Nafr High Court · 2019
Case Details
-1- 2025:CGHC:28856 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1574 of 2019 1 - Smt. Samita Devi W/o - Late Shri Surendra Roy @ Surendra Yadav Aged About 35 Years 2 - Ku. Neha D/o - Late Shri Surendra Roy @ Surendra Yadav Aged About 12 Years Minor, 3 - Neeraj Kumar S/o - Late Shri Surendra Roy @ Surendra Yadav Aged About 7 Years 4 - Ritesh Kumar S/o - Late Shri Surendra Roy @ Surendra Yadav Aged About 5 Years 5 - Aditya Kumar S/o - Late Shri Surendra Roy @ Surendra Yadav Aged About 1 Year Appellants No. 2 to 5 are Minor, Through Legal Natural Guardian Mother Namely Smt. Samita Devi, W/o - Late Shri Surendra Roy@Surendra Yadav 6 - Smt. Sanya Devi W/o - Late Shri Harihar Yadav Aged About 65 Years All are R/o - Transport Nagar Rawanbhata, Police Station Khamtarai, Raipur District Raipur Chhattisgarh Permanent R/o - Village Panditpur, Police Station Janta Bazar, Saran District Chhapra (Bihar) ... Appellant (s) versus Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.07.08 11:25:16 +0530 1 - Prabhakar Das S/o - Shri Chinta Das, R/o - Adarsh Nagar, Kugda, Police Station Kumhari, District Durg Chhattisgarh (Driver Of The Offending Vehicle Hero Honda Motorcycle Bearing Registration No. C.G.07-LsS1019) -2- 2 - Jyotish Das S/o Shatrughan Das Manikpuri R/o Adarsh Nagar, Kugda, Police Station Kumhari, District Durg Chhattisgarh, (Owner Of The Offending Vehicle Hero Honda Motorcycle Bearing Registration No. C.G. 07-LS-1019) 3 - The Oriental Insurance Company Ltd. Through Divisional Manager, The Oriental Insurance Company Ltd. Jail Road, Madina Manjil, Raipur Chhattisgarh. (Insurer Of The Offending Vehicle Hero Honda Motorcycle Bearing Registration No. C.G. 07-LS-1019) ... Respondent(s) __________________________________________________________
Legal Reasoning
For Appellant (s) Ms. Dhaneshwari Patel, Advocate on behalf of Mr. P.K. Patel, Advocate : For Respondents No. 1 & 2 : None appears though served For Respondent No.3 : Mr. Anil Gulati, Advocate _______________________________________________________ S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 30/06/2025 1. With the consent of learned counsel appearing for the parties, the case is heard finally. 2. 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 First Additional Motor Accidents Claims Tribunal, Raipur (CG) vide award dated 10th May 2019 passed in Claim Case No.625 of 2017. 3. Facts relevant for disposal of this appeal are that appellants/claimants filed an application under Section 166 of the Act of 1988 before the learned Second Additional Motor Accident Claims Tribunal, Raipur, pleading therein that on 22/07/2016 at about 10.30 pm when Surendra Rai alias Surendra Kumar Yadav was going to bring food from Lucky -3- Complex while driving his motorcycle number CG 04-CR-1939, the driver of Hero Honda motorcycle number CG 07-LS-1019, driving his vehicle rashly and negligently, dashed the motorcycle of Surendra Rai alias Surendra Kumar Yadav, as a result of which Surendra sustained very serious and fatal injuries on various parts of his body. He was immediately admitted to Mekahara Raipur by the people present on the spot where he ultimately died during course of treatment on 29/7/2016. Deceased Surendra Rai alias Surendra Yadav was running a motor garage in Bhanpuri, from which he earned Rs. 2,69,860/- per annum in the year 2015-16 and Rs. 2,87,950/- per annum in the year 2016-17 and there was a possibility of increase in the annual income of the deceased in future. Due to the untimely death of the deceased, the family has suffered irreparable loss. They pray for total compensation of Rs. 80,00,000/- from non-applicants. 4. Non-applicants No.1 and 2 in their written statement have stated that non-applicant 1 did not cause any accident by driving his vehicle rashly and negligently. The alleged accident was caused by the deceased himself creating an accidental situation by driving his vehicle/motorcycle in a state of intoxication in high speed and carelessly, whereas, non-applicant No. 1 was driving his vehicle slowly and carefully. On the date of accident, the vehicle of non-applicant No. 2 was insured with non-applicant No. 3 and non-applicant No. 1 had a valid and effective driving licence to drive the vehicle. Therefore, non- applicants No. 1 & 2 are not liable to pay any amount of compensation. 5. Non-applicant No.3/ insurance company in its written statement stated -4- that the alleged accident occurred due to negligent driving of the motor cycle by the deceased, the deceased himself under influence of alcohol, drove his motorcycle rashly and negligently and collided with another unknown motorcycle causing the accident. Non-applicant No. 1 did not have a valid and effective driving license to drive a motor cycle on the date of accident, hence, the insurance company is not liable to pay any amount of compensation. 6. Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that on the date of accident, the offending vehicle was being driven by non-applicant No.1 rashly and negligently, caused accident, in which Surendra Rai alias Surenda Kumar Yadav sustained grievous injuries and died. Recording a finding that breach of the conditions of insurance policy was not found proved; principle of contributory negligence is not attracted, learned Claims Tribunal held non-applicants liable to pay amount of compensation to claimants. Learned Claims Tribunal assessing monthly income of the deceased as Rs.6000/- and calculating the loss suffered by the claimants under different heads, awarded total amount of compensation of Rs.12,04,000/ -. 7. Learned counsel for the appellants/claimants submits that learned Claims Tribunal erred in awarding meager sum of compensation overlooking the documents Ex.P-38 and Ex.P-39 i.e. Income Tax Return (ITR) submitted by claimants in proof of income of deceased wherein total income of deceased for assessment year 2015-16 is mentioned a Rs.2,69,860/- and for assessment year 2016-17 as -5- Rs.2,87,950/-. She contended that learned Claims Tribunal disbelieving the documentary evidence issued by the Income Tax Department i.e. acknowledgment of the ITRs submitted on 19.04.2016 and 05.05.2016 which are prior to date of accident has assessed income of deceased as Rs.6,000/- per month only. She further contended that learned Tribunal erred in not awarding amount of compensation under the head 'loss of consortium' to claimants No. 2 to 6. 8. On the other hand, learned counsel appearing for respondent No.3/Insurance Company submits that learned Claims Tribunal has assigned reason for disbelieving the documents Ex.P-38 and Ex.P-39. He contended that the claimants have further filed PAN card issued by the Income Tax Department as Ex.P-41 wherein PAN number of the deceased is mentioned as DZXPK3359B whereas PAN number mentioned in the ITR is different as AOGPY5326R. He next contended that learned Claims Tribunal considering entirety of the facts, has awarded appropriate amount of compensation which does not call for any interference. 9. I have heard learned counsel for the parties and also perused the records of claim case. 10. Learned counsel for the appellants/claimants has made twofold submission before this Court that, first that income assessed by Tribunal is much less and further that learned Tribunal fell into error in not awarding compensation under head of 'loss of consortium' to all the claimants. 11.So far as the first submission of learned counsel for the -6- appellants/claimants with regard to assessment of income of the deceased is concerned, claimants in the claim application have pleaded occupation of deceased of running a motor garage . No document of registration of motor garage in his name or any supporting document that deceased was running a motor garage is filed. Claimants have filed copy of PAN card and further copy of ITR submitted for assessment year 2015-16 and 2016-17. In the ITR, name of assessee is mentioned as Surendr Kumar Yadav PAN number is mentioned as AOGPY5326R whereas in PAN card Ex.P-41 name of the assessee is mentioned as Surendra Kumar, S/o Harihar Prasad and PAN number is DZXPK3359B. 12. In the aforementioned facts of the case where PAN number mentioned in ITR is different than that of PAN number mentioned in PAN card issued in the name of deceased, in the opinion of this Court, learned Claims Tribunal justified in disbelieving the income as pleaded and tried to prove by placing ITR vide Ex.P-38 and Ex.P-39. Considering entirety of the evidence available on record in particular PAN number mentioned in Ex.P-38, Ex.P-39 and Ex.P-41, I do not find any good ground to interfere with the finding recorded by learned Claims Tribunal of disbelieving Ex.P-38, Ex.P-39. In absence of proof of income and nature of occupation, income is to be assessed on notional basis. The claimants have produced copy of PAN card in the name of deceased. In the above facts of the case even in absence of proof of occupation and income, the earning of the deceased has to be computed little more than that of labourers. The death of a person cannot be presumed and hence, keeping in mind the entire evidence available in -7- record and the benevolent provision of legislation, I find it appropriate to assess income of deceased as Rs.7500/- per month. It is ordered accordingly. 13. Learned Claims Tribunal has rightly added 40% of assessed income towards future prospects of the deceased. Deduction of ¼ towards personal and living expenses and application of multiplier of 15 is also correctly applied, hence, it does not call for any interference. 14. Learned Claims Tribunal has further awarded Rs.15,000/- towards 'funeral expenses' and Rs.15,000/- towards 'loss of estate' which is also correct in view of decision of Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (2017) 16 SCC 680. 15. Learned Claims Tribunal has awarded amount of Rs.40,000/- towards loss of consortium to claimant No.1/wife of the deceased. The award of compensation towards loss of consortium to children and parents has been specified by Hon'ble Supreme Court in the case Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram & Ors. (2018) 18 SCC 130. As the claimants No. 2 to 5 are children and claimant No.6 is mother of deceased, they are entitled for compensation of Rs.40,000/- each under the head ‘loss of consortium’. It is ordered accordingly. 16. In the aforementioned facts of the case, I find it appropriate to re- compute the amount of compensation as under:- -8- S. N. Heads Compensation 1. (A) Loss of Income/dependency : Rs. 14,17,500 7500 x 12 = 90,000 (B) Addition towards future prospects @ 40% (90,000 x 40% =36000) 90,000 + 36000 = 126000 (C) Deduction of 1/4 towards personal and living expenses (126000 x 1/4 =31500) 126000- 31500 = 94500 (D) Multiplier of 15 94500 x 15 = 14,17,500 2. Funeral Expenses 3. Loss of Estate : : : : (+) Rs. 15,000 (+) Rs. 15,000 (+) Rs. 40,000 (+) Rs. 1,60,000 Loss of Spousal Consortium of Rs.40,000/- to appellant/claimant No.1 Loss of Parental Consortium of Rs.40,000/- each to appellants/ claimants No.2 to 5 4. 5. 6. Loss of Consortium of Rs.40,000/- to appellant/claimant No.6 Filial : (+) Rs. 40,000 Total compensation : Rs. 16,87,500 17. Now the appellants/claimants are awarded total compensation of Rs.16,87,500/- instead of Rs.12,04,000/- as awarded by the Claims Tribunal. 18. Aforementioned total amount of compensation shall carry interest @ 9 % 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 -9- impugned award shall remain intact.
Decision
19. In the result, appeal is allowed in part. Impugned award is modified to the extent as indicated herein above. Sd/- -Sd/- (Parth Prateem Sahu) Judge Praveen