Nafr High Court
Case Details
1 / 7 2025:CGHC:24458 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 16 of 2019 1. Smt. Lilygrace Tigga W/o Alfonas Tigga Aged About 41 Years 2. Minor Pritam Tigga S/o Alfonas Tigga Aged About 15 Years Minor Through Next Friend Her Mother Appellant No. 1 3. Minor Kristar Tigga S/o Alfonas Tigga Aged About 13 Years Minor Through Next Friend Her Mother Appellant No. 1, All are R/o Qtr No. N.G. 01, Housing Board Colony, Jashpur, District- Jashpur, Chhattisgarh. 4. Alfonas Tigga S/o Late Juwel Tigga Aged About 49 Years R/o Village Chariakhara, Tahsil- Bagicha, District- Jashpur, Chhattisgarh. --- Appellants/ Claimants versus 1. Dewansu Jaiswal S/o Shri Pramod Jaiswal R/o Shri Ram Heritage, Netaji Chowk Katoratalab, Raipur, District- Raipur, Chhattisgarh..........(Owner), 2. Praveen Beck S/o Plysidiyus Beck Aged About 27 Years R/o Bankombo, P.S. Narayanpur, Tahsil Kunkuri, District- Jashpur Chhattisgarh.......(Driver)
Legal Reasoning
3. Shri Ram General Insurance Company Limited 5-8 And 5-9, 2nd Floor- C.G. Plaza, Agrasen Chowk, Beside Telephone Exchange, Bilaspur, Chhattisgarh........(Insurer) ____________________________________________________________ For Appellants : Mr. Rishikant Mahobia, Advocate For Respondent No. 2 : None, though served. For Respondent No. 3 : Mr. Utsav Mahiswar, Adv. on behalf of Ms. Shailja Shukla, Advocate --- Respondents Hon'ble Shri Justice Parth Prateem Sahu Order On Board 16/06/2025 PAWAN KUMAR JHA Digitally signed by PAWAN KUMAR JHA 1. There is no representation on behalf of Respondent No. 2, though served. Office report shows that the Respondent No. 1 is not served as he was not residing on the given address. 2 / 7 2. Learned counsel for appellants submits that Respondents No. 1 and 2 remained ex parte before the Claims Tribunal even after service of notice. Hence, service of notice upon Respondent No. 1 (driver of offending vehicle) be dispensed with. Considering the facts of the case prayer is allowed and the case is heard in absence of owner and driver of the offending vehicle. 3. Appellants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) seeking enhancement of amount of compensation, challenging the award dated 05.10.2018 passed by Learned Motor Accident Claims Tribunal, Jashpur, District Jashpur, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 29/2016, whereby learned Claims Tribunal allowed the application filed under Section 166 of the Act, 1988 in part and awarded total sum of ₹ 7,86,000/- as compensation in motor accidental death case. 4. Facts of the case relevant for disposal of this appeal are that on 31.12.2015, Jijas Tigga went to Srinadi for a picnic. While he was returning to Kunkuri on his Rajdoot motorcycle at around 5.30 pm and reached near Gadakata puliya on Tapkara Road, a mini truck 709 bearing registration No. CG 04-DF-2111 coming from Kunkuri, driven by non-applicant No.2/ Praveen Beck, rashly and negligently, hit the motorcycle of Jijas Tigga. In the accident, Jijas Tigga suffered injuries on his both legs, both hands and head, he was admitted to Holy Cross Hospital, Kunkuri for treatment, where during treatment Jijas Tigga died on the same day. 5. Appellants, who are parents and brothers of deceased Jijas Tigga, filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 30,25,000/- pleading therein that on the date of accident deceased was about 22 years of age, was an able bodied person. At the time of the accident 3 / 7 deceased was doing the work of wall putty, paris and painting work and was earning ₹ 9,000/- per month to support himself and his family. 6. Respondent No. 1 & 2 / Non-applicant No. 1 & 2 -owner and driver of the offending mini truck did not appear before the Claims Tribunal and no reply has been filed on their behalf. They were proceeded ex parte. 7. Respondent No. 3/ Non-applicant No. 3/ Insurance Company filed its reply to the claim application, while denying all the adverse pleadings made in the application, it was further pleaded that the deceased himself was driving the motorcycle negligently after consuming alcohol and hitting the mini truck. Deceased was also contributory negligent. On the date of the incident, offending mini truck was being driven in breach of conditions of insurance policy as the driver of the mini truck did not have a valid and effective driving license, valid & effective fitness and permit. No document has been produced by the applicants regarding income of the deceased. 8. Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased Jijas Tigga died in the accident arising out of rash and negligent driving of offending mini truck owned by non-applicant No. 1 and driven by non-applicant No. 2. Contributory negligence was not found to be proved. Breach of conditions of insurance policy was found to be proved, calculated the amount of compensation and awarded ₹ 7,86,000/- as total compensation with interest @ 6% p.a. from the date of filing of claim application, directed non-applicant No. 3-insurance Company first to pay the compensation and thereafter to recover from non-applicants No. 1 & 2/ Respondents No. 1 & 2. 9. Learned counsel for appellants-claimants would submit that learned Claims Tribunal erred in awarding less amount of compensation in the facts of the case. Claims Tribunal erred in assessing income of deceased as ₹ 5,000/- 4 / 7 per month only overlooking the occupation of deceased. He submits that the Claims Tribunal has not awarded sufficient amount of compensation on other conventional heads and places reliance upon the decision of Hon’ble Supreme Court in the case of Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130. 10. Learned counsel for respondent No. 3 submits that the claimants failed to prove nature of occupation and income of deceased by producing clinching and admissible piece of evidence, hence, the Tribunal justified in assessing income of deceased on notional basis. The amount of compensation awarded by the Claims Tribunal is just and proper which does not call for any interference. 11. I have heard learned counsel for the respective parties and also perused the record. 12. Sofar as the ground raised by learned counsel for appellants-claimants with respect to assessment of income of deceased is concerned, on the date of accident age of deceased is assessed by the Tribunal based on the documents available on record is 22 years. To prove the nature of occupation and income, claimants have examined Mr. Alfons Tigga, father of deceased, as AW-1, Mr. Suresh Ekka, AW-4. No other witnesses have been examined to prove nature of occupation and income. No documentary evidence has been produced in this regard. Claimants in their claim application have pleaded income of deceased as ₹ 9,000/- per month. Date of accident is 31.12.2015. Even if the claimants failed to prove nature of occupation and income of deceased by producing clinching and admissible piece of evidence then also the Tribunal ought to have assessed income of deceased on notional basis keeping in mind age of deceased, date of accident, price index, cost of living, wage structure prevailing and may also take help of minimum wages fixed by the competent authority under the Minimum Wages 5 / 7 Act, 1948. In the case at hand, as there is no evidence with respect to prevailing wage structure of the area where the deceased was residing and working, therefore, in the opinion of this Court, Tribunal ought to have taken help of minimum wages fixed by the competent authority under the Minimum Wages Act. 13. In the aforementioned facts of the case, income of deceased assessed by the Claims Tribunal as ₹ 5,000/- per month is much less than what is fixed by the competent authority under the Minimum Wages Act. Accordingly, I find it appropriate to assess the income of deceased on notional basis keeping in mind the minimum wages fixed under the notification issued under the Minimum Wages Act during the period from 01.10.2015 to 31.03.2016 for unskilled labourer ie., ₹ 5,860/- per month. Therefore, I find it appropriate to assess income of deceased as ₹ 5,860/- per month. It is ordered accordingly. 14. Perusal of impugned award would show that the Claims Tribunal has rightly applied deduction of 1/2 and multiplier of 18 considering the dependents upon deceased to be parents only and his age to be 22 years unmarried which is correct in view of the decision of Hon’ble Supreme Court in the case of Sarla Verma & others v. Delhi Transport Corp. & anr. reported in (2009) 6 SCC. Claims Tribunal has rightly added 40% of the assessed income towards loss of future prospects and further awarded ₹ 15,000/- towards funeral expenses and ₹ 15,000/- towards loss of estate which are also in consonance with the decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680. However, learned Claims Tribunal has not awarded any amount of compensation towards loss of consortium. Award of compensation under the head of loss of consortium has been explained by Hon’ble Supreme Court Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130 wherein the Hon’ble Supreme 6 / 7 Court has explained the types of consortium ie., spousal consortium to husband/ widow, parental consortium to children and filial consortium to parents of the deceased. In the case at hand, appellant no. 1 is mother of deceased and appellant no. 4 is father and therefore they are also entitled for ₹ 40,000/- each towards loss of filial consortium. It is ordered accordingly. 15. For the foregoing discussion, the amount of compensation to be awarded to appellants-claimants requires recomputation, which is as under. 16. The monthly income of deceased is taken as ₹ 5,860/- ie., yearly income as ₹ 70,320/-. Upon adding 40% of the income of the deceased towards future prospects, yearly income of deceased on the date of accident will come to ₹ ₹ 98,448/- . After deducting 1/2 towards personal and living expenses, annual loss of dependency will come to ₹ 49,224/-. Upon applying multiplier of 18, total loss of dependency will come to ₹ 8,86,032/-. Besides the amount of compensation towards loss of dependency, appellants-claimants shall further be entitled for ₹ 40,000/- each towards loss of filial consortium to appellant No. 1 and appellant No. 4, ₹ 15,000/- towards loss of estate and ₹ 15,000/- towards funeral expenses. Particulars A) Annual Loss of income/ dependency = ₹ Compensation ₹ 8,86,032/- 70,320/- B) Addition towards loss of future prospects @ 40% (₹ 70,320 x 140% = ₹ 98,448) C) Deduction of 1/2 towards personal and living expenses (₹ 98,448 x 1/2= ₹ 49,224) D) Multiplier of 18 ₹ 49,224 x 18 = ₹ 8,86,032/- Loss of Filial Consortium to Appellant No. 1 & 4 (₹ ₹ 80,000/- 40,000/- each) Loss of estate Funeral Expenses Total ₹ 15,000/- ₹ 15,000/- ₹ 9,96,032/- 7 / 7 17. Now the appellants/claimants shall be entitled for total sum of compensation of ₹ 9,96,032/- instead of ₹ 7,86,000/- as awarded by learned Claims Tribunal. The enhanced amount of compensation shall carry simple interest @ 7% p.a. from the date of filing of claim application till its realization. Any amount paid to the appellants-claimants pursuant to the impugned award shall be adjusted from the amount of compensation as calculated above. Other conditions of the impugned award shall remain intact. 18.
Decision
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