14027 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR M A C No. 829 of v. 1. Pawan Kumar Dhurwe S/o Late Tha
Case Details
1 / 8 2025:CGHC:14027 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR M A C No. 829 of 202 0 1. Yasmeen Bano W/o Late Shahnawaz Alam Aged About 36 Years 2. Mohammed Saad Khan S/o Late Shahnawaz Alam Aged About 10 Years Through Natural Guardian Yasmeen Bano 3. Alja Afreen D/o Late Shah Nawaz Alam Aged About 5 Years Through Natural Guardian Yasmeen Bano 4. Ali Ahmad Khan S/o Late Mohd. Maksud Khan Aged About 67 Years All are R/o- Street No. 1/D, Ashish Nagar, (East), Risali- Bhilai, Thana Nevai, Teh. and District- Durg, Chhattisgarh --- Appellants/ Claimants versus 1. Pawan Kumar Dhurwe S/o Late Thanwar Durwe Aged About 32 Years R/o Ward No-01, Dewkar, Post Dewkar, Thana Saja, District Bemetara, Chhattisgarh (Driver Of Offending Vehicle No. C.G. 08-B/1155) 2. Vikram Singh Kunda S/o Late Dilip Singh Kunda Aged About 35 Years R/o- Santrabadi, Durg, Thane Mohan Nagar, District Durg, Chhattisgarh(Owner Of Offending Vehicle No. C.G. 08-B/1155) 3. Division Head New India Insurance Company Limited O/o Chauhan Estate Near Mourya Talkies G.E. Road, District- Bilaspur, Chhattisgarh. (Insurer Of Offending Vehicle No. C.G. 08-B/1155) ____________________________________________________________
Legal Reasoning
For Appellant For Resp. No. 3 : Mr. Dashrath Gupta, Advocate : Mr. Parth Shrivastava, Advocate --- Respondents Hon'ble Shri Justice Parth Prateem Sahu Order On Board 24/03/2025 1. 2. There is no representation on behalf of Resp. No. 1 and 2, though served. The liability to satisfy the impugned award is upon Respondent No. 1 to 3 jointly and severally. 3. With the consent of the parties, matter is heard finally. PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 2 / 8 4. Challenge in this appeal is to the award dated 23.12.2019 passed by Learned First Additional Motor Accident Claims Tribunal, Durg, District Durg, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 235/2018, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) in part and awarded total sum of Rs. 39,91,295/- as compensation in death case. 5. Fact of the case relevant for disposal of this appeal are that on 08.09.2017 at about 3.00 pm Shahnawaz Alam (now deceased) was riding as pillion rider on motorcycle of Vinay Kumar Umre's (deceased) bearing registration number CG 07-LK-2300. When they reached near the Government Post Matric Scheduled Tribe Hostel located at Sirnabhatha, District Durg, Respondent No. 1-driver of truck number CG 08-B-1155 (offending vehicle), driving his vehicle rashly and negligently, came to the wrong direction and hit their motorcycle, due to which both of them fell down. In the said accident, Shahnawaz Alam suffered serious injuries in his jaw, both legs, both hands and head, he was immediately taken to the Government Hospital, Dhamdha for treatment, where the doctors declared him dead. 6. Appellants, widow, children and father of deceased, filed an application under Section 166 of the Act of 1988 seeking total compensation of Rs. 1,05,54,808/- as compensation pleading therein that on the date of accident deceased was about 43 years of age, was an able bodied person working as Contractor in the Electricity Department and earning Rs. 5,19,157/- per annum. 7. Non-applicant 1 & 2/ Respondent No. 1 & 2- driver and owner filed their reply and apart from undisputed facts have denied the pleadings made in 3 / 8 the application. It was further pleaded that that the appellants have exaggerated the assessment of the amount of damage. Non-applicant No. 1-driver has not dashed the motorcyclist Vinay Umre and Shahnawaz Alam, who was pillion rider, while driving carelessly on the wrong direction and there was no negligence of non-applicant No.1 in the said accident. The accident occurred due to the deceased Vinay Umre driving the motorcycle in a rash and negligent manner, at an uncontrolled speed and hitting the vehicle of non-applicant No.1 from the front. Non-applicant No.1 was driving his vehicle carefully and was not negligent towards the accident. He has a valid and effective licence on the date of the accident. Since the vehicle owned by non-applicant No.2 was insured with non- applicant No. 3, therefore the first responsibility of paying compensation will be of non-applicant No. 3- Insurance Company. Hence, the claim against non-applicants No.1 and 2 should be dismissed. 8. Non-applicant No. 3/ Resp. No. 3-Insurance Company in its reply, apart from accepting the undisputed facts, has denied the pleadings made in the application and further stated that the motorcycle on which the deceased Shahnawaz Alam was travelling had a head-on collision with a truck. In such a situation, it would be contributory negligence of drivers of both the vehicles because both the drivers must have been negligent in the accident. The appellants have made exaggerated statements regarding the income of the deceased and no documentary evidence has been brought since the deceased was a self-employed person, hence the future income cannot be calculated. Similarly, the income tax return of the deceased has been given for one year, which cannot be considered suitable for income determination. According to the terms of the insurance policy, at the time of the accident, it is mandatory to have effective driving 4 / 8 license, RC book, permit, fitness and insurance policy. Hence the claim application of the applicants should be rejected. 9. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased Shahnawaz Alam died because of injuries suffered due to rash and negligent driving of offending vehicle by non-applicant 1. Age of deceased to be 43 years is proved. Breach of conditions of the insurance policy and contributory negligence was not found to be proved. Tribunal holding the non- applicants jointly and severally to pay the amount of compensation, calculated the amount of compensation and awarded Rs. 39,91,295/- as total compensation with interest @ 6% p.a. from the date of filing of claim application. 10. Learned counsel for appellants-claimants would submit that Claims Tribunal erred in awarding meagre sum of compensation. He contended that learned Claims Tribunal has wrongly assessed the income of deceased by taking average income though they have proved the income of deceased by filing his ITR which shows that the income of deceased was increasing every year. Deceased was a Contractor in Electricity Department and was earning the amount as stated and pleaded in the application. He submits that the Claims Tribunal erred in deducting 1/3 dependency instead of ¼ as all the appellants were dependent upon the deceased. Hence, the amount of compensation be suitably enhanced. 11. Learned counsel for Respondent 3-Insurance Company would oppose the submission of learned counsel for appellants. He contended that appellants failed to prove the nature of occupation and income of deceased by bringing on record admissible piece of evidence except income tax return of three assessment years and in absence of proof of 5 / 8 occupation as also the income of deceased, learned Claims Tribunal has not committed any error in assessing the income on average of last three assessment years ie., Rs. 3,36,112/- per annum. Claims Tribunal has already awarded higher amount of compensation. Hence, the amount of compensation awarded by learned Claims Tribunal is just and proper which does not call for any interference of this Court. 12. I have heard learned counsel for the respective parties and also perused the record of claim case. 13. Sofar as, the submission of learned counsel for the appellants with regard to assessment of income of the deceased is concerned, accident was of 08.09.2017, occupation of deceased is pleaded as Contractor. In support of proof of occupation of deceased though no document/ licence of contract was brought by the appellants, however, appellants-claimants have produced income tax returns of the deceased of the year 2014-15, 2015-16 and 2016-17 showing annual income of Rs. 2,16,819, Rs. 2,71,362 and Rs. 5,19,157/- respectively. Deceased was aged 43 years at the time of accident and was self-employed. Though the claimants have filed income tax returns for three Assessment Years as above, the income of the assessee was Rs. 5,19,157/- as per the last assessment year. The Tribunal instead of taking the income of the deceased as per Assessment Year 2016-17, has chosen to calculate the average of the income for three Assessment Years. Considering the age of the deceased and the nature of business he was doing, in my considered view, the Tribunal was not justified in so taking the average of income of the two assessment years. 14. It has been established that the deceased, being a self-employed person, did not maintain sufficient documentary evidence to establish his income over the last several years. Specifically, except for the income tax returns 6 / 8 for the last three assessment years, no reliable and verifiable evidence, such as bank statements, business records, or invoices, was presented to the Court to prove the deceased’s income. The Court acknowledges that the deceased’s income tax returns for the last three assessment years were the only available and reliable documentary evidence on record. In the absence of any other credible proof of income, the Court finds it justifiable to rely on the most recent tax return filed before the death of the deceased. The income tax return filed for the last assessment year preceding the deceased’s death is presumed to reflect his financial position accurately. Self-employment often leads to income variability from year to year. However, in the absence of evidence to suggest a significant change in the deceased’s income from one year to the next, the most recent assessment year’s income serves as the best indicator of his income level at the time of his death as it is a fair and reasonable basis for determining compensation. 15. Therefore, in the opinion of this Court, it will be just and proper to holds that the annual income ie., Rs. 5,19,157/-, reflected in the last filed return of the year 2016-17 represents the deceased’s earning capacity shortly before his unfortunate death. It is ordered accordingly. 16. In the case at hand, deceased was 43 years of age on the date of accident as held by Tribunal, hence, there will be addition of 25% of established income in the income of deceased for future prospects for assessing total income of deceased for purpose of calculating compensation as held by Hon’ble Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680. Hon’ble Supreme Court in case of Sarla Verma & others v. Delhi Transport Corp. & anr. reported in (2009) 6 SCC 121 has issued 7 / 8 guidelines for deducting personal and living expenses based on number of dependents upon deceased and held that where the dependents are three, there will be deduction of 1/3rd and where the number of dependents are 4 to 6 there will be deduction of 1/4th as the case may be. In the instant case, there are 4 dependents, hence, there will be deduction of 1/4th of the income of deceased towards personal and living expenses. It is ordered accordingly. Appellants-claimants shall further be entitled for amount of compensation on other conventional heads as held by Hon’ble Supreme Court in case of Magma General Insurance Company v. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130 and Pranay Sethi (supra).
Decision
17. For the foregoing reasons, I find it appropriate to recompute the amount of compensation to be awarded to the claimants as under. 18. The annual Income of deceased is assessed as Rs. 5,19,157/- per annum. Upon adding 25% of the income of the deceased towards future prospects, yearly income of deceased on the date of accident will come to Rs. 6,48,946/-. After deducting 1/4th towards personal and living expenses, annual loss of dependency will come to Rs.4,86,709/-. Upon applying multiplier of 14 to the annual loss of dependency as per the decision of Hon’ble Supreme Court in the case of Sarla Verma (supra) as the deceased was about 43 years of age on the date of accident, total loss of dependency will come to Rs. 68,13,926/- [Rs.4,86,709x14]. Besides the amount of compensation towards loss of dependency, appellants- claimants shall further be entitled for Rs. 40,000/- towards loss of spousal consortium, Rs. 40,000/- each to appellants No. 2 & 3 towards loss of parental consortium, Rs. 40,000/- towards loss of filial consortium, Rs. 8 / 8 15,000/- towards loss of estate and Rs. 15,000/- towards funeral expenses. 19. Now the appellants-claimants shall be entitled for total sum of compensation of Rs. 70,03,926/- [Rs. 68,13,926 + Rs.40,000 + Rs.40,000 + Rs.40,000 + Rs.40,000 + Rs.15,000 + Rs.15,000] instead of Rs.39,21,295/- as awarded by learned Claims Tribunal. Aforesaid amount of compensation shall carry interest @ 6% 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. 20. 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