Nafr High Court
Case Details
1 2025:CGHC:15409 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 825 of 2020 1. Souribai Nayak W/o Lt. Laxmiram Nayak aged about 48 years R/o Village- Bhagora, Tehsil- Tamnar, District- Raigarh (CG) versus ... Appellant 1. Tekchand Bhoy S/o Sankumar Bhoy Aged About 42 Years R/o Village- Kalobahal, P.O.- Duduka, Police Station- Himgir, District- Sundargarh (Odisha), Occupation- Vehicle Owner 2. Ratnakar Mishra S/o Deenbandhu Mishra Aged About 40 Years R/o Village- Sargideehi, Police Station- Govindpur, District- Sambalpur (Odisha), Occupation- Driver 3. The New India Corporation Limited Branch- City Branch (550501) Raurkela, City Branch Kachahari Road, Uditnagar, Raurkela, (Odisha). Temporary Address- Through The Divisional Manager, 2nd Floor, Sati Guri Chowk, Sadar Bazar Raigarh, District- Raigarh, Chhattisgarh, Pin Code- 496001 ... Respondent(s) For Appellant : Mr.Sajal Kumar Gupta, Advocate on behalf For Respondents No.1 & 2 : None For Respondent No.3
Legal Reasoning
1. As there is no dispute regarding the accident, the cause of accident as also liability to indemnify the insured owner of offending vehicle, the sole question involves in this appeal for consideration is whether or not the Claims Tribunal has 2 awarded adequate compensation to the claimants. In such circumstance, issuance of notice to respondent Nos.1 & 2, who are registered owner and driver of offending vehicle, is dispensed with, and with the consent of the parties, the appeal is being heard finally at the admission stage itself. 2. Appellant-claimant has filed this appeal seeking enhancement of compensation awarded by the learned Additional Motor Accidental Claims Tribunal, Gharghora District Raigarh (for short ‘the Claims Tribunal’) vide award dated 16.3.2020 passed in Claim Case No.61/2018. 3. Facts of the case, in brief, are that on 5.6.2017 at about 7:30 p.m. in the evening Shahdev Nayak (since deceased) along with his friend Ajay Nayak was coming towards village Bhagora from village Nawadih Bilaimunda on motorcycle. At that time, trailer bearing registration mark OC16-B-0157, which was being driven in rash and negligent manner by its driver, dashed motorcycle and caused accident which resulted into death of Shahdev Nayak. Report of incident was lodged in concerned police station based on which case under Section 279, 337, 338 & 304A of IPC was registered. Claimants/appellants herein, who is mother of deceased, filed an application seeking compensation to the tune of Rs.32,07,333/- under various heads on the ground that on the date of accident, deceased was abled body person, he was 3 working as labourer, earning Rs.8,000/- per month and she was dependent on earning of deceased. 4. Non-applicant No.1 & 2 i.e. driver and registered owner of offending vehicle respectively, filed their reply to claim application denying averments made therein. It was pleaded that on the date of accident, the offending vehicle was insured with non-applicant No.3- Insurance Company; non-applicant No.1 was having valid license and therefore, in case any compensation is awarded to claimant, then the insurance company is liable to indemnify the insured. 5. Non-applicant No.3- Insurance Company also submitted its written statement denying the averments made in application. It was pleaded that by driving the motorcycle negligently, the deceased himself dashed against the offending vehicle. On the date of accident, non-applicant No.2 was not having valid and effective license to drive the offending vehicle, there was also no permit and fitness certificate in favour of offending vehicle and since the offending vehicle was being plied in violation of conditions of insurance company, non-applicant No.3 is not liable to indemnify the insured. 6. The Claims Tribunal after appreciating the pleadings and evidence placed on record (oral and documentary both) by the respective parties has arrived at the conclusion that the accident occurred due to rash and negligent driving of 4 offending vehicle by its driver; there was no violation of any of the conditions of insurance policy and consequently, allowed claim application in part; awarded compensation of Rs.7,86,000/- along with interest @ 9% p.a. and fastened liability upon non-applicants, jointly and severally, to satisfy the impugned award. 7. Learned counsel for the claimants/appellants submits that the claimants in their evidence have specifically stated that on the date of accident, deceased was working as Labourer and earning Rs.8,000/- per month, however, the Claims Tribunal has assessed income of deceased at Rs.5,000/- per month by holding that income of deceased is not proved by producing documentary evidence. He submits that in absence of documentary proof, income of deceased should have been assessed based on minimum wage notified under the Minimum Wages Act. He further argued that the Claims Tribunal has not awarded any amount towards filial consortium. The compensation awarded by the Claims Tribunal is on the lower side and therefore, he prays for enhancement of the same. 8. On the other hand, learned counsel for respondent has supported the impugned award and contended that amount of compensation awarded by the Claims Tribunal in the given facts and circumstances of case is just and proper and it does 5 not call for any interference. 9. Heard learned counsel for the parties and perused the record 10. As regards the income of deceased, perusal of the impugned award would show that the Claims Tribunal disbelieved the version of claimants that deceased was working as Labourer, earning Rs.8,000/- per month and assessed his income on the basis of price index prevalent in the year 2017. In cases where no documentary evidence has come on record to prove the income of the deceased, the thumb rule is that the Claims Tribunal should determine income of the deceased on the basis of the wage rate prevailing, price index and other like factors. The Claims Tribunal can take into consideration minimum wage notified by the Competent Authority under the Minimum Wages Act. As per Schedule ‘B’ issued by the Labour Commissioner-cum-Competent Authority under the Minimum Wages Act, 1948, Raipur prescribing minimum wage for the unskilled, semi-skilled, skilled and high skilled workers for the period from 1.4.2017 to 30.9.2017, would show that minimum wage notified for a unskilled worker of ‘B’ category city is Rs.9,360/- per month. Thus, it is clear that monthly income of deceased, in no circumstances, could be less than the wages admissible to a daily wager in the State of Chhattisgarh under the Minimum Wages Act. However, since the claimants/appellants themselves have pleaded and 6 stated deceased was working as Labourer and earning Rs.8,000/- per month, the Claims Tribunal ought to have taken monthly income of the deceased as Rs.8000/- for the purpose of computing the loss of dependency. Hence, this Court fixes the monthly income of the deceased at Rs.8000/-. 11. Since at the time of accident, the deceased was aged about 19 years, he was unmarried and not in permanent employment, the Claims Tribunal was correct in deducting 50% on account of personal living expenses of deceased; adding 40% to the income of the deceased on account of loss of future prospects and applying multiplier of 18. The amount paid under the heads of loss of estate and funeral expenses i.e. Rs.15,000/- under each head, is in tune with the law laid down by Hon’ble Supreme Court in case of National Insurance Co. Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680. 12. As per Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram and Others, reported in (2018) 18 SCC 130, whosoever are dependents of deceased died in a road accident, are entitled to 'parental', 'spousal' or 'filial' consortium, as required. Son-mother relationship between the appellant and the deceased is not in dispute and therefore, the appellant being mother of deceased is entitled for a sum of Rs.40,000/- for parental consortium, which is to be 7 awarded to the parents who lose their child during their lifetime in a motor accident. 13. For the foregoing, this Court proposes to recalculate amount of compensation payable to the claimants/appellants. 14.Accordingly, income of deceased is taken as Rs.8,000/- per month and after adding 40% towards future prospects, the monthly income of deceased would come to Rs.11,200/- and annual income would be Rs.1,34,400/-. Out of this amount, one-half is to be deducted towards personal and living expenses of deceased being bachelor and after deducting one-half, annual loss of dependency would come to Rs.67,200/-. As the deceased was 19 years of age on the date of accident, multiplier of 18 is applicable and therefore, applying multiplier of 18, the loss of dependency would be Rs.12,09,600/- (67200x18). Besides this, appellant is entitled for a sum of Rs.40,000/- towards filial consortium being mother of the deceased, as held by Hon’ble Supreme Court in the matters of Pranay Sethi (supra) and Nanu Ram @ Chuharu Ram (supra). In addition to aforesaid amount, appellants are also entitled to get a sum of Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate. Thus, total amount of compensation comes to Rs.12,79,600/- (12,09,600 + 40,000 + 15,000 + 15000) recoverable from the respondents, jointly and severally. Rest of the conditions 8 mentioned in the impugned award shall remain intact. Any amount disbursed to appellant pursuant to impugned award will be adjusted.
Arguments
: Mr. Raj Awasthi, Advocate of Mr. K.G. Yadav, Advocate. Hon'ble Shri Justice Parth Prateem Sahu Order On Board 2/4/2025
Decision
15.In the result, the appeal is allowed in part and the impugned award stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge roshan/-