"vy «^, -r-" ^^sw? 's£"^A<^ V^ ?- ^. v ^ l^^^ INTHE HZGH COURT OF CHHATTISGARH AT BILASPUR. MISC. APPEAL r0 JWO. ^ ' ^ OF 2008 APPELLANTS Driver & Owner ^,.^^g^ ^^ ...^ 1. Shanker Lal, S/0 Shyamlal Dansena, aged about 34 years, R/0 Village- Tharakpur, Tahsil Gharghoda, District- Raigarh/ (C.G.) Dhoba Lal, S/0 Dhan Singh Dansena, aged about 46 years, R/0 Village- Tharakpur, Tahsil- Gharghoda, District- Raigarh, (C.G.) ^ VE RS U S RESPONDENTS CLAIMANTS INSURANCE CO. 1. Smt. Hemlata Dansena, Widow of Dharmendra Kumar Dansena. (Minor) Gulshan Kumar,S/0 tate Dharmendra Kumar Dansena, aged about 9 years. (Minor)Ku. Pushpa, D/0 late Dharmendra Kumar Dansena, Respondent No. 2 &3 through their natural Guardian Mother Smt. Hemlata Dansena, Widow of late 3. (J) Dharmendra Dansena. All are, R/0 Village- Tharakpur, Tahsil- Gharghoda, District- Raigarh, (C.G.) 4.^ Pyare Lal, S/0 Kanthi Ram, aged about 80 years, R/0 Village- Tharakpur, Tahsjl- Gharghoda, District- Raigarh, (C.G.) 5. , Smt. Sahodra Bai, W/0 Pyare Lal ..^ Dansena, aged about 75 years, R/0 Village- Tharakpur, Tahsil- Gharghoda, District- Raigarh, (C.G.) 6. The United India Insurance Company Limited, Branch Office Infront of Gopi Talkies, Raigarh, District- Raigarh, (C.G.) APPEAL UNDERSECTION 173 OF MOTOR VEHICLE ACT. C^) ft@sp©ndep»ts HI&H OF AT MR. I.M.QUDDUSI & MR.PM5H4NT JJ. m.A.Ecl Shanker Lal & another Vs Smt. Hemlata Dansena & others pr-®s.int:. Mr. Suni! Sahu, Advocate for the appeltants. ^lone for respondents No,l to 5 though served. Mr, H.B, Agarwai, 5r. Advocate with Mrs. Meera Jalswai, Advocate for the respondents No.6. (Oral) (9th March, 2011) I.M. Quddusi. J; 1. The appelfants-drjver & owner of offending vehicie haye fiied this miscellaneous appeai aqainst the impugned award dated 2Z3/2008 by the 1st Additional Motor Accldent CIaims Trjbuna!, Raiaarh (C6) (for brevit^ ithe CJaims TribunaD in Claim Case NoJ/2007 albwing the ciaim petition of the claimants/respondents NoJ to 3 herein and fastening Ijabiiity on the appeliants herein, JointJy & severally, to satisfy the impugned award. 2. Facts of the case, in brief, are that on 27.10.05 Dharmendra Kumar traveJinQ in the troiley bearinQ registration number C613-A-0833 attached' with the tractor bearing reqistration number C6i3~ A-0832, He goina towards Viiiage Tharakpur from Raigarh and when the tractor-troiiey reached near Mahamaya Tempie, Dipapara, RQigarh it turned turtle due to rash and negliaent dnvinQ of its drsver and as a resuit the was undcr it and on the due to injuries by him. Since at the relevant time, the said vehicle driven, owned and insured by the appeiiants herein and respondent No.6 respectjvely, therefore the claimants have fiied a claim application impteadjng them as non-appiicants and cbimed compensation to the tune of Rs.3l,00,0f00/" under varjous on the qround that th@ (S) •'^S.BS^' the onJy earning member in the family and 'tfiey were dependent on his earnings. 3. Leamed CJaiins Tribunal, after considerjng the issues framed by it and also the evidence brouQht on record by the parties, allowed the clQJm application of the ciaimants and awarded2 a compensatjon of Rs.4,90,800/- along with jnterest @ 7.5% p.a. ands saddled the appeiiants herejn with the iiability of payjng the amount inyofved in the impuaned award, jointly and several'ly. 4. Learned counsei for the appeJJGnts has submitted that fasteninq of itGbiijty on the appetJants is totaJly contrary to the evidence avajlabie on record as for the relevant period the vehicle in question was insured with the respondent No.6 for agriculturai purposes and at the time of accident, it being used for aQricuitural purposes and as such there was no breach of conditjons of insurance policy. Chalienge of the Qppelfants to the guantum of compensation is on the ground that monthly income by the Ciaims TribunaJ ss not jn commensuration with the material avaiiabie on record and ayen the multipfier appiied in the is not proper Jookina to the aqe of the deceased. 5. On the other hand, learned Sr< Counsel for respondent No.6 has supported the impugned award. 6. We have heard2 learned counsel for the parties and perused the records of the CJaims Tribunal as also 1tie impuQned award* 7. With reaard to the liabiJity fixed by the Ctaims Tribunal js concerned, jt is an admitted fact that the deceased traveling in the trolley attached with the tractor, whereas there was no sjttinq capacity In the trolfey and as such there breach of the conditions of insurGnce poJicy and therefore, the insurance company cannot be held iiabie to pGy compensation for thie death of the deceas@d\ It the total risk of the owner who Dermitted the to sit in the trolley where there was no sitting capacit^, Thus, we find that the Claims TribunaJ has rightly fixed the iiabifity upon the appeiiants herein. c3$) 8. So far as the quantum is.concerned, we have found that the Claims Tribunal has assessed the monthly income of 1+ie deceased as Ks<3000/~ L€. Rs.36,000/" p.a-, and after deducting 1/5 towards personal living of the deceased and Qpplying multiplier of 16, calcuhted the totai loss of dependency at Rs.4,60,800/-(36000-7200*16). However, in -^e instant case since the number of dependents are 5, The Claims Tribunal should have deducted 1/4T towards the personal iiving of the deceased a.s par decisjon of the Mon'ble Supreme Court in the matter of ycfws (Smf.) and othsrs -vs- oelhi Tr'ansport CofpGratwn and Qwther reported in (2009) 6 SCC 121. Further, age of the parents of the deceased was 80 & 70 years and it is but natura! that at the said age they were dependent upon their son and therefore also w©are of opinion that 1/4 deductjon towards persona.l iiving expenses of the deceassd w"u!d be pr-oper. 9- Th^refore. if we deduct l/4th from the annua! income of the i.e. Rs.36,000/- as assessed by the Cbims Tribunal, and appiied the multiplier of 16, as per decision of the Hon'ble Apex Court sn Sarla Vermtfs (supra), the ToTal ioss of dependency wouid come to Rs.4,32,000/- (36000" 9000 xl6). this, we are of the opinion that the widow of is entitled to get Rs.5000/- towards foss of consorti'um and minor chiidren & parents of the i\e< respondents No.2 to 5, are entitled for Rs.D.OOO/" towards of loye and affection. They are also entitled for Rs.5000/- towards funeral expenses and Rs.5000/- towards Joss of estate. Thus, they are entitled for a totaJ sum of Rs.35,000/- under other Qdmissjbie heads, Therefore, the tota! amount of compensatjon for which the cJaimants are entitied for is Rs.4,67,000/-°, whereas the Ciaims Tribunal has awarded Rs.4,90,800/na, which is excessive in our opinion and therefore the Jmpuaned award is liable to be modsif?ed. 10, Accordiiigly. the oppeal is aJbwed' jn part, the jmpuaned award is modified to The extent that now the claimants shall 'be entjtled for a sum of Rs.4,67,000/- as compensation instead of ft3.4,90,800/- as awarded by the Chjms Tribunal. The claimants shail also be entitied for sirriple interest © € ^^ ;,/' ^^^^, • "ir 5f / . ' .. '%. ;i "::i^MS^. ^ ":l "•'/'-•i.M:i'^^rf:-':'"'^',. ^j ^ ^) 6% on this amount from the date of filing of application till its realization, Out of the total amount of compensation, the parents of the deceased wi!l aet fts.75,000/- each in cash: Rs.2,50,000/- shall be deposited in a fixed deposit of a nationalized bank for a period of six years and remaininq amount shai'l be Daid' to the widow of the m cash. 11, The appeal ss all'owed to the extent indicated above< No order as to costs. Sd/- LM.Quddusi Judge Sd/- Prashant Kumar Mishra Judge