V HIGH COURT OF CHHATTISGARH.BILASPUR OA)T SINGLE^ENCH: HONIBLE^HRI R. L. JHANWAR, J. Misc. Auneal (C) No. 621/2008 APPELLANT Insurer ICICI Lombard General Insurance Co. Ltd., Versus RESPONDENT : Budhwar Singh and others. ORDER Post for pronouncement on_(U September, 201P ^ Sd/- R.L. Jhaiiwar X HIGH COURT OF CHHATTISGARH : BILASPUR :\ SINGLE BENCH: HON'BLE SHRI R.L.JHANWAR, J. APPELLANT Insurer RESPONDENTS Claimant M.A. (0 No. 621 of 2008 ICICI Lombard General Insurance Co. Ltd., ICICI Towers, Bandra Kurla Complex, Bandra (East) Mumbai, Through its Legal Manager, 3 Floor, Lal Ganga Shopping Complex, G.E. Road, Raipur, Chhattisgarh. VERSUS 1. Budhwar Singh, S/o Shri Kashiram, aged about 60 years (alleged to be 52 years), resident of village Chatapasna, Thana Bango, Tehsil Katghora, District Korba, Chhattisgarh. 2. Madhoram, S/o Shri Gangaram Dewangan, age not known to the appellant, resident of Chhuri, Tehsil Katghora, District Korba, Chhattisgarh. [ DRIVER ] 3. Babulal, S/o Shri Sahasram, age not known to the appellant, resident of Podi Uprodha, Tehsil Katghora, District Korba, Chhattisgarh. [VEHICLE OWNER] APPEAL UNDER SECTION 173 OF THE IVIOTOR VEHICLES ACT, 1988 -•-> Appearance: Shri Amrito Das, counsel for the appellant. Shri S.R.J.Jaiswal, counsel for respondent No.1 None for respondents No.2 & 3. ORDER (Passed6n1V(.09.2010) This is an appeal by the insurance company against the award dated 28.02.2008 passed by the Additional Motor Accidents Claims Tribunal, Katghora (for short 'the Tribunal') in claim case No. 42 of 2007 whereby the Tribunal -awarded a sum of Rs.2,92,000/- as total compensation to the claimant in a death case. 2. Brieffacts of the case are that on fateful day 11.10.2006 when the deceased - Samari Baiwent to take water, at the same time, respondent No,2 was driving the tractor bearing engine No.E/3044867 and Chassis No.B/3041708 and trolley bearing chassis No.T.A.542/08/06 (for short 'the offending vehicle') in a rash and negligent manner and dashed Samari Bai, due to which, she died on accpunt of injuries sustained by her in that s,: •./'"' "~''^ •%lift motor accident. It is not disputed that tractor was insured with appellant / insurance company. 3. As against the compensation of Rs. 10,00,0007- claimed by the claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the death of Samari Bai, wife of the claimant / respondent No. 1 in a motor accident occurred on 11.10.2006, the Tribunal awarded a sum of Rs.2,92,000/- as total compensation to the claimant. It is this order the appellant/insurance company is before this Court. 4. Shri Amrito Das, counsel for the appellant / insurance company argued that the driver of theoffending vehicle being holder of L.M.V. was not entitled to drive the tractor, which is a commercial vehicle. His next argument is that learned Tribunal has wrongly used mulfiplier of 11 after taking the age of the claimant whereas it should be 8. He also argued that daimant Budhwar Singh is the husband of late Samari Bai, therefore, it cannot be said that Budhawar Singh is fully dependent on Samari Bai since being husband of Samari Bai, certainly he must be earning member. The income of the deceased taken by the Tribunal is also not proper. While assessing the income of the deceased, the Tribunal ought to have taken the age of the claimant and not the age of the deceased. It was also argued that if the statement of Budhwar Singh that he used to earn from time to time during the lifetime of his wife is taken intoconsideration, then the dependency should be one-half and not one-third and the Tribunal has wrongly deducted one-third. On these premises, learned counsel for the appellant stated that the insurance company is not liable to pay any compensation. He placed reliance in the matter of Uttaranchal Transport Corpn. Ltd. vs. Wm/a Devi & Ors, 2009 AIR SCW 2740, Manjuri Bera (Smt.) vs. Oriental Insurance Company Ltd. and another, (2007) 10 SCC 643, Bijoy Kumar Dugar \/s. Bidya Dhar Dutta and others, (2006) 3 SCC 242 and Ramesh Singh and another vs. SatbirSingh and another, (2008)2 SCC 667. 5. On the other hand, Shri S.R.J.Jaiswal, learned counsel for respondent No.1 fully supported the impugned award. He placed reliance in the matter of National Insurance Co. Ltd. vs. Swaran Singh and o ers,AIR 2004 SC 1531. '— •Y 6. I have heard learned counsel for the parties at length, perused the record of claims Tribunal including impugned award. 7. In this case, Punit Saxena N.A.W.1, Manager of Insurance Company has deposed in his evidence that according to insurance policy Ex.D.1, the offending vehicle i.e. tractor was insured for agriculture purpose and licence of the driver - Madhoram was verified in the office of R.T.O. Bilaspur by Vijay Kumar and after due verification found that driver was holding L.M.V. In his cross-examination, he has also deposed that tractor falls under Light Motor Vehicle. He further deposed that he neither went to office of R.T.O. for obtaining information relating to licence nor called any officer of R.T.O. for evidence. Thus, since the insurance company has not been able to prove whether the driver, being a holder of L.M.V., was not competent to drive the tractor, therefore, the learned Tribunal has rightly come to conclusion that driver is competent to drive such vehicle. 8. The husband/claimant Budhwar Singh in his cross-examination has specifically deposed that his age is 50 years and as against this no evidence was led by the insurance company. So far as age of Budhwar Singh mentioned in Ex. P.4, post-mortem report, is concerned, in that report Ex.P.4 Budhwar Singh is witness and his age was written as 60 years but this age of Budhwar Singh cannot be taken to be his age because he is alive and he has categorically deposed in his cross- examination that his age is 50 years. Of course, in Ex.P.4 the age of Budhwar Singh was shown to be 60 years, but that cannot be the basis for determination of his age. The Tribunal in its impugned Judgment paragraph 24 has assessed the notional income of the deceased as Rs.36,000/- and after deducting 1/3rd from Rs.36,000/-, the dependency was worked out to Rs.24,000/-. The Tribunal determined the age of Samari Bai at 50 on the date of accident and considering the age of the deceased at 50 the Tribunal used multiplier of 11. In the matter of Ramesh Singh and another vs. Satbir Singh and another (supra) a young man of 22 years was killed in motor accident and in such situation the Apex Court held that if young man is killed in the accident leaving behind aged parents who may not survive long enough to match with a high multiplier provided by the Second Schedule, then the court has to offset such high multiplier and balance the same with the short life J. expectancy of the claimants. It was further held in the above case that choice of multiplier is determined by the age of the deceased or the claimants, whichever age is higher. But in this case, the wife of the claimant was killed in the motor accident and at the time of death she was aged 50 years, as taken by the Tribunal, and the only claimant is her husband, vyhose age is also 50 years, as stated by him specifically in his cross-examination. Therefore, the question of age of either claimant or deceased while using multiplier in assessing dependency should never be cropped up in the present case. Since the facts in that case are fully distinguishable to the facts of the present case; therefore, the above case is not applicable. So far as use of the multiplier based on the age of the deceased is concerned, the Tribunal has rightly used multiplier of 11 after taking the deceased's age. The contention that while assessing the income of the deceased the Tribunal should have taken the age of the claimant instead of the deceased and on that basis appropriate multiplier should have been used has no force. 9. The case law cited by the appellant in Uttaranchal Transport Corpn. Ltd. vs. Vimla Devi & Ors, Manjuri Bera (Smt) vs. Oriental Insurance Company Ltd. and another and Bijoy Kumar Dugar vs. Bidya Dhar Dutta and others are fully distinguishable on facts of the present case and hence are not applicable in this case. 9. On due appreciation of the evidence available on record, the learned Tribunal has rightly dealt with the assessment of income of the deceased at Rs.36,000/-; has not erred in deducting one-third from Rs.36,000/-; has rightly determined the age of the deceased and thereafter used multiplier of 11, which l am of the considered view that the Tribunal has no fault at all in arriving such assessment. 9. , For the foregoing reasons, 1 do not find any illegality or infirmity in the impugned award requiring interference bythis Court. 10. Consequently, the appeal filed by the insurance company has no substance and accordingly it is liable to be and is hereby dismissed. Sd/- R.L. Jhauiwar Judge X \: