c- IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR Misc. Appeal (C) No. 'jS /2010 B^ia^ Appellant Claimants y^' v^ ,^' ^G LfV°' .v ^^/ z (^ ^^ v' <^.f ' ^/ .y ^ ^- ch^^^^ Smt Chem.U- Sinha, aged about 27 years, W/o Late Parmeshwar Sinha, Priyesh Sinha Aged about 07 years, S/o Parmeshwar Sinha \ ^l'^ 3. Ku. Pooja Sinha, aged about 5 years, VoJr<. V^v^^s?TGyo^^$'^v^ <^ ^ Appellant no. 2 and 3 being minor through mother Smt Chemli Sinha, 4. Gendlal Sinha aged about 51 years, S/o Mehtar Ram Sinha 5. Smt Ansuiya Sinha Aged about 45 years, W/o Gendlal Sinha All by Caste Kalar and R/o Village Puri Tahsil and Thana Charama Distt. U.B. Kanker -D/i Versus Respondents 1. dirver Owner Insurer 2. <^- 3. Kumendra Ravte aged about 22 year, S/o Hemlal Ravte By Caste Halba, R/o Village Talakura, Thana Korar, Distt. Kanker (^- ^Ts<.j<^^'r^ An-Fa-m Pisda aged about 24 years, S/o Raviram Pisda, R/o Village Aamagaon, Thana, Tahsil and Distt Kanker National Insurance Company. Ltd. through Branch Manager, Near Central Bank, Near R. M. S. Office, 'Jagdalpur. J^^^&^^r; Division Office, Taha Complex Ring i Road No. 1, Bilaspur _A^-_- APPEAL UNDBR SECTION 173 OF MOTOR VEHICLES ACT 1988 HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL (Q No. 666 of 2010 APPELLANTS Claimants RESPONDENTS Smt. Chameli Sinha and others. Versus Kumendra Rqyte and others. APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT,1988 Coram.: Hon. Shri N.K.Aganval and Hon. Shri R.N.Chandrakar, JJ. PRESENT : Shri Parag Kotecha, counsel for the appellants. Shri B.N.Nande, counsel for respondent No.3. ORAL AWARD (21-11-2011) Per N.K. Agarwal, J. This is claimant's appeal for enhancenient of compensation awarded by the Motor Accidents Claims Tribunal, Kanker (for short 'the Tribunal') in claim case No. 31/2009 vide its award dated 06.03.2010. 2. As against compensation of Rs.11,34,040/- claimed by the unfortunate widow, minor children and parents of deceased - Parmeshwar Sinha by filing claim application under Section 166 of the Motor Vehicles Act, 1988 (henceforth 'the Act') for his death in the motor accident on 10.02.2009, the Tribunal has awarded a total sum of Rs.04,30,808/- as compensation along with interest @ 6% per annum from the date of application till its actual payment and^cost of Rs.500/- 3 . The Tribunal, on a close scrutiny of the evidence led, held: head on collision took place between Hero Honda CD Deluxe motor cycle bearing registration No.C.G.19-B/6492 being driven by respondent No.l i.e. Kumendra Ravte and TVS motor cycle bearing registration No.C.G.19-B/2094 being driven by deceased - Parmeshwar Sinha; deceased - Parmeshwar Sinha died on account of injuries sustained by him in the accident; deceased - Parmeshwar Sinha and Respondent No.l i.e. Kumendra Ravte equally contributed to the cause of negligence; respondent No.3/the National Insurance Company Limited liable for payment of compensation as it could not establish violation of policy conditions; assessed the amount of compensation as Rs.08,61.616/-; after deducting 50% of it towards contributory negligence of deceased - Parmeshwar Singh awarded Rs.04,30,808/- along with interest @ 6% per annum from the date of application till its actual payment to the claimants and costofRs.500/-. 4 . Shri Parag Kotecha, learned counsel appearing for the appellants would submit: the Tribunal has grossly erred in taking the income of deceased as Rs.5931/- only; in holding deceased negligent to the extent of 50%; and in awarding .^^^^-^ yy^\ Ift. ^ ^/ ^ Rs.04,30,808/- as compensation after reducing 50% of compensation towards contributory negligence of deceased. 5. On the other hand, Shri B.N.Nande, learned counsel appearing for respondent No.3 - the National Insurance Company Limited supported the impugned award and submitted: in the facts and circumstances of the present case, the Tribunal has rightly awarded Rs.04,30,808/- as compensation to the appellants after finding deceased has also equally contributed to the cause of negligence and the award does not call for any interference. 6. We have heard learned counsel for the parties and have perused the record of the Tribunal including the award impugned. 7. True, the claimants pleaded, deceased - Parmeshwar Sinha used to earn Rs.6060/- per month, however, the claimants could not substantiate the same by proving the above fact. As per the salary slip (Ex.P.8) of deceased - Parmeshwar Sinha, his basic salary was Rs.2,550/- per month. Apart from it, he was getting Rs.1798/- as DA, Rs.102/- as HRA, Rs.100/- as medical allowance per nionth. Shri Kotecha could not point out whether the amount of Rs.l275/~ mentioned in the salary slip towards DP, Rs.20/- towards TAA, Rs.50/- towards WA and Rs.765/- towards IR was being paid to deceased regularly or occasionally. Further, he also could not establish the deduction of Rs.639/- /^.'\' ^ ,?? ^ ^^^..^'' 4 "^^^ ..."./ '^- ^ was on which head. If we take overall picture and the evidence adduced in the case, then in our opinion, the income of deceased taken by the Tribiinal as Rs.5931/- cannot be found fault with inasmuch as the gross salary of deceased has not been proved by the appellan.ts by leading cogent and clinching evidence therefor. 8. So far as contributory negligence of deceased to the extent of 50% is concerned, appellant No.l Smt. Chameli Sinha has categorically stated in the cross-examination para - 5 that she has not seen the incident as she was in the house at the time of accident. Admittedly, the criminal case has been registered against drivers of both the vehicles; the accident had occurred in the middle of the road due to head on collision and both the vehicles are motor cycles, in such circumstances, the Tribunal has rightly held both the drivers equally contributed the cause of negligence and the submission of Mr. Kotecha that driver of other motorcycle was more negligent is devoid of substance. 9. No other points have been raised. 10. For the reasons mentioned hereinabove, the appeal, bei.ng devoid of merit and subvStance, is liable to be and is hereby dismissed. 11. No order as to costs. Sd/- N.K. Agarwal Judge Sd/- R.N. Chandrakar Judge ^;