IITTHE HON'BLE HIGH COURT OF CHHATTISGARH AT BILASPUR M. A. (Cl No. fS 6 Z ot 2010 WWSiQtl I APPELLANTS 1, t..^"'^^ •a'^'- '."\ ^WB^ ^•'ii'-j'f''' • • . ."•" AS6-- BESPONDENTS/ 1. Driver Owner Insurer ^ 2.^ a.- Smt. Sarla Devi Gupta, W/o Late Shri M.L. Gupta, aged about 52 years, Ashish Gupta, S/o Late Shri M.L. Gupta, aged about 22 years Both are R/o Minocha Colony, Quarter No. C-16, Bilaspyr, District-Bilaspur (C.G.) VERSUS Amit Kumar Vishwakarma, S/o Shri Bahya Nand Vishwakarma, R/o Subhash Chowk, Dallirajhara, District-Durg (C.G.) Rajesh Kumar Thakur, S/o Rewarara Thakur, aged about 22 years, R/o Matra Khujji, Police Station-Dongargarh, District- Rajnandgaon (C.G.) New India Insurance Companiy Limited, Bilaspur (C.G.), through its Branch Manager MEMO OF APPEAL UNDER SECTIQN^73QFTHE MOTOR VBHIGLEACT 1988 FOR ENHANCEMENT ^ -.,:;iU» ;[^~ ^: HKH COURT OF CHHATTIS6ARH AT BILASPUft DIVISION BENCH: Hpr'i'BLE MR. I.M.QUDDUSI d ILE MR. PRASHANT KUWAR MISHRA. _A.id N0.1067 OF 2010 Smt. Sana Devi 6uDta & another Amit Kumar Vishwakar'ma & others Mr. Atul Dubey, Advocate for the appeilant. mr. P. Kotecna, ndvocote for the respondents No.l & £. ,¥>".Raj Awasthy, Advocate for respondent No.3. ORAL (18th January, 2011) 1. The appellant./claimants have preferred this appeal against the award dated M.06.2010 passed in ClaEm Case No. 114/08 by the learned l^ Addi+ional AAotor Accident Claims Tribunal, Bilaspur (CG') (for short 'the Tr-ibunal) dismissing The claim application ofthe claimants. 2. Facts of the case, in brief, are that the aDpellants/claimants have filed a clairn petition before the Tribunal under Section 166 of the AAotor Vehicles (Act, 1988 (for short 'the Act'") seeking compensation of Rs.70,28,000/- for the death of M.L. &upta, who was husbond ancf father the ciaimants respectively, in a motor accident, which took place in the night of 11.4.2007 at about 12.00 when Tata Indica Cw bearina reqistrotion number C604-T- 2141, in which the deceased alono with his coileaques was returninq to Raipur afl'er completinq his official work, was dashed by the truck bearinq registration number C605-ZC-0288, due to rash and neqliqent cfrivina by its driver. 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'WV guilty of some negligence, his claim for damages is not defeated mere'ty by reason of the negligence on his part but the damages recoverable on his part stands reduced in proportion to his contributory negligence. In the instant case the respondent No.l-driver ofthe offending vehicie has admitted in Para-6 of his written statement that the accident occurred due to contributory neqijqence and therefore the ow/ner, driver and jnsurer of the India Car should have been arrayed as parties. Similar version has been mentioned in the written statement fiied bv the owner of the offending vehicle. Further, the documents filed by the owner & driver of the offendinq vehicle show that at the time of accident driver of the offending vehicle was having valid and effective driving ticence to drive heavy goods vehicle and the insurance of the truck was also valid for the purpose of 3 party rlsk. iesides the statements made by the driver & owner of the truck in guestion in their written statefflents. there is a technical report of the motor mechanic to the effect that the truck was damaaed from the side of driver and Indica cw was damaged from the front side which shows that the accident had taken place when the truck driver was not driving in straiahtway but was driving in such a way that coliusion took ptace at a particuiar angle of the truck damaging the truck from corner to the side of the driver and thus, it is a case of contributory neqjiqence. However, the Tribunal, without considerin9 the written statement filed by the owner & driver of the truck in question, has wrongly held that the accident was not the result of neqligence on the part ofthe driver oftruek- in-question, but we nre of the view that in such circumstQnces the Tribunal should have held that extent of negliaence of the driver of Tata Indica Car and driver of the truck in auestion is 50:50 because it was a case of contributory neqliqence. Further, w/hoie claim of the claimants is noT liable to be dismissed merely on the ground that the owner, driver and insurer of the car in question have not been arrayed as parties as in the case of contributory negiiaence the part of negligence of other vehicle i.e. Tata t^lSfe ^...•'/ Indica cor, would not be taken into consideration and only part of negliqence of the truck in question would be taken into consideration. 11. At this stage, learned counsel appearing for the appeilants has submitTed that if this CourT fixes the liability under the contributory neqliqence of the driver of the offendinq truck only, then he is ready to foreqo the ctaim aqainst the driver, owner and msurer of the Tata India Car as they were not arrayed as party before the Tribunal. 12.Learned counsel for the respondents No.l A 2 hos also submitted that he has no objection ifthe appeal is decided in the aforesaid terms as he is not disputintj the submissions mad'e bvthe respondents No.l & 2 in their written 13. On the other hand, learned counset for the resoondent No.S-Insurance is iust. fair and needs no interference. 14. Since we have already held that it w/as the case of contributory neqliqence and the Tribunal has wronaiv heid that the driver of Tata Indica car alone was resDonsible for the accident, we find no force in the submission ofthe iearned counsel for resoondent No.S-Insurance ComDany and we are ot the opinion that ends ofjustice would be served ifthe compensation is awarded to the claimants bv this Court based on the submission made by learned counsel for the aDpellant, that is to say compensation to tne extent of 50% only payable by respondent No.S-Insurance Company herein. 15.In the-present case net monthly salary of the deceased wae Rs.60,785/-, which is evident from the salary slip of the deceased Ex.A-16 available on record and proved by the claimants. It !S undisputed that u'idow of the deceased is getting full family pension. It is also evjdent from the • documents available on record that M/'s KVK Energy A Infrastructure and AA/s Abha Power & Steel had offered packaqe of Rs.18 Lac & Ks.16 Lac p.a. respectively to the deceased and asked him to report the Managing Director if he accepts the said offer. Therefore, it cannot be said that the deceased affer his retirement would depend upon his pension only. \p.^.^ ,^\ 3 ^ 16. In view of the above, to calculate the loss of annual income we propose to deduct 1/3 from the annual salary nf the deceased. which is Rs.7,29.420/- (Rs.60,785/-.s<12), as his personal living expenses as also the amount of pension, which the widow of the deceased is receivinq i.e. Rs,2,40,000/- (Rs. 20,000x12) and afi-er deductinq the said amount i.e. fts.4,83,140/- (Rs.2,43,140 + Rs.2,40,000/-), the loss of income would come to Rs. 2,46.280/- (Ks.7,29,420/- - Rs.4,83,140/-) and by applying the multiplier of 9, as per decision of the Hon'ble Supreme Court in the matter of Sarta Verma (Smt.) en<3 o-tfiers -vs- Oelhi Trensport Cotvortttion and another reported in (2009) 6 SCC 121 as the deceased was aged about 58 years, ths total loss of dependency would come to Rs.22,21.380/- (fts.2,46,280x9). As we have found that the extent of contributory negligence on the parf of the driver of truck in guestion is oniy 50%, the compensation has to be reduced only by 50%. Therefore, the net compensation awardable to the appellants will be Rs.11,10,690/- (that is Rs.22,21.380/- iess 50% thereof). Besides this, the appellants are also entitled to get fts.5,000/- each tou/ards loss of love & affection. Rs.10,000/- towards loss of estate, Rs.5,000/'- towards loss of consortium and Rs.SOCX)/- towards funeral exoenses. Thus, the total amountof compensation for which the appeliants would be entitled for is Rs. 11,33,690/-. 17. In the result, we allow this appeal in part, set aside the impugned award and hold that the appeliants are entjtied for compensation of Rs.11,33,690/- 'he compensation owarded shall be paid by the respondent No.S-Insurance Com'pany with the simple interest of 6% p.a. from today, os today for the first time the learned counsel for the appetlant has agreed to torgive 50% contributory negligence on the part of the Indica Car. No order as to costs. Roshan/- 18. CertLfied coy as per rules. Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge