Mansharam Rai Dead And Ors vs Itwari Dhitlahre And Ors
2022 Latest Caselaw 6209 Chatt

                                        -1-

                                                                               NAFR
                HIGH COURT OF CHHATTISGARH AT BILASPUR
                                MAC No.184 of 2013

   1.   Smt. Devkumari W/o Late Ramesh Kumar Rai Aged About 26 Years
   2.   Sanjay Rai S/o Late Ramesh Kumar Rai Aged About 10 Years
   3.   Pintu Rai S/o Late Ramesh Kumar Rai Aged About 6 Years
   4.   Akash Rai S/o Late Ramesh Kumar Rai Aged About 4 Years
   5.   Vikash S/o Late Ramesh Kumar Rai Aged About 2 Years
        Appellants No. 2 to 6 being Minors represented through by their natural
        guardian and Mother Smt. Devkumari W/o Late Ramesh Rai.
        All are R/o Village- Bhathiya, Post- Bhaisa, Thana- Kharora, Distt. Raipur,
        Chhattisgarh.
                                                                   ---Appellant(s)
                                      Versus
   1. Itwari Dhitlahre S/o Nanthan Dhitlahre Aged About 50 Years R/o Dumha
      Sundari, Thana Palari, Distt. Raipur C.G., Chhattisgarh
   2. Yupram Sahu S/o Late Suraj Prasad Aged About 28 Years R/o Village-
      Bhathiya, Post- Bhaisa, Thana- Kharora, Distt. Raipur C.G., District :
      Raipur, Chhattisgarh
   3. The New India Insu. Co. Ltd. S/o Thru- Divisional Manager, Branch No.
      451801, Civil Line Baloda Bazar, Distt. Raipur, Now Baloda Bazar C.G.,
      District : Balodabazar-Bhathapara, Chhattisgarh
                                                               ---Respondent(s)

For Appellants : Shri Ajay Barik on behalf of Shri K. K.

Dewangan, Advocate.

For Respondent No.3 : Shri Pankaj Agrawal, Advocate.

Hon'ble Shri Justice P. Sam Koshy Order on Board

12.10.2022

1. The present is a claimants appeal under Section 173 of the Motor Vehicles

Act. The challenge is to the award dated 14.12.2012 passed by the IIIrd

Additional Motor Accident Claims Tribunal, Raipur in Renumbered Claim

Case No.26 of 2012 (Old No.57/2008). Vide the said impugned award, the

Tribunal in a claim case under Section 163-A of the Motor Vehicles Act has

awarded a compensation of Rs.4,18,000/- with interest @ 6 percent per

annum from the date of application. The insurance company has been

exonerated of its liability and the entire liability of payment of

compensation has been fastened upon the respondent No.2 in the instant

appeal, the owner of the vehicle on which the deceased was travelling.

2. The facts of the case is that on 05.10.2007 the deceased Ramesh Kumar

Rai, aged around 28 years was sitting as a pillion rider on the motorcycle

CG-04-CR-6039, driven by respondent No.2 when they were hit by a Jeep

bearing registration No.CG-04-ZA-2205 driven by respondent No.1. As a

result of the said accident the deceased Ramesh Kumar Rai received

grievous injuries to which he later succumbed.

3. The family members of the deceased have filed the claim application

before the Tribunal under Section 163-A of the Motor Vehicles Act where

the case was registered as Claim Case No.57 of 2008. The matter came

up before the 7th Additional Motor Accident Claims Tribunal, Raipur and the

Tribunal after hearing the parties initially vide award dated 31.03.2010 had

dismissed the claim application. The dismissal of the claim application was

challenged before the High Court vide MAC No.689 of 2010 and the

Division Bench of this High Court vide judgment dated 05.08.2011 had

allowed the same and had remitted the matter back to the Tribunal

concerned for reconsidering and to decide the claim application afresh.

While remanding the matter back, the High Court had given liberty to the

claimants to further amend the pleadings and also had granted the liberty

to adduce fresh and further evidence and documents in support of their

contentions and claim.

4. The matter accordingly stood remitted back to the court below and it was

renumbered now as Claim Case No.26 of 2012 before the IIIrd Additional

Motor Accident Claims Tribunal, Raipur. The claimants still pursued the

application under Section 163-A of the Motor Vehicles Act itself without any

further amendments as such to the pleadings and the claim application.

5. The Tribunal further now has vide the impugned award allowed the claim

application and has awarded an amount of Rs.4,18,000/- with interest @ 6

percent per annum. While passing the impugned award, the Tribunal has

exonerated the insurance company and has fastened the liability of

payment of compensation upon the owner of the motorcycle on which the

deceased was travelling i.e. the respondent No.2, the owner of the

motorcycle CG-04-CR-6039. The insurance company was exonerated on

the ground that the insurer had not paid any premium covering the risk of

the owner or the pillion rider and had only taken the policy covering the

risk of third party. That, the rider and the pillion rider could not be brought

within the ambit of a third party, thus the Insurance Company was

exonerated.

6. The instant appeal has been filed seeking for enhancement of the

compensation. The exoneration of the insurance company is not under

challenge. From the submissions made by the counsel for the parties,

there also does not seem to any appeal filed by the owner in the instant

case.

7. Considering the fact that there is no appeal by the respondent No.2, the

owner of the motorcycle against whom the liability has been fastened, all

that this court now is required to consider is as to what extent can the

compensation payable to the claimants can be enhanced.

8. It is necessary at this juncture to take note of the fact that the claim

application has been filed under Section 163-A of the Motor Vehicles Act.

The said provision specifically provides for grant of compensation in terms

of the structured format that is reflected in the Second Schedule of the Act.

Under the structured formula that is reflected in the Second Schedule, the

maximum compensation that could be payable to a claimant in a death

case prescribed is rupees Five Lakhs. That be the case, the compensation

payable to the claimants under no circumstances can exceed Five Lakhs

rupees.

9. The Tribunal while quantifying the compensation has already awarded an

amount of Rs.4,18,000/-, out of which Rs. 4,08,000/- is towards the loss of

income. The income assessed by the Tribunal does not seem to be on the

lower side for the reason that the Tribunal has accepted Rs.3000/- as the

notional income of the deceased. The date of accident in the instant case

is 05.10.2007. At that point of time the minimum wages of a Labour would

had been only around Rs.100/- a day which has therefore been properly

assessed by the Tribunal.

10. As per the structured formula that was applicable on the date of accident if

the income of the deceased was Rs.3000/- and the age of the deceased

was between 25-30 years, the calculation had to be done applying the

multiplier of 18 multiplied by 36000. This would had brought the amount at

Rs.6,48,000/-of which if 1/3rd of the amount is deducted towards personal

expenses, the balance of amount left is Rs.4,32,000/-which would be the

amount of compensation payable towards loss of income. In addition, as

per the Second Schedule of the Act, the claimants would also be entitled

for an amount of Rs.9500/- towards loss of estate, loss of consortium and

expenses towards funeral which would bring the total amount of

compensation payable to the claimants at Rs.4,41,000/-instead of

Rs.4,18,000/-as has been awarded by the Tribunal.

11. The present appeal accordingly stands allowed to the aforesaid extent.

The compensation payable to the claimants would get enhanced to

Rs.4,41,000/- and the interest part that has been awarded by the Tribunal

shall remain intact. The respondent No.2 is directed to deposit the entire

amount within a period of two months.

12. The appeal stands allowed.

sd/-

(P. Sam Koshy) Judge inder