Nafr High Court
Case Details
1 Digitally signed by BHOLA NATH KHATAI Date: 2025.03.25 10:25:48 +0530 2025:CGHC:13749 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1163 of 2013 1. Mahraj Singh Verma S/o Dukhuram Verma Aged About 40 Years R/o Village Kobiya, Police Station Bemetara, District Durg Now Distt. Bemetara (C.G.) At Present R/o Risali Basti, PS. Nevai, Tahsil And District Durg, C.G. 2. Jitendra Verma S/o Mahraj Verma Aged About 18 Years R/o Village Kobiya, Police Station Bemetara, District Durg Now Distt. Bemetara (C.G.) At Present R/o Risali Basti, PS Nevai, Tahsil And District Durg, C.G. 3. Ku. Karina Verma D/o Mahraj Verma Aged About 15 Years Minor Through Legal Guardian Father Mahraj Verma, R/o Village Kobiya, Police Station Bemetara, District Durg Now Distt. Bemetara (C.G.) At Present R/o Risali Basti, PS. Nevai, Tahsil And District Durg, C.G. 4. Dhirendra Verma S/o Mahraj Verma Aged About 13 Years Minor Through Legal Guardian Father Mahraj Verma, R/o Village Kobiya, Police Station Bemetara, District Durg Now Distt. Bemetara (C.G.) At Present R/o Risali Basti, PS. Nevai, Tahsil And District Durg, C.G. 5. Ku. Durga Verma D/o Mahraj Verma Aged About 7 Years Minor Through Legal Guardian Father Mahraj Verma, R/o Village Kobiya, Police Station Bemetara, District Durg Now Distt. 2 Bemetara (C.G.) At Present R/o Risali Basti, PS. Nevai, Tahsil And District Durg, C.G. ... Appellants versus 1. Pushpendra Tiwari S/o Chandrika Prasad Tiwari Aged About 28 Years R/o Village Madika, PS Amarpur, Distt. Sidhi M.P. At Present R/o Baikuthdham, Mother Teresa Nagar, Near Water Tank, Chhawni Bhilai, Police Station Chhawni, Tahsil And District Durg C.G. 2. M/s Bansal Borwells Proprietor Amar Agrawal S/o Badri Prasad Agrawal Aged About 43 Years R/o Samta Colony, House No. 151, Police Station Saraswati Nagar, Raipur, District Raipur, C.G. 3. The Oriental Insurance Co. Ltd. Register And Head Office At Oriental House, Post Box No. 7037, A25/27 Asaf Ali Road, New Delhi 120002, Divisional Manager, Divisional Office Parmanand Bhawan, Dr. Rajendra Prasad Chowk, G.E. Road, Durg, C.G. ... Respondent(s) For Appellants :
Legal Reasoning
Mr. Avinash Chand Sahu, Advocate For Respondent No.3 : Mr. Hanuman Prasad Agrawal, Advocate Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 19.03.2025 1. This is a claimants’ appeal filed under Section 173 of the Motor Vehicles Act, 1988 (for short “ MV Act”) challenging the award dated 19.09.2013 passed by the Motor Accident Claims Tribunal, Durg (CG) in Claim Case No.38/2013 whereby compensation of Rs.2,01,000 with interest @ 6% per annum from the date of application till its realization has been awarded in favour of the appellant/claimants. 3 2. The gist of claim before the Tribunal, in brief, was that on 08.04.2011 at about 12:15 p.m., while deceased Mankunwar Verma along with her son Durgesh Verma was going towards Pragati Nagar carrying iron rods in a handcart, Respondent No.1 Pushpendra Tiwari driving the offending vehicle i.e. Hydra Crane bearing Registration No. C.G. 04 DB 5207 dashed Mankunwar along with the handcart, due to which she got crushed under the wheel of the said crane. Mankunwar was immediately taken to Vinayak Hospital for treatment where the doctors declared her dead. A report of the said accident was lodged at Police Station, Newai, where crime was registered against the driver of the offending vehicle. 3. As per the pleadings of the claim application, deceased Mankunwar was earning Rs.5,000/- by working in the shop of Chandraker Traders, Risali. Due to the casual death of Mankunwar, the appellant/claimants who are the husband and children of the deceased suffered irreparable loss. Therefore, the claimants preferred an application before the Tribunal claiming total compensation of Rs. 9,71,000/-. 4. Respondents No. 1 & 2 i.e. driver and owner being ex parte did not file their written statement. The claim application was resisted by respondent No.3/insurance company of the offending vehicle on various grounds. 5. Learned Tribunal, after considering the evidence and documents brought on record, assessed the income of deceased to be Rs.3,000/- per month i.e. 36,000 per annum, from which 1/3rd was deducted towards personal expenses. Considering the age of the deceased to be 40 years, multiplier of 15 was applied and the loss of dependency worked out to Rs.3,60,000/-. In addition, a total amount of Rs.42,000/- was awarded under other heads. Accordingly, the total compensation was calculated as 4 Rs.4,02,000/-. However, holding 50% contributory negligence on the part of the deceased, the Tribunal awarded 50% of the total compensation amount i.e. Rs.2,01,000 /- in favour of the claimants with interest @ 6% per annum, from the date of application till its realization, against which this appeal has been preferred by the claimants for enhancement of compensation and for setting aside the finding of contributory negligence. 6. Learned counsel for the appellant/claimants submits that the Tribunal has erred in not accepting the salary certificate of the deceased (Ex.P-12) and therefore, the compensation awarded by the Tribunal fixing the monthly income of the deceased at Rs.3,000 is on the lower side and needs to be enhanced suitably. The Tribunal has not considered future prospects while computing compensation as it failed to appreciate that the deceased could have earned much more in future if she had not met with the accident. He submits that the Tribunal has awarded less compensation under other heads which also needs to be enhanced suitably. He further submits that there is no evidence brought on record by the Insurance Company regarding contributory negligence, therefore, the finding of contributory negligence on the part of the deceased is erroneous in the light of the judgment of the Hon’ble Supreme Court in the case of Minu Rout and Another v. Satya Pradyumna Mohapatra and Others reported in 2013 AIR SCW 5375. Hence, prayed for allowing the appeal. 7. Per contra, learned counsel appearing for the Insurance Company opposed the submission made by the counsel for appellants and submitted that in the facts and circumstances of case, the impugned awarded passed by the Tribunal is just and proper and no interference is required therein. 8. Heard learned counsel for the parties and perused the record. 5 9. In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza. 10. Now this Court shall examine as to whether the compensation awarded by the Tribunal is just and proper in the given facts and circumstances of the case. 11. As regards income of the deceased, learned Tribunal, after discussing the same in para-16 of its award, has held that the salary certificate Ex.P-12 is not acceptable, which seems to be proper and this Court does not find any error in the said finding. The Tribunal has assessed the income of deceased at Rs.3,000/- per month. However, considering the fact that the accident occurred on 08.04.2011 and at that time the minimum wages of even an unskilled labour was Rs.4136, the income of the deceased is assessed at Rs.4136 per month i.e. Rs.49632/- per annum as minimum wages instead of Rs.36000 as held by the Tribunal. 12. The deceased was aged about 40 years at the time of accident. There are 5 claimants who are the husband and children of the deceased. Therefore, deduction towards personal expenses would be 1/4th instead of 1/3rd. The Tribunal has not considered future prospects while calculating compensation. In view of the judgment of Hon’ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Others, (2017) 16 SCC 680, the future prospects would be 25% of the income. In the light of the judgments of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 and Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru 6 Ram & Ors; (2018) 18 SCC 130, the compensation is being recomputed as below:- Sl. No. Particulars Calculation 1. Monthly income of the deceased 2. 3. 4. 5. Future prospects (25% of the income) Total Yearly income Personal expenses (1/4th of the income) 6. Net income 4136 1034 5170 5170 x 12 = 62040 15510 46530 15000 15000 40000 x 5 = 200000 Total loss of dependency (applying multiplier of 15) 46530 x 15 = 697950 7. 8. 9. Funeral Expenses Loss of estate 10. Spousal consortium and love & to each (Rs.40,000 affection claimants) Total compensation Rs.9,27,950 Contributory negligence 13. The Tribunal has determined the contributory negligence of the deceased to be 50% on the basis that the deceased crushed under the wheel of the offending vehicle i.e. Hydra Crane. Apart from this, there is no other legal evidence on the basis of which the contributory negligence of the deceased could be determined. It is a daytime incident. The claimants have adduced evidence of Mahraj Singh Verma i.e. the husband of the deceased but he is not the eye witness to the incident. No witness has been examined by the Insurance Company. Though the general plea of contributory negligence was taken by the Insurance Company in its written statement, it has neither examined the driver or the owner of the 7 offending vehicle nor has it examined any independent witness to establish the plea of contributory negligence on the part of the deceased. There is no evidence available on record by which the contributory negligence on the part of the deceased can be considered. However, the negligence of the offending vehicle is proved from the charge sheet itself and also from the FIR. Where there is no other evidence available, negligence can be determined on the basis of charge sheet. In this regard, the decision of the Hon’ble Supreme Court in Minu Rout and Another v. Satya Pradyumna Mohapatra and others, 2013 AIR SCW 5375 is noteworthy in which the plea of contributory negligence was taken by the Insurance Company, but neither the driver nor any independent witness was examined to prove the allegation of contributory negligence. Therefore, the finding of contributory negligence was set aside by their Lordships of the Supreme Court. Consequently, the finding of the Tribunal that there was contributory negligence on the part of the deceased is not found to be proper in the light of the aforementioned judgment of the Supreme Court. Hence, the said finding of contributory negligence is set aside. 14.
Decision
In the result, the appeal is partly allowed. The total compensation is recomputed as Rs.9,27,950/-. After deducting Rs.2,01,000/- awarded by the Tribunal, the enhancement would be Rs.7,26,950/-. Hence, the appellant/claimants will be entitled for the enhanced amount of Rs.7,26,950/- in addition to what is already awarded by the Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement till its realization. It is made clear that the enhanced amount will be paid by the Insurance Company of the offending vehicle. Accordingly, the impugned award stands modified to the above extent and rest of the conditions shall remain intact. 15. The Registry is directed to communicate the claimants in writing 8 “the enhanced amount” in this appeal as against the award made by the Tribunal below. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a co-ordination of Secretary, Legal Aid of the concerned area wherein the claimants reside. Khatai Sd/- (Sanjay Kumar Jaiswal) Judge