Chattisgarh High Court
Smt. Ganga And Ors vs Rajkumar And Ors on 1 November, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MAC No. 683 of 2015
Order Reserved On : 18/10/2021
Order Passed On : 01/11/2021
1. Smt. Ganga Wd/o Dhanraj Rajput Aged About 35 Years
2. Ku. Prachi D/o Late Dhanraj Rajput Aged About 12 Years
3. Ku. Sakshi D/o Dhanraj Rajput Aged About 4 Years
4. Dharam Singh S/o Late Raqbar Singh Rajput Aged About 65 Years
5. Smt. Kalindri W/o Dharam Singh Rajput Aged About 63 Years
Appellants No.2 & 3 are minor hence impleaded through their natural
guardian mother i.e. appellant No.1 Smt. Ganga Wd/o Dhanraj Rajput, aged
about 35 years,
All R/o Village Sasaholi, P.S. Nevra, District- Raipur, Chhattisgarh
---- Appellant
Versus
1. Rajkumar S/o Satyanarayan Kosale Permanent Add Village Semariya, P.S.
Nandghat, District- Mungeli, Chhattisgarh, Presently R/o Behind Trimurti
Mandir, near Sanat Kirana Stores, Mathpuraina, P.S. Tikarapara, District
Raipur (CG), Driver of vehicle No.CG-04/J/1532
2. Charanjit Singh S/o Dharam Pal Singh Chhabara R/o Sect. 2, Devendra
Nagar, P.S./ Devendra Nagar, Raipur, Chhattisgarh, Owner of Vehicle
No.CG-04/J/1532
3. The Oriental Insurance Company Limited, Through Divisional Manager,
Division No-1, Jail Road, Raipur, Insurer of Vehicle No.CG-04/J/1532
---- Respondent
For Appellants : Shri Amiyakant Tiwari, Advocate.
For Respondent No.3 : Shri Pankaj Agrawal with Smt. Preeti Yadav, Adv.
Hon'ble Shri Deepak Kumar Tiwari, J
C A V Order
2
1. The present Appeal is directed against the award dated 20.11.2014
passed by the 3rd Additional Motor Accident Claims Tribunal, Raipur in
Claim Case No.28/2013 whereby claimants have been awarded
compensation of Rs.7,27,000/- jointly or separately by the Tribunal.
Compensation has been directed to be paid within 2 months along with
interest @ 6% per annum. It was made clear that if the interim
compensation has already been paid, then the same may be adjusted in
the amount of compensation.
2. The appellants had filed an application under Section 166 of the Motor
Vehicles Act, 1988 claiming compensation of Rs.19,61,000/- before the
Claims Tribunal. Facts
of the case are that on 15.3.2013 at about 5.30
pm the deceased was dashed by the respondent No.1 by the offending
truck bearing registration No. CG-04/J-1532 near Mova Over Bridge,
Raipur, which was being driven in a rash and negligent manner. As a
result thereof, deceased Dhanraj suffered grievous injuries and died. It
was averred that on account of rash and negligent act on the part of
respondent No.1, the deceased suffered the injuries and died. The
learned Tribunal while considering the claim of the claimants did not
accept the plea that the deceased used to earn Rs.7500/- per month.
The fact that the deceased was working as Mason is not in dispute.
Therefore, the Tribunal assessed the notional income and held that the
deceased was earning Rs.3500/- per month in the absence of any
documentary proof; deducted 1/4th share towards the personal expenses
and applied multiplier of 15 and finally awarded Rs.7,27,000/-.
3. Learned counsel for the appellants would argue that the Tribunal has
erred in taking the notional income at Rs.3500/- whereas it should have
taken the judicial notice of factum of rise in price index, enhancement
of labour charges, cost of living and number of dependents. The
Tribunal should have assessed the compensation by holding that the
deceased was earning Rs.7500/- per month in view of the semi skilled
nature of job. The reasons assigned by the Tribunal in this regard are
bad and the award deserves to be modified and the compensation may
be enhanced.
4. Heard learned counsel for the parties at length and perused the records.
5. The Tribunal has taken the notional income of deceased at Rs.3,500/-
per month. Smt. Ganga Rajput (A.W.1) has stated that her husband was
working as a 'Mason'(Rajmistri) and used to earn Rs. 7,500/-per month.
She has also filed a certificate issued by the Proprietor of Civil
Engineering Services, Raipur in support of her contention, but she has
failed to prove the said certificate by examining the employer of her
deceased husband . In view of such circumstances, the learned Tribunal
for want of documentary evidence of earning, as the incident took place
on 15.03.2013 and considering the scale of the Government, assessed
the notional income at Rs. 3,500/- per month. Therefore, this Court does
not find any illegality on such finding.
Addition of Future Prospectus
6. The learned Tribunal has not compensated on this head. In the
impugned award at para 20, date of birth of the deceased was mentioned
as 08.04.1975 in his school certificate, therefore, on the date of incident
his age was determined as 37 years.
7. In the matter of Kirti v. Oriental Insurance Co. Ltd., {(2021) 2 SCC
166} : (2021) 1 SCC (Civ) 704 : 2021 SCC OnLine SC 3 at page 177},
the following was observed for determination of future prospectus in
case of notional income :-
"12. Third and most importantly, it is unfair on
part of the respondent insurer to contest grant of future
prospects considering their submission before the High
Court that such compensation ought not to be paid
pending outcome of Pranay Sethi [National Insurance
Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3
SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] reference.
Nevertheless, the law on this point is no longer res
integra, and stands crystallised, as is clear from the
following extract of the aforecited Constitutional
Bench judgment [National Insurance Co. Ltd. v.
Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ)
248 : (2018) 2 SCC (Cri) 205] : (SCC p. 714, para 59)
"59. 4. In case the deceased was self-employed or
on a fixed salary, an addition of 40% of the established
income should be the warrant where the deceased was
below the age of 40 years. An addition of 25% where
the deceased was between the age of 40 to 50 years and
10% where the deceased was between the age of 50 to
60 years should be regarded as the necessary method of
computation. The established income means the
income minus the tax component."
13. Given how both deceased were below 40 years and
how they have not been established to be permanent
employees, future prospects to the tune of 40% must
be paid. The argument that no such future prospects
ought to be allowed for those with notional income, is
both incorrect in law [Sunita Tokas v. New India
Insurance Co. Ltd., (2019) 20 SCC 688 : (2020) 4
SCC (Cri) 436] and without merit considering the
constant inflation-induced increase in wages. It would
be sufficient to quote the observations of this Court in
Hem Raj v. Oriental Insurance Co. Ltd. [Hem Raj v.
Oriental Insurance Co. Ltd., (2018) 15 SCC 654 :
(2019) 1 SCC (Civ) 293 : (2019) 2 SCC (Cri) 864], as
it puts at rest any argument concerning non-payment
of future prospects to the deceased in the present case:
(Hem Raj case [Hem Raj v. Oriental Insurance Co.
Ltd., (2018) 15 SCC 654 : (2019) 1 SCC (Civ) 293 :
(2019) 2 SCC (Cri) 864] , SCC p. 656, para 7)
"7. We are of the view that there cannot be distinction
where there is positive evidence of income and where
minimum income is determined on guesswork in the
facts and circumstances of a case. Both the situations
stand at the same footing. Accordingly, in the present
case, addition of 40% to the income assessed by the
Tribunal is required to be made."
8. Accordingly, addition of 40% to the notional income of deceased is
allowed in the head of future prospectus.
INTEREST
9. It was also contended by counsel for the Appellants that the rate of
interest should be 9% instead the tribunal has awarded @ 6% per
annum. In this regard the Supreme Court held in the matter of National
Insurance Co. Ltd. -Vs- Keshav Bahadur, {(2004) 2 SCC 370} that
the provisions of payment of interest is discretionary and is not and
cannot be bound by rules. No rate of interest is fixed u/s 171 of the Act
and the duty has been bestowed upon the Tribunal to determine such
rate of interest. The Supreme Court held that in order to determine such
rate, the prevailing rate of bank interest at the relevant time has to be
considered. Therefore, the learned Tribunal in para 24 after considering
the rate of interest enforced by R.B.I. fixed the interest which is found
to be appropriate.
Loss of love and affection & "loss of consortium"
10. Learned counsel for the appellants has also raised the issue that no
award has been made in the head of love and affection and loss of
parentage. The learned Tribunal has awarded Rs. 50,000/- each to
widow, two children and father and mother of deceased on this score.
11.In the matter of New India Assurance Co. Ltd. v. Somwati, {(2020) 9
SCC 644 : 2020 SCC OnLine SC 720} it has been clarified that loss of
love and affection" is comprehended in "loss of consortium", therefore,
no separate award on this head could be made.
12.In the said judgment, amount of consortium to be awarded to children,
parents and spouse has also been referred. The relevant para-36 is as
under:-
"36. In Magma General Insurance Co. Ltd. [Magma
General Insurance Co. Ltd. v. Nanu Ram, (2018) 18
SCC 130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC
(Cri) 153] as well as United India Insurance Co.
Ltd. [United India Insurance Co. Ltd. v. Satinder
Kaur, (2021) 11 SCC 780 : 2020 SCC OnLine SC
410] , the three-Judge Bench laid down that the
consortium is not limited to spousal consortium and
it also includes parental consortium as well as filial
consortium. In para 87 of United India Insurance
Co. Ltd. [United India Insurance Co. Ltd. v.
Satinder Kaur, (2021) 11 SCC 780 : 2020 SCC
OnLine SC 410] , "consortium" to all the three
claimants was thus awarded. Para 87 is quoted
below:
"87. Insofar as the conventional heads are
concerned, the deceased Satpal Singh left behind a
widow and three children as his dependants. On the
basis of the judgments in Pranay Sethi [National
Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC
680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri)
205] and Magma General [Magma General
Insurance Co. Ltd. v. Nanu Ram, (2018) 18 SCC
130 : (2019) 3 SCC (Civ) 146 : (2019) 3 SCC (Cri)
153] , the following amounts are awarded under the
conventional heads:
(i) Loss of estate : Rs 15,000
(ii) Loss of consortium:
(a) Spousal consortium : Rs 40,000
(b) Parental consortium : 40,000 × 3 = Rs
1,20,000
(iii) Funeral expenses : Rs 15,000"
13.So, in view of above the amount awarded in this head is found excess
and it is reduced to Rs. 40,000/- each of the claimants. However under
conventional heads, funeral expenses: Rs. 2,000/- and loss of estate Rs.
2,500 has been awarded, so it is required to be increased and modified
as Rs. 15,000/- on both the heads.
14.In light of the aforesaid discussion and modification , the claimants are
awarded compensation as follows :
Sl. No. HEADS CALCULATION
1 Monthly Income Rs. 3,500/- per month notional
income
2 Yearly Income Rs. 42000/-
3 Future Prospectus add Rs. 16,800/-
40%
TOTAL Rs. 58,800/-
4 Deduction : @ 1/4 for Rs. 14,700/-
Personal Expenses
5 Compensation after Rs. 44,100 X 15 = Rs.
Multiplier 15 is applied 6,61,500/-
6 Loss of consortium : 40,000 X 5 = Rs.
2,00000/-
7 Loss of estate 15000
8 Funeral Expenses 15000
TOTAL COMPENSATION Rs. 8,91,500
Enhance Amount Rs. 8,91,500 - Rs. 7,27,000=
Rs. 1,64,500/-
15.Respondent No.3 Insurance Company is directed to pay the enhanced
amount of compensation with interest @ 6% per annum from the date
of filing of the petition i.e. 16.04.2013, within a period 60 days. The
said enhanced amount with interest be paid to Appellant No.1 widow of
the deceased.
16.The Appeal is accordingly allowed to the extent indicated hereinabove.
Rest of the observations as made by the Claims Tribunal shall remain
intact.
17.No order as to costs.
Sd/-
(Deepak Kumar Tiwari)
Judge
Barve
