow of Late Kanhaiya Baghel, aged about 65 years, Appellants No.2 and 3 are minor, through their natural guardian mother Smt. Satrupa Baghel, W/o Late Shivnandan Baghel (Appeliant No.1) All are R/o village & Post Markatola, P.S. Korar, Tahsil and District Kanker (C.G.) Versus 1. Dakeshwar S/o Haial Ram Nishad, aged about 21 years, R/o Village & Post Markatola, P.S. Korar, Tahsil and District Kanker (C.G.) 2. Ghasiya Ram S/o Dhansai Nishad, aged about 45 years, R/o Village Khartha, Post Khartha, P.S. Charama, District Kanker (C.G.) 3.(A) Smt. Ramotin Bai, wife of Sadhwa Ram Thakur, aged about 60 years. (B) Dharmendra Kumar S/o Sadhwar Ram Thakur, aged about 23 years, (C) Devendra Kumar S/o Sadhwa Ram Thakur. aged about 19 years. No.3 (A) to (C) are R/o Village Bhanbeda, Tahsil Bhanupratappur, District Kanker (C.G.) 4. The Oriental Insurance Co. Ltd., Through : Branch Manager, Branch Office near Adarsh Bal Vidya Mandire, behind Amar Talkies Dhamtari, Tahsil & District Dhamtari (C.G.) 5. Reliance General Insurance Co. Ltd. Through : Branch Manager, Branch Office7shop No. 412413, 4{fi Floor, Ravi Bhawan, Jai Stambh Chowk, Raipur, Tahsil and District Raipur (C.G.) M. A.fCl No.931/2009 APPELLANTS RESPONDENTS ^ 1. Smt Rajmotin Bai, Wife of Keju Ram Sahu, aged about 39 years. 2. Keju Ram Sahu, S/o Ramadhin Sahu, aged about 42 years. All are R/o Viilage & Post Markatola, P.S. Korar, Tahsil and District Kanker (C.G.) Versus 1. Dakeshwar S/o Halal Ram Nishad, aged about 21 years, R/o Village & Post Markatola, P.S. Korar, Tahsil and District Kanker(C.G.) 2. Ghasiya Ram S/o Dhansai Nishad, aged about 45 years, R/o Village Khartha, Post Khartha, P.S. Charama, District Kanker (C.G.) 3.(A) Smt. Ramotin Bai, wife of Sadhwa Ram Thakur, aged about 60 years. (B) Dharmendra Kumar S/o Sadhwar Ram Thakur, aged about 23 years, (C) Devendra Kumar S/o Sadhwa Ram Thakur, aged about 19 years. No.3 (A) to (C) are R/o Village Bhanbeda, Tahsil Bhanupratappur, District Kanker(C.G.) 4. The Oriental Insurance Co. Ltd., Through : Branch Manager, Branch Office near Adarsh Bal Vidya Mandire, behind Amar Talkies Dhamtari, Tahsil & District Dhamtari (C.G.) 5. Reliance General Insurance Co. Ltd. Through : Branch Manager, Branch OfRce, Shop No. 412413, 4 Floor, Ravi Bhawan, Jai Stambh Chowk, Raipur, Tahsil and District Raipur (C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 Appearance: Shri U.P.S. Sahu, Advocate appears on behalf of Shri P.P.Sahu, counsel for the appellants (in both the appeals). Shri D.N.Prajapati, counsel for respondents No.1 & 2. None for respondent No.3. Shri A.K.Athaley, counsel for respondent No.4 Shri S.S.Rajput and Ms. Renu Sjngh, counsel for respondent No.5 ORDER (Passedon2%.02.2011) These appeals have been filed under Section 173 of the Motor Vehicles Act, 1988 against common award dated 20.04.2009 passed by the Motor Accidents Claims Tribunal (F.T.C.) Bhanupratappur. Dist. North Bastar whereby in Claim Case No.14/2008 the Tribunal awarded total compensation of Rs.1,65.000/- and in Claim Case No. 23/2008 a sum of Rs.1,95.000/- as totel compensation has been awarded. 2. Since M.A.(C).No.930/2009 and M.A.(C).No.931/2009 are arising out of same accident which took place on 12.03.2008, they are being disposed off by this common order. 3. The facts briefly stated are that on 12.03.2008 at 10.30 due to rash and negligent driving by its driver - Dakeshwar, tractor bearing No. C.G.04 DB 2746 and trolley bearing No.M.P.23 GB 1361 (for short 'offending vehicle') met with an accident by turning turtle, as a result of which, Gautam Sahu and Shivnandan, who were travelling along with other labours in offending vehicle, died on the spot when they came beneath the trolley. 4. On account of death of Gautam Sahu, daimants being parents of the deceased, preferred a claim petition seeking compensation of Rs.12,25,000/- on various heads pleading that he was, on the date of accident, was 19 years and was earning Rs.150/- per day by doing labour work. Similariy, on account of death of Shivnandan, claim petjtion was preferred by the legal representatives of Shivnandan seeking compensation of Rs.14,25,000/- pleading therein that the deceased, on the date of accident, was 28 years and was earning Rs.150/- per day by doing labour work. 5. The respondents No.1 to 3 by filing their written statement admitted that respondent No.1 is the driver of the offending vehicle, respondent No.2 is the owner of tractor whereas respondents No.3 (A) to (C) are owners of trolley. However, they denied all the averments as pleaded in the daim petition. Likewise, respondents No.4 & 5 by filing their written statement admitted that they are insurers of tractor and troiiey respectively; the trolley was being used for non-agricuitural purpose on the date of accident and that the driver was not hoiding vaiid and effective driving licence, while denying al! the averments as averred in the claim petition. ^ 4 6. All the parties led their evidence and the learned Ciaims Tribunal has, on close scrutiny of the evidence and material placed and also respective submissions made by the parties, awarded a sum of Rs.1,65.000/- in favour of the claimants for the death of Gautam Sahu in the motor accident in Claim Case No. 14/2008 so also awarded a sum of Rs.1,95,000/- in favour of claimants in Claim Case No. 23/2008. The Tribunal fastened the liability on respondents No.1,2 and 3 (A) to (C) for payment of compensation along with interest at 6% p.a. from the date of filing of claim petition till its realization while exonerating the insurance companies. As the respondents - owners and insurers have not preferred any appeal, the findings recorded by the Tribunal have now attained finality. 7. Not being satisfied by the compensation awarded by the Tribunal, the claimants preferred appeals for enhancement ofcompensation. 8. In both appeals for enhancement, learned counsel for the appellants argued that the learned Claims Tribunal has erred in assessing the annual income ofthe deceased at Rs.15.000/- whereas it should be at Rs.36,000/- because the accident took place on 12.03.2008. In catena of decisions, this Courtand the Apex Court, with the aid of Second Schedule to Section 163A of the M.V.Act, took the notional income of Rs.36,000/- per year. He further argued that taking into account the notional income of Rs.36,000/-, the compensation awarded by the Tribunal may be enhanced. No other point was urged. 9. On the other hand, learned counsel for the respondent-owners while arguing that the learned Tribunal has rightly fixed the annual income of the deceased, submits that in M.A.(C).No.931/2009 (Claim Case No.14/2008) the claimants are mother and father, and therefore, the multiplier of 15 adopted by the leamed Tribunal is on higher side whereas it should be 10 in the light of decision rendered in the matter of Municipal Coiporation of Greater Bombay v. Laxman lyer and another, (2003) 8 SCC 731 wherein the Apex Court held that in those cases where the claimants are the parents of the deceased, the multiplier should never exceed 10. So far as M.A.(C).No.930/2009 (Claim Case No.23/2008) is concerned, learned counsel argued that the compensation av^rded by the Tribunal is on higher side and accordingly urged that compensation may be reduced. ..<r 10. I have heard learned counsel for the parties and perused the records of the Tribunal including impugned order. 11. In order to appreciate the arguments advanced on behalf of the parties, 1 shall now consider the case for enhancement. In Claim Case No.14/2008 although the claimants had pleaded that the deceased person was earning Rs.150/- per day without there being filed any document - thereof, but the Tribunal held that where there js no documentary evidence on the point of income, there it would be appropriate to take notional income and accordingly the Tribunal assessed the notional income of the deceased as Rs.15,000/-. The approach of the Tribunal does not appear to be reasonable. When the evidence led by the parties was not clinching on the point of income, the Tribunal ought to have taken recourse to the notional income prescribed in the year 1994. The accident in which the deceased person lost his life took place in the year 2008. If the increase in the price of essential commodities and the cost of living between the years 1994 and 2008 is taken into consideration, the notional jncome of Rs.15,000/- prescribed in the year 1994 would come to Rs.36,000/- in the year 2008. 1 therefore, propose to recompute the compensation taking the income of the deceased person at Rs.36,000/- per annum. The Tribunal deducted one-third of the annual income, 1 am of the considered opinion, deduction should be one-half looking to the fact that the claimants are parents of the deceased. By deducting % of Rs.36,000/- - towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.18,000/-. 12. The Tribunal has applied multiplier of 15 which is on higher side. Considering that the age of the deceased and that the claimants are mother and father of the deceased, 1 am of the opjnion that the multiplier of 10 would be appropriate in the light of decision rendered in Municipal Corporation of Greater Bombay v. Laxman lyer and another, (2003) 8 SCC 731. By multipl^ng the annual dependency of Rs.18000/- with the multipljer of 10, the dependency is worked out to Rs.1,80.000/-. Further by adding a sum of Rs.15000/- under other permissible heads as awarded by the Tribunal, the claimants in Claim Case No.14/2008 would be entitled to receive a total sum of Rs.1,95,000/~ as the amount of compensation on account of death of deceased Gautam Sahu. 13. The Tribunal has awarded a sum of Rs.1,65,000/-, therefore, the claimants would get Rs.30,000/- more. Considering all the relevant factors including the delay in disposal ofthe claim petition and the present appeals as also the fact that the owner alone is not to be blamed for the delay in disposal of the matter, I quantify the amountof interest payable on the enhance amount of compensation of Rs.30,000/- at Rs.2000/-. Therefore, the compensation of Rs.1,65.000/- awarded by the Claims Tribunal in Claim Case No.14/2008 is enhanced by Rs.32,000/-. The claimants are entitled to receive Rs.32,000/- more, in addition to compensation of Rs.1,65,000/- as awarded by the Tribunal. 14. As regards Claim Case No.23/2008, the daimants are unfortunate wife, children and mother of the deceased Shivnandan. In thls case also, the claimants pleaded that the deceased was earning Rs.150/- per day. However, no clinching evidence on the point of income of the deceased could have been produced by the daimants. In this connection, the Tribunal held that where there is no documentary evidence relating to exact income of the deceased person, there it would be deemed to take notional income as Rs.15,000/- and accordingly assessed as such. Thereafter, by deducting one-third towards personal expenses of the deceased, the Tribunal worked out annual dependency of the claimants at Rs.10,000/-. By multiplying the annual dependency of Rs.10,0007- with 18, the total dependency was worked out by the Tribunal as Rs.1,80,000/- and thereafter by adding Rs.15000/- under other permissible heads, the total compensation was worked out to Rs.1,95,000/-. The approach of the Tribunal in taking notional income of Rs.15,000/- appears to be unreasonable. Taking into account the year of accident 2008 and If the increase in the price of essential commodities and the cost of living between the years 1994 and 2008 is taken into consideration, the notional income of Rs.15,000/- prescribed in the year 1994 would come to Rs.36,000/- in the year 2008. Accordingly, I propose to recompute the compensation taking the income ofthe deceased pereon at Rs.36,000/- per annum. If one-third is deducted towards personal expenses of the deceased, the annual dependency would come to Rs.24,000/-. Taking jnto account the age of the deceased, on the date of incident, was 28 years, multiplier of 16 is appropriate instead of 18. By multiplying the annual dependency of Rs.24,000/- with multiplier of 16, total loss of dependency would come to Rs.3,84,000/- and by adding Rs.15,000/- under other permissible heads, the total compensation would come to Rs.3,99,000/-. 15. The Tribunal has awarded a sum of Rs.1,95,000/-, therefore. the claimants in Claim Case No.23/2008 would get Rs.2,04,000/-. Considering all the relevant factors including the delay in disposal of the claim petition and the present appeals as also the fact that the owner alone is not to be blamed for the delay in disposal of the matter, 1 quantify the amount of interest payable on the enhance amount of compensation of Rs.2,04,000/- at Rs.16000/-. The claimants are entitled to get Rs.2,20,000/-, in addition to compensation of Rs.1,95,000/-. 16. As regards exoneration of insurance companies in both the cases from its liabilify to pay compensation, since it has come in the evidence that the offending vehicle was being used for non-agricultural purpose in breach of terms and conditions of the policy of insurance and that respondents No.1 to 3 (A) to (C) did not rebut anything on this point, the leamed Tribunal has rightly held the said respondents liable for payment of compensation while rightly exonerating the insurance companies from its liability. 1 am of the opinion that the Tribunal did not commit any error in exonerating the insurance companies from liability to pay compensation. 16. In the result, the appeals filed by the claimants for enhancement are allowed in part in the following terms: i) The respondente No. 1 to 3 (A) to (C) shall be liable to pay the enhanced compensation of Rs.32,000/- in M.A.(C).No.931/2009 and Rs.2,20,000/- in M.A.(C) No.930/2009. ii) The aforesaid respondents are granted three months time to deposit the aforesaid enhanced amount of compensation in the concerned Tribunal, failing which, they shall be liable to pay further interest at 6% p.a. on the enhanced amount for the period commencing after completion of 3 months' time till its realization. iii) There shall be no order as to costs. R.L. Jhanwar Judge \