@ c^ .. ss ./- IN THE HIGH COURT OF JUDICATURE OF CHHATTISGARH AT BILASPUR Appellants : 1) Non-Applicant No.3 85 4 ^^ ^W^T('r '^ 2) Respondents : (Claimants Ito 7) ^ &M. &AHU ilO¥OGME M.A.(C.) No..'.(../..^.../2009 Diaman S/o Ram Lal Verma Aged about 28 years, Driver of Marshal No. CG-04/E-0104 R/o ViUage Kusmi Tahsil Palari, District Raipur (C.G.) Bhola Ram S/o Khorbahara Verma, Aged about 48 years, owner of Marshal No. CG-04/E- 0104 R/o VUlage Kusmi TahsH Palari, District Raipur (C.G.) Versus 1) Smt. Premin Bai Widow of Bhuneshwar Yadu, Aged about 45 years, 2) Domar S/o Bhuneshwar Yadu, Aged about 34 years, 3) Madhuri D/o Bhuneshwar Yadu, Aged about 32 years 4) Menka D/o Bhuneshwar Yadu, Aged about 32 years, 5) Purnima D/o Bhuneshwar Yadu, Aged about 30 years, 6) Gulab S/o Bhuneshwar Yadu, aged about 28 years, 7) Homeshwar S/o Bhuneshwar Yadu, aged about 26 years, All resident of vUlage Sitapar, Tahsil Palati District Raipur (C.G.) 8) Biselal S/o Sukhu Dhimar aged about 31 years, Resident of Kanki, (^ TahsU Kharora, District Raipur (C.G.) Driver of vehicle Tractor Bearing registration No. CG.04ZQ/2818 9) SushU Kumar Daga ^/o Not known, Resident ofKanki TahsH Kharora District Raipur (C.G<) Owner of vehicle Tractor Bearing registration No. CG.04ZQ/2818 10) The New India Insurance company Ltd. Divisional office Raipur, District Raipur (C.G.) Insurer of vehicle Marshal Bearmg registration No, CG.04E/0104 Insurance period 07/11/2004 to 06/11/2005 PoUcy No. 0450300/31/04/03386 MEMO OF MISCELLANEOUS APPEAL UNDER SECTION 173 OF MOTOR VEHICLE ACT 1988 / ^^ HIGH COURT OF CHHATTISGARH AT BILASPUR D.B.: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justice Prashant Kumar Mishra Miscellaneous Appeal (C.) No.58 of 2009 Appellants Smt. Premin Bai and others versus Respondents Biselal and others Present: Shri Prateek Sharma and Ms. Sunita Jain, counsel for the appellants. Shri Vikram Dixit, counsel for respondents No.1 and 2. Shri J.S.P.Chandrasen, counsel for respondents No.3 and 4. Shri A.K.Athaley, co.unsel for respondent No.5. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act Miscellaneous Appeal (C.l No.1199 of 2009 Appellants Diaman and another versus Respondents Smt. Premin Bai and others Present: Shri J.S.P.Chandrasen, counsel for the appellants. Shri Prateek Sharma and Ms. Sunita Jain, counsel for respondents No.1to7. Shri Vikram Dixit, counsel for respondent No.8. Shri H.B.Agrawal, Senior Advocate with Shri Psinkaj Agrawal and Smt. Meera Jaiswal, counsel for respondent No.10. None for respondent No.9. Miscellaneoys Appealunder Section 173 of the Motor Vehicles Act ORAL ORDER (Passedon 7th March, 2011) Per I.M. Quddusi. J.: Heard. .^x 2. Miscellaneous Appeal (C.) No.58/2009 and Miscettaneous Appeal (C.) No. 1199/2009 haye been preferred challenging the award dated 26-7-2008 passed by the Additional Motor Accidents Claims Tribunal, Bhatapara, Camp Court Baloda Bazar, District Raipur in Claim Case No.46/2007. Miscellaneous Appeal (C.) No.58/2009 has been preferred by the claimants for enhancement of the quantum fixed in the impugned award and Miscellaneous Appeal (C.) No. 1199/2009 has been preferred by the driver and the owner of the Marshall Jeep against holding liability upon them to satisfy the impugned award and exonerating the insurance company from the said liability. Both the appeals are being disposed of by this common order as they arise out of the same accident and the same award. 3. Brief facts of the case, according to the claimants, in short, are that on the date of accident, i.e., 27-5-2005, deceased Bhuneshwar Yadu, accompanied by his wife Premin Bai, was going from Village Sitapar in a Marshall Jeep bearing registration No.CG 04 E 0104, being driven by Daiman, to attend a meeting of District Cooperative Central Bank Limited, Raipur. At about 9:15 A.M., a tractor bearing registration No.CG 04 ZQ 2818 was being driven by Biselal rashly and negligently ahead of the Marshall Jeep near Barauda. The Marshall driver tried to take over the tractor driving the Marshall rashly and negligently, as a result of which, the tractor and the Marshall Jeep collided with each other and the Marshall Jeep turned turtle. Deceased Bhuneshwar Yadu sustained grievous injuries on his person in the accident. He was taken to the Mekahara Hospitat, Raipur for treatment immediately, Thereafter, he remained under treatment in the MMI Hospital, Raipur. Thereafter, hewas taken to Ramkrishna Hospitat, Raipur, where he died during treatment. The incident was reported to the Police Station Kharora. The claimants, i.e., wife, sons and daughters of the deceased Bhuneshwar Yadu preferred an application under Section 166 of the Motor Vehicles Act, 1988 (henceforth 'the Act') claiming compensation of Rs.57,75,000/-. 4. The Ctaims Tribunal awarded compensation of Rs.2,20,731/- in favour of the claimants holding liability to pay the same on the driver and the owner of the Marshall Jeep, i.e., non-claimants No.3 Daiman and No.4 Bholaram, jointly and severally. 5. The deceased Bhuneshwar Yadu was one of the Directors of the Co-operativeBank. The driver of the Marshall Jeep, who caused the accident, has stated in his statement before the Claims Tribunal that the deceased was sitting in the Marshall Jeep being driven by him. The deceased was not a relative of the owner of the Marshall Jeep. The driver of the Marshgll Jeep has also stated that the Marshall Jeep was being sent to Village Sitapar for taking the deceased Director of the Co-operative Bank Bhuneshwar Yadu since last 3-4 months and he was being sent with the Marshall Jeep by its owner Bholaram. The driver has also stated that Bhuneshwar Yadu had once told him that he was roaming aroundand was not present at the Jeep and in case he will repeat such mistake he will tell his owner to change the driver. All the above shows that the Marshall Jeep was hired by the deceased Director of the Co- ^^ operative Bank Bhuneshwar Yadu, who, on the date of accident, was going to- attend the meeting of the Bank and on the way the accident took place. Therefore, the finding of the Claims Tribunat that there was breach of policy of insurance cannot be unsustainable as the insurance policy was for private use of the Marshall Jeep, whereas, the Jeep was being used as Taxi, as since last 3-4 months it was being engaged by the deceased Director of the Co-operative Bank Bhuneshwar Yadu and on the date of accident he was going in the said Marshall Jeep to attend the meeting of the Bank. 6. Therefore, Miscellaneous Appeal (C.) No. 1199/2009 preferred by the driver and the owner of the Marshall Jeep is liable to be dismissed. 7. With regard to Miscellaneous Appeal (C.) No.58/2009 preferred by the claimants for enhancement of the award, we have seen that the Claims Tribunal has assessed annual income of the deceased as Rs.15,000/- which is quite inadequate as a labourer gets Rs.3,000/- per month and, therefore, the income of the deceased could not have been assessed lesser than Rs.36,000/- per annum. Further, according to the observation made by the Hon'ble Supreme Court in Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, where the number of dependent family members is more than 6, the deduction for personal and living expenses of the deceased should be 1/5', but the Claims Tribunal has deducted 1/3rd only. Therefore, treating the notional income of the deceased as Rs.36,000/- per annum and after deducting his personal and living expenses at the rate of 1/5( 1 of the income, the remainder, i.e., the annual loss of dependency comes to Rs.28,800/-. The age olthe deceased, as per the medical treatment slips and the medical reports when he was alive, comes to 55 years, but the Claims Tribunal has assessed the age of the deceased as 60 years,therefore, if we take the age of the deceased between 56 to 60 years, multiplier of 9 would be applicable according to the observation made by the Hon'ble Supreme Court in Sarla Verma's case (supra) and, therefore, after applying the principle laid down in Sarla Verma's case (supra), total loss of dependency comes to Rs.2,59,200/-. The medical expenses, as assessed by the Claims Tribunat, comes to Rs.1,00,731.34 Paisa. For loss of consortium for the widow and for love and affection for other dependents, the amount, at the rate of Rs.5,000/- each, comes to Rs.35,000/-. Award of Rs.5,000/- for funeral expenses and Rs.5,000/- for toss of estate is just. Thus, total amount towards other heads, except medical expenses, comes to Rs.45,000/- and, therefore, total compensation liable to be awarded comes to Rs.4,04,931/-. Accordingly, the claimants are entitled to get Rs.4,04,931/- along with 6% simple interest from the date offiling of the claim petition. Hence, Miscetlaneous Appeat (C.) No.58/2009 preferred by the claimants for enhancement of the award is liable to be allowed in part. The amount of total compensation is enhanced to Rs.4,04,931/- along with 6% simple interest from the date offiting of the claim petition, which shall be paid by the driver and the owner of the Marshalt Jeep, i.e., non-claimants No.3 Daiman and No.4 Bholaram, jointly and severally. 50% of the sum shall be kept in fixed deposit in a nationalized Bank for a period of 6 years in the y. name of the widow of the deceased, the other claimants/appellants No.2 to 7 shall be entitled to get Rs.20,000/-each andthe remaining amount shall be paid to the widow of the deceased in cash. The impugned award is modified to the above extent. 8. In the result, Miscellaneous Appeal (C.) No. 1199/2009 is dismissed. Miscellaneous Appeal (C.) No.58/2009 is allowed in part enhancing the amount of compensation to the above extent. There shall be no order as to costs. ——— -—— — — Gopal Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge