^ IN THE mGH COURT QFJUDICATUBE ATBILASPUR CHHATTISGARH c^' MISELLANEOUS APPEAL (C) N0. - LO OF 2009 ^ •c-.ri^^i SH3838 ISSSiSa (MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988) APPELLANTS CLABMANTS 1. Gowardhan Markandey,, ^ftt' S/o Kamctiaran MarKandey, -^''^/y-^ aged about 66 years, 2. Smt. Deshbai Markandey, W/o Gowardhan Markandey, aged about 65 years, Both R/o- Purani Basti, Balodabazar, District - Raipur (C.G.) VERSUS RESPONDENTS NON-CLAIMANTS Kriparam Sahu , S/o Basingh Sahu, aged about 50 years, R/o - Sanjay Colony, Balodabazar, District - Raipur (C.G.) [Driver of vehicle Truck Swaraj Mazda bearing registrationNo. C.G. 04 J 3582] (-3 Rajkumar Rathi, S/o Gopal Rathi, R/o - Gandhi Chowk, Balodabazar, District- Raipur(C.G.) [Registered owner of vehicle Truck Swaraj Mazda bearmg registration No. C.G. 04 J 3582] The New India Insurance Company Limited, through Branch Office, Balodabazar,, District - Raipur (C.G.) [Insurer of vehicle Truck Swaraj Mazda bearing registration No. C.G. 04 J 3582] f' Mohammed Asif Ali, S/o Mohammed Gaffar Khan, R/o - Balodabazar (Nehm Chowk), Police Station & Tahsil - Balodabazar, District - Raipur (C.G.) [Registered owner of vehicle Jeep bearing registration No. C.G. 04 ZA 2576] The New India Insurance Company Limited, through Divisional Manager, Divisional Office, Raipur, District - Raipur (C.G.) Branch Office - Civil Line, Balodabazar, District - Raipur (C.G.) [Insurer ofvehicle Jeep bearing registration No. C.G. 04 ZA 2576] MEMQRANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT. 1988 '"'•^ s <,-.,...- HIGH COURT OF CHHATTISGARH AT BILASPUR Appellant Non-Applicant No.4 Owner of Vehicle Respondents Claimant No.1 Appellants Claimants Respondents N^n-Claimants MA.(ClNo.2440F2009 Mohd.AashifAli Vs Goverdhan Markandeya and others M.A.(C) No.660 OF 2009 Gowardhan Markandey and another Vs Kriparam Sahu and others POST FOR ORDER ON t ^ OCTOBER. 2011 Sd/- G. Minhajuddin Judge 3 .10.2011 y ^&jS^sS^^'.'''• ^ HIGH COURT OF CHHATTISGARH AT BILASPUR Appellant Non-Applicant No.4 OwnerofVehicle Respondents Claimant No.1 ApDellants Claimants Resoondents Non-Claimants MA.(ClNo.2440F2009 Mohd. Aashtf Ali Vs Goverdhan Markandeya and others M.A.(CI No.eeo OF 2009 Gowardhan Marlcandey and another Vs Kriparam Sahu and othsrs Present: Mr. SK Guha, counsel for the appellante in MAC No.24410Q and for respondent No. 4 in MAC No.660/09. ^4^, D. Shrivastava, counset for respondents No. 1 & 2 in MAC No.244/09 and for the appettants in MAC No.680/09. Mr. Vijay Shrivastava, counsel for respondents No. 3 & 4 in MAC No.244/09 and for respondents No. 1 & 2 in MAC No.WOIQQ. Mr. Deepak Gupta, counsel for respondent No. 5 & 6 in MAC No.244/09 and for respondent No. 3 & 4 in MAC No.660/09. ORDER (Passedon I ^ October, 2011) G. Minhaiuddin. J 1. As both these appeals arise out of the same acctdent vrfiich took place on 7.5.2006 and are directed against the award dated 3 January, M09 passed by II Additional Motor Accident Claims Tribunal, Baloda Bazar, Distt. Raipur (in short "the Tribunal") in Claim Case No.76/06, therefore, they are being disposed of by this common order. 2. MAC No.244/09 has been filed by Mohd. Aashif Ali - owner of Mahendra jeep bearing registration No. CG 04-ZA-2576 - against fastening of liability to pay compensation upon the appellant/owner and exonerating the insurer of the said jeep as well as cwmer, driver and insurer of the offending vehicle i.e. Swaraj Majda bearing registration No. CG-04-J-3582, UD 3. MAC No.660/09 has been filed by the parents of the deceased Dayawant, who was driver of the said Mahendra jeep, for enhancement ofthe amount of compensation. 4. For the sake of convenience, the parties shall hereinafter be referred to as per their description before the learned ctaims Tribunal. 5. Brief facts of the case are that on 7.5.2)( , Dayawant, who is driver of non-applicant No. 4 Mohd. Aashif Ali, by driving Mahendra jeep bearing reglstration No. CG-ZA-2576 was coming to Baloda Bazar from Raipur. At that time, Kriparam Sahu, non-applicant No.1, by driving the vehicle Swaraj Majda bearing registration No. CG-04-J- 3582, owned by non-applicant No.2, in a rash and negtigent manner, dashed the jeep of Dayawant from opposite direction, as a result of which right hand of Dayawant was chopped out and Dayawant died on the spot. 6. At the time of accident, deceased Dayawant was aged 23 years and was earning Rs.6,000/- per month as a driver. Therefore, the parents of the deceased, being his legal heirs, filed a claimpetition under Section 166 ofthe Motor Vehicle Act, 1988 (in short "the Act, 1988") for a total compensation of Rs.9,31 ,OX)/- against the death of Dayawant under various heads. 7. However, leamed claims Tribunal, after affording opportunity of hearing and of adducing evidence to alt the parties, on close scrutiny of the evidence led before it, passed the impugned award and granted a total compensation of Rs.1,22.000/- in favour ofthe claimants, fastening the liability upon non-applicant No.4 Mohd. Aashif Ali to pay the amount of compensation. 8. So far as MAC No.244/09 filed by non-applicant No.4 - owner of the Mahendra jeep Mohd. Aashif Ali, is concemed, leamed counsel for the appellant has contended that insurer of the Mahendra jeep as well as owner, driver and insurer of the offending vehicle Swaraj Majda, have wrongly been exonerated from their liabillty to pay compensation. He has further contended that at the time of < accident, the deceased driver of Mahendra jeep was holding a licence for light motor vehicle, which includes a medium transport i^ '•.••uite,^ uv vehicle, and as such, there is no breach of terms and conditions of the insurance policy by the appellant/owner of Mahendra jeep. He has also contended that income of the deceased driver Dayawant has wrongly been assessed as Rs.3,000/- per month, whereas he was not a regular driver ofthe appellant/owner, but used to drive the jeep in the absence of its regular driver, for whteh he was being pafd Rs.50/- per day by the appellanVowner. 9. In support of his contention, learned counsel for the appellant/owner has submitted photocopy of the judgment of the Hon'ble Apex Court in the matters of Natlonal Insurance Cmnpany Ltd. Vs. Sri Annappa Ifappa Nesarla @ Mesaragi and others, reported in 2008 (1) ACT 112, and submitted that the deceased driver was having a valid and effective driving licence on the date of accident. 10.0n the other hand, leamed counsels for the respondents in MAC No.244/09 have supported the impugned award and submitted that the same is quite legal and proper and calls for no interference. 11. So far as fastening of liability to pay compensation on the appeltant/owner of Mahendra jeep and exoneration of insurers of both the vehicles i.e. Swaraj Majda and Mahendra jeep (non- applicants No.3 & 5), as well as driver and owner of the Swaraj Majda (non-applicants No. 1 & 2), is concerned, from the evidence adduced before the Tribunal, it is ctear that report was lodged by Dymond Markandeya - brother ofthe deceased driver - mentioning therein that the said Mahendra jeep driven by the deceasal was dashed by an unknown vehicle. The accident had taken place on 7.5.2006, whereas the offending vehicle i.e. Swaraj Majda, owned by non-applicant No.2, was seized by the police on 25.6.2006. The conduct of the eyewitnesses, who claimed to have seen the number ofthe offending vehicle, had been extremely unnatural asthey had neither informed about the accident and number of the offending vehicle to the police, nor had informed anyone r^arding number of the offending vehicle, which is clear from the photocopy of the FIR, filed by the claimants in the claim case, which has been lodged by brother of the deceased driver on the basls of Information received. As such, on the basis of evidence adduced before the claims -^Hfl^idiiuAujijalbwniNa.^ ::^&-,^s^ M^<l^ Tribunal, the Tribunal has rightly held that it has not been proved that the accident was caused by vehicle Swaraj Majda No. CG-04-J- 3582, owned by non-applteant No.2. 12.So far as exoneration of the insurers of Mahendra jeep from the liability to pay compensation, is concerned, learned counsel for the appellant has contended that the deceased driver Dayawant was possessing a valid and effective driving licence on the date of accident i.e. 7.5.2006^ as the deceased driver was having a licence for light motor vehicle, whteh includes a medium passenger transport vehicle, therefore, the driving licence was valkl and effective and the insurer of the vehicle Mahendra jeep has been wrongly exonerated by the Tribunal from its liability to pay compensation. To substantiate his contention, he has relied upon the judgment of the Hon'ble Apex Court in tlie matters of Sri Annappa Irappa Hesaria @ Nesaragl (supra). 13. From perusal of the said judgment, it is ctear that an amendment has been incorporated in the Motor Vehicles Act, 1988 w.e.f. 28.3.2)01, as a result of which a driver possessing a driving licence for light motor vehicle will also be eligible to drive medium passenger or goods transport vehicle, only if there is an endorsement to this effect in the driving licence. The cited case was relating to an accident which had occurred prior to coming into force of the said amendment i.e. prior to 28.3.2001. However, in the instant case, the accident is of 7.5.2006. It is not in dispute that the vehicle Mahendra jeep was being plled as a taxi . carrying passengers for hire and the deceased driver was having a driving licence to drive only light motor vehicle and there was no endorsement in respect of driving a medium passenger transport vehicle in the driving llcence, which is essential in view of provisions of sub-section (2) of Sectjon 14 of the Act, 1988. In addition to this, a licence to drive a transport vehicle is granted only for a period of three years, whereas the licence granted to the deceased driver was valid up to 2015 and the date of accident was 7.5.2006. As such, it is clear that at the relevant point of time, the deceased driver of Mahendra jeep was not possessing a valid and effective 7- °-T- •^^s->^^sS^ "^ ^,/ ^ driving licence to drive a medium passenger transport vehicle. In this connection, the law is laid down by the Hon'ble Supreme Court in the case of Orientaf Insurance Company Llmlted vs. Angad Ko/ ancf others. reported in (20W) 11 SCC 3S6. 14. Thus, in view of the above, it is proved beyond doubt that at the time of accident, the deceased driver was not having a valid and effective driving licence to drive the Mahendra jeep as a taxi, and consequently, there had been breach of terms and conditions of insurance poticy and therefore, the Tribunal has committed no error in exonerating the insurer of Mahendra jeep from its liability to pay compensation and has rightly fastened the liability upon the appellant/owner Mohd. Aashif Ali of the vehicle Mahendra jeep. 15. So far as MAC No. 660/09, filed by claimants/parents of the deceased for enhancement of the amount of compensation, is concemed, learned counsel for the appellants/claimants, has contended that monthty salary of the deceas»Jwas Rs.6,000/- and the Tribunal has wrongly assessed monthly income of the deeeased as Rs.3,000/- and consequently, the amount of compensation has been assessed on much lower side, which deserves to be enhanced. 16. From perusal of the evidence adduced by the claimants before the Tribunal, it has not been proved that the deceased driver Dayawant was earning Rs.6,000/- per month by driving the vehicte. tn the absence of any evidence on this polnt, the Tribunal has assessed monthly income of the deceased driver as Rs.3,000/-. It is not in dispute that the deceased driver was bachelor. The Tribunal has deducted 1/3rd of his income toward personal and living expenses of the deceased, whereas the Tribunal should have deducted 50% under this head. Further, for computing the compensation, multiplier of 5 has been applied by the Tribunal. 17. Age of the parents/ctaimants of the deceased has been shown as 66 and 65 years respectively. Therefore, for applying muttiplier, average age of the parents will have to be considered. The average age of the parents/claimants comes to 65 years. Thus, as per law laid down by the Hon'ble SuprerQe Court in Saria Verma (Smt) Vs. "% f'- .v'.r^ Delhl Transport Corporatlon and anoffier, reported in (2009) e SCC 121, tooking to the average age of parents/claimants of the deceased i.e. 65 years, the multiplier of 7 ought to have been applied for computing the loss ofdependency. 18. Further, looking to the evidence on record, it appears that the annual income of the deceased driver has been rightly assessed as Rs.36.000/- by the Tribunal. As the deceased was a bachelor, therefore, after deducing 50% towards his personal and living expenses, the loss of annual dependency of the appetlants/claimants comes to Rs.18,000/-. After applying multiplier of 7, the totat toss of dependency comes to Rs.1,26,000/-. In addition to this, the appellant&'clalmants shall be entitled to Rs.5,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. As such, the total amount of compensation, whteh the appellants/claimants are entitled to receive from owner of Mahendra jeep i.e. non-applicant No.4 Mohd. Aashif Ali (appellant in MAC No.244/09) comes to Rs.1,36,000/-. The Tribunal has awarded a total compensationof Rs.1,22,000/-, which is definitely on the tower side and needs to be modified and enhanced to Rs.1,36,000/-. 19-tntheresult: > MAC No.244/09 - the appeal filed by the owner of Mahendra jeep Mohd. Aashif Ali (non-applicant No.4) being without any substance is hereby dismissed. > MAC No.660/09 filed by the appellants/claimants - is allowed and the impugned award dated 3rd January, 2009 is modified to the extent that the appellants/claimants shatl be entitled to receive a total compensation of Rs.1,36,000/- from owner of Mahendra jeep i.e. non-appticant No.4 Mohd. Aashif Ati (appellant in MAC No.244/09), with interest @ 6% per annum from the date of presentation of the claim petition till its payment. No order as to costs. G. Sd/- inhaju Judge in ^- s-<-8*"i !^BSH^ieW@g|gi