Chattisgarh High Court

Sarita Painkra vs Mohd Saleem Khan on 8 May, 2025

Author: Rajani Dubey

Bench: Rajani Dubey

                                   1




                                                      2025:CGHC:21337


                                                              NAFR

          HIGH COURT OF CHHATTISGARH AT BILASPUR

                  Judgment reserved on : 28-02-2025
                  Judgment delivered on : 08-05-2025

                         MAC No. 72 of 2017

1 - Sarita Painkra Wd/o Late Mithilesh Painkra, Aged About 20 Years


2 - Chandraprakash Singh Aged About 3 Years, son of Late Mithilesh
Paikra,


3 - Smt. Nirmal Singh W/o Shri Saliram, Aged About 48 Years


4 - Saliram S/o Late Uravram, Aged About 50 Years


5 - Tanmay S/o Late Mithilesh Painkra, Aged About 2 Years


Minors (Appellants No. 2 and 5) through their natural guardian mother
Appellant No.1.


All are resident of Nawadeeh Chowk, Sipat, P.S. Sipat, Distt. Bilaspur,
Chhattisgarh
                                              -- Appellants/claimants
                               versus
                                       2

1 - Mohd Saleem Khan S/o Maqbul Khan, Aged About 46 Years R/o
Bargidih, P.S. Batauli, District Surguja, Chhattisgarh ...............Driver Of
The Pickup No. UP 64/ H-8440


2 - Santosh Kumar Sarkar S/o Mohan Sarkar, R/o Ajirema, Raghavpuri,
District Surguja, Chhattisgarh ...............Owner Of The Pickup No. UP
64/ H-8440


3 - Shriram General Insurance Company Limited, Chief Manager, E-8,
EPIP Ricko, Industrial Area Sitapur, Jaipur, Rajasthan 302022, Through
Shriram General Insurance Company Limited, Branch Manager,
Vyapar Vihar Road, Bilaspur, Chhattisgarh ...............Insurer Of The
Pickup No. UP 64/ H-8440
                                                           ... Respondents

For Appellants : Mr. Pravesh Sahu, Advocate on behalf of Ms. Bhagwati Kashyap, Advocate.

For Respondents : None though respondents No. 1 & 2 are served.

Hon'ble Smt. Justice Rajani Dubey, J

CAV Judgment

This appeal is by the claimants against the award dated

31.8.2016 passed by 5th Additional Motor Accident Claims Tribunal,

Bilaspur (in short "the Tribunal") in Claim Case No.516/2014 awarding

total compensation of Rs.4.28 lacs with interest @ 6% per annum from

the date of application till realization if the said amount is not deposited

within 60 days with the Tribunal, fastening liability on the non-applicant

No.3/insurance company.

02. As per claim petition filed under Section 166 of the Motor Vehicles

Act, 1988 (for brevity "the Act of 1988"), on 22.7.2013 while Mithilesh

was going on motorcycle with his relative Vikas, non-applicant No.1 by

driving vehicle Pickup bearing No. UP 64/H 8840 in a rash and

negligent manner dashed the motorcycle near village Lahpatra as a

result of which the rider Vikas as also pillion rider Mithilesh Paikra

suffered grievous injuries and succumbed to the same. On report being

lodged, offence under Sections 279, 337, 304A of IPC was registered

against non-applicant No.1. The claimants further pleaded that at the

time of incident, deceased Mithilesh was 25 years of age, working as

driver and earning Rs.7,000/- pm and Rs.100/- as daily allowance. The

claimants were fully dependent upon the deceased. Therefore, they

claimed a total sum of Rs.24.98 lacs as compensation under various

heads from the non-applicants.

03. Non-applicants No.1 & 2 did not file their written statement and

remained ex-parte. However, non-applicant No.3/insurance company in

its written statement contended that rider of the motorcycle on which

the deceased was sitting, was riding the motorcycle negligently and as

such, owner and insurer of the motorcycle were also necessary party.

There was no negligence on the part of non-applicant No.1. It also

denied dependency of the claimants on the deceased. It was further

pleaded that non-applicant No.1 was also not having valid and effective

licence for driving the commercial vehicle. Looking to the manner in

which the accident took place, it is a case of contributory negligence on

the part of the deceased and non-applicant No.1. Therefore the claim

case is liable to be dismissed as against non-applicant No.3/insurer.

04. Based on the pleadings of the respective parties, the learned

Tribunal framed as many as seven issues and after appreciation of oral

and documentary evidence on record passed the impugned award as

mentioned above. Hence this appeal by the claimants for

enhancement.

05. Learned counsel for the appellants/claimants submits that the

impugned award is bad in law as well as on facts. The deceased was

25 years of age, he was a driver by profession and earning Rs.7,000/-

pm whereas the Tribunal assessed his monthly income on notional

basis as Rs.3,000/- only. Further no amount was awarded towards

future prospect, for loss of love and affection, estate, pain and suffering

etc. This apart, the learned Tribunal awarded interest on the lower side

@ 6% pa, that too if the awarded amount is not deposited within 60

days whereas it ought to have awarded interest @ 9% pm on the

compensation from the date of application till realization. In view of this,

the compensation amount deserves to be enhanced suitably in

accordance with law.

Reliance has been placed on the decisions in the matters of

Magma General Insurance Co. Ltd. Vs. Nanu Ram @ Chuhru Ram

and others, 2018 (4) ACCD 2106 (SC) and Smt. Anjali and others

Vs. Lokendra Rathod and others, 2023 (1) ACCD 30 (SC).

06. None for the respondents though respondents No. 1 and 2 are

served. However, respondent No.3 remains unserved for want of

correct address.

07. Heard learned counsel for the appellants/claimants and perused

the material available on record.

08. As regards income of the claimant, the claimants pleaded that

the deceased was a driver by profession and was earning Rs.7000/-

per month as also getting Rs.100/- per day towards allowance.

However, no oral or documentary evidence to substantiate the above

fact has been adduced by the claimants. In these circumstances, the

Tribunal assessed his monthly income on notional basis as Rs.3,000/-

which appears to be on the lower side and therefore, considering the

notional income of skilled labour at the relevant time, it can safely be

taken as Rs.5000/- in the present case i.e. Rs.60,000/- per annum. At

the time of incident the deceased was 26 years of age. As such, in

view of decision of Hon'ble Supreme Court in the matter of National

Insurance Co. Ltd. Vs. Pranay Sethi, (2017) 16 SCC 680, there has

to be 40% addition of the annual income towards future prospect which

being done makes the annual income as Rs.84,000/-. Looking to the

number of dependents, there has to be 1/4th deduction towards

personal and living expenses of the deceased. After such deduction,

the annual loss of dependency comes to Rs.63,000/-. In this case, the

multiplier of 17 would be applicable and after applying multiplier, the

total loss of dependency comes to Rs.10,71,000/-. Further, the amount

awarded towards the conventional heads being not in accordance with

the decisions of the Hon'ble Supreme Court in the matter of Pranay

Sethi (supra) and Magma General Insurance Co. Ltd. (supra) it

needs to be enhanced accordingly. Thus, the claimants are held

entitled for compensation as under:

Sl. Heads                                      Calculation
No.                                            (in rupees)
01.   Income of the deceased @ Rs.5,000/- Rs.60,000/-              per
      per month.                               annum

02. 40% of (i) above to be added towards Rs.84,000/-

future prospects.

(Rs.60,000 + Rs.24,000)

03. 1/4th deduction towards personal and Rs.63,000/-

living expenses of the deceased

(Rs.84,000-21,000)

04. Multiplier of 17 to be applied Rs.10,71,000/-

05. Towards loss of spousal consortium to Rs.40,000/-

claimant No.1

Towards loss of parental consortium to

claimants No. 2 & 5 each @ Rs.40,000/- Rs.80,000/-

Towards loss of filial consortium to Rs.80,000/- claimants No. 3 & 4 each @ Rs.40,000/-

                                  Towards funeral expenses                    Rs.15,000/-

                                  Towards loss of estate                      Rs.15,000/-


                                  Total compensation                          Rs.13,01,000/-

Since the Tribunal has already awarded Rs.4,28 lacs, after

deducting the same from the above amount, the claimants are held

entitled for additional compensation of Rs.8,73,000/- (Rupees eight

lacs and seventy three thousand only) with interest @ 6% per annum

from the date of application till realization. However, rest of the terms

and conditions of the impugned award shall remain intact.

09. In the result, the appeal is allowed in part with modification in the

impugned award to the above extent.

Sd/ (Rajani Dubey)

MOHD by MOHD

Judge AKHTAR KHAN AKHTAR Date: