Smt. Mithila Mehar vs Najarius Xaxlo
2022 Latest Caselaw 2763 Chatt

                                                             NAFR
       HIGH COURT OF CHHATTISGARH, BILASPUR
                M.A.(C) No.575 of 2016

  Smt. Mithila Mehar W/o Late Sadhuram Mehar, Aged About 51
  Years Occupation- House Wife, R/o Malipara, Chandrapur, Tahsil-
  Dabhara, Distt.-Janjgir-Champa, Chhattisgarh....Claimant.

                                                      ---- Appellant

                            Versus

1. Najarius Xaxlo S/o Matiyas Xaxlo, Aged About 28 Years
   Occupation- Driver, R/o Village- Farsabahar, Limtoli, Tahsil And
   Distt.- Jashpur, Chhattisgarh ................Driver.

2. Nitin Agrawal S/o Suresh Agrawal, Occupation- Vehicle Owner,
   R/o Behind Ganga Nursing Home, Jagatpur, Distt. Raigarh,
   Chhattisgarh ...............Owner.

3. The New India Insurance Company Ltd., Through- Branch
   Manager, Branch Office- Second Floor, Sattigudi Chowk, Sadar
   Bazar    Road,         Raigarh,       Tah. And Distt.- Raigarh,
   Chhattisgarh ................Insurer.

                                                  ---- Respondents

AND

M.A.(C) No. 576 of 2016

Minor Suraj Mehar @ Tarun S/o Late Sadhuram Mehar, Aged About 15 Years Occupation- Student, Through Natural Guardian Mother Smt. Mithila Mehar, W/o Late Sadhuram Mehar, Age-51 Years, R/o Malipara, Chandrapur, Tahsil- Dabhara, Distt.- Janjgir- Champa, Chhattisgarh ...............Claimant.

---- Appellant

Versus

1. Najarius Xaxlo S/o Matiyas Xaxlo, Aged About 28 Years Occupation- Driver, R/o Village- Farsabahar, Limtoli, Tahsil And Distt.- Jashpur, Chhattisgarh ................Driver.

2. Nitin Agrawal S/o Suresh Agrawal, Occupation- Vehicle Owner, R/o Behind Ganga Nursing Home, Jagatpur, Distt. Raigarh, Chhattisgarh ...............Owner.

3. The New India Insurance Company Ltd., Through- Branch Manager, Branch Office- Second Floor, Sattigudi Chowk, Sadar Bazar Road, Raigarh, Tah. And Distt.- Raigarh, Chhattisgarh ................Insurer.

---- Respondents

_________________________________________________________ For Appellants/Claimants : Mr. Amit Sharma, Advocate. For Respondent No. 3 : Mr. Sourabh Sharma, Advocate.

For Respondents No.1 & 2 : None.

Hon'ble Shri Justice Arvind Singh Chandel Order On Board

27/04/2022

1. Both the appeals have arisen out of same judgment dated 14.10.2015, passed by Motor Accident Claim Tribunal, Raigarh, District Raigarh(C.G.) (hereinafter referred to as 'Tribunal') in Claim Case No. 61/2014, therefore, the same are deciding by this common judgment.

2. Brief facts relevant for disposal of these appeals are that on 08.03.2014, deceased Sadhuram was traveling on his motorcycle bearing Registration No. CG 13 E 9199 along with his daughter Seema Mehar and son Suraj Mehar for attending marriage of his relative and when they reached near Patelpali Petrol Pump, a truck bearing Registration No. CG 12 S 2836 (hereinafter referred to as 'offending vehicle') driven rashly and negligently by Respondent No.1, dashed the motorcycle of Sadhuram and as a result of which Sadhuram and his daughter Seema Mehar died on spot whereas his minor son Suraj Mehar sustained grievous injuries on his head.

3. Appellant Mithila Mehar(in MAC No. 575/2016) filed an application under Section 166 of the Motor Vehicles Act for grant of compensation on account of death of her daughter Seema Mehar. She along with other claimants further filed a separate application under Section 166 of the Motor Vehicles Act on account of death of Sadhuram. Injured Suraj Mehar also filed an application under Section 166 of the Motor Vehicles Act on account of injuries sustained by him in the said accident.

4. The claim petition of Mithila Mehar submitted on account of death of her daughter has been partly allowed by the learned Tribunal awarding compensation of Rs. 4,08,000/- vide award dated 14.10.2015 passed in Claim Case No. 61/2014. The claim petition filed by minor Suraj Mehar has also been partly allowed by the learned Tribunal awarding compensation of Rs. 1,89,042/- vide award dated 14.10.2015 passed in Claim Case No.128/2014. The application under Section 166 of the Motor Vehicles Act preferred by Appellant Mithila and others on account of death of Sadhuram was also partly allowed by the Tribunal awarding compensation of Rs. 5,34,000/- vide award dated 14.10.2015 passed in Claim Case No.60/2014. For enhancement of awarded amount, three separate appeals were preferred by the claimants. The appeal preferred by Appellant Mithila Mehar and others on account of death of Sadhuram has already been decided by this Court vide order dated 21.09.2021 passed in M.A.(C) No. 577/2016.

5. It was pleaded before the learned Tribunal that the deceased Seema Mehar was aged about 18 years and was getting monthly income of Rs.3,000/-. At the time of accident minor Suraj Mehar was aged about 15 years, studying in Class 9 th and suffered grievous injuries. He was also admitted in hospital for about a week.

6. Respondents No. 1 & 2, who are the driver and owner of the offending vehicle, in their written statements have denied the averment made in the claim application. It was pleaded by them that Respondent No.1 was possessed with valid and effective driving license, offending vehicle was insured with Respondent No.3/Insurance Company and accident was a result of negligence on the part of deceased himself, as such, liability, if any, to satisfy the amount of compensation would be upon Respondent No.3.

7. Respondent No.3/Insurance Company submitted reply to the claim application, resisting the claim and pleaded that accident was a result of rash and negligent driving of motorcycle by Late Sadhuram. On the date of accident, Respondent No.1 was not possessed with valid license, as such, there was a breach of policy conditions and amount of compensation claimed is highly exaggerated.

8. After recording the evidence of both parties and after hearing learned Counsels appearing for the parties, learned Tribunal has partly allowed the claim application preferred by the Appellants/Claimants and awarded compensation as mentioned in paragraph 4 of this judgment. Hence, these appeals preferred by the claimants.

9. With regard to the claim petition preferred by Appellant Smt. Mithila Mehar on account of death of her daughter Ku. Seema Mehar, learned counsel for the Appellants would submit that learned Tribunal has wrongly assessed monthly income of deceased Seema Mehar which should be Rs.5,000/- as monthly income. As observed by Hon'ble The Supreme Court in the case of Kajal Vs. Jagdish Chand and others, (2020) SCC 413, as she was aged about 18 years, therefore, multiplier should be applied 18 instead of that learned Tribunal has applied the multiplier of 16. It is further argued by learned Counsel that learned Tribunal has not granted any compensation on the head of future prospects which should be 40% of established income of the deceased. Learned Tribunal has only granted Rs.20,000/- as other conventional heads which is lower side.

10. With regard to Appellant/Claimant minor Suraj Mehar, it is argued by the Counsel that learned Tribunal has granted Rs.1,89,042/- which is also in lower side and which should be suitably enhanced.

11. Learned Counsel appearing for Respondent No.3/Insurance Company opposes the arguments advanced by the learned Counsel for the Appellants/Claimants.

12. Heard learned counsel appearing for the parties and perused the entire material available on record with utmost circumspection.

13. With regard to the appeal preferred by Appellant Mithila Mehar, on perusal of the evidence adduced by the Claimants, it is well established that at the time of accident, deceased Seema Mehar was aged about 18 years and injured Claimant minor Suraj Mehar was aged about 15 years. The learned Tribunal has assessed monthly income of deceased Seema Mehar to Rs. 3,000/- as notional income. As she was aged about 18 years and the minimum wages payable to skilled workmen is Rs. 5,000/- as monthly income. The monthly income assessed by the Tribunal is on lower side which should be 5,000/-. Assessing the monthly income of the deceased Rs.5,000/- her yearly income was Rs.60,000/-. As she was self employed and worked from home, 40% of her established income should be added as future prospects as observed by Hon'ble The Supreme Court in the case of National Insurance Company Limited Vs. Pranay Sethi and others, (2017) 16 SCC 680. Since, the deceased was a bachelor, therefore, deduction of 50% towards personal and living expenses would be applicable. Looking to the age of deceased Seema Mehar i.e. 18 years, multiplier of 18 should be applied instead of '16' as per the law laid down by Hon'ble The Supreme Court in the case of Smt. Sarla Verma and Others Vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121. Further, on conventional head also, the Claimant is entitled to get Rs. 15,000/- towards funeral expenses, 15,000/- towards loss of estate and Rs.40,000/- towards loss of consortium.

14. Looking to the above observation, now I shall recompute the amount of compensation to be awarded to Claimant Smt. Mithila Mehar which reads as under:-

S.No. Heads Calculation (in rupees)

1. Income of the deceased @ Rs. Rs. 60,000/- per annum 5,000/- per month

2. 40 % towards future prospects 24000/-

Rs. 60,000 + Rs. 24000= 84,000/-

3. 50% deduction towards personal and 42,000/-

living expenses

4. Multiplier of 18 applied Rs. 42,000 x 18 = Rs.

7,56,000/-

      5.             Loss of consortium                    Rs. 40,000/-
      6.             Loss of estate                        Rs. 15,000/-
      7.             Funeral expenses                      Rs. 15,000/-
                     Total Compensation                    8,41,000/-

Now, the Claimant/Appellant Mithila Mehar is entitled to get compensation of Rs.8,26,000/- instead of Rs. 4,08,000/- as awarded by the Tribunal, with interest @ 6% per annum from the date of filing of claim application till its realization. Other conditions of award passed by the Tribunal shall remain intact.

15. With regard to the appeal preferred by Appellant/Claimant Suraj Mehar, learned Tribunal has awarded amount of compensation to Rs. 1,89,042/- out of which Rs.1,14,042 is the amount of medical expense. The learned Tribunal has also awarded Rs.50,000 towards pain and suffering and Rs. 25,000/- towards special diet, is just and proper and requires no interference.

16. From the evidence, it is established that injured Suraj was sustained grievous injuries on his body, admitted in hospital for about a week and he was treated in different hospital. It can be assumed that the deceased in injured condition along with his family members had gone for treatment and traveling expenses would have been incurred for the same. The learned Tribunal has not passed any award of compensation with regard to the traveling expenses, therefore, considering the above, on this head, it would be appropriate to award Rs.25,000/- for traveling expenses to the injured.

17. Now, the Claimant/Appellant minor Suraj Mehar is entitled to get compensation of Rs.2,14,042,/- (189042 + 25000 = 2,14,042/-) instead of Rs.1,89,042/- as awarded by the Tribunal, with interest @ 6% per annum from the date of filing of claim application till its realization. Other conditions of award passed by the Tribunal shall remain intact.

18. Resultantly, the appeals preferred by the Appellants/Claimants in both the cases are allowed in part to the extent indicated above. Ordered Accordingly.

Sd/-

(Arvind Singh Chandel) Judge Shubham