HON'BLElNTHEHIGHCOURTOFCHHAmSHGARHXTBILftSPUR M.A.(C)No.-^-'^'^-7^r)— THEORIENTAL INSURANCE CO. CTD., THROCGH MANAGER, COMMERCIAL COMPtEX, TRANSPORT NAGAR, KORBA, DISTT.-KORBA C.G. Vrs. f~^ KAUSHItYA BAI AGE ABOUT 33 YRS. W/0 LATE BUDHWAR SINGH ^{1 RAJU KENWAT AGE ABOUT 22 YRS. S/0 LATE BUDHWARSINGH '^ 3.0 KU. RAJANIKE WAT AGEABOUT16YRS. D70 LATE BCDHWAR SmGH MINORRESPONDENtNO.-3(BAJArilI),THROBGH GUARGIAN MOTHEK RESPONDENT NO.-l KAUSHILYA BAI W/0 LAtE BUDHWAR SINGH 4. ^.^-^: . "l.*^"^'^' BAHARTIN BAI AGE ABOUT 63 YRS. W/0 JAGNNATH SINGH, .^°, RESPONDENT flQ.-l^M^ 4, R/0 eHINRPUK, CHOWKI-HARMBAZAR, TAH.- KATGHORA, DISTL-KORBA(e.G.) ~ ARBN KCMAR S/0 SHA«KAR MISIIRA, R/0 MANIYANI, THANA - MEJARGANJ, DISTT.- SITAMANI, BmARI, PRESENT ADDRESS-^VIKAS NAGAR, I.B.P. aOAD, KOSMUNDA, TAH. KATGHORA, DISTT- KORBA (G.G.) VIRENDRA PRATAP SINGH S/0 S. SINGH, ,WO THROUGHSANDEEP SINGH, QUARTER N0.- 71, VIKAS NAGAR, KUSMUNDA, TAH. KA'FGHQRA, MSTT.-KOSBA (C.G.) APPEAtCNOEftSEGTION1730EMOTORVEHICLE ACT,1988::1,-' ;^, . ; : . • ^ • ; . '• - 'IK w-' HIGHCOURTOFCHHATnSGARHATBILASPUR DIVISION BENCH; HON'BLE MR. I.M.OUtiDUSI & HON'BLEMR.G.MINHAJUDDIN.JJ. Aopellant Resoondents M.A.[c1No.777/2007 TheOriental InsuranceCo. Ud. Vs Kaushilya Bai and others Present: Mr. Sydhir Agrawal, counsel forthe appellant/ Insurance Company. Mr. Anil Gulati, counsel forthe respondents/claimants. ORDERfOrall (6mJlyly,2011) j PerLM. Quddusi. J; 1. This appeal has been filed agairist theawardof the Motor Accident Claims Tribunal, Katghora, Dlstt. Korba (in short "the Tribynar') dated 3.3.2007 passed inClaim CaseNo. 91W by the appellant/insurance company, insofar as it retates to fastenjng of liabilityupontheappellant/insurancecompanyandquantumpartas well. 2. Brief facts of thecasearethaton 28.12.2003 at about 7 pm, Budhwar Singh was going from Hardi Bazar to his Viltage - Chhindpur on his motorcycle bearing No. CG-12/4461. At that time, Truck No. CG-12/9331 was negligently parked near Nyrsery situatedat Raliya Road by r^pondent No.5 without keeping the indicator on. Due to darkness in the evening, deceased Budhwar Singh could not see the said truck'and therefbre, dashed against the truck, as a result, he sustained grievous injyries over his ftead and Ultimately, succumbed to the same during the coyise of treatment. At the time of accident, the said truek was owngd by respondent No.Sand insuredwith the appellant. The appellai|rt was 40 years at the time of accictent and his mortfhly income was Rs.5,000/-. With the aforesaid averments, a claim petition was filed -2 by the ctaimants for a total compensation of Rs.18,60,OCX)/- against the death of Budhwar Singh. 3. Heard leamed counset for the parties, perused the LCR as also the impugned award. 4. Considering the facts and circumstances of the case, on perusal of the LCR, we are of the opinion that the truck was park«lwithout any indicator, there was no light andparking light v/as also not kept on by the driver of the truck. The deceased was drwing SuzuM motorcycle, its headlight was also not working and therefore, it's a case of contributory negligence. The Tribunal has not consMered this aspect of the case, though the insurance company had taken a specific plea in its written statement inthis regacd. 5. In these circumstances, we hold that driverof;the truck as well as the deceased both were equally responsible for the negligence resulting in the unTortunate accident and as such, there is 50% negligence on each part. 6. Leamed counsel for the appellant has submitted that driver of Uie truck was not having a vafid and effective drivtng licenceon the date of accident and a fake ficence was renewed by the RTO concerned, but from perusal of the record, we find that the officials of tfte RTO came into witness box andspecifically stated that the licence was renewed after verifying the records and the same was found to be genuine. Therefore, the above contention of learned counsel for the appellant is not sustainable. 7. Further, with regard to quantum part, income of the deceased has been assessed at Rs.3.000/- per month, but there is no evidence regarding the income of the deceased. Therefore, income of the deceased for all purposes should be treated at Rs.3,000/- i.e. Rs.36,000/- per annum. Following the law laid down in Saria Vemia (Smt) Vs. Delhl Transport CwpwaSon andanother, reported in (2009) S SCC 121, the multiplier of 14 would be applicable between the age group of 41 -45. Since number of dependents, in the in^ant case, is four, therefore, towards personal living expenses of the deceased, 1/4tt is to be deducted from Rs.36,000/-, which comes to Rs.27,000/-. After applying multiptier of 14, the loss of dependency 1 '«3SPSSia g •^ d1*'' '~~:*-2.'"'-.:-isSi&iS~' ' ^ ^ comes to Rs.3,78,CK)0/-. Besides this, widow of the deceased is entitled to get Rs.5,000/- towards loss of consortium and other claimants also Rs.5,000/-each towards loss of tove and affection. The claimants shall also be entitled to get Rs.5,000/- towards loss of estate andfurther Rs. 5,000/-towards funeral expenses. Thus,they are entitled for Rs.30,000/- more under the aforesaid hesKls. Therefore, after adding this amount, the total compensation eomes toRs.4,08,000/-. 8. Since we have already held that there is contributory negligence to theextent of 50%, therefore, the ctaimants are entitled to geta tofal compensation of Rs.2,04,000/- along with 6% simple interest per annum from the date of filing of claim petition till its payment is made. 9. On the basis of aforesaid diSGUSsion, we allow fhis appeal in part, modifying the impugnedaward to the aboveexlent. 10. Itis made clear that if the amount in excess to the amwjntof compensation Jassessed by this Court i.e. Rs.2,04,000/- has been deposited by the appellantflnsurance company, thesanne shall be refunded to the appellant/insurance company. However, in ease the excess amount has been withdrawn by the claimants, then it will be open to the appellant/insurance eompany to recover the same from the ctaimants. 11. 12. No order as to costs. Certifledcopy asperrules. /'• 'Sd/- ^lM.Quddusi Judge ^ "I o Sd/- G.Minhajjudin Judge -^r—^'^s^.