16169 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR M A C No. 232 of v. 1. Dipak Kumar Nishad S/o Dhumnath Aged About 20 Years R/o Village Limtara, Post
Case Details
1 / 7 2025:CGHC:16169 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR M A C No. 232 of 202 0 1. Surendra Kumar Jain S/o Natthulal Aged About 56 Years R/o Near Jain Mandir, Akaltara, Police Station Akaltara, District Janjgir Champa Chhattisgarh. 2. Kumari Amrisha Jain D/o Surendra Kumar Jain Aged About 25 Years R/o Near Jain Mandir, Akaltara , Police Station Akaltara, District Janjgir Champa Chhattisgarh. --- Appellants/ Claimants versus 1. Dipak Kumar Nishad S/o Dhumnath Aged About 20 Years R/o Village Limtara, Post Darrighat, Police Station And Tahsil Masturi District (Revenue And Civil) Bilaspur Chhattisgarh. 2. Shiv Prasad Bhoi S/o Gendram Bhoi R/o Ward No. 07, House No. 66, Butapara, Dewrikhurd, Police Station Torwa, District (Revenue And Civil) Bilaspur Chhattisgarh. 3. United India Insurance Company Limited Through Branch Manager Branch Office 2nd Floor, Gurukripa Tower , Near Ambar Auto Moblies Vyapar Vihar Bilaspur Tahsil And District (Revenue And Civil) Bilaspur Chhattisgarh., ____________________________________________________________
Legal Reasoning
For Appellants For Respondents No. 1 & 2 : Mr. Ramkumar Tiwari, Advocate For Respondent No. 3 : Mr. Sudhir Agrawal, Advocate : Mr. Anand Kesharwani, Advocate --- Respondents Hon'ble Shri Justice Parth Prateem Sahu Order On Board 07/04/2025 PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 1. Challenge in this appeal is to the award dated 30.08.2019 passed by Learned 8th Motor Accident Claims Tribunal, Bilaspur, District Bilaspur, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 227/2018, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Motor 2 / 7 Vehicles Act, 1988 (for short “Act of 1988”) in part and awarded total sum of ₹ 9,11,242/- as compensation. 2. Facts relevant for disposal of this appeal are that on 28.02.2018, deceased Shobha Jain was returning to her house after closing her shop, sitting on the pillion seat of TVS Zest scooty driven slowly and carefully on her side by her daughter-in-law Pratiksha alias Reshu Jain. When they reached near Ambedkar Chowk Akaltara at around 08.30 pm, vehicle No. CG-10-AH-7208 (henceforth “offending vehicle”) driven by non-applicant No. 1 rashly and negligently, hit the vehicle driven by Pratiksha Jain, due to which Shobha Jain suffered grievous and traumatic injuries on various parts of her body including head, back, waist, who was immediately admitted to CHC Akaltara for treatment, from where, she was referred to another hospital for treatment and then she was admitted to Apollo Hospital, Bilaspur, where during treatment, Shobha Jain (deceased) died on 01.03.2018. The report of the said accident was lodged by Paras Jain at Police Station-Akaltara, District- Janjgir Champa (CG) on 04.03.2018 for the alleged crime under sections 279, 337 and 304-A of IPC. 3. Appellants, husband and daughter of deceased, filed an application under Section 166 of the Act of 1988 seeking ₹ 45,65,000/- as compensation pleading therein that on the date of accident deceased was a 49-year-old healthy woman and was the co-operator of Osho Anand Utsav Dairy, Sweets and Namkeen Shop in Akaltara, District-Janjgir Champa. By doing the said work, she was having income of ₹ 3,00,000/- per year by which she was supporting her family. The appellants were dependents on the deceased, due to her untimely death in a motor accident, the appellants have been deprived of her income. 4. Non-applicant No. 1 & 2/ Respondent No. 1 & 2-Driver and owner of the offending vehicle submitted their reply and denied all the adverse pleadings 3 / 7 made in the application. It was further stated that on the date of accident non-applicant No. 1 was driving the offending vehicle carefully but the scooty two wheeler was being driven negligently by Pratiksha alias Reshu Jain and collided with the offending vehicle and met with an accident. The offending vehicle was insured with non-applicant No. 3 Insurance Company bearing all the liabilities arising out of any motor accident. The liability to pay the amount of compensation, if any, will be of non-applicant No. 3-Insurance Company and pleaded that the claim application filed by the applicants against non-applicant no. 1 and 2 be dismissed. 5. Non-applicant No.3/ Respondent No. 3-Insurance Company has filed its reply denying all the adverse pleadings made in the application and stated that the appellants were not dependent on the deceased Shobha Jain and that she was earning an income of ₹ 3,00,000/- per year by running a dairy business. It is stated that Non-applicant no. 1 has not caused the accident on 28.02.2018 by driving offending vehicle, but Pratiksha Jain herself hit the offending vehicle while driving her two wheeler negligently, due to which Shobha Jain, who was pillion rider on the vehicle, died. On the date of accident, Pratiksha Jain, did not have a valid driving license. The offending vehicle was insured in the name of Shiv Prasad Bhoi from 31.08.2017 to 30.08.2018 for carrying goods under the insurance policy conditions. Under the policy, the driver must have a valid licence, and there should be permit and fitness of the vehicle. The accident took place between two vehicles, due to which the owner and driver of the TVS scooty vehicle driven by Pritiksha Jain and the insurance company are necessary parties and are also liable to compensate the appellants as there was contributory negligence on the part of driver of scooty. 4 / 7 6. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased Sobha Jain died because of injuries suffered due to rash and negligent driving of offending vehicle by non-applicant 1. Income of ₹ 3,00,000/- per year of deceased was not found to be proved. Breach of conditions of the insurance policy and contributory negligence were also not found to be proved. Tribunal holding the non-applicant No. 3/ Insurance Company primarily liable to pay the compensation amount, calculated the amount of compensation and awarded ₹ 9,11,242/- as total compensation with interest @ 6% p.a. from the date of filing of claim application. 7. Learned counsel for appellant would submit that Claims Tribunal erred in awarding meagre sum of compensation of ₹ 9,11,242/-. He contended that learned Claims Tribunal disbelieved the occupation and income of deceased pleaded and stated by the appellants-claimants and has erroneously taken income as ₹ 8,190/- per month treating her to be an unskilled labourer. She contended that at the time of accident, the deceased was co-owner of the Dairy shop, from which she was earning ₹ 3,00,000/- per year, therefore, the income as pleaded in the application ought to have been taken for calculating amount of compensation. It is contended that learned Claims Tribunal has erroneously assessed the age of deceased as 52 years instead of 48 years as mentioned in the post mortem report and in the claim application. It is next contended that learned Claims Tribunal has not awarded any amount of compensation to the appellant No. 2 towards loss of consortium who is daughter of the deceased in the light of decision of Hon’ble Supreme Court in the case of Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130. Hence, the amount of compensation be suitably enhanced. 5 / 7 8. Learned counsel for Respondent 3-Insurance Company would oppose the submission of learned counsel for appellants and further submits that the appellants failed to prove the occupation and the income of deceased by bringing cogent and reliable piece of evidence, hence, the Claims Tribunal has rightly taken the income of deceased on notional basis treating the deceased to be labourer. The amount of compensation awarded by learned Claims Tribunal is just and proper which does not call for any interference of this Court. 9. I have heard learned counsel for the respective parties and also perused the record. 10. Sofar as, the submission of learned counsel for the appellants with regard to assessment of income of the deceased is concerned, occupation of deceased is pleaded as Co-Operator of the Dairy shop. True it is that the appellants-claimants failed to produce any admissible piece of evidence to prove income of deceased. But for assessing income on notional basis, factors like date of accident, age of deceased, wage structure, price index etc. are to be taken into consideration. In the said facts of the case, the occupation of deceased can only be treated as a unskilled labourer for the purpose of calculating the amount of compensation. Therefore, learned Claims Tribunal has taken note of the wages prevailing on the date of accident in terms of notification issued by the competent authority under the Minimum Wages Act, 1948, has assessed the monthly income of deceased to be ₹ 8190/- per month, the said finding of the Tribunal cannot be said to be erroneous, it is affirmed. 11. The other submission of learned counsel for appellants with regard to assessment of wrong age of deceased is concerned, learned Claims Tribunal considering the date of birth of deceased as mentioned in the Adhar Card, which is a Government document has assessed the age of deceased to be 6 / 7 52 years. The age recorded in the Government record cannot be said to be wrong. If it is the claim of the appellants that the age mentioned in the Adhar card is erroneous, the appellants-claimants could have submitted other document(s) to show the age of deceased as pleaded. The age mentioned in the post mortem report is only on the basis of appearance of body and it is not ascertained by any scientific method. Hence, in the said facts of the case, age of deceased mentioned in the Government document is to be taken for the purpose of computing the compensation. Therefore, in the opinion of this Court, Claims Tribunal has rightly considered the age of deceased as mentioned in the Adhar Card. The ground raised by counsel for appellants with regard to assessment of age of deceased is having no legs to stand and accordingly it is repelled. 12. Perusal of impugned award would show that the Claims Tribunal has awarded ₹ 40,000/- towards loss of spousal consortium to appellant No. 1 and not awarded any amount to appellant No. 2 towards loss of consortium who is daughter of deceased in view of decision of Hon’ble Supreme Court in the case of Nanu Ram (supra) in which it is held that the spouse, children and parents of deceased are entitled for loss of consortium, hence, I find it appropriate to award ₹ 40,000/- to appellant No. 2 towards loss of parental consortium. Further, the learned Claims Tribunal taking note of the decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680 and in case of Sarla Verma & others v. Delhi Transport Corp. & anr. reported in (2009) 6 SCC 121 has rightly applied multiplier of 11 holding the age of deceased between 50 to 60 years of age which is also affirmed by this Court in the preceding paragraph and also deduction of 1/3 of the income of deceased towards loss of dependency which cannot be said to be erroneous. Tribunal has correctly added 10% of the assessed income towards future prospects. Learned 7 / 7 Claims Tribunal has further awarded the amount of ₹ 28,450/- towards medical expenses. Tribunal awarded ₹ 25,000/- under the head of funeral expenses and ₹ 25,000/- towards loss of estate which are on higher side in view of decision of Pranay Sethi (supra).
Decision
13. For the foregoing reasons, I find it appropriate to recompute the amount of compensation to be awarded to the claimants as under. 14. Appellants-claimants are entitled for ₹ 7,92,792/- towards loss of dependency, ₹ 40,000/- towards loss of spousal consortium to appellant No. 1, ₹ 28,450/- towards medical expenses, ₹ 15,000/- towards loss of estate, ₹ 15,000/- towards funeral expenses as already awarded by learned Claims Tribunal. In addition to it, appellants-claimants will be entitled for ₹ 40,000/- towards loss of parental consortium to appellant No. 2. 15. Now the appellants-claimants shall be entitled for total sum of compensation of ₹ 9,31,242/- [₹ 7,92,792 + ₹ 40,000 + ₹ 40,000 + ₹ 28,450 + ₹15,000 + ₹15,000] instead of ₹ 9,11,242/- as awarded by learned Claims Tribunal. The amount of compensation shall carry interest @ 7.5% p.a. from the date of filing of claim application till its realization. Other conditions of the impugned award shall remain intact. Any amount paid to the appellants pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above. 16. In the result, appeal is allowed in part and the impugned award is modified to the extent as indicated herein-above. pwn Sd/- (Parth Prateem Sahu) Judge