Smt. Ram Bai v. Prem Lal Sahu

Mr. Praveen Dhurandhar, Advocate For Resp. No.1 : None appears For Resp. No.2 _______________________________________________________ Mr. Qamrul Aziz, Advocate : S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 25/03/2025

None appears for respondent No.1 though served.

With the consent of learned counsel appearing for the parties, the case is heard finally.

This is the claimants’ appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount of compensation awarded by learned Motor Accidents Claims Tribunal, Baikunthpur, District- Korea (CG) vide award dated 6th January 2020 passed in Claim Case No.95 of 2018.

Facts relevant for disposal this appeal appellants/applicants/claimants filed a claim application under Section 166 of the Act against the respondent/non-applicants, pleading therein that on 01.10.2018 at 3:00 pm, Lalsai along with his friend Mishrilal, was going from his native village Mansukh to his sister's house at village -Gartar sitting on his Hero Deluxe motorcycle. When the motorcycle reached near Atal Chowk on the main road of village Mansukh, the driver of a red coloured Hero Glamour motorcycle bearing registration number CG 16 CG 4847 coming from Kahdgawan hit the motorcycle driven by Mishrilal in which Mishrilal and pillion rider -3- Lalsai received serious head and other injuries. After the incident, the injured Lalsai and Mishrilal were taken to the district hospital Baikunthpur where Lalsai died during treatment. Lalsai used to work as a shopkeeper and earned 7,000/- to 8,000/- Rs. per month. All the applicants/claimants are dependent on Lalsai. It was pleaded in the claim application that non-applicant No.1- Premlal Sahu is the owner and driver of the offending vehicle bearing registration No. CG 16 CG 4847 by which the incident occurred. They prayed for grant of compensation of Rs.9,70,000/- from the non-applicants with interest at the rate of 12% per annum.

In his written statement, non-applicant No.1- Premlal Sahu stated that it is Mishrilal who drove his Hero Deluxe motorcycle rashly and negligently and went on the wrong side and hit Premlal's Hero Glamour motorcycle. The said accident occurred due to Mishrilal's fault, hence, the claim application may be dismissed.

Non-applicant No.2/Insurance Company in its written statement has denied all the facts pleaded in the claim application and made additional averment that accident occurred due to the contributory negligence of Mishrilal. The insurance company of Mishrilal's vehicle is a necessary party in the case. It was pleaded that non-applicant No.1 Premlal did not have a valid and effective driving licence to drive a motorcycle at the time of the accident, which is in violation of the conditions of the insurance policy. Therefore, the claim application be dismissed.

Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that the incident occurred -4- due to negligence on the part of both the drivers of the motorcycle i.e. Mishrilal and Premlal in which Mishrilal suffered grievous injuries, Premlal suffered simple injuries and Lalsai suffered serious injuries on his head and other parts of body and he died during his treatment. Breach of insurance policy conditions was not found to be proved. Liability to satisfy the amount of compensation is fastened upon respondent no.2/Insurance Company. Assessing annual income of the deceased as Rs.54,000/- (Rs.4,500/- per month) notionally, calculated and awarded total amount of compensation of Rs.2,05,000/ -

Learned counsel for the appellants submits that appellants No. 2 to 6 are major children of the deceased and, therefore, learned Claims Tribunal has not treated them to be dependents upon the deceased father. He contended that said finding recorded by learned Tribunal is erroneous. Even if the claimants are major, they are entitled to file a claim application seeking compensation which is to be considered in accordance with law. In support of this submission, he places reliance upon the decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Birender & Ors. (2020) 11 SCC 356 and Seema Rani & Ors. Vs. Oriental Insurance Co. Ltd. and Ors. 2025 SCC OnLine SC 283. He next contended that learned Claims Tribunal erred in deducting ½ towards personal and living expenses of the deceased which is also erroneous in the facts and circumstances of the case as also the afore-discussed decisions of Hon’ble Supreme Court. In case the appellants/claimants No. 2 to 6 are to be treated as dependents upon the deceased, appropriate deduction would be ¼ as held by Hon’ble Supreme Court in the case of Sarla Verma (Smt.) -5- and Ors. Vs. Delhi Transport Corporation and Anr. (2009) 6 SCC

He next contended that income of the deceased has wrongly been assessed only Rs.4,500/- per month overlooking the date of incident i.e. 01.10.2018. On the said date, income of the ‘unskilled labourer’ is much more than that of income as assessed by learned Claims Tribunal. He submits that even if the appellants/claimants failed to prove the income and occupation of the deceased by bringing cogent and reliable piece of evidence, Tribunal ought to have considered the engagement of the deceased as labourer and ought to have assessed income as fixed by the Commissioner-cum-Competent Authority, under the Minimum Wages Act, Chhattisgarh, Raipur which is Rs.7,800/- per month as per Notification issued for the year 2017 to 2018 for grade/zone-C area. He also contended that learned Tribunal erred in not awarding loss of parental consortium to appellants/claimants No. 2 to 6 and in support of his contention, he places reliance upon the decision in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram & Ors. (2018) 18 SCC 130. Lastly, he contended that age of the deceased as held by the Claims Tribunal on the basis of postmortem report is 65 years and therefore appropriate multiplier would be 7 instead of 5. He also submits that the liability to satisfy the amount of compensation is fastened upon respondent No.1 & 2 jointly or severally and, therefore, it is the prime liability of respondent No.2/Insurance Company to satisfy the amount of compensation.

Learned counsel for respondent No.2/Insurance Company vehemently opposes the submission of learned counsel for the appellant/claimants -6- and would submit that learned Claims Tribunal has awarded just and proper amount of compensation in the facts and circumstances of the case which does not call for any interference.

I have heard learned counsel for the parties and also perused the impugned award passed by the learned Claims Tribunal.

In the case at hand, it is not in dispute that claimants/appellants No. 2 to 6 are children of the deceased . Even though they are major but in view of their relationship with the deceased they are also entitled to file an application for compensation in the facts and circumstances of the case. Merely because they are major and earning children of the deceased their right to file claim application cannot be taken away. This issue has been considered by Hon’ble Supreme Court in the case of Birender (supra) wherein it was held as under :- “14. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the legal representative concerned was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs 1,00,000 and Rs 1,50,000 per annum. In that sense, they were largely dependent on the earning of their mother -7- and in fact, were staying with her, who met with an accident at the young age of 48 years.

Recently in the case of Seema Rani (supra) relying upon the decision in the case of Birender (supra) Hon’ble Supreme Court authoritatively held as under :-

9. We have heard the learned counsel for the Appellants. We are unable to agree with the view taken by the Tribunal on the dependents of the deceased. This Court in National Insurance Company Limited v. Birender, had expounded that major married and earning sons of the deceased, being legal representatives, have a right to apply for compensation, and the Tribunal must consider the application, irrespective of whether the representatives are fully dependent on the deceased or not. The Court went on to conclude that since the sons, in that case, were earning merely Rs. 1,50,000/- per annum, they were largely dependent on the earnings of the deceased and were staying with her.

Considering the facts and circumstances of the case where the appellants/claimants No. 1 to 6 who are major children of the deceased as also aforementioned decisions of Hon’ble Supreme Court, in the opinion of this Court, learned Claims Tribunal erred in holding that the appellants No. 2 to 6 are not entitled for filing of claim application seeking compensation against the death of their father and, therefore, said finding recorded by Claims Tribunal is set aside and it is held that appellants/claimants No. 2 to 6 are also entitled for compensation in -8- the facts and circumstances of the case.

When once this Court the conclusion appellants/claimants No. 2 to 6 are entitled to file application seeking amount of compensation and also entitled to get amount of compensation, the deduction applied in the facts of the case towards personal and living expenses of the deceased would be ¼ as held by the Supreme Court in the case of Sarla Verma (supra). It is ordered accordingly.

Learned Claims Tribunal in the absence of proof of employment and the income of deceased has considered income of the deceased on notional basis as Rs.4,500/- treating the deceased to be a labourer. Learned Tribunal has failed to take note of the fact that incident is of

01.10.2018 and death is of 04.10.2018.

In the aforementioned facts of the case, learned Claims Tribunal ought to have taken note of the wages prevailing in the year 2018 for ‘unskilled labouer’ in the said area. Even if for any reason, appellants/claimants No. 1 to 6 failed to prove wages prevailing in the zone/area where they are living, then also learned Claims Tribunal ought to have taken into consideration the minimum wages fixed by the Commissioner- cum- Competent Authority under the Minimum Wages Act.

According to minimum wages fixed by the Commissioner cum Competent Authority under the Minimum Wages Act, 1948, for Class-C cities, minimum wages fixed is Rs.7,800/- per month and therefore I find it appropriate to assess income of the deceased as Rs.7800/- per month (Rs. 93,600 per year) instead of Rs.4,500/- as assessed by the -9- Claims Tribunal.

Learned Tribunal has awarded only Rs.40,000/- to appellant/claimant No.1/wife towards loss of spousal consortium and has not awarded loss of parental consortium to respondents No. 2 to 6 who are children of the deceased. As held by Hon’ble Supreme Court in the case of Nanu Ram alias Chuhru Ram (supra) the widow of the deceased as also children and parents of the deceased all are entitled for loss of consortium i.e. loss of spousal consortium, loss of parental consortium and loss of filial consortium. Learned Tribunal fell into error in not granting parental consortium to appellants/claimants No. 2 to 6 being children of the deceased and, therefore, I find it appropriate to award parental consortium of Rs.40,000/- to appellants No. 2 to 6 each.

In the aforementioned facts of the case and the discussions as also law laid down by Hon’ble Supreme Court in the aforementioned decisions, I find it appropriate to re-compute the amount of compensation as under:- S. N. Heads Compensation

1. Loss of Income/dependency : Rs. 4,91,400 (93,600 x ¼ =23,400/- 93,600 -23,400=70,200/- 70,200 x 7=4,91,400) Funeral expenses Loss of Estate Loss of spousal consortium to appellant/claimant No.1/wife : Rs. 15,000 : Rs. 15,000 : Rs. 40,000 Loss of parental consortium to appellants/claimants No. 2 to 6 @ : Rs. 2,00,000

5. -10- 40,000/- each Total compensation : Rs. 7,61,400

Now the appellants/claimants are awarded the total compensation of Rs.7,61,400/- instead of Rs.2,05,000/- as awarded by the Claims Tribunal.

Aforementioned total amount of compensation shall carry interest @

7.5% per annum from the date of filing of claim application till its realization. Any amount of compensation already paid to the claimants shall be adjustable from the total amount of compensation which has now been calculated and awarded by this Court. Other conditions of impugned award shall remain intact.