'y it'v'-^ fr3 m THE mGILCOURT QFJUDICATURE AT BILASPUR CHHATTISGARH MISELLANEOUSAPPEAL(C)NO.- *-f ^^ OF 2010 (MEMORANBUM OF APPEAL (JNDER SECTION 173 OF THE MOTOR VEmCLES ACT, 1988) APPELLANT ^f" -?A^° \^:-"s:$^ 'y ^•»* RESPONDENTS 1. 2.. Tpie New India Insurance Company Limited, '^Through, Divisional Manager, Divisional Office, Madina Building, Jail Road, Raipur, District - Raipur (C.G,) (Non-applicant No. 3) VERSUS Smt. Momna Begum W/o Late. Imamuddin, Aged abourt 38 years, (Applicant/Claimant No. 1) Rubina D/o Late. Imamuddin (Minor), Aged about 10 years, (AppIicant/CIaimant No. 2) [Appellant No. 2 being minor on behalfofthrough herlegal guardian mother appellant No. 1 Smt.Monuia Begum] Both R/o - Subhash Nagar, Moudhapara, Raipur, Tahsil & District - Raipur (C.G.) Mahant Kumar Meheta S/o Shri Jeevanlal Meheta, R/o - Village - Purena, Police Station - Bhakara, District - Dhamtari (C.G.) (Non- applicant No. 1) Present R/o - Near Minocha Petrol Pump, Telibandha, Raipur, District- Raipur (C.G.) Smt. Parvinder Kaur W/o Sliri Parvinder Singli, R/o Gum-Govind Nagar, Pandri, Police Station - Civil Lines, Raipur, Distriet - Raipur (C.G.) (Applicant/ClaimantNo. 2) Appeal Value at - Rs. 6.41,500/- MEMORANDUM OF APPEAL UNDER SECTIO^Tl73 OF OF THE MOTOR VEHICLES ACT, 1988 '3 2: HI6H COURT OF CHHATTES6ARH AT BILASPUR bIVISION BENCH: HON'BLE MR. I.M.QUDOUSI <& HON'BLE MR.PRASHANT KUMAR MISHRA. JJ. Appellant Respondents Appellant Respondents M.A.M No.466/2010 The New India Insurance Company Limited Vs Smt. Momna Begum <& others & M.A.(c) No.467/2010 Vs The New India Insurance Company Limited Smt. Hemin Bai Deshmukh & others Present: Mr. Shivendu Pandya, Advocate for the appellant in both the appeals. Mr. Raja Sharma, Advocate for the respondent-Smt. Parvinder Kaur. Mr. S.K; 6uha, Advocate for the respondent-claimants in M.A. (C) No.466/10. Mr. Raghvendra Pradhan, Advocate for the respondent-claimants in M./\. (C) No.467/)t0.. OROER (Oral) (15thMarch, 2011) I.M. Quddusi. J; 1. Since the -Fact of accident iscommon in both these appeals, the same are being disposed of by this common order. 2.1n M.A. (c) No.466/2010 the appellant-Insurance Company besides challenging the liability has also challenged the quantum fixed by the learned 1 Additional Motor Accidents Claims Tr'ibunal, Raipur- (for short 'the Glaims Tribunal') vide award dated 18.02.2010 passed in Claim Case No. 17/08, as permission under S^'wn 170 of the Motor Vehicles Act, 1988 (for short .'the Act, 1988') has been granted to the appellant-Insurance Company by the Claims Tribunal. 3. However, ih M.A. (C) No.467/2010, which has been filed against the award dated 18.2.2010 passed by the learned 1st Additional Motor Accident Claims Tribunal, Raipur (C6) in Claim Case No.49/2008, the appellant-Insurance Companyhas only questioned the liability fastened by the Claims Tribunal on it, as permission under Section 170 of the Act, 1988 has not been granted, ^.^ |3"^^ftS£;3aii^@sa«»BWtnau#uwuufliHBiaagu?»BuuHpunss3?ihgw(iniB9san»a»ff^^fr~ 3S^^^» f^. to' ^ by the Claims Tribunal to the appellant-Insurance Company. In this appeal, a cross-objection has also been filed on behalf of the respondent-claimants for enhancement of the amount of compensation awarded by the Claims Tribunal. 4. Facts of the case, in brief, are that on 19.07.2007 near Top-up Center Petrol Pump, Rawanbhata, truck bearing registration number CG04-E-5311, due to rash and negligent driving by its driver, dashed the auto-rickshaw bearing registration number C604-T-3544 with full force as a result of which the driver of said auto-rickshaw and the passengers traveling in it died instantaneously. Report of the incident was lodged in the Police Station Khamtarai, District Raipur (C6) against the respondent-Mahant Kumar whereupon the offence has been registered and after completion of investigation, charge sheet has been filed in the Court below. Theclaimants, who are widow and children of the deceased persons i.e. Late Imamuddin (driver of auto-rickshaw) <& Late Roshan Lal Deshmukh, (oneof the passengers of said auto-rickshaw) have filed two separate claim applications before the Claims Tribunal seeking compensation of Rs.28,50,000/- <& Rs.23,50,000/- respectively under various heads on the different grounds mentioned in the claim applications. ( . 5. The Claims Tribunal after hearing the parties in the matter on the issues .'' '' . ; i framed by it and considering the material brought on record by the parties in supportof their respective case, partially allowed the claim applications and awarded a sum of Rs.6,41,5g,0/- & Rs.16,75,100/- respectively as compensation.to the claimants along with interest © 6% p.a. from the date '. -I. 's'1. - . • !'! of gpplication till its actual realization. 6. We have heard learned counsel for the parties. We have also perused the record and the impugned award of the Claims Tribunal. 7. Learned counsel for the appellant has raised the contention, which is comnwn to both the appeals, that on the date of accident the driver of offending vehicle i.e. respondent-Mahant Kumar Mehta, was not having valid and effective driving licence. ^.^ lw«iSi»iyu-'."L;.k»BU!wi<. ^ssssass^ss. ?^ 8. On perusal of the record of the Claims Tribunal, we found that computerized electronic driving licence bearing number AAISS/ 6003/DUR6 was issued to the respondent-Mahant Kumar. The said driving licence was originally issued on 03.03.1995 and thereafter it was renewed on 06.04.2007 for a period of three years i.e. upto 06.04.2010. Copy of driving licence shows that the driver was authorized to drive motorcycle with gear, lightmotor vehicle, light transport vehicle & heavy goods vehicle. 9. It is provided under Section 14 of the Act, 1988 that a driving licence to drive a transport vehicle would be effective for a period of three years, 1: whereas driving licence for driving private vehicle would be effective for a i1'1 : periodof 20 years or up to the age of 50 years, whichever is earlier. 10. The;driving licence does not show as to when the driver was authorized to drive transport vehicle i.e. light transport vehicle & heavy goods vehicle, as original date of issue of driving licence is 03.03.1995 and date of renewal has.been mentioned as 06.4.2007, but np^details in between the period has been mentioned therein. Further, in this computerized driving licence the date of birth of the driver was mentioned as 18.3.1995, which was not feasible considering the date of issue of driving licence, hence, it appears to be a clerical mistake in the computerized card. The aforesaid things could have been clarified by the officials of the Licencing Authority, Durg wherefrom'the licence was issued, but all these things were not clarified by the Assistant Grade-III (jgmely Shri P.R. Kurre, who was working in the RTO Office, Durg and appeared in the witness box as Witness No.l of the non-applicant No.3 (appellant's herein witness). Even he had not brought any document or register related todriving licence in question and stated that it was destroyed. However, in the cross-examination he had stated that the register related to driving licence No.MISS/6003/DUR6 issued to respondent-Mahant Kumar is availabte in the office, but it was not summoned and only register related to 03.03.1995 was summoned. Relevant ' .t' . '•: r.': -.i - ' portion of his statement i.e. para-3 & O are reproduced herein below:- 3. 3W ^l^f^'l ^IIW'f-H ^ S^cT 'itvl'hi'! g^t ^l^fd^ T{ ^fdST ^f f etf^ ^ WfT ^ ifftT 077^ ^ ^77°?" :7^" g)' TW ^'/ ^W ^l^ l dlil^'~H le^s "••^K 'y T^ ^tSRT ^c^ 'lFjl-hi^ ^ ^fd^ ^t cfJ^T ^ftf^i crW^7- •77??' ??^- •T^ e/y ^ >3r?Tr ^l^fi'l dlil'ff'tl ^ ^fSRf vs^ -^t <?W/^uy cte? -T^ 377277' g' ^lf^ ©Tc^?TST Sn^T ^ 1 9. 77^' f f^ Jf^T ^fR ^ ^i^ff^l dW'ff-H ^cR ftRT^tf^f?T/6003/yf ^ ^W^T c//-'/^ 'y'ufl^.y \//3/^c'i/ gwt 'ffl-tlfci^ ^ fifcf W^cTT ^ 7778^ 79(7:' f f^ rtf^r 3?g' v'ufl^/'y 'ifSi'W'/ -J^t Jf7TTVT TPTT ajT ert^f, 03/03/1995 ^ WffSfff 'iRlWi W7W JTW SH 1 11. In view of the above, it is evident that nothing could be proved regarding effectiveness and validity of the driving licence, on the contrary, photocopy of driving licence shows that on the-date of accident it was valid and effective. Therefore, contention raised by the learned counsel for the appellant regarding effectiveness and validity of the driving licence of the driverof offending vehicle, in absence of any proof in this regard, is not sustainable. 12.It is also to be noticed that through Lok Adalat the appellant-Insurance Company has compromised three claim cases arising out of the same accidentand amount of compensation have also been paid to the claimants which is clear from the statement of NAW-2 Shri Lakhpati Borkar, Administrative Officer of the Regional Office, Raipur of the appellant who was the witness of Insurance Company and stated in Para-7 of his statement as under:- y ' -:: ,,c.' ! • , • .' : ; . ! ^' . . "7. W^ f /^ ^ft 'HH^ ^t jefe^T ^ yr f^w W^T, c^w? ^ ^cT'T' TTcrvf c^ cilR^I'it' Sm Tt^r SfcTT SfcPT IK^T cft^f ^Tf f ^rfr ^ gw^ ^jr ^t ^TW c?^' 37^7c7cT ^ ^^ri/ /^?7- 'T^T' - 9H (7S/7- 0W ^^ri/ ^" 377977 ;7V 'TT/^cT" 3ff^ cft TTQ^ ^ ^W^ (:,..:'.'! .^ , ! ! . - ^y W-ft srf^T^ W g77c77;7' ^ ^^ cjlR^I'11 ~cf>t f^r[T ufT JW ^ /° It is surprising that when in thr^e claim cases, arising out of the same qccident, no objection whatsoever was raised regard'mg effectiveness and validity of the driving licence of the driver of offending vehicle, then as to how, all of a sudden, the Insurance Company has filed appeals in these two cases on this ground. Even report of,the Investigator is also not ^WW '^•.'.'. 'wwwtauias^efsvssvii '..^T'^S^^^^^^^sS^^^^^&s^^ 's.sifWW available in the record of the Claims Tribunal and therefore in our opinion, once, in someof the cases arising out of thesameaccident, the Insurance Company has accepted its liability for payment of compensation without any objection through Lok Adalat, then for the rests it is estopped from raising any objection related to effectiveness or validity of the drivinglicence of the driver of offending vehicle as it will be a estoppel against the facts. 13.Now coming to the question of quantum raised by the appellant in M.A. (C) No.466/10. 14. Befqpe proceeding further; it is necessary to point-out that the deceased, who wasowner of.auto-rickshaw (a fhree wheelers vehicle) and he himself was driving the said vehicle instead of engaging any driver, was having valid and .effectivedrjying licence on the date of incident and this fact is not in dispufe..This,driving ticence was initiatly issued on 06.07.2001 and was valid up to 5.7.2004 and thereafter it was renewed up to 24.9.2007 w.e.f. 25.9.2004. In the driving licence itself the date of birth of deceased Imamuddih has been mentioned as 02.08.1965. A ration card of the category of 'Above Poverty Line' (APL) was also issued to the deceased and which is available 6n record as Ex.P-11. 15.Learned counsel for the appellant-I^rance Company has challenged the fixation of monthly income of the deceased at Rs.6,000/- by the Claims Tribunal on the ground that in the ration card, though issued under APL ! , . ,.;1.: , •'l. category, his annual income has been mentioned as Rs.18,000/-. But on perusal of the ration card as well as registration certificate of the auto- ^' • • • . • - ' rickshaw shows that ration card was issued to deceased Imamuddin on 11 . . 09.02.2007 and at that time the said auto-rickshawwas not purchased by the. deceased as the registration certificate of auto-rickshaw bearing registration number CG04-T-3544 was issued on 19.6.2007 by the RTO concerned.. It is an admitted position that for the purpose of assessing loss of income, the income which the deceased was earning on the date of ?L ; / •• : , . •T- " - - i. accident is relevant and therefore the monthly income assessed by the Claims Tribunal ih this case, to our opinion, is on the lower side as on the date of accident the deceased was not onlyowner of the offending vehicle ^iasss^swatiswwSWW^si ia''^aa<a»late<.B*wiiiwiiffiiu^wiii«nMmiTii^^ fwnwsw^tBW^fi^!1' WSS--SV!?"t ^ /y" /; '^^>;.Lu3BL-'- ~>'^ -. ^^sy' ^' but he was also its driver, however, we are not interferin9 with the monthly income of the deceased as assessed by the Claims Tribunal as there is no cross-objection on behalf of the claimants for enhancement of theamount of compensation. 16. Further, the Claims Tribunal while calculating loss of income has deducted 1/3 from the annual income of the deceased towards personal and living expenses of the deceased and thereafter applied the multiplier of 13. However, considering .the date of birth of the deceased mentioned in the undisputed driving licence i.e. 02.08.1965, age of the deceased at the time of accident would beabout 42 years and thus, as per decision of the Hon'ble Supreme Court in the matter oi Sarla Verma (Smt.) and others -vs- i Delhi Transport Corporation and another reported in (2009) 6 SCC121, multiplier of 14 was liable to be applied. Thus, if we apply multiplierof 14 instead of 13, the total loss of dependency would come to Rs.6,72,000/- (48000x14), whereas the Claims Tribunal has assessed the loss of dependency at Rs.6,24.000/- and therefor-e it cannot be said to be excessive rather it is on the lower side. 1-lowever, since no cross-objection has been filed on behalf of the claimctf^s, therefore, we do not interfere in the loss of dependency assessed by the Claims Tribunal. 17.Now coming to the cross-objection filed by the claimants in M.A. (C) No.467/10 for enhancement of the amount of compensation. 18.This;cross-objection has b^en filedalong with an application for condonation of delay as it has been preferred with a delay of 198 days. ^ i9.To our opinion if the amount of the compensation has not been assessed prop'erly by the Claims Tribunal or the Claims Tribunal has committed any (nistake m calculating the amoynt of compensation, then certainly the cross- objeCtion should be entertained and amount of compensation should be corrected. 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J'^/ •teg^".^rr €"^yr As6'' ,u for which the claimants are erititled for is Rs.17,83,250/- (Rs.17,48,250+35000), whereas the Claims Tribunal has awarded only Rs.16,75,100/-, which is inadequate. 22.In the result;- • M.A. (C) No.466/2010 filed against the award dated 18.2.2010 passed by the learned 1 Additional Motor Accidents Claims Tribunal, Raipur in Claim Case No. 17/08 and M.A. (C) No.467/2010 filed against the award dated 18.2.2010 passed by the learnedl Additional Motor Aecident Claims Tribunat, Raipur (C£)in Claim Case No.49/2008, are , I hereby dismissed. • Cross-objection filed by the claimants-Smt. Hemin Bai & others in M.A. (C) No.467/2010 for enhancement of amount of compensation is hereby allowed, the award dated 18.2.2010 passed in Claim Case No.49/2008 is hereby modified to the extent that now the claimants shdll be entitled for a sun^if Rs.17,83,250/- as compensation instead of Rs.16,75,100/- as awarded by the Claims Tribunal. The claimants shall also be entitled for simple interest © 6% on this amount from the date of filing of application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact. • No orders as to costs. roshan/- Sd/- I.M.Quddusi Judge Sd/- Prashant Kumar Mishra Judge