u IN THE HIGH COURT OF JUDICATURE AT BILASPUR rCHHATTISGARHI Misc.Aooeal Nof I OF 200^ [W f^ ABPELLANT ^ISURANCE ^ Oriental Insurance Conipany Ltd. through its Branch Manager, Oriental Insurance Company Ltd., Ambikapur, Dist. Sareuia [CG) VERSUS RESPONDENTS CLAIMANTS (COUSIN ^t)F DECEASED) ,—'<"6^) "•"'^^ ^-'^•:-- ^°" ^"" ...-•-"" • ^WNER PRIVER .. Prabal Khess s/o Jirku, aged 55 years. ^ 2. Rajnath Khess s/o Jirku, aged ^50 years. (Both r/o Gram & Post-Katkall, P.S. 8s Tehsil Sitapur, District Sareuia (CG). 3. Tejpal Singh s/o Harbansh Singh Babra, Owner-Babra Bus Transport Company, Ambikapur, District Sarfifuia (CG). 4. Pradeep Shrivastava s/o Not known, aged 35 years, Bus Driver through Babra Transport Company. Ambikapur, District- Sareuia (CG). t APPEAL U/S 173 OF MOTQB-VEHICLES ACT AGAINST THE AWARD/ORDER DATBD 8-11-2004 PASSED BY THE^OURTH ADDITIONAL CLAIMS TRIBUNAL, AMBIKAPUR IN C.T. N0. ^12/2003 1 ,r:^ if% i t%SI|^ | 1 s< »^^ i\ c HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Radhe Shyam Sharma Mjs^ellaneous Appeal No.131 of 2006 Oriental Insurance Company Ltd. versus Prabal Khess and others ORDER Postfor 15-7-2011 Sd/- R.S. Sharma Judge •-? ^t^. i: ^:^ 1 %;ssl 1 ^ ^..// h""""^ HIGH COURT OF CHHATTISGARH AT BILASPUR SinaleBench: Hon'ble Shri Justice Radhe Shyam Sharma Miscellaneous Appeal No.131 of 2006 Appellant Respondents versus Oriental Insurance Company Ltd. F)rabal Khess and others Present: Shri Abhishek Sinha and Shri Ghanshyam Patel, counsel for the appellant. Shri Rahul Mishra, counsel for respondents No.1 and 2. None for respondents No.3 and 4. Miscellaneous Appeal under Section 1 73 of the Motor Vehicles Act, 1988 ORDER (Pasi>edonJ^'_July,2011) This appeal has been preferred by non-claimant Oriental Insurance Company Limited challenging the award dated 8-11-2004 passed by the 4th Additional Motor Accidents Claims Tribunal, Ambikapur in Claim Case No. 12/2003, whereby the claim of the claimants has been partly allowed and liability for payment of compensation to the claimants has been fastened on the non- claimants jointly and severally. 2. Brief facts of the case are that respondents No.1 and 2/claimants filed an ap|)lication under Section 166 of the Motor Vehicles Act, 1988 (henceforth 'the Act, 1988') before the Claims Tribunal claiming compensation of Rs.4,50,000/- for death of Bhabhila son of Michchhi arising out of an accident took place on z IIIN-""^ ^MIII iiriiN< 21sl June, 2002, resultinc) from vehicle No.MP 27 B 4114, owned by respondent No.3 and driven by respondent No.4 at the relevant time. The vehicle was insured with the appellant for a period between 22.3.2002 to 21.03.2003. Deceased Bhabhila was unmarried and his parents had died earlier to his death and the claimants are cousins of the deceased. The deceased used to work as a labourer in the agricultural fields, save money nearly Rs.1,000/- per month from his earning and used to give that saved-money to respondents No.1 and 2/claimants. On the above facts, respondents No.1 and 2 preferred the application for compensation. 3. Learned Claims Tribunal awarded compensation pf Rs.1,57,000/- in favour of the claimants fastening liability for payment of compensation to the claimants on the non-claimants jointly and severally. Respondents No.3 and 4 did not appear before the Claims Tribunal <and were proceeded ex parte. The appellant/insurance company filed reply before the Claims Tribunal denying the claim of reispondents No.1 and 2/claimants and took specific plea that respondents No.1 and 2 are not legal representatives of the deceased and in fact, real brothers of the deceased, namely, Nohar and Ramdhani are alive and they have not been joined as party and, therefore, the claimants are not entitled for any compensation and their claim is not maintainable. Apart from this, grounds regarding breach of conditions of the policy of insurance and the driver of the vehicle did not possess a valid and effective licence to drive the vehicle were, also raised by the appellanVinsurance company before the Claims Tribunal. 4. Shri Abhishek Sinha, learned counsel appearing for the appellant/insurance company has argued that respondents No.1 and 2 are not legal representatives of deceased Bhabhila, especially in view of the fact that two real brothers of the deceased Nohar and Ramdhani are still alive and they are necessary party and without impleading them, the claim ofthe claimants under Section 166 ofthe Act, 1988 is not maintainable. 5. Per contra, Shri Rahul Mishra, learned counsel appearing for respondents No.1 and 2/claimants has opposed the arguments advanced by learned counsel for the appellant/insurance company and supported the impugned award. 6. I have heard learned counsel appearing for the parties and perused the impugned award as also the documents available on record. ^niriii^ 7. The appellant/insurance company had taken the specific plea in its written statement before the Claims Tribunal that the deceased had two real brothers and they were necessary to be impleaded for just decision of the claim petition. Despite there being real brothers of the deceased alive, respondents No.1 and 2/claimants, who are cousin of the deceased, cannot be held to be legal representatives ofthe deceased. For wantof necessary party, the claim petition was not maintainable, but the learned Claims Tribunal has not framed any issue in this regard to the effect whether the claim petition was maintainable for non-joinder of Nohar and Ramdhani as party. ^^^^ (S^ \.^// ^INN""^ 8. Learned Claims Tribunal has held that age of the deceased was 35 years and the age of the claimants were 50 and 55 years at the relevant time and accordingly applied multiplier of 15 fordeciding loss of dependency, whereas looking to the age of the claimants, multiplier of 11 was to be made applicable. The Claims Tribunal has deducted only 1/3 of the income of the deceased towards his personal and living expenses, whereas, in this case the claimants being cousin of the deceased, the deduction towards personal and living expenses of the deceased should have been 50% of his income. 9. Considering the facts and circumstances of the case, 1 am of the view that the deceased had two real alive brothers, the Claims Tribunal has not framed any issue in this regard and no reason has been assigned for 1/3 deductibn of the income of the deceased towards his personal and living expenses as also for application of multiplierof15. 10. In the above mentioned facts and circumstances, the matter requires reconsideration at the end of the Claims Tribunal. 11. Therefore, the appeal is allowed in part, the impugned award is set aside and the matter is remitted to the Claims Tribunal back for decision afresh. The Claims Tribunal shall frame an issue as indicated above. Needless to mention that the parties shall be allowed to adduce further evidence, amend their pleadings, file documents or get the documents verified etc. and thereafter decision i1^^. 'lris:a?.T %.^ ^y^ ,-^ Gopal shall be taken by the Claims Tribunal afresh. If any amount has already been deposited by the appellant/insurance company before the Claims Tribunal, the same shall remain in deposit till the decision afresh. No order as to costs. Sd/- R.S. Sharma Judge ^NimiiNng