Nafr High Court
Case Details
1 2025:CGHC:25027 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 111 of 2020 1 - Smt. Kunti Bai Nishad W/o Late Kumbhkaran Nishad Aged About 43 Years R/o Village - Beltukari, Thana Tumgaon , Tahsil And District Mahasamund Chhattisgarh.. (Claimant), District : Mahasamund, Chhattisgarh 2 - Ku. Tejeshwari Nishad D/o Late Kumbhkaran Nishad Aged About 21 Years R/o Village - Beltukari, Thana Tumgaon , Tahsil And District Mahasamund Chhattisgarh.. (Claimant), District : Mahasamund, Chhattisgarh 3 - Leeladhar Nishad S/o Late Kumbhkaran Nishad Aged About 18 Years R/o Village - Beltukari, Thana Tumgaon , Tahsil And District Mahasamund Chhattisgarh.. (Claimant), District : Mahasamund, Chhattisgarh 4 - Itwari Nishad S/o Late Firtu Nishad Aged About 68 Years R/o Village - Beltukari, Thana Tumgaon , Tahsil And District Mahasamund Chhattisgarh..(Claimant), District : Mahasamund, Chhattisgarh
Legal Reasoning
5 - Smt. Gomati Nishad W/o Itwari Nihad Aged About 63 Years R/o Village - Beltukari, Thana Tumgaon , Tahsil And District Mahasamund Chhattisgarh.. (Claimant), District : Mahasamund, Chhattisgarh Versus ... Appellants 1 - Pawan Kumar Sahu S/o Ganguram Sahu Aged About 38 Years R/o Village - Seoni , Thana And Tahsil And District Balod Chhattisgarh..(Driver Of Turck No. Of C.G. 18 K / 6777), District : Balod, Chhattisgarh 2 - Durga Soni R/o Ward No. 2, Ambedkar Nagar, 4 Bade Bacheli, Thana- Bacheli , District - Dantewada Chhattisgarh. (Owner Of Truck No. C.G. 18 K / 6777), District : Dantewada, Chhattisgarh SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 3 - The Orinetal Insurance Company Limited Through Divisional Office, Madina Building , Jail Road , Raipur Chhattisgarh..(Insurer Of Truck No. C.G. 18 K / 6777), District : Raipur, Chhattisgarh ...Respondents For Appellants : Ms. Priya Kaiwart, Advocate on behalf of Mr. Sangeet Kumar Kushwaha, Advocate For Non-Appellant No. 3 : Mr. Anil Gulati, Advocate along with Mr. Tanmay Thomas, Advocate on behalf of Mr. T.K. Tiwari, For Non-Appellants No. 1 : None though served. Advocate & 2 17/06/2025 S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Order On Board 1. This appeal is filed by the appellants seeking enhancement of the amount of compensation awarded by the learned Claims Tribunal in its award dated 30.04.2019 passed by the Additional Motor Accident Claims Tribunal, Fast Track Court, Mahasamund, District – Mahasamund (C.G.) in Claim Case No. 172/2016. 2. Facts of the case in brief are that, on 20.02.2016 at about 12:00 P.M., when Kumbhkaran Nishad (since deceased) along with his friend Fattehlal Sahu was traveling towards Raipur on a motorcycle bearing registration no. CG 06 GA 5577 and reached near Telibandha, Raipur, at that time, the offending vehicle i.e Truck bearing registration no. CG 18 K 6777, driven by the Respondent No. 1 in a rash and negligent manner, dashed the motorcycle of Fattehlal Sahu and caused accident. In the said accident, the deceased Kumbhkaran Nishad suffered serious injuries and he succumbed to his injuries on the spot. Subsequent to the said accident, an FIR was registered against the Respondent No. 1 bearing Crime No. 10/2016, P.S. Telibandha for the 3 offence punishable under Sections 279, 337, 304A of the Indian Penal Code, 1860. 3. The claimants/appellants in the claim application filed before the learned Claims Tribunal have pleaded that the deceased Kumbhkaran Nishad was aged about 40 years on the date of accident. He was an employee of Future Gold Company and also, doing Tailoring work at village Beltukri, earning Rs. 10,000/- per month. Due to the death of the deceased Kumbhkaran Nishad, the appellants/claimants have lost their bread winner, claimed Rs. 40,00,000/- as compensation. 4. The Non-Applicants No. 1 & 2 submitted reply opposing the pleading in the claim application and submitted that the deceased Kumbhkaran Nishad was not having valid and effective driving license and was driving the said vehicle in a rash and negligent manner. The Non- Applicant No. 1 was possessing a valid and effective driving license on the date of accident and the offending vehicle was insured with the Non-Applicant No. 3 and therefore, liability, if any to satisfy the award would be upon the Non-Applicant No. 3/Insurance Company. 5. The Non-Applicant No. 3/Insurance company also submitted reply opposing the pleadings made in the claim application. It further pleaded that on the date of accident, Non-Applicant No. 1 was not possessing valid and effective driving license as also, the vehicle was being plied without a valid permit and fitness certificate as such, there was a breach of conditions of the insurance policy. The driver of the motorcycle i.e. Fattelal Sahu was also not having the valid and effective driving license on the date of accident, therefore, the insurance company cannot be held liable. 4 6. The learned Claims Tribunal upon appreciation of the facts and evidence brought on record held that the death of deceased was a result of motor accidental injuries suffered by him, fastened the liability to pay the amount of compensation upon the Non-applicant No. 3/Insurance Company and awarded a sum of Rs. 7,78,750/- to the claimants. 7. Learned counsel for the appellants submits that the learned Claims Tribunal erred in awarding meagre amount of compensation. The appellants/claimants in their application have specifically pleaded that on the date of accident, the deceased was working with Future Gold Company and was earning Rs. 10,000/- per month as also, doing the Tailoring work at Village Beltukri and earning Rs. 10,000/- per month from it. However, the learned Claims Tribunal disbelieving the income pleaded by the claimants, have assessed the income of the deceased on notional basis of Rs. 4,500/- only. She next contended that the learned Claims Tribunal has not awarded compensation under the head of loss of consortium to the Appellants No. 2 to 5 and prays for enhancement of the amount of compensation suitably. 8. On the other hand, learned counsels for the Respondents No. 3/Insurance Company opposes the submission of counsel for the appellants/claimants and would submit that the learned Claims Tribunal recorded a finding that the claimants/appellants have failed to prove the nature of occupation and income as pleaded in the claim application and have rightly assessed the income on notional basis. The amount of compensation awarded by the learned Claims Tribunal is just and proper which does not call for any interference. 5 9. I have heard learned counsel for the parties and perused the record of the claim case and copy of the award passed. 10. Perusal of the claim application would show that though the claimants/appellants have pleaded the income as Rs. 10,000/- by working with the Future Gold Company and Tailoring work, however, no independent witness has been examined. To prove the fact of employment and the income as pleaded, the claimants have examined Kunti Nishad i.e. the Appellant No. 1 (widow of the deceased) and one Rajulal Nishad who is AW -3. Both the witnesses are close relatives and except their oral and self-serving statements, they have not placed on record any documentary evidence to support the plea of income of the deceased. 11. In the aforementioned facts of the case, in the opinion of this Court, the learned Claims Tribunal justified in not accepting the income as pleaded by the claimants in the claim application and assessing the income of the deceased on notional basis. However, in assessing the income on notional basis of any person, the Courts or Tribunals have to keep in mind age of the deceased, price index, cost of living, wage structure prevailing within the area of which the deceased is resident of and further, may also take help of the minimum-wages fixed by the competent authority under the Minimum Wages Act, 1948 and prevailing within the State. 12. In the case at hand, there is no material to suggest about the wage structure prevailing within the area and therefore, I find it appropriate to assess income of the deceased, taking note of the minimum-wages fixed by the competent authority. The date of accident is 22.02.2016 and according to the wages fixed by the competent 6 authority under the Minimum Wages Act, 1948 for the period from 01.10.2015 to 31.03.2016, the wages fixed for the Unskilled Labourer is mentioned as Rs. 5,860/- per month. Accordingly, the wages of the deceased can be taken as Rs. 5,860/- per month. It is ordered accordingly. 13. The deceased at the time of accident was aged about 41 years and therefore, the learned Claims Tribunal justified in adding 25% of the assessed income towards the future prospects and further, rightly applied the deduction of 1/4th towards the personal and living expenses and application of multiplier of 14 which is in consonance with the decision of the Hon’ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in 2009 (6) SCC 121 and National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680. 14. The learned Claims Tribunal though awarded the loss of consortium to the Appellant No. 1 (widow of the deceased Kumbhkaran Nishad) of Rs. 40,000/-, however, failed to award loss of consortium to the Appellants No. 2 & 3 who are children of the deceased and Appellants No. 4 & 5, parents of the deceased. The Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuharu Ram, reported in (2018) 8 SCC has explained the types of consortium and held that the there are three types of consortium i.e. spousal consortium for wife/husband, parental consortium to children and filial consortium to parents. In the case at hand, the Appellants No. 2 & 3 are children and Appellants No. 4 & 5 are the parents of deceased and therefore, Appellants No. 2 to 5 are entitled for Rs. 7 40,000/- each towards loss of parental and filial consortium respectively (total Rs. 1,60,000/-). 15. For the foregoing discussion, this Court proposes to recalculate the amount of compensation payable to the appellants. 16. Accordingly, the monthly income of the deceased is taken as Rs.5,860/- and since at the time of death, the deceased was 41 years old, therefore, in view of decision of Hon’ble Supreme Court in case of Pranay Sethi (Supra), the income of deceased is required to be enhanced by 25% towards future prospects, which comes to Rs.7,325/- (5860+1465). Thus annual income of the deceased for the purpose of calculating the compensation comes to Rs.87,900/- (7,325 x 12). Out of this amount, 1/4th is to be deducted towards personal and living expenses of the deceased and after deducting 1/4th of the annual income, annual loss of dependency would come to Rs.65,925/- (87,900 – 21,975). By applying multiplier of 14, as applied by the Claims Tribunal, to annual loss of dependency, total loss of dependency would come to Rs.9,22,950/- (65,925 x 14). Besides this, Appellants No. 1 to 5 are entitled for a sum of Rs. 40,000/- each towards spousal, filial and parental consortium. Further, they are also entitled for Rs. 15,000 for funeral expenses and Rs. 15,000 for loss of estate awarded by the learned Claims Tribunal. 17. Thus, total amount of compensation comes to Rs.11,52,950/- (9,22,950 + 40,000 + 40,000 + 40,000 + 40,000 + 40,000 + 15,000 + 15,000). This amount of compensation shall carry interest @ 9% from the date of filing of claim application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact. 8 18. Any amount already paid to Claimants/Appellants No. 1 to 5 as compensation shall be adjusted from the total amount of compensation as calculated above.
Decision
19. In the result, the appeal is allowed in part and the impugned award stands modified to the extent indicated above. 20. Certified copy as per rules. Dey Sd/-d/--/-/--------/--/- (Parth Prateem Sahu) Judge