(£) IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL FC1 N0. S^ S /gOfp) ^ol^ MISC. APPEALUNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 , BaVJsiQss B^,^ APPELLANT INSURER RESPONDENTS CLAIMANTS ICICI Lombard, General Insurance Gompany Limited, Registered office: ICICI Bank Towers, Bandra- Kurla, Complex, Mumbai, 4000 51, ..•° through its Legal Manager, ICICI tombard General Insurance Company Limited Lal Gdnga Shopping Mall, 3rd Floor, G.E. Road, Raipur (C.G.). VERSUS 1. Smt. Kamlesh Dhruv, W/o Devendra Kumar Dhruv, aged 38 years, 2. Ku. Tuneda Dhruv, D/o Devendra Kumar Dhruv, aged 16 years, 3 Chitesh Kumar Dhruv S/o Devendra Kumar Dhruv, aged 15 years, 4. Ku. Yamini D/o Devendra Kumar Dhruv, aged 9 years, 5. Tomar Singh Dhruv S/o Late Dular Singh Dhruv, aged aboyt 69 years, 6. Smt. Basanti Bai W/o Tomar Singh Dhruv, aged about 65 years, Respondents/claimants No. 2 to 4 are being minor represented though mother Smt. Kamlesh Dhruv, All R/o village - Amdi, Post SB P.S. - Gariyaband, District - Raipur (C.G.) ^- Present address - Irrigation Colony, Tilda, Police Station - Nevra, District - Raipur (C.G.) DRIVER OWNER 7. Om Prakash Sahu, S/o Ram Khilawan Sahu, R/o Bhatapara Chowk, Hirmi, P.S. - Suhela, District Raipur (C.G.) 8. Smt. Dhan Bai W/o Ramkhilawan Sahu, R/o village Rimi, Post - Hirmi, P.S. - Suhela, District - Raipur (C.G.) APPEAL VALUED AT RS. 15,21,500/- <!-" SlGEt COORT OF GaHATaiSOARH AT BUAapUR M.A. (Cl N0. 568 0^.2011 APPEUANT/ INSURER RBSPONDBNTS ICICI Loiubaid Geuei-al Iiisui-aiice Company Ijmited Versus Smt. Kamlesfa Dfaruy and ofhers. APPEAL UNDBR SBCTION 173 OF TIBB MOTOR VEmCLES ACT. 1988 D.B.: Hon'ble Shri IJtt. Ouddusi & Hoa'ble Shri G. malka^uddln. JJ. Present: Shri Sourabh Sharma, counsel for tfaeappellant , Shri Satyendra Sahu, coiinsel for respondents Nb.l to6. None for respondetits No. 7 & 8 though served. OVtAiOKDSSt (Passedon01dayofSeptember,2011) , Thls appeal has been flled by (he appellant/ Insuraace Company against the award impugned dated 05-10-2010 passed by the Flrst Addltional Motor Accident Clalms Tribunal, Raipi-u- (for short fhe Claims Tribiiaal^ in Clalm Case No. 12/2010, In so far asit relates to quantum part only. 2. The appellant/Insiirajiice Compaay was graated permission undei' Section 170 cfthe Motor Vehicles Act. 3. Brief facts of the case accoi-du^ to claimants ate that elalmaat/respondent N.o. 1 1s fhe wife, respondents No. 2 to 4 ai'e mii-ior children and clalmants/respondents No. 5 & 6 are pai-ents of (he deceased Devendra Kwnar Dhruv respecth?efy. On 12-11-2009 at 11-45 a.m., DCTendra Ki.uuar Dhruv was standii^; beslde tfae road alongwith Ws motorcycle bearing reglstration No. C.O. 04-A/9'739. At fhat time, respondent No.7 who was drlviog (he offfemUng vehicle (Tractor) beai'li^ re^lstratlon No. C.G.04-DA/6524 \ .rfi&t ^s^ % 1 Ssggpil g '-•-^sS^'" Y, ^ *' i"' -f-1' ./ *^.. 'v^/ ':y "'tc^n ...sfr' in a rash and ne^^ent manner dashed Deveadra Kufflai' as a result of which he sustalned grievous iajurles and died on (he spot 4. The clalmants beix^ legal helrs ofthe decea^sd have filed a petltion under Section 166 of'fhe Motoff Vehlcles Act (for short fhe Acf) before fhe CIaims Tribuoal claunli^ a total compensation of Rs.23,64,000/- for (he death of fhe deceased. 5. Learned Claims Trlbuaal on a close scruticy of evideace led, material placed and submlssions made by the parties, bas awarded a sum of Rs.l5,21,500/-along wlth interest @ 6% per annum. 6. We have heanl learned counsel foc fhe parttess and perused (he records of the Claiins Trlbunal as well as Ifae Impugned award. 7. The learned Tribunal should hawe consldered the fact (hat one of (he dependents of fhe deceased was gwen compasslonate appomtment 8. Iu Uic case of Bhufcra B«»Munagmawrf jBourd? »s. JCunta Jkj®ura»c((^mt.) and trfhws; I'epoiled iu (2008) 11 SCC 366, HonWe fhe Apex Court has hdld In paras 13 and 14 as uader. "13. Leamed counsel for the respondent supported the Judgment and additlonaUy submltted that appeal of Respondent 1 1s penduig. In normal couTse,whea twoappeals are directed against ftie couunon jud^uient, both tfae appeals should be heard by the same Bench of tfae Hlgh Court. But we find fhat ttie High Coml had lost slght of (he fact (hat the benefits whlch the claimant receives on account of the death or kyuiy have to be duly : ^•-•—f'';'^ considered whlle flxing the oom^nsation. It 1s pointed out that Respondent 1 was gettiag Rs.4700/- p.m. and a resldence bas been provided to her and actuaUy ttie compassfonate appolntment was gwen Immediately after thc accident. 14. In vlew ofwhat has been stated abewe, the Higb Court'sjudgment Is cleariy iinsustakiable. However, fhe acddent took place more fhan 14 years back and it would riot tie desirable to send the matter back to the Trlbuaal for fl-eA consldei'atlon. A sum of rupees flve lakhs lias been deposlted vlde fhls Court's order dated 1-11-2004. We are ofthe considered vlew that in vkw of fhe bad!%round facts, tt 1s just and proper tfaat fhe sum of rupees five lakhs already deposited shaU be permltted to be withdrawn by fhe clauiiaats in flall and fiiial settlement ofthe daim relatable to the deattoof ttie deceased. It 1s for the Tribunal to fix the quaiitum of fixed deposit and the amount to be released to the clalmants". 9. In view of the above, we are of the opinlon that (he matter requlres recoiKideratlon at the end of tee Clalms Tribunal 1'eganllng quaiitum part onfy. Therefore, we aHow tlie appeal In part, set asjde the award ifflpx^gned and remlt the matter back to (he CIalms Trlbunat for decision afiresh regardlng quantum, in the U^itofthe law laid down by Hoiible llie Apex Coui-l ui llie case of Wudcra. Bsas Mcmaownent Bowdfsiyfrs^. 10. Needless to mfintion thafe fhe perties shaU be provlded opportunily to adduce ftuther eridence if aay,. In respect of fhe quaatum part and shafl decide the same aJ&^esh as directed m the above terms. 11. The parties shall appear before the CSaims Tribunal on 12-10-2011. The records ofthe Oaims Trlbuual stiaU be sent back without any further delay. 12. The amouat whlch bas already been dtebursed to the claimants shaU not be recovered and shall be subject to the declslon of (he Trlbunal afi'esh. 13. We have been informed that vide order dated 13-05- 2011, it was directal by granttog interim order (hat 50% of fhe amount tovolved in fhe Impugiied award shaB be deposlted but the same has not been deposlted so te/ Accordlr^ to learned counsel for fhfi respctodente, before proceedii^g for bjearlng, It was necessajy for the appellssit to deposit the acaount as fhe claunante were at Ilberty to wlthdraw fhe sald amount 14. Since It 1s a matter cf decidlng tiie questlon af quantum, Iffhe daimants get 50%^the amount awarded and remalnmg 50% is subject to tfae fhssh decislon, the Insurance Company would not be Uable to pay Interest on 50% of fhe amount. Therefore, they shoiild have deposlted (he said ainount to avold the payment of interest They shduld make Gompliance of fhe order dated 13-05-2011, before the date fixed for appearance. 15. No order as to costs. Sd/- I.M.Quddusi Judge Sd/- G. Minhajuddin Judge Kw