Chattisgarh High Court
Smt. Khatun Bee vs Nawaz Ali on 6 August, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH BILASPUR
MAC No. 1104 of 2015
Smt. Khatun Bee W/o Late Yusuf Ali, Aged About 49 Years,
Occupation- House Wife, R/o Mohaba Bazar, Post Office-
Raipur, Police Station- Aamanaka, Raipur, Tahsil and
District- Raipur, Chhattisgarh.
---- Appellant
Versus
1. Nawaz Ali S/o Late Yusuf Ali, Aged About 30 Years,
Occupation- Vehicle Driver, R/o Sanjay Nagar, Kanker, Post
Office and Police Station- Kanker, Tahsil and District-
Kanker, Chhattisgarh.
2. Smt. Jaheda Begam W/o Nawaz Ali, R/o Sanjay Nagar,
Kanker, Post Office and Police Station- Kanker, Tahsil and
District- Kanker, Chhattisgarh.
3. The Oriental Insurance Company Limited, through the
Divisional Manager, Divisional Office No. 1, Kutchery
Chowk, Jail Road, Post Office- Raipur, Police Station- Gol
Bazar, Raipur, Tahsil and District- Raipur, Chhattisgarh.
---- Respondents
For Appellant : Shri Shivendu Pandya, Advocate
For Respondents 1 & 2 : None
For Respondent No.3 : Shri Raj Awasthi, Advocate
(Proceedings through Video Conferencing)
Hon'ble Shri Parth Prateem Sahu, Judge
Judgment on Board
06.08.2021
1. Challenge in this appeal filed under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter referred to as 'M.V. Act') is to
the impugned award dated 16.04.2015 passed by the
Second Additional Motor Accident Claims Tribunal, Raipur,
Chhattisgarh (hereinafter referred to as 'Claims Tribunal') in
Claim Case No.43 of 2013 whereby learned Claims Tribunal
allowed the application filed under Section 166 of the M.V.
Act in part and awarded total sum of Rs.1,97,000/- as
compensation in a fatal accident case.
2. Brief facts relevant for disposal of this appeal are that, on
28.05.2012, Yusuf Ali was travelling from Chadimal to
Kanker on Jeep bearing No.CG-19/T/0511 (hereinafter
referred to as 'offending vehicle'), while so, on the way, due
to rash and negligent driving of offending vehicle by non-
applicant No.1, it went into the ditch on road side and turned
turtle. Yusuf Ali suffered grievous injuries over his person, he
was taken to Government Hospital, Kanker where he
succumbed to injuries on 04.06.2012 during the course of
treatment. Accident was reported to concerned Police
Station, based upon which, crime bearing No.135 of 2012
was registered against non-applicant No.1/driver of offending
vehicle.
3. Appellant/claimant, widow of deceased Yusuf Ali filed an
application under Section 166 of the M.V. Act seeking
compensation of Rs.10,50,000/- on different heads pleading
therein that on the date of accident, deceased was an able-
bodied person, aged about 50 years, working with
Mohammad Firoz Construction Company, Kanker as Clerk
(Munim) and earning Rs.12,000/- per month.
4. Non-applicants No.1 and 2, who are driver and owner of
offending vehicle submitted reply to claim application and
denied the facts pleaded therein with regard to employment
and income of deceased. It was pleaded that accident was
at the time of use of vehicle for domestic need and
deceased was travelling in the offending vehicle as one of
the family member. It was further pleaded that non-applicant
No.1 was possessed with valid and effective driving licence,
offending vehicle was insured with non-applicant No.3, as
such, liability to pay any amount of compensation would be
upon non-applicant No.3.
5. Non-applicant No.3/Insurance Company submitted its
separate reply to claim application, while denying the
pleadings made therein, it was pleaded that on the date of
accident, non-applicant No.1 was not possessed with valid
and effective driving licence and there was no valid permit
and fitness with offending vehicle, as such, offending vehicle
was being driven in breach of policy conditions, hence,
Insurance Company was not having any liability to indemnify
the insured.
6. Learned Claims Tribunal upon appreciation of pleadings and
evidence placed on record by respective parties held that
Late Yusuf Ali died on account of motor accidental injuries
due to rash and negligent driving of offending vehicle by
non-applicant No.1; breach of policy condition was not found
to be proved, awarded Rs.1,97,000/- as total compensation
and fastened liability upon non-applicants jointly and
severally to satisfy the amount of compensation with interest
at the rate of 6%.
7. Shri Shivendu Pandya, learned counsel for the appellant
would submit that claimant has pleaded in claim application
that deceased was working as Munim with Employer
Mohammad Firoz Construction Company, Kanker and his
income as Rs.12,000/- per month. Similar statement has
been made by claimant in her evidence also. Learned
Claims Tribunal without assigning any reason disbelieved
the pleadings and evidence of claimant, hence, erred in
assessing the income of deceased as Rs.3,000/- per month
only for the accident which took place on 28.05.2012. He
further submits that learned Claims Tribunal erred in
deducting 50% towards personal and living expenses, which
is contrary to the law laid down by Hon'ble Supreme Court in
case of Sarla Verma (Smt.) and others v. Delhi Transport
Corporation and another reported in (2009) 6 SCC 121,
correct deduction would be 1/3rd when the claimant is
spouse of deceased. Claims Tribunal applied the multiplier
of 9, which is on lower side as per dictum of Hon'ble
Supreme Court in case of Sarla Verma (supra), correct
multiplier for the deceased within the age group of 46-50
years is 13. It is further contended that learned Claims
Tribunal erred in not adding any amount towards future
prospects as held by Hon'ble Supreme Court in case of
Sarla Verma (supra) and National Insurance Co. Ltd. v.
Pranay Sethi reported in (2017) 16 SCC 680. Looking to
age of deceased and nature of occupation, there should be
addition of 25% of established income of the deceased for
assessing total income on the date of accident. Claims
Tribunal erred in awarding Rs.35,000/- only towards other
conventional heads. He places his reliance on the ruling of
Hon'ble Supreme Court in case of Pranay Sethi (supra) and
Magma General Insurance Company Limited v. Nanu
Ram Alias Chuhru Ram and Others reported in (2018) 18
SCC 130 for his submission on the enhancement of the
amount of compensation on other conventional heads.
8. No one appeared on behalf of respondents No.1 and 2.
9. Per contra, Shri Raj Awashti, learned counsel for respondent
No.3/Insurance Company while opposing the submissions
made by learned counsel for the appellant would submit that
except the pleadings and oral evidence of claimant herself,
no other evidence is brought on record by the appellant to
prove income as pleaded in claim application. He further
submits that even the Employer was not examined as
witness. It is contended that in the facts and circumstances
of the case, Tribunal has rightly assessed income on
notional basis, which does not call for any interference.
However, he does not dispute to the submission of learned
counsel for the appellant with regard to application of
deduction and multiplier to be in accordance with law laid
down by Hon'ble Supreme Court in case of Sarla Verma
(supra). It is further contended that submission of learned
counsel for the appellant with regard to addition of income
towards future prospects at the rate of 25% of established
income is not correct. He submits that based on the
documents and evidence available on record, learned
Claims Tribunal has assessed the age of deceased as 50
years and 25% of established income is to be added when
deceased/victim comes within the age group of 40-50. In
view of evidence available on record, deceased would not
fall within the age group of 40-50, but would fall within the
age group of 50-60, hence, addition of amount towards
future prospects would be only 10% of established income
as held by Hon'ble Supreme Court in case of Pranay Sethi
(supra).
10. I have heard learned counsel for the respective parties and
perused the record carefully.
11. So far as the ground raised by learned counsel for the
appellant with regard to income of deceased is concerned,
claimant apart from the pleadings of Rs.12,000/- per month
in claim application and her oral evidence, had not brought
into record any other admissible piece of evidence to prove
the income of deceased. She has not brought on record any
certificate to be issued by Employer nor the Employer was
examined in her behalf.
12. In view of above, pleading and oral evidence of appellant for
the purpose of ascertaining income, based on salary could
not be accepted. In absence of any admissible piece of
evidence, learned Claims Tribunal was justified in assessing
the income on notional basis. The income if to be assessed
on notional basis, then age of deceased, nature of
occupation, price index, cost of living based on the place of
residence etc. are to be taken into consideration.
13. In the case at hand, learned Claims Tribunal has not
assessed the income of deceased appropriately considering
all the aforementioned factors and held it to be Rs.3,000/-
per month. In the opinion of this Court, taking into
consideration the aforementioned factors and place of living
of deceased i.e. Raipur, which is capital of State, I find it
appropriate to assess the monthly wages of deceased as
Rs.4,500/- per month.
14. So far as the ground with regard to deduction towards
personal and living expenses of deceased is concerned,
Hon'ble Supreme Court in case of Sarla Verma (supra) has
considered this issue in detail. Deceased on the date of
accident was married. Complainant is wife. In view of above,
I find it appropriate to deduct 1/3rd towards personal and
living expenses of the deceased. It is ordered accordingly.
15. With respect to multiplier, Hon'ble Supreme Court in case of
Sarla Verma (supra) has laid down the guidelines for
applying the multiplier when the deceased/victim is falling in
the age group specified therein. In all the documents
available on record, which are documents of criminal case
vide Ex.P/3, Ex.P/4 and Ex.P/6, age of deceased is
mentioned as 50 years. For age group of 46-50 years,
appropriate multiplier has been mentioned as 13 and for age
group of 51-55 years as 11, hence, in view of
aforementioned ruling of Hon'ble Supreme Court,
appropriate multiplier in the facts of the case would be 13 in
this case instead of 9 as applied by learned Claims Tribunal.
It is ordered accordingly.
16. Award of future prospects has been considered in case of
Sarla Verma (supra) and Pranay Sethi (supra). Hon'ble
Supreme Court in case of Pranay Sethi (supra) in
paragraph 59.4 has held that addition at the rate of 10% of
established income where deceased/victim falls within the
age group of 50-60 years. Considering the age of deceased
available in record in the instant case, there shall be addition
of 10% in the established income towards future prospects.
17. The Hon'ble Supreme Court has further fixed the amount
and heads, on which, compensation to be awarded towards
other conventional heads. Appellant shall be entitled for the
compensation as per ruling of the Hon'ble Supreme Court in
case of Pranay Sethi (supra) and Nanu Ram Alias Chuhru
Ram (supra) towards other conventional heads.
18. In view of above, amount of compensation awarded by
learned Claims Tribunal requires re-consideration and re-
computation, which is as under :
As discussed above, the income of deceased is taken
as Rs.4,500/- per month i.e. Rs.54,000/- per annum. By
adding 10% of the income towards future prospects, the total
annual income of deceased will come to Rs. 59,400/-
(54,000 x 10% = 5,400 and 54,000 + 5,400). Upon deducting
1/3rd towards personal and living expenses, yearly loss of
dependency of claimant will come to Rs.39,600/- (59,400 / 3
= 19,800 and 59,400 - 19,800). By applying the multiplier of
13, amount of compensation will come to Rs.5,14,800/-
(39,600 x 13). Apart from above, claimant will further be
entitled for a sum of Rs.40,000/- towards spousal
consortium, Rs.15,000/- towards loss of estate and
Rs.15,000/- towards funeral expenses.
19. Now, the appellant/claimant is entitled for total compensation
of Rs.5,84,800/- (5,14,800 + 40,000 + 15,000 + 15,000)
instead of Rs.1,97,000/- as awarded by learned Claims
Tribunal. This amount of compensation shall carry interest at
the rate of 6% per annum from the date of filing of claim
application till its realization. The other conditions of award
passed by learned Claims Tribunal shall remain intact.
20. In the result, the appeal is allowed in part and impugned
award is modified to the extent as indicated above.
Sd/-
(Parth Prateem Sahu)
Judge
Yogesh
