HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri Justice R. L. Jhanwar, M. A. (C) No.828 of 2009 APPELLANT RESPONDENTS Gyanendra Chaturvedi. Versus Narmada Bai Suryavanshi and others. ORDER ' riT- .-•:-:..•°;--:•„—". - .-•?^*'t^: •-' For Pronouncement of Order |/(.02.2011 Sd/- R.E,. Jhanwar Judge '7SSLs^"~~~^ tt HIGH COURT OF CHHATTISGARH AT BILASPUR SB: Hon'ble Shri JusticeR. L. Jhanwar, IVI^A._(C) No.828 of2009 APPELLANT Gyanendra Chaturvedi, S/o Anil Kumar Chaturvedi, aged about 20 years, R/o Sindhi Colony, ' Jarhabhata, Police Station - Civil Lines, Bilaspur, at present Katghora, District -Korba, through Raj Kishore Choubey S/o Daya Shankar Choubey, Main Road, near Bus Stand, Katghora, District - Korba, (C.G.) Owner ofVehide No. C.G.10-A/9058 RESPONDENT Versus 1 Narmada Bai Suryavanshi, Rajkumar, aged about 42 years. w/o 2. Rajkumar Suryavanshi, S/o Ramkhilawan Suryavanshi, aged about 36years, ^ : ;:: Both are R/o Darrip^ra, Ratanpur, Poolice Station - Ratanpur, District — Bilaspur (C.G.) : 3. Rajkishore Choubey, S/o Dayashankar Choubey, aged about48years,R/o Main Road, near Bus Stand, Katghora, District -Korba(C.G.) ' 4. Ganesh Yadav, S/o Bharatlal Yadav, aged about 35 years, R/o Seepat Road, Sarkanda, in front of New District Hospital, Bilaspur, District - Bilaspur, (C.G.) (Driver ofVehicle No. C..GJ. 10 A/9058) 5. Branch Manager, The Oripntal Insurance Cpmpany Ltd. near Bus Stand, Bilaspur, District Bilaspur(C.G.) APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 1988 Appearance: y,Y^ f>rad\^',^ Shri SBtfte^ai^ia»i®,^unsel forthe appellant. : Shri Akhtar Hussain.counsel for respondents No.1 & 2. Shri Sandeep Shrivastava, counsel for respondentNo:5. None for other respondents. ORDER (Passed on )Z,.02.2011) r /^- ^ '^•-i^^^.. ^ ^^^•^^, 5 i \ : tw^ "a*eassy This is owner's appeal directing against the order dated 16.07.2008 passed by the 6 Additional Motor Accidents Claims Tribunal, Bilaspur in Claim Case No. 06/2006 whereby the Claims Tribunal awarded a sum of Rs.3,00,000/- as total compensation in a death case. 2. As against the compensation of Rs.11,14,000/- sought by the claimants by filing claim petition under Section 166 of the Motor Vehicles Act for the death of Kamal Prasad on 16.10.2005, due to injuries sustained by him in the motor accident on 12.10.2005, the Tribunal, on close scrutiny of the evidence available on record and the submissions made by the respective parties, held that although there was no documentary evidence to show the income and age of the deceased but looking to increase in prices and taking into consideration'the minimum wages to be given to a labour and fixed the notional income of the deceased at Rs.30,000/- per annum. Thereafter, the Tribunal deducted one-third towards personal expenses of the deceased and assessed the annual income of the deceased at Rs.20,000/-. Taking intp account the total age ofthe parents ofthe deceased, the Tribunal used the multiplierof 13 and after multiplying the dependency of Rs.20,000/- with the multiplier of 13, the total dependency was worked out to Rs.2,60,000/-. The Tribunal furtherawarded Rs.40,000/- under other heads. Thus, the total compensation was worked out to Rs.3,00,0007-. The Tribunal quantified the interest at Rs.30,000/- on the total compensation and directed the insurance company to pay the cornpensation first and then to recover the same from the owner i.e. the present appellant. It is this order, which is ' . i'' .; ^ .'\ under chaltenge by the appellant/owner. 3. Learned counsel for the appellant / owner vehemently argued that theTribunal has erred in awarding excessive. amount; the'Tribunal has erred in taking the income of the deceased at Rs.30,000/-; the Tribunal ought to have used the multiplier of 10 instead of 13 in view-ofthe dictum of Municipal Corporation of Greater Bombay vs. Laxman lyer & another, (2003) 8 SCC 73- and the Tribunal should have deducted 1/2 towards personal expenses instead of deducting 1/3 ' as personal expenses. On these premises, learned counsel for the appellant urged thatthe compensation awarded by the Tribunal may be reduced. 1 •^ ''^ ^SiSSS^i ^k 4. Learned counsel for the claimants, on the other hand, argued in support ofthe impugned order. 5. Learned counsel for the insurance company argued that on the date of incident the driver of offending vehicle bearing No. C.G. 10 A/9058 was not holding a valid and effective driving licence and the offending vehicle is a non-transportvehicle whereas the said offendihg vehicle was used as transport vehicle since on the date of accident daily newspaper was being transported from Bilaspur to Korba and the deceased was travelling as gratuitous passenger, which is in breach of policy of insurance. It was also argued that no premium was charged by the insurer for allowing a gratuitous passengerin a transport vehicle. Lastly, he argued that the Tribunal has erred in recording that the insurer shall first pay and then to recover it from owner. He urged that the finding recorded by the Tribunal may be set aside. 6. ; In the present case, the Tribunal has Wrongly assessed the dependency of the appellant. Although the approach of the Tribunal in taking the notional income of the dec&ased at Rs.30,000/- is proper, but the Tribunal has erred in deducting one-third towards persdnal expenses of the deceased. Considering that the deceased Kamal Prasad was. liinmarrTe'ci ori'the date of aCcideht and after his marriage, his Gohtributibri to the parents would have been reduced, 1 deem it proper t6 deduct one- half of the income of the deceased towards his personal expenses. The claimant's dependency, therefore, is assessed at Rs.15,000/- perannum. 7. The Tribunal has also erred in applying multiplier of 13 whereas the multiplier should be at 10 looking to the fact thatthe deceassd was unmarried. Therefore, multiplier of 10 is proper, in viewofthe dictum of the Apex Couri: in the case of Municipal Corporation of Greater Bombay vs. Laxmsn lyer & aiwther, (2003) 8 SCC 731 Whereih it was held that in those cases where the claimants are the p^rents of the deceased', 'lhe 'multiplier"should' never 'ex'ceed"'10. ' Accordirigly,' by multiplying the annual dependency of Rs. 15.000/-with the multiplierof 10, the compensation works out to Rs.,1,50,000/-. The Tribunal awarded Rs.40,000/- under other heads and if the amount of Rs.40,000/- is added, the total compensation works out to Rs.1,90,000/-. Thus, compensation of Rs,3,QO,OOQ/- awarded by_the Trjbunal is reduced to Rs.1,90,000/- which ... \ —.^s' -^y the claimants are entitled to receive along with interest of Rs.30,000/- as quantified by the Tribunal. 8. So far as the arguments advanced by the counsel forthe insurer is concerned, 1 have perused the record ofthe learned Claims Tribynal including impugned order. Although A.W.1 Narmada Bai in her claim petitionhas stated that the deceased Kamal Prasad was travelling as a gratuitous passenger in the offending vehicle and in the evidence adduced before the Tribunal the deceased was the employee of owner of Mahendra Pick-up but she has not been able to prove that the deceased was an employee working under the appellanVowner. In the absence of such proof, the learned Tribunal has rightly held that the deceased was travelling as a gratuitous passenger and that no premium has been paid for such passenger and once it is held so, 1 am of the opinion that the Tribunal cannot give a direction to insurance company to satisfy the C,J. .-^L;;;'^^.. . ..-..- ^ „ _ . _.^JL- ..;- . ^,.-. „ -. .. ... .^^;...... .^.^; ;..,•. . -........ .,.,. compensation first and then to recover it from the owner. 9. Now, a perusal of copy of driving licence Ex. N.A.1 produced by the driver of the offending vehicle would make it clear that it was L.M.V. licence and also shows the endorsement for non-transport vehicle whereas the policy of insurance Ex.N.A.2 would clearly show that the offending vehicle isMahindra Pickup and was insured for goods carrying commercial vehicle meaning thereby that it is a transport vehicle. It is also clear from Ex.N.A.1 that L.M.V. to drive transport vehicle was valid upto 03.04.2020. It is apparently evident from Ex.N.A.2 that there was no mention of premium for passenger. The aforesaid facts patently make eviderit that on the date of accident the driverwas not holdingvalid and . effective driving licence to drive offending pick-up which is a goods carrying commercia! vehicle for transporting the daily newspaper on the date of incident and once there was endorsement in driving licence produced by the driver that his driving licence was for transport vehicle and npt for non-transport vehicle, the insurance company cannot be held liable for payment of compensation. 10. In view of the above, the questioh that has to be considered in this case is whether the insurance company can be directed to satisfy the award and be directed to recover the amount from the insured? In Prem '±.tt3-» \Kumatri v. Prahalad Dsv, 2008 ACJ 776 the Apex Court has held that in a case of fake licence Insurance Company cannot be held liable for payment for payment compensation. In the matter of National Insurance Co. Ltd. v. Kaushalya Devi, 2QOS ACJ 2144 (SC) the Apex Court has set aside the directions given by the High Courtof Himachal Pradesh directing the insurance company to deposit the amount and specifically held that if the amount had not been withdrawn by respondent No.1, it would be refunded to the insurance company and the claimant'would recover the amount from the owner of the vehicle. 11. Relying on the judgment rendered in Kaushalya Devi (supra), since this Court has no power to direct the insurance company to satisfy the award, therefore, 1 am of the opinion that the finding recorded by the Tribunal that the insurance company shall first satisfy the amount and then to recover it from the owner is set aside. It is held that the insurance company is wholly exoiierated from its liability. The liability to pay compensation of Rs.1,90,0007- awarded by this Court along with interest of Rs.30,000/- quantified by the Tribunal fully rests on the owner. The owner shall satisfy the award passed by this Court within a'period of two months. If the insurance company had already deposited awarded amount, if any, then it may initiate proceedings to recover the amount so 1"! • • I^?-—--•••• • '•• • ...,. .:^. ,.,...-, ,..,-.. . ,,.. ... ,,-..: ~. .,-, t.- .. -.-... !-,••••: : '. -.••-;•• deposited by it from the owner. Rest of terms of the award shall, however, remain unaltered. 12. In view of what has been indicated above, the ap'peal is partly allowed with the above modification, as indicated in paragraph? of this order. R.£.Jhanwar Judge (lt:^G-i;^r.