Chattisgarh High Court
Smt. Vandana Kocher vs Romlal Nishad on 3 January, 2025
1
Digitally
signed by
SMT
NIRMALA
RAO
2025:CGHC:513
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 559 of 2020
1 - Smt. Vandana Kocher W/o Late Lalit Kocher Aged About 41 Years
R/o Near Jalaram Kiraya Bhandar, Sadar Bazaar, Raipur Chhattisgarh,
District : Raipur, Chhattisgarh.
2 - Divyansh Kocher R/o Late Lalit Kocher Aged About 19 Years R/o
Near Jalaram Kiraya Bhandar, Sadar Bazaar, Raipur Chhattisgarh,
District : Raipur, Chhattisgarh.
3 - Naman Kocher S/o Late Lalit Kocher Aged About 15 Years Appellants
No. 3 Minor Represented Through Natural Guardian Mother Smt.
Vandana Kocher, Aged About 41 Years W/o Late Lalit Kocher, R/o Near
Jalaram Kiraya Bhandar, Sadar Bazaar, Raipur Chhattisgarh, District :
Raipur, Chhattisgarh
4 - Sanyam Kocher S/o Late Lalit Kocher Aged About 12 Years
Appellants No. 4 Minor Represented Through Natural Guardian Mother
Smt. Vandana Kocher, Aged About 41 Years W/o Late Lalit Kocher, R/o
Near Jalaram Kiraya Bhandar, Sadar Bazaar, Raipur Chhattisgarh,
District : Raipur, Chhattisgarh
... Appellants/ Claimants
versus
1 - Romlal Nishad S/o Lekhram Nishad Aged About 26 Years R/o Near
Jait Khamb, Chandnidih, Thana Amanaka, Raipur Tahsil And District
Raipur Chhattisgarh ..........(Driver Of Tata Winger No. O. R. 26/9268),
District : Raipur, Chhattisgarh.
2 - Punit Ram Yadav S/o Shri Ghasiram Yadav R/o Village Tarbod,
Thana Komna District Nuvapada Odisha, ..........(Owner Of Tata Winger
No. O. R. 26/9268)
3 - The Oriental Insurance Company Limited Through Divisional
Manager, Divisional Office, Madina Manzil, Kutchery Chowk, Jail Road,
Raipur Chhattisgarh ..........(Insurer Of Tata Winger No. O. R. 26/9268)
4 - Motilal Kocher S/o Late Sohan Lal Kocher Aged About 75 Years R/o
Near Jalaram Kiraya Bhandar, Sadar Bazar, Raipur Tahsil And District
Raipur Chhattisgarh, District : Raipur, Chhattisgarh
-2-
5 - (Deleted) Smt. Jatin Bai Kocher As Per Honble Court Order Dated 19-
01-2024.
6 - Shantiswaroop @ Lala Sahu S/o Late Jugat Ram Sahu Aged About
31 Years R/o Mahamayi Para, Saraswati Chowk, Purani Basti, Raipur
Chhattisgarh, District : Raipur, Chhattisgarh
---- Respondents
WITH
1 - The Oriental Insurance Co. Ltd. Through - Divisional Manager,
Divisional Office, Madina Manzil Kachheri Chowk, Jail Road, Raipur
Chhattisgarh - Insurer Tata Winger No. O.R. No. 26/9268--, District :
Raipur, Chhattisgarh ... Appellant/ Insurer
versus
1 - Smt. Vandana Kochar W/o Late Shri Lalit Kochar Aged About 34
Years R/o Near Jalaram General Store, Sadarbazar, Raipur, Tahsil And
District- Raipur Chhattisgarh., District : Raipur, Chhattisgarh/ Claimant
No.1.
2 - Diviyans Kochar S/o Late Shri Lalit Kochar Aged About 16 Years
Minor Through Natural Guardian Mother Smt. Vandana Kochar, Aged
About 34 Years W/o Late Shri Lalit Kochar, R/o Near Jalaram General
Store, Sadarbazar, Raipur, Tahsil And District- Raipur Chhattisgarh.,
District : Raipur, Chhattisgarh/ / Claimant No.2.
3 - Naman Kochar S/o Late Shri Lalit Kochar Aged About 12 Years Minor
Through Natural Guardian Mother Smt. Vandana Kochar, Aged About 34
Years W/o Late Shri Lalit Kochar, R/o Near Jalaram General Store,
Sadarbazar, Raipur, Tahsil And District- Raipur Chhattisgarh., District :
Raipur, Chhattisgarh/ / Claimant No.3.
4 - Sanyam Kochar S/o Late Shri Lalit Kochar Aged About 10 Years
Minor Through Natural Guardian Mother Smt. Vandana Kochar, Aged
About 34 Years W/o Late Shri Lalit Kochar, R/o Near Jalaram General
Store, Sadarbazar, Raipur, Tahsil And District- Raipur Chhattisgarh.,
District : Raipur, Chhattisgarh/ Claimant No.4.
5 - Romlal Nishad S/o Lekhram Nishad Aged About 33 Years R/o Near
Jait Khamb, Chandnidih, P.S. - Amanaka, Raipur, Tahsil And District-
Raipur Chhattisgarh., District : Raipur, Chhattisgarh (Driver)
6 - Punit Ram Yadav S/o Shri Ghasiram Yadav R/o Village - Tarboad,
P.S. - Komma, District - Nuwapada (Orissa). (Previous Owner)
7 - Motilal Kochar S/o Late Sohan Lal Kochar Aged About 72 Years R/o
Near Jalaram General Store, Sadar Bazar, Tahsil And District- Raipur
Chhattisgarh., District : Raipur, Chhattisgarh (Father of the deceased)
8 - (Deleted) Smt. Jatin Bai Kochar As Per Honble Court Order Dated.
06/02/2024. (Mother of the deceased)
9 - Shantiswarup @ Lala Sahu S/o Late Jugat Ram Sahu Aged About 28
Years R/o Mahamai Para Saraswati Chowk, Purani Basti, Raipur
Chhattisgarh., District : Raipur, Chhattisgarh (Present Owner)
---- Respondents
For Appellants/Claimants No.1 to 4 : Mr. Vivek Chopda, Advocate.
For the Oriental Insurance Company : Mr. Raj Awasthi, Advocate.
Hon'ble Shri Justice Rakesh Mohan Pandey
Order on Board
03.01.2025
1. Both the appeals are being decided by this common order as they
arise out of the same award.
2. The appellants/claimants have filed MAC No.559 of 2020 under
Section 173 of the Motor Vehicles Act against the award dated
7.12.2019 passed in Claim Case No. 516 of 2017 by the Principal
Motor Accidents Claims Tribunal, Raipur, District Raipur, whereby
the learned Tribunal has awarded Rs.32,20,000/- along with
interest @ 9% per annum in favour of the appellants/claimants
against the Insurance Company.
3. The facts of the present case are that the appellants/claimants in
MAC No. 559 of 2020 filed a claim case under Section 166 of the
Motor Vehicles Act on account of the death of one Lalit Kocher in
an accident that occurred on 24.2.2014. They pleaded that on the
date of the accident, the deceased was returning home after
closing his cloth shop situated at Mahalaxmi Cloth Market, Pandri,
Raipur by driving his TVS Motorcycle No. C.G.-04-DR-8061. At
about 11:00 pm, while crossing a small railway crossing, the
respondent - Romlal Nishad (Driver) driving the Tata Winger No.
O.R. 26/9268 rashly and negligently dashed the TVS Motorcycle
from behind. Consequently, the deceased fell onto the street and
the offending vehicle crushed his head. The pillion rider of the
motorcycle, namely, Vasu Goswami suffered serious injuries. The
matter was reported to Police Station Civil Lines, Raipur and Crime
No.97 of 2014 was registered against the respondent - Romlal
Nishad (Driver) for the commission of offences punishable under
Sections 304(A), 279 & 338 of the Indian Penal Code. It was
further pleaded in the claim petition that the deceased was 39
years old and was indulged in cloth business under the name
"Jainam Clothing Private Limited". According to the Income-Tax
Return for the year 2013-14, the gross income of the deceased
was Rs.13,29,655/-. The appellants in MAC No.559 of 2020 and
claimants No.1 to 4 in MAC No.889 of 2020 claimed compensation
to the tune of Rs.3,64,50,000/-. The driver and owner of the
vehicle filed their written statement denying the allegations made
in the claim application. The Insurance Company also filed a
written statement raising the plea of contributory negligence and
stated that the claimants had exaggerated the amount of claim.
The Learned Claims Tribunal decided most of the issues in favour
of the appellants/claimants and passed an award of
Rs.32,20,000/-.
4. Learned counsel appearing for the appellants/claimants No.1 to 4
would submit that the learned Claims Tribunal committed an error
of law by ignoring the annual income of the deceased according to
ITR of 2013-14 which was Rs.13,29,655/- per annum. He would
further contend that the learned Tribunal has not awarded proper
compensation on conventional heads. He would pray to enhance
the amount of compensation.
5. On the other hand, Mr. Raj Awasthi, learned counsel appearing for
the Insurance Company would oppose the submissions made by
counsel for the appellants/claimants No.1 to 4. He would submit
that the deceased was driving his motorcycle in the middle of the
road and was thus negligent. He would contend that the Insurance
Company has raised a specific plea in the written statement, but
the learned Tribunal failed to consider the issue of contributory
negligence. He would further submit that the claimants have
produced three different Income-Tax Returns (ITRs) from different
firms, and as such, those ITRs were not taken into consideration
by the learned Tribunal. He would also submit that the documents
regarding the income of the deceased were unreliable, and
therefore, the learned Tribunal discarded them. He would further
argue that in the financial year 2011-12, the gross income of the
deceased was Rs.8,64,225/-, in financial year 2012-13, it was
Rs.7,81,018/- and in the financial year 2013-14, it was
Rs.13,29,655/-. He would contend that due to the lack of
consistency in the deceased's income and the mention of different
firms and companies, the Tribunal did not rely on those
documents. He would state that the learned Tribunal has awarded
just and proper compensation to the appellants/claimants No.1 to 4
and the appeal filed by the appellants in MAC No.559 of 2020
deserves to be dismissed.
6. I have heard learned counsel for the parties and perused the
documents present on the record with utmost circumspection.
7. According to the provisions of Section 166 of the Motor Vehicles
Act, the income at the time of the accident should be taken into
account to assess the dependency part. Admittedly, in the financial
year 2013-14, the gross income of the deceased was
Rs.13,29,655/- but the learned Tribunal failed to assess the loss of
dependency on the basis of the last income of the deceased. A
perusal of the income-tax return of 2013-14 (Ex.P/17) would show
that the deceased paid income-tax of Rs.2,13,359/-. Learned
Tribunal has not assigned any sufficient reason for ignoring the
ITR placed on record by the claimants.
8. In the matter of Sarla Verma (Smt) and Others, vs. Delhi
Transport Corporation and Another, (2009) 6 SCC 121, the
Hon'ble Supreme Court has held in para 20 that the actual income
of the deceased less income tax should be the starting point for
calculating the compensation. The relevant para 20 is reproduced
herein below:-
"20. Generally the actual income of the deceased less
income tax should be the starting point for calculating the
compensation. The question is whether actual income at
the time of death should be taken as the income or
whether any addition should be made by taking note of
future prospects."
9. In the matter of Malarvizhi and Others vs. United India
Insurance Company Limited and Another, (2020) 4 SCC 228,
the Hon'ble Supreme Court has held that the income tax return is a
statutory document on which reliance may be placed to determine
the annual income of the deceased. The relevant para 10 is
reproduced herein below:-
"10. The Tribunal proceeded to determine the agricultural
income arising from 36.76 acres of land on the basis of
two judgments of the High Court. The Tribunal arrived at
two different figures by applying the decisions and
proceeded to determine the agricultural income on an
average of the two amounts. The Tribunal superimposed a
possible value of income from agricultural land despite a
clear indication in the income tax returns of the income
from agricultural land. The method adopted by the Tribunal
is not sustainable in law. On the other hand, the High
Court has proceeded on the basis of the income reflected
in the income tax returns for the assessment year 1997-
1998. The relevant portion of the return reads:
"Income from House property - Rs. 1,920
Business profit (other than 14.b) - Rs. 1,21,071
Net Agricultural income - Rs. 88,140"
The tax return indicates an annual income of Rs 2,11,131
in the relevant assessment year. Mr Jayanth Muth Raj,
learned Senior Counsel appearing on behalf of the
appellant contended that other documents were marked
which reflected the income of the deceased. We are in
agreement with the High Court that the determination must
proceed on the basis of the income tax return, where
available. The income tax return is a statutory document
on which reliance may be placed to determine the annual
income of the deceased. To the benefit of the appellants,
the High Court has proceeded on the basis of the income
tax return for the assessment year 1997-1998 and not
1999-2000 and 2000-2001 which reflected a reduction in
the annual income of the deceased."
10.In the present case, the learned Tribunal failed to assess the
compensation based on the ITRs, therefore, the approach taken
by the learned Tribunal appears to be erroneous in this regard.
11.With regard to the contention raised by the Insurance Company
that the deceased was negligent while driving the vehicle and
therefore, the learned Tribunal ought to have considered the issue
of contributory negligence on the part of the deceased; a perusal
of map (Ex.P/3) would show that while the deceased was riding his
motorcycle, the offending vehicle/Tata Winger bearing registration
No. O.R. 26/9628 dashed his motorcycle from behind. It can safely
be concluded that the deceased was not negligent in this instance.
As per the contents of the FIR and the evidence of the
appellants/claimants, while the deceased was crossing railway line
the offending vehicle collided with his motorcycle. It can
reasonably be presumed that when the deceased was crossing the
railway line, the speed of his vehicle would have been very slow
and the driver of the offending vehicle while driving the vehicle
rashly and negligently dashed the motorcycle of the deceased,
therefore, the issue of contributory negligence would not arise and
the contention made by counsel for the Insurance Company is
hereby rejected.
12.Now coming to the calculation of the compensation. The annual
gross income of the deceased was Rs.13,29,655/- - income-tax
Rs. 2,13,369/- = Rs.11,16,306/-. There are four dependents in the
claim petition, therefore, the deduction would be 1/4th.
13.Complete Assessment of Compensation Entitlement for the
appellants/ Claimants:-
(i) Annual Dependency:-
Annual Gross income of the deceased = Rs. 13,29,655/-
Income - Tax paid for the financial year (2013-14) = 2,13,359/-
Net annual Income for the financial year (2013-14) =
Rs.13,29,655 - 2,13,359/- = 11,16,296/-.
Future Prospects:- 40% of annual income
Rs.11,16,296 x 40% = Rs.4,46,518/-
Rs.11,16,296 + 4,46,518/- = 15,62,814/-
Deduction of 1/4th for personal expenses:-
Rs.15,62,814 x 1/4 =Rs.3,90,704/-.
Rs.15,62,814 - 3,90,704/- = Rs.11,72,110/-
- Net annual dependency:- Rs. 11,72,110/-
(ii) Multiplier:-
Considering the age of the deceased (39y), a multiplier of 15
is appropriate.
Total dependency compensation:-
Rs. 11,72,110 x 15 = Rs. 1,75,81,650/-.
(iii) Additional Compensation:-
Loss of spousal consortium for Claimant No. 1 (wife):-
Rs.40,000/-
Loss of parental consortium for Claimants No. 2 to 4
(sons):- Rs. 40,000 x 3 = Rs. 1,20,000/-
Funeral expenses:- Rs. 15,000/-
Loss of estate:- Rs. 15,000/-
Total Additional Compensation:- Rs. 40,000 + Rs. 1,20,000 +
Rs. 15,000 + Rs.15,000 = Rs. 1,90,000/-
(iv) Total Compensation Amount:-
Dependency compensation:- Rs. 1,75,81,650/-
Additional compensation:- Rs. 1,90,000/-
Thus, total Compensation:- Rs. 1,77,71,650/-
14.As the learned Tribunal has already awarded compensation of
Rs.32,20,000/-, the further enhanced amount will be
Rs.1,45,51,650/-, which is to be paid alongwith @ 9% per annum
from the date of filing of the application till its realization. The
award passed by the learned Tribunal is modified up to the extent
indicated above.
15.Accordingly, MAC No.559 of 2020 is allowed. Consequently, MAC
No.889 of 2020 filed by the insurance company is dismissed.
Sd/-
(Rakesh Mohan Pandey)
Judge
Nimmi
