Lileshwer Mongar v. Miyadad Husain

#3. Ku. Deempal Mongare D/o Balaram Mongare, Aged About 16 Years Minor Through His Legal Guardina Mother Smt. Parwati Mongare, R/o- Village- Lakhanpur, Thana- Patewa, District- Mahasamund, Chhattisgarh ----Appellants Versus

#1. Miyadad Husain S/o Nasir Husain, Aged About 24 Years Occupation- Driver, R/o- Village- Tofi Ranjan Nager Near Masjid Kaliya Chowk, Thana- Kaliyachak, District- Malda Calcutta, P. Bangal (Driver Of The Offending Vehicle Truck No. W.B. 23/ C / 2655)

#2. Amritpal Singh, S/o Nirmal Pal, R/o- 30/1, P.W.D. Road Calcutta, P. Bangal (Owner Of The Offending Vehicle Truck No. W.B. 23 / C / 2655)

#3. The United India Insurance Company Ltd., Kachehari Chowk Jail Road Raipur, Chhattisgarh (Insurer Of The Offending Vehicle Truck No. W.B. 23 / C / 2655). ---- Respondents For Appellants : Mr. A. L. Singhroul, Advocate For Respondent No.3 : Mr. Dashrath Gupta, Advocate (Hon'ble Shri Justice Sanjay Kumar Jaiswal, J. ) 31/07/2024 Order On Board

#1. Since these appeals have arisen out of award dated 30.04.2016 3 passed by Additional Motor Accident Claims Tribunal, (FTC), Mahasamund (C.G.) in Claim Case No. H-130/2014, H-131/2014 & H-133/2014, they are being disposed of by this common order. All three appeals have been filed seeking for enhancement of compensation.

#2. The gist of claim before the Claims Tribunal, in brief, was that on

24.05.2014, respondent no.1 Miyadad Husain, driving the offending vehicle i.e. Truck bearing registration No. WB 23 C 2655 rashly and negligently, near village Dhank, dashed the Tractor which was being driven by Parmeshwar Mongare and on which Lileshwer Mongare and Motiram Mongare were also sitting, as a result of which, all the three persons suffered grievous injuries and Parmeshwar Mongare and Moti Ram Mongare died on the spot whereas Lileshwar Mongare suffered grievous injuries on head, right shoulder and other parts of his body. Upon report being made in this regard, crime was registered against the driver of the offending vehicle at PS Patewa, District Mahasamund (CG).

#3. In MAC No. 1274/2016, it was claimed by injured claimant Lileshwer Mongare that before the accident, he was earning Rs.300 per day from labour work. On account of the accident, he suffered grievous injuries on his head, right shoulder, chest, stomach and the bone of his shoulder got fractured, for which, he was admitted in Narayana Hospital, Raipur from 24.05.2014 to 08.06.2014. Therefore, he preferred an application before the Tribunal claiming total compensation of Rs.8,00,000/- for medical expenses, disability, loss in future income, physical and mental agony and also under other heads.

#4. Learned Tribunal, after considering the evidence and documents available on record, calculated Rs.1,57,000/- towards medical expenses, Rs.12,000/- for loss of income during treatment, Rs.5,000/- for physical and mental agony and Rs.66,000/- for medicine bills, totaling Rs.2,40,000/-. However, the Tribunal considering 50% contributory negligence on the part of the injured 4 claimant, awarded 50% of the total compensation amount i.e. Rs.1,20,000 /- in favour of claimant Lileshwer with interest @ 6% per annum, from the date of application till its realization. Hence, this appeal for enhancement.

#5. In MAC No.1272/2016, it was claimed that at the time of accident, deceased Parmeshwer Mongare was unmarried, aged about 24 years and was earning Rs.8,000/- per month by working as a driver. Due to the casual death of deceased Parmeshwer, there is an irreparable loss to the claimants who are the parents of the deceased. Therefore, the claimants preferred an application before the Claims Tribunal claiming total compensation of Rs.22,00,000/-.

#6. Learned Tribunal, after considering the evidence and documents available on record, assessed the income of the deceased at Rs.7,000/- per month i.e. Rs.84,000/- per annum. Since the deceased was unmarried and the claimants are the parents of the deceased, 50% of the income was deducted towards personal expenses and after deduction, the amount comes to Rs.42,000/-. Considering the age of the deceased, multiplier of 17 was applied and the total loss of dependency worked out to Rs.7,14,000/-. In addition, Rs.80,000/- has been awarded under other heads. Accordingly, the Claims Tribunal calculated total compensation of Rs.7,94,000/-. However, considering 50% contributory negligence on the part of the deceased, the Tribunal has awarded 50% of total compensation amount i.e. Rs.3,97,000/- in favour of claimants with interest @ 6% per annum, from the date of application till its realization. Hence, this appeal for enhancement.

#7. In MAC No.1273/2016, it was claimed that at the time of accident, deceased Moti Ram Mongare was unmarried, aged about 20 years and was earning Rs.300/- per day by working as a labour. Due to the casual death of deceased Moti Ram, there is an irreparable loss to the claimants who are the parents and sister of the deceased. Therefore, the claimants preferred an application before the Claims 5 Tribunal claiming total compensation of Rs.20,00,000/-.

#8. Learned Tribunal, after considering the evidence and documents available on record, assessed the income of the deceased at Rs.6,000/- per month i.e. Rs.72,000/- per annum. Since the deceased was unmarried and the claimants are the parents and sister of the deceased, 50% of the income was deducted towards personal expenses and after deduction, the amount comes to Rs.36,000/-. Considering the age of deceased, multiplier of 17 was applied and the total loss of dependency worked out to Rs.6,12,000/-. In addition, Rs.80,000/- has been awarded under other heads. Accordingly, the Claims Tribunal calculated total compensation of Rs.6,92,000/-. However, considering 50% contributory negligence on the part of the deceased, the Tribunal has awarded 50% of total compensation amount i.e. Rs.3,46,000 /- in favour of claimants with interest @ 6% per annum, from the date of application till its realization. Hence, this appeal for enhancement.

#9. The first argument on behalf of the claimants in all three appeals is that there was no contributory negligence on the part of the driver of the tractor and therefore, the finding of the Tribunal regarding contributory negligence is erroneous. In MAC No.1274/2016, it has been argued that the Claims Tribunal has failed to consider the nature of injuries suffered by injured claimant and awarded only Rs.1,20,000/- in favour of the claimant which needs to be enhanced. He further submits that the Tribunal has not awarded any amount towards, special diet, attendant, transporting and future medical expenses nor has awarded any amount to compensate for the future inconvenience. Thus, prayed for modification of the impugned award enhancing the compensation suitably. In MAC Nos. 1272/2016 and 1273/2016, it has been argued that as per the age of the deceased, the multiplier should be 18 instead of 17 as held by the Tribunal. He next submits that the Tribunal has erred in not considering future prospects while computing compensation as it failed to appreciate that the deceased persons could have earned much more if they had 6 not met with the accident. He further submits that the Tribunal has awarded less compensation under other heads which also needs to be enhanced suitably.

#10. On the other hand, learned counsel appearing for the Insurance Company opposes the submission made by the counsel for appellants and submits that in the facts and circumstances of case, the compensation awarded by the Claims Tribunal is just and proper and requires no further enhancement. He further submits that the finding of the Tribunal regarding contributory negligence is also proper since as per the statement of Deepak Mongare, 8 persons were sitting on the tractor at the time of accident and permit has also not been presented.

#11. Heard learned counsel for the parties and perused the record.

#12. So far as the first contention of learned counsel for appellants regarding contributory negligence is concerned, Deepak Mongare who is said to be an eye witness to the incident has been examined on behalf of the claimants’ side who has accepted the fact that a trolley was also attached to the tractor and eight people were sitting on the tractor. No witness has been examined by the driver, owner and the insurer of the offending vehicle. Learned Tribunal, in para-14 of its award, while discussing this issue in detail, has held that the Tractor was being driven without permit by carrying 8 persons on it. Therefore, the Tribunal has held 50% negligence on the part of the occupants of the tractor including the driver. Since there is no seat in the tractor except for the driver, the finding of the Tribunal regarding contributory negligence is found to be proper and the same is hereby affirmed.

#13. As regards enhancement of compensation, 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. 7

#14. Now this Court shall examine as to whether the compensation awarded by the Tribunal is just and proper compensation in the given facts and circumstances of the case. MAC No. 1274/2016

#15. Due to the accident claimant Lileshwer Mongare suffered grievous injuries on his head, shoulder and stomach and his shoulder got fractured for which he was admitted in hospital for about 15 days. However, there is no certificate of permanent disability brought on record. Considering the evidence brought on record, the Tribunal has awarded Rs.1,57,000/- towards medical expenses, Rs.12,000/- for loss of income during treatment, Rs.5,000/- for physical and mental agony and Rs.66,000/- for medicine bills. However, the Tribunal has not awarded any amount for special diet or nutritious food, attendant, transportation expenses and for future medical expenses and also for future inconvenience that would be faced by the appellant on account the said injuries. Therefore, Rs.10,000/- for Special diet or nutritious food, Rs.5,000/- for attendant, Rs.5,000/- for transportation expenses and Rs.15,000/- towards future medical expenses and inconvenience, are awarded in favour of injured claimant. In addition, the amount awarded by the Tribunal towards physical and mental agony is enhanced from Rs.5,000 to Rs.12,000/-. Thus, the total enhancement would be Rs.42,000/-. However, considering 50% contributory negligence on the part of the claimant, he shall be entitled for the enhanced amount of Rs.21,000/- (42,000 x 50%) in addition to what is already awarded by the Tribunal.

#16. Accordingly, MAC No.1274/2016 is partly allowed. Injured claimant Lileshwer Mongare shall be entitled for the enhanced compensation of Rs.21,000/- in addition to what is already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement of the award till its realization. Accordingly, the impugned award stands modified to the above extent and rest of the conditions shall remain intact. 8 MAC No.1272/2016

#17. From the evidence it is clear that deceased Parmeshwer was a driver by profession. Therefore, keeping in view the nature of occupation, date of accident, wage structure prevailing on the date of accident, the income of the deceased assessed by the Tribunal at Rs.7,000/- per month seems to be proper. Hence, the income of the deceased is held at Rs.7000 per month i.e. Rs.84,000 per annum. The Tribunal has not considered future prospects while calculating compensation. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, the future prospects would be 40% of the income. After adding 40% towards future prospects i.e. Rs.33,600, the amount comes to Rs.1,17,600.

#18. The deceased was unmarried and aged about 24 years and the claimants are the parents of the deceased, so deduction towards personal expenses would be 1/2 of the income as rightly held by the Tribunal and after deduction of personal expenses, the amount comes to Rs.58,800/-. In view of judgment of the Hon’ble Supreme Court in the case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 and also considering the age of the deceased, the multiplier would be 18 instead of 17 as wrongly held by the Tribunal and applying the said multiplier, the total loss of dependency works out to Rs.10,58,400/- (58,800 x 18). The claimants are also entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- for funeral expenses. As per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, the claimants are further entitled for Rs.40,000/- each for love and affection totaling Rs. 80,000/-. Accordingly, the total compensation is recomputed as Rs.11,68,400/-. However, considering 50% contributory negligence on the part of the deceased, the compensation would be Rs.5,84,200/- (11,68,400 x 50%) from which after deduction of Rs.3,97,000 as awarded by the Tribunal, the enhanced compensation would be Rs.1,87,200/-. 9

#19. Accordingly, MAC No.1272/2016 is partly allowed. The claimants shall be entitled for the enhanced compensation of Rs.1,87,200/- in addition to what is already awarded by the claims Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement of the award till its realization. Accordingly, the impugned award stands modified to the above extent and rest of the conditions shall remain intact. MAC No.1273/2016

#20. From the record it is evident that at the time of accident deceased Moti Ram was working as a labour. Therefore, keeping in view the nature of occupation, date of accident, wage structure prevailing on the date of accident, the income of the deceased assessed by the Tribunal at Rs.6,000/- per month seems to be proper. Hence, the income of the deceased is held at Rs.6000 per month i.e. Rs.72,000 per annum. The Tribunal has not considered future prospects while calculating compensation. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, the future prospects would be 40% of the income. After adding 40% towards future prospects i.e. Rs.28,800, the amount comes to Rs.1,00,800.

#21. The deceased was unmarried and aged about 20 years and the claimants are the parents and sister of the deceased, so deduction towards personal expenses would be 1/2 of the income as rightly held by the tribunal and after deduction of personal expenses, the amount comes to Rs.50,400/-. In view of judgment of the Hon’ble Supreme Court in the case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 and also considering the age of the deceased, the multiplier would be 18 instead of 17 as wrongly held by the Tribunal and applying the said multiplier, the total loss of dependency works out to Rs.9,07,200/- (50,400 x 18). The 10 claimants are also entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- for funeral expenses. As per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, the 3 claimants are further entitled for Rs.40,000/- each for love and affection totaling Rs. 1,20,000/-. Accordingly, the total compensation is recomputed as Rs.10,57,200/-. However, considering 50% contributory negligence on the part of the deceased, the compensation would be Rs.5,28,600/- (10,57,600 x 50%) from which after deduction of Rs.3,46,000 as awarded by the Tribunal, the enhanced compensation would be Rs.1,82,600/-.

#22. Accordingly, MAC No.1273/2016 is partly allowed. The claimants shall be entitled for the enhanced compensation of Rs.1,82,600/- in addition to what is already awarded by the claims Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement of the award till its realization. Accordingly, the impugned award stands modified to the above extent and rest of the conditions shall remain intact.

#23. In the result, all three appeals i.e. MAC Nos.1274/2016, 1272/2016 & 1273/2016 are partly allowed to the extent indicated herein- above.

#24. The Registry is directed to communicate the claimant in writing “the enhanced amount” in these appeals as against the award made by the Claims Tribunal. 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. Sd/- (Sanjay Kumar Jaiswal) JUDGE Khatai