p^[i IN THE HIGH COURT OF JUMCATURE AT BILASPUR M.A. (c) N0. ' Llo5 OF 2011 APPELLANTS: /(Non-applicant Nos.l &2) \Q^\^^yy '""^^ ^^ s-^"~ ^f» ^!l--^i' X^'^ RESPONbENTS: (Claimants) Non-applicant No.3 ^^ ,»^s&- ^M^ Vs ^' ^ -^ .1. Lalit Chandrakar, son of Baldau Chandrakar, agd about 22 years, resident of Village Kanharpuri, Tehsil & District Mahasamund (CG). 2. Bharat Lal Chandrakar, son of Harilal Chandrakar,aged about 32 years, resident of Purani Basti, Mahasamund, Tehsil <& Distt Mahasamund. 1. Smt. Kumari Bai, widow of Late Chumman Lal Yadav, aged about 25 years. 2. Rikhiram, son of Late Chumman Lal Yadav, aged about 03 years. 3. Tosh Kumar, son of Late Chumman Lal Yadav, aged about li years. No.2 & 3 are minors through their natural guardian mother- Smt. Kumari Bai, widow of Late Chumman Lal Yadav, aged about 25 years. 4. Swaroopram, son of Brijlal Yadav, aged about 48 years. 5; Satibai, wife of Swaroopram, aged about 42 years All residents of Village Kanharpuri, Tehsil & District Mahasamund (C6) 6. The~New India Insurance Company Limited, Madeena ESuildiag, Raipur ^ ^ v^^ V^l^JI,^^ -kc^ ^l^^ fe- 3,o%oj .;- MISCELLANEOUS APPEAL UNbER SECTION 173 OF THE MOTOR VEHICLE ACT. 1988 n ''' .^"'^ '~^. ' ^^-—'Sl. ''^;, €'.1. I tsfiia^ s '•-Sii^^^-'"'""^^ ':1 ^T HI6H COURT OF WHATTiSGAW AT BILASPUR MVISION BENCH: HON'BLE MR. I.M.QU&bUSI & HON'BLE MR.6ULAM MINHAJU&DIISL i.A. [C] No.405/2011 Lalit Chandrakar & others Vs Smt. Kumari Bai &. others Mr. &.K. Tiwari, Advocate for the appellants. . fAr. J.A. Lohani, Advocate for the respondents No.l to 5. Mr. S.K. Agarwal, Advocate for respondent Nos.6. ORDER (Oral) sth c (13m September. 2011) I,M. Quddusi. J: 1. Hear-d. 2. The appellants-owner <& driver of the offending vehicle, have filed this miscellaneous appeal against the award dated 18.01.2011 passed by the learned 1 Motor Accident Claims Tribunal, Mahasamund (for short 'the Claims Tribunal') in Claim Case No.66/02. 3. Facts of the case, as projected in Para-3 of the impugned award, are that on 11.03.2002 deceased Chummonlal was retuming from Kanharpuri to Onkarbandh by motorcycle bearin9 registration number MP23-M-6728. l-1e was traveling as pillion rider. The appellant No.l, due to rash and negligent driving, hit tiie said motorcycle against the rock lying on the culvert as a result of which the deceased sustained grievous injury on his head. He was taken to the Medical Coliege Hospital, Raipur for treatment where he died on 12.3.2002 while undergoing treatm^nt. Report of the incident was lodged in the Police Station Mahasamund. The claimants, who are widow, children and parents of deceased Chummanlal Yadav, have filed a claim application before the Claims Tribunal seeking compensation to the tune of Rs.9,20.000/- for the death of said Chummonlal on the 9round that they were dependent on the deceased, who-was 1+ie sole earnin9 member in the family, and due to his death, they have suffered loss of income. f \ -/ 4. The Claims Tribunal vide impugned award partially allowed the claim application, awarded a sum of Rs.3,08,000/- along with 8% simple interest per annum as compensation to the claimants and fastened liability upon the appellants herein to satisfy the impugned award. 5. Learned counsel for the appeilants has submitted that a plea was taken in the written statement that the deceased -himself was driving the motorcycle belonging to the appellant No.l and the said vehicle was taken by the deceosed without permission of the appellant No.l, but the Claims Tribunal has overlooked the said plea and fastened liability upon the appellants herein. Referring to the decision of the Hon'ble Supreme Court delivered in the matter of State Bank of India & others Vs. S.N. Soyal reported in (2008) 8 SCC 92 it has been argued that since the insurance company had not taken a plea in its written statement that the insurance policy was an 'act policy' onty and wos not a comprehensive policy, the poiicy should have been treatsd as comprehensive policy and the pillion rider should have been covered under the insurance policy. 6. On the other hand learned counsel for the respondents have supported the impugned award. 7. We have heard learned counsel for the parties. We have also perused the records of the Claims Tribunal. 8. Perusal of the record shows that the oppellant No.l, who is owner of the motorcycle-in-question, had not appeared in the witness box to prove his case. Lachchuram (AW-2) hoss stated in his statement that on the date of accident, Lalit & Chumman were going by the motorcycle. Lalit was drivin9 the motorcycle. ©endramNirala (AW-3), who is Clerk of an advocate, has informed registration number of the motorcycle in his statement and also specifically stated that he had seen the accident. l-1e has further stated that Tikeshwar told me that appellant No.l herein was driving the motorcycle. In -ttie first information report also, although it was lodged after three days of the accident, the dppellant No.l was shown as driver of the nnotorcycle in question and therefore the potice after completion of inyestigation filed char9e sheet against the appellant Nd.l under Section 173 of Cr.P.C. Further perusal of the records show that there is no denial on behalf of dny of -tfie parties that in the present the insurance poiicy is noton 'act policy'. 9. It is true that in the matter of State Bank of India (supra) the Hon'ble Supreme Court in Para-19 has held that in absence of necessary pleadings and issue, neither the trial court nor the appellate court could have considered the contention and recorded a finding thereon. But, the facts of present case are entirely different from the facts of above cited case as in the instant cass the insurance policy available on record remained undisputed. The appellonts have not disputed the policy rather retied upon it and therefore there was no issue to the effect that whether the policy available on record was the only insurance policy or some other policy was also there. Thus, if the Claims Tribunal has yven its finding on the basis of the insurance policy available on record, we feel that it hds not committed any error in law as it is wetl settled law that admitted documents need not be proved and thereafter there was no need to frame any issue as the issues are framed only in respect of disputed facts. 10. On the basis of above, it connot be said that the appetlant No.l was not driving the motorcycle on the date of accident or that risk of pillion rider was covered under the insurance policy and therefore the appellants are not liable to pay any compensation to The claimants. 11. At this stage, learned counsel for the appellants has submitted that the amount awarded to the claimants is not in accordttnce with the law laid down by the Honble Supreme Court in the matter of Sarla Verma (Smt.) and others Vs. Delhi Transporl- Corporation & another report-ed in (2009) 6 SCC 121. 12. Considering the submission made by learned counsel for the appellants, we have examined the method adopted by the Claims Tribunal to fix the compensation and found that the multiplier opplied by the Ciaims Tribunal is not proper and use of multiplier of 17 in place of 18 would be proper because as decision of the Hon'ble Supreme Court in the matter of Sarla Verma's case (supra) for the age group of 25-30, multiplier of 17 is opplicable. Further, the amount awarded by the Claims Tribunal towards funeral expenses is not in accordance with the Second Schedute provided under Section 166 of the Act, 1988. 13-Thus, if we apply multiplier of 17 to the annual income of the deceased i.e. Rs.16,000/-, as assessed by the Claims Tribunal, the total loss of dependency would come to Rs.2,72,000/- (240QO-l/31'dxl7). Besides this, the claimant No.l is entitled to get Rs.5,000/- towards ioss of consortium, the claimants are entitled to get Rs.5,000/- towards toss of estate ond Rs.5,000/- towards funeral expenses. Thus, in all, the claimants are entitted to get fts.287000/- (272000+15000) as compensation from the appellants herein for the dea'th of deceased Chummonlal Yadav. 14.In the result, the appeail preferred by the appellonts is partly allowed. The impugned award is modified to the extent that now the claimants shall be entitled to receive a sum of Rs.2,87,000/- as compensation instead of Rs.3,02,000/- as awarded by the Claims Tribunal. They shall also be entitled to receive simple interest © 8% p.a. from the date of filing of application till actual payment is made. Rest of the conditions of the impugned award are intact. No order as to costs. Sd/- l.M.QU(^du Judge roshan s^^ o.^'