HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench : Hon'ble ShriDilip Raosaheb Deshmukh, J. Misc. Appeal (C) No.1222 of 2007 The Oriental Insurance Company Ltd., versus Dulari and others ORDER Post for pronouncement of order ^r .02.2009 Sd/- Dilip Raosaheb Deshmukh Judge HIGH COURT OF CHHATTISGARH : BILASPUR Single Bench : Hon'ble Shri Dilip Raosaheb Deshmukh, J. APPELLANT RESPONDENTS MISC. APPEAL (C) N0.1222 OF 2007 The Oriental Insurance Company Ltd., Branch Manager, Main Road, Sadar Bazar, Jagdalpur. VERSUS 1. Dulari, W/o late Gangaram Nag, age 38 yrs. 2. Gupteshwar, S/o late Gangaram Nag, age 22 yrs. 3. Sahdeo, S/o late Gangaram Nag, age 21 yrs., 4. Suresh, S/o late Gangaram Nag, age 19yrs., 5. Sanjeev, S/o late Gangaram Nag, age 16yrs., 6. Mahesh S/o late Gangaram Nag, age 14yrs., 7. Markhand, S/o late Gangaram Nag, age 11 yrs., Respondent No.5 & 7 are minor through Guardian Respondent No.1, Dulari, W/o late Gangaram Nag. All respondent residents of Naya Mundapara, Ravindra Nath TaigorWard, Jagdalpur. 8. Rakesh Kumar Dandekar, S/o late Atmaram Dandekar, age 28 yrs. R/o Dantewada, by the side ofVegetable Market. Appeal under Section 173 of Motor Vehicle Act, 1988 Present : - Shri Sudhir Agrawal, counsel for the appellant. Shri Paras Mani Shrivas, counsel appears.for respondent No.8. ORDER (Passed on this 1^H day of February, 2009) The appellanVinsurer is aggrieved by the award dated 18.07.2007 passed in Claim Case No. 67/2007 by the 2" Additional Motor Accidents. Claims Tribunal, Bastar, place Jagdalpur (henceforth 'the Tribunal') whereby liability to pay compensation of Rs.1,89,500/- was fastened on the appellant/insurer. 2. Admittedly, Gangaram was travelling in Jeep No. C.G.18 GZD/0203 (henceforth 'the Jeep') owned and driven by respondent No.8 and insured by the appellant/insurer on the date of accident. Death of Gangaram had occurred due to the Jeep turning turtle near Etepal Ghati. The appellant/insurer resisted the claim inter alia on the ground that the deceased was travelling as a passenger for hire in the Jeep which was insured as a private vehicle. Permission under Section 170 of the Act was granted by the Tribunal to the insurer to contest the claims case on grounds available to the insured. 3. Shri Sudhir Agrawal, learned counsel for the appellant argued that a perusal of paragraph 10 and 22 sub-para (1) of the application under Section 166 (1) and 140 (1) of the Motor Vehicles Act, 1988 (henceforth 'the Act') would go to show that the owner-driver of the Jeep was neither a relative nor a friend of the deceased, and therefore, the Tribunal ought to have held that the deceased was travelling in the Jeep with his friends as a passenger for hire at the time of accident. It was next argued that premium of Rs.100/- was received under the insurance policy for covering the risk of the owner-driver to the extent of Rs.2,00,000/-, and therefore, since premium of Rs.350/- i.e. Rs.50/- per person for 7 persons who could be carried in the Jeep has been received, the Tribunal ought to have held that liability of the insurer for the death of one passenger was limited to Rs.1,00,000/-. Placing relianceon New India Assurance Co. Ltd. v. > Smf. Shanti Pathak & Ors. 2007 AIR SCW 4779, it was also argued that the Tribunal erred in applying multiplier of 15 as it ought to have applied multiplier of 8. 4. Shri Paras Mani Shrivas, learned counsel for respondent No.S/owner - driver argued that the Tribunal was justified in fastening liability to pay compensation on the appellant/insurer since there was absolutely no material on record to show that the deceased was travelling as a passenger in the Jeep on the date of accident. 5. Having considered the rival submissions, 1 have perused the record. Admittedly, the Jeep was insured by the appellant/insurer on the date of accident. The mere fact that the deceased was neither related to the owner - driver of the Jeep nor was his friend would not /pso facto prove that the deceased was a passenger travelling in the Jeep for hire. The insurer had accepted premium to cover the risk of 7 persons travelling in the Jeep besides the owner - driver. In this view of the matter, the Tribunal was justified in fastening liability to pay compensation on the appellant/insurer. No specific conditionis found in the policy which would show that in the event of death of a passenger liability of the insurer was restricted to Rs.1,00,000/-. 6. The claimant - Dulari Bai had categorically admitted in paragraph 1 of her statement on oath that age of the deceased on the date of accident was 55 years. As she narrated her own age to be 45 years, the statement given by her appears to be plausible. The Tribunal has assessed the age of the deceased at 40 on the basis of the age mentioned in the post- mortem report. However, in the present case, in the post-mortem report, ^ - [<^^*.g&~-^ 8>>, / the age of the deceased has been mentioned on the basis of assessment of age of the deceased by the police at 40 years which cannot be taken to be conclusive proof of age especially in view of the admission of the claimant before the Tribunal that the deceased was aged 55 years on the date of accident. Thus, the Tribunal erred in holding that the age of the deceased was 40 years at the time of accident and in applying multiplier of 15. The age of the deceased at the time of accident being 55 years under the second schedule, the correct multiplier applicable is 8. 7. So far as the income of the deceased is concerned, the evidence of Dulari Bai does not inspire confidence. Her testimony that the deceased was earning Rs. 10.000/- per month from the sale of vegetables is unreliable because she did not know the details of the shop in which her husband was doing business of sale of vegetables. No documentary proof has been furnished in that respect. In cross-examination, she admitted that shop in Sanjay Market where her husband used to sell vegetables had closed and her husband used to perform pooja in the locality on the occasion of festivals. In Premlata & others v. Rasul Khan & otters, 2008 (2) C.G.L.J. 378 (DB), it was held that annual notional income prescribed in the second schedule to Section 163-A of the Act requires reconsideration and since death had occurred in 2004, the annual notional income of the deceased was taken at Rs.36,000/- per annum. Be that as it may, in the facts and circumstances of this case and considering the fact that even though the vegetable shop had closed the deceased was required to maintain a family consisting of eight members including himself and also the fact that the deceased was working as priest only on occasion of festivals, it would be logical to assess the annual income of •li.! ^^^jai^-.S^i^s.,. /^s... "'^ •S^SSS!»S^^^Sf^S!a!y»^'SWS^^^^^^^'{»^^vs:S':SSS^W^'f"^ :. •• •• ;.;i'<^i?Ki^iyKS^^B?S^Bi?3t'S?:w;.;"B5 the deceased at Rs.24,000/- i.e. Rs.2000/- per month. Deducting 1/3rd rCs-v~f^^-JL-\ p t^^i-tnA-^-G. C-ys ^(2-<An-'^-t-^ r-J^ +-t~-L '"•'* therefrorr^, loss of dependency is assessed at Rs.16,000/-. Applying ^ multiplier of 8, total loss of dependency is assessed at Rs.1,28.000/-. In view of the ratio of Premlata & othere v. Rasul Khan & others (supra), a sum of Rs.5000/- is awarded towards funeral expenses, Rs.10,000/- t°*- towards loss of consortium, Rs.5,000/-,:loss of estate and Rs.5,000/- per head to respondents No.2 to 7 under the head loss of love and affection. Thus, total compensation is assessed as under: i) Loss of dependency ii) Loss of Consortium iii) Funeral Expenses iv) Loss of Estate v) Loss of love and affection to respondents No.2 to 7 @ Rs.5000/- Total Rs.1,28,000/- Rs. 10,000/- Rs. 5,000/- Rs. 5,000/- Rs. 30,000/- Rs.1,78,000/- 8. In the result, the appeal is partly allowed. Compensation of Rs.1,89,500/- awarded by the Tribunal is modified and reduced to Rs. 1,78.000/-. Out of compensation, Rs.10,000/- each shall be payable to the respondents No.2 to 7 and the remaining compensation shall be paid to respondent No.1. Compensation already paid by the appellant/insurer shal] be adjusted. f . sd/- Dilip Raosaheb Deshmukh ' Judge Anjani