Chattisgarh High Court
Dashrath Nishad vs Sahdev Sahu on 15 February, 2023
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MAC No. 754 of 2017
Order Reserved on : 17/11/2022
Order Delivered on : 15/02/2023
1. Dashrath Nishad, S/o Late Shri Ramprasad Nishad, Aged About
35 Years, Occupation Labour, R/o Village And Post Naurangpur,
Police Station And Tahsil Sarangarh, District Raigarh,
Chhattisgarh
2. Smt. Yashoda Nishad, W/o Shri Milap Nishad, Aged About 37
Years, D/o Late Shri Ramprasad Nishad, R/o Village And Police
Station Chandrapur, Tahsil Dabhara, District Janjgir-Champa,
Chhattisgarh.
3. Smt. Champa Nishad, W/o Shri Bhagirathi Nishad, Aged About
32 Years, D/o Late Shri Ramprasad Nishad, R/o Village
Domanpur, Tahsil Dabhara, District Janjgir-Champa,
Chhattisgarh ..............Claimants.
---- Appellants
Versus
1. Sahdev Sahu, S/o Shri Bhuvaneshwar Sahu, Aged About 35
Years, Occupation Vehicle Driver, R/o Village Gobarsingha,
Police Station And Tahsil Baramkela, District Raigarh,
Chhattisgarh ...............Driver Of The Offending Vehicle.
2. Ram Prasidha Singh, S/o Late Shri Devnandan Singh, Aged
About 60 Years, Occupation Vehicle Owner, R/o Village
Kodatarai, Police Station And Tahsil Pusaur, District Raigarh,
Chhattisgarh .............Owner Of The Offending Vehicle.
3. The United Insurance Company, Through Branch Manager,
Mishra Complex, Near Sarla-Vila, Chakradhar Nagar, Raigarh,
District Raigarh, Chhattisgarh ..............Insurer Of The
Offending Vehicle.
---- Respondents
For Appellants : Mr. Roop Naik, Advocate.
For Respondent No.3 : Mr. Ratan Pushty, Advocate.
Hon'ble Smt. Justice Rajani Dubey
C A V Judgment
1. This appeal arises out of the award dated 30.03.2017 passed by
2
Additional Motor Accident Claims Tribunal (for short the
"Tribunal") Raigarh in Claim (MACT) Case No.27/2016 awarding
a compensation of Rs.55,000/- in favour of the
appellants/claimants for the death of Pitramti Nishad.
2. Facts
of the case in brief are that on the date of incident, when
the deceased was going to Domanpur on her son-in-law's
motorcycle bearing registration No.CG-11-C-3578, near
Timarlaga Sarangarh-Raigarh main road, the offending vehicle
bus bearing registration No.CG-13-A-3060 driven by respondent
No.1/non-applicant No.1 herein, in a rash and negligent manner,
came from behind and hit them as a result of which deceased
Pitramti Nishad died on the spot. A claim petition was filed by
the appellants/claimants who happen to be the legal heirs of the
deceased claiming a compensation of Rs.18,43,000/- inter alia
pleading that the deceased at the relevant time was aged about
57 years, she was earning Rs.9,000/- per month by selling
namkin and running hotel in weekly market.
3. Pleading of the claimants have, however, been denied by the
respondent/insurance company.
4. After evaluating the evidence available on record, the Tribunal,
after holding that the Claimants are not entitled to receive
compensation under the head loss of dependency, has awarded
compensation of Rs.55,000/- along with interest @ 6% per
annum in favour of the appellants/claimants. Hence this appeal
for enhancement.
5. Counsel for the appellants/claimants submits that the Tribunal
has erred in law in not awarding adequate compensation to the
claimants. The Tribunal has also not considered the loss of
future prospect and loss of dependency in the present case. It
has been also submitted that the amount awarded under the
conventional heads is also quite inadequate and deserves to be
suitably enhanced. It is next submitted that all the legal heirs of
deceased have right to apply for compensation. In support of his
submission, he placed reliance on the decision of Hon'ble
Supreme Court in the matter of National Insurance Company
Limited Vs. Birender and Others. reported in (2020) 1 ACC
130.
6. On the other hand, counsel for the respondent/insurance
company supports the award impugned.
7. Heard counsel for the parties and perused the documents on
record.
8. In a motor accident claim case, what is important is that, the
compensation to be awarded by the Courts/Tribunals should be
just and proper compensation in the facts and circumstances of
the case. It should neither be a meager amount of
compensation, nor a Bonanza.
9. Now we shall examine as to whether the compensation of
Rs.55,000/- awarded by the Tribunal is just and proper
compensation in the given facts and circumstances of the case.
10. The learned Tribunal recording the finding that appellant No.1 is
married son of deceased and appellant Nos. 2 & 3 are married
daughter of the deceased and thus held that they were not
dependent on the deceased and awarded compensation of
Rs.55,000/- in favour of the appellants.
11. Hon'ble Supreme Court in the matter of National Insurance
(supra), held in para 15 and 19, which read thus :-
"15. It is thus settled by now that the legal
representatives of the deceased have a right to
apply for compensation. Having said that, it must
necessarily follow that even the major married and
earning sons of the deceased being legal
representatives have a right to apply for
compensation and it would be the bounden duty of
the Tribunal to consider the application irrespective
of the fact whether the concerned legal
representative was fully dependant on the deceased
and not to limit the claims towards conventional
heads only. The evidence on record in the present
case would suggest that the claimants were working
as agricultural laborers on contract basis and were
earning meager income between Rs.1,00,000/- and
Rs.1,50,000/- per annum. In that sense, they were
largely dependent on the earning of their mother and
in fact, were staying with her, who met with an
accident at the young age of 48 years.
19. Reverting to the determination of compensation
amount, it is noticed that the Tribunal proceeded to
determine the compensation amount on the basis of
net-salary drawn by the deceased for the relevant
period as Rs.16,918/- per month, while taking note of
the fact that her gross-salary was Rs.23,123/- per
month (presumably below taxable income).
Concededly, any deduction from the gross-salary
other than tax amount cannot be reckoned. In that,
the actual salary less tax amount ought to have been
taken into consideration by the Tribunal for
determining the compensation amount, in light of the
dictum of the Constitution Bench of this Court in
paragraph 59.3 of Pranay Sethi (supra."
12. True, the claimants/appellants pleaded that deceased used to
earn Rs.9,000/- per month by selling namkin in the house and
running hotel at weekly market, no cogent and reliable evidence
was led before the Tribunal to establish the income of the
deceased to the extent of Rs.9,000/- per month. Neither any
witness has been examined to substantiate this plea of the
claimants/appellants. Therefore, this Court do not find any fault
in the approach of the Tribunal in discarding the appellants'
evidence about the income of the deceased. However, the
learned Tribunal has gone wrong in not calculating the monthly
income of the deceased, which requires consideration.
13. Considering that deceased Pitarmati Nishad, on the date of
accident, was aged about 60 years and at the time of incident
she was selling namkin in her house, this Court is of the opinion
that she could have easily earned Rs.3,000/- per month in the
year 12.07.2017 by selling namkin in home and running hotel at
weekly market. This Court, therefore, proposes to recompute
the compensation taking the monthly income of the deceased at
Rs.3,000/- per month and Rs.36,000/- per annum. The
deceased was widow and 60 years of old at the time of accident.
Hence, 10% of the actual income of the deceased towards future
prospect is to be added. Having done so, the amount comes to
Rs.39,600/-. Further, there being three claimants, the deduction
of 1/3rd towards personal expenses of the deceased from her
annual income would be just and proper. Accordingly, by
deducting 1/3rd (39,600x1/3 = Rs.13,200/-) from the annual
income of the deceased, the claimants' dependency is assessed
at Rs.26,400/- (39,600 - 13,200) per annum.
14. Looking to the age of the deceased and three
claimants/appellants, at the time of accident, this Court of the
opinion that the Tribunal has erred in not applying the multiplier
in this case. In fact, for the age group of 56 to 60 years,
multiplier of 9 has to be applied as per the Schedule. As per
decision in Smt. Sarla Verma and others Vs. Delhi Transport
Corporation and another reported in (2009) 6 SCC 121, after
application of multiplier of 9, the total loss of dependency is
assessed to Rs.26,400/- x 9 = Rs.2,37,600/-. The Tribunal has
awarded Rs.45,000/-, Rs.5,000/- and Rs.5,000/- under the head
love & affection, funeral expenses and loss of estate
respectively, which in the facts and circumstances of the present
case and in view of the judgment of Hon'ble Supreme Court in
the matter of National Insurance Co. Ltd. v. Pranay Sethi 1, is
not proper. The Supreme Court in the matter of Pranay Sethi
(supra) dealt with the various heads under which compensation
is to be awarded in a death case. Thus, keeping in view all
these things, above discussion and in view of decisions of
Hon'ble Supreme Court in the matter of Pranay Sethi (supra),
this Court is of the view that the amount awarded by the Claims
Tribunal is on lower side and requires reconsideration. The
claimants/appellants are entitled for compensation in the
(2017) 16 SCC 680
following manner:-
Head Awarded by Awarded by this Court
Tribunal
Income Nil Rs.3,000/-
Future Prospect Nil Rs.300/- (i.e. 10% of the income)
Deduction towards living Nil Rs.,1,100/- (i.e. 1/3rd of Rs.3,000/-
and personal expenses + Rs.300/-)
Total Income Nil Rs.2,200/- (Rs.3300 - Rs.1100)
Yearly Income Nil Rs.26,400/- (Rs.2,200 x 12)
Multiplier applied Nil 9
Loss of future income Nil Rs.2,37,600/- (Rs.2,200 x 12 x 9)
Towards Love and Rs.45,000/- Rs.40,000/-
Affection
For Funeral Expenses Rs.5,000/- Rs.15,000/-
Loss of Estate Rs.5000/- Rs.15,000/-
Total compensation Rs.55,000/- Rs.3,07,600/-
awarded
15. Thus, the total compensation including the amount awarded on
conventional heads comes to Rs.3,07,600/- (2,37,600 +
70,000/-) for which the claimants are entitled to receive as
compensation for the death of deceased Pitramti Bai. Since the
Tribunal has already awarded Rs.55,000/-, after deducting the
same the claimants/appellants are entitled for enhanced amount
of Rs.2,54,600/-. This additional amount of compensation shall
carry interest @ 6% p.a. from the date of filing of claim
application till realization. The amount received by the
claimants, if any, shall be adjusted in the enhanced sum.
16. Appeal is thus allowed in part with the modification in the award
impugned as indicated above.
Sd/-
(Rajani Dubey)
Judge
pkd
