Q\ R-St " .. - '' ^3 '^ f > THE HIGH COURT OF CHHATTISGARH AT BILASPUR MISC. APPEAL rC1 N0. ^ 3 2. /2011 MISC. APPEAL UNDER SECTION 173 OF THE MOTOR VBHICLES ACT, 1988 APPELLANT INSURER RESPQNDENTS :- ^/^T^^/^~-s"~~ DRIVER OWNER The New India Assurance Company Limited, Through : Branch Manager, Mahatma Gandhi • Marg near Zhankar Talkies, Jagdalpur, District - BSstar (C.G.) Through : its Divisional Manager, The New India Assurance Company Limited, IInd Floor Rama Trade Centre, opposite Rajeev Plaza, Bus Stand Road, Bilaspur (C.G.) VERSU^ 1. Smt. Sangeeta Nitin Khodbe W/o Late Nitin Khodbe, aged about 33 years, 2. Harshit Khodbe, S/o Late Nitin Khodbe, aged about 12 years, 3. Ku. Vaishnavi Khodbe, D/o Late Nitin Khodbe, aged about 4 years, Respondents No. 2 85 3 being minorrepresented through mother Smt. Sangeeta Nitin Khodbe, respondent No.l, All R/o Ashoka Apartment No.2, Dharmpura Road, Jagdalpur, Di&trict - Bastar (C.G.) 4. Gopal Kashyap S/o Raghunath Kashyap, aged about 22 years, occupation Driver, R/o Kumharpara, Shriram Prasad Mukherjee Ward Sanwarapara. Jagdalpur, District - Bastar (C.G.) 5. BhQpendra Singh Rajpui S/o B.S. Rajput, R/o Sangam Hotel, State Bank Chowk Main Road, Jagdalpur, District - Bastar (C.G.) 1,; lL_. ^ APPEAL VALUED AT RS. 19,02,444 /- COURTFEEJ%s^_15/- {...- ^ HI6H COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH: HON-BLE MR. I.M.QU&tiUSI & HON'BLE MR.6ULAM MINHAJUD&IN. j3 Apoellsnte Resoondents Aopellant Respondents M.A. [cl No.491/2011 ' Smt. SongeetOi Nitin Khodove & others Vs (Sopal Kashyap A others &. M.A. fcl No.492/2011 The New India Assunmce Company Ltd. Vs Smt. Sangeeta Nitin Khbdbe A others Presient: Mr. Saurabh Sharma, Advocate for the appelkint-Insurunce Company in both the appeals. Mr. P.K. TulsiyoKui, Adv. for -tiie appellcmts and reqiondent No.l to 3 in M.A. (C) No.491/2011 A 492/11 respectively. None for the other respondent-Oriver A Owner in both the appeals. ORDER (Oron (2"dSeptember. 2011) I.M. Quddusi. J: 1. Heard on the applications for condonation of deloy in preferring both the appeals. • 2. For the reasons stated in the applicotions, we ore of the opinion that the delay has been explained satisfactorily and the applications deserve to be aUowed. Accordingly, the applications are allowed omd delay in filing both the appeals is hereby condoned. ^ 3. Wi'th the consent of •rtie parties, the rnotter is heard finally. 4. M.A. (C) No.491/2011 filed by the appellants-claimants & M.A. (C) No.492/11 filed by the appellant-Inairance Compony are being disposed of by this common order as both these appeals have been preferred agaihst the impugned award dated 07.12.2010 passed by the learned 1 Additional Motor Accident Ctaims Tribunal, Bastar at Jagdalpur (for short 'the Claims Tribunal') in Claim Case No.36/09. 1 ^'~ 5. The appetkint-Insurance Company hos challenged the tiability fastened upon it by the Claims Tribunal, whereas, •Hie appellants-claimants have prayed for enhancement of the amount awarded by the Ctaims Tribunal on the 9rounds mentioned in thememoof appeal. 6. Facts of •tjie case, in brief, are that the cloimants, who are wife & children of deceased Nitin Khodbe, have filed a claim ap'plicationunderSection 166 read with Section 140 of the Motor Vehicles AcT, 1988 (forshort the Act, 1988') ctaiinin9 compensation to the tuneof Rs.52,00,000/- for the death of said Nitin Khodbe. whodied in a road accident. It is stated that on 28.5.2009 when the deceased wos returnin9 to his house situate -+ Jagdalpur by motorcycle bearing registration number C607-L&-7825, on •the way near Village Bhejribadar, he was dashed by the vehicle bearing re9istration number OR10-C-7523, due to rash ond negligent drivin9 by its driver. The claimants have claimed compensation on •the ground that they were dependent on the deceased,who was the sole eorning member in the family, and due to his death.-they have suffered loss of income. 7. The Claims Tribunalon the basis of evidence led by the parties in support of -t+ieir respective cases hos framed as many as five issues. After hearing the parties in the matter, theClaims Tribunnl has decided the Issues No.2 to 5 in favour of the ctaimants ond against the insurance company. However, while onswerin9 Issue No.l, which was regarding contributory negligence, the Claims Tribunal has recorded a firiding that extent of negligence of the deceased and the driver of offending vehicle was 25:7S. Accordingly, -ttie Claims Tribunnl has awarded a sumof Rs.19,02.444/- as compensation to the claimonts and fcstened liability on the appellant herein to poy that amount of compensation to Them. 8. Leomed counsel for the appellant-Insurance Company has submitted that the Claims Tribunal has erredin hotdin9 that the deceased wasnegligent to the extent of 25% only/whereas on the basis of the evidence available on record. the Claims Tribunal should have held that ttie deceased wos negligent upto 75%. He has further submitted that driver of offending < <-" vehicle was not having valid and effective driving licence and thus there was breach of termscmd conditions of the insurance policy. 9. Learned counsel for the claimants has submitted that amount awarded by the Claims Tribunal is too meager and it deserves to be enhancedsuitably. He has also submitted that the Claims Tribunal has erred in fixing percentage of neg\'\gence of the deceased as 25%. 10. We have heard learned counsel for the parties,perused the record and the impugned award passedby the ClaimS Tribunal. ll.So far as the ground raised by the Insurance Company regarding contributory negligence is concerned, from the map prepared by the Investigating Officer and statement of eye-witness it is evident that pkice where accident occurred is a sin9le road, the deceased was going towords his left and offend'ing truck was coming from opposite direction i.e. from ri9ht side, and motorcycle of deceased was collided with offending vehicle from its ri9ht side. Thus, it can be safety held that extent of negtigence of thedeceased was 30% andnot 25% as held by the Claims Tribunal. 12. So far as the appeal of the claimants for enhancement of the amount of compensation is concerned, we have perused the impugned award and found that 'ivhile assessing loss of income the Claiins Tribunal has not added any amount towards future prospects, whereas os per decision of ttie Hon'ble Supreme Court in the matter of Sarla Verma (Smt.) and othcrs Vs. Delhi Transport Corporation & another reported in (2009) 6 SCC 121 where the deceased is below 40 years and was in a permanent job, there should be an dddition of 50% of actual salary to the income of the deceased towards future prospects. Further, multiplier-applied by the Cfaims Tribunalis also notproper because at the time of accident the deceased wwis 39 yearsof age and accordin9 to Sarla Verma's case (supra) for the age group of 35 to 40 years, multiplier of 15 is appticable. Therefore, we feel that method adopted by the Claims Tribunal in assessingcompensation is not propep and the same is liable to be reassessed by thisCourt. 13. Accordingly, we add 50% towards future prospects to the cnnual income of the deceased i.e. Rs.2,90,376/-, os assessed by the Claims Tribunal, the total of which would come to Rs.4,35.568/- (290376+14S190). Now we deductl/3 towards personal cnd living expenditure of the deceased and thereafter apply multiplier of 15 to it ond thus, The total loss of dependency which would comeis Rs.43,55,640/- (435564 - l/3rd x 15). As we have already held thatextent of contributory negligenceon the part of the deceased is 30%, the compensation has to be reduced only by 30%. Therefore, the net compensation awardable to the claimants will be Rs.30/t8^48/.. 14. Besides this, the ckiimcnts are also entitled to get a sum of Rs.5,000/- towards loss of estate, Rs.5^00/- towards funeral expenses and 1'espondent No.l-widow is entitled to get a sum of Rs.5,000/- towards lo£< of consortium. Thus, the total amount of compensation payable to the claimants isRs.30,63,948/-. 15.In the result, both the oppeals ore party allowed to the extent indicated oA>ove. No orderds to costs. ^SL—.. '• • •• • ' Sd/- I.NI.Quddusi Judge Sd/- G. Minhajuddin Judge Roshon/-