Chattisgarh High Court
Shrawan Devdas vs Ashok Kunar on 30 November, 2023
Neutral Citation
2023:CGHC:29955
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MAC No. 720 of 2018
1. Shrawan Devdas S/o Bohru Aged About 45 Years R/o Sanjay
Nagar Ward No. 03 Supela , Bhalai Tahsil And District Durg
Chhattisgarh.
2. Vijay S/o Shrawan Devdas Aged About 19 Years R/o Sanjay
Nagar Ward No. 03 Supela , Bhalai Tahsil And District Durg
Chhattisgarh.
3. Kusum D/o Shrawan Devdas Aged About 13 Years (Minor
Through Natural Guardian Shrawan Devdas ) ( Father ) R/o
Sanjay Nagar Ward No. 03 Supela , Bhalai Tahsil And District
Durg Chhattisgarh. (Claimants)
---- Appellants
Versus
1. Ashok Kunar S/o Rambhjhrat Prajapati Aged About 27 Years R/
o Patiyala Trailer Service 38/13, Transport Nagar , Hathkhoj
Police Station Bhilai - 3 Tashil And District Durg Chhattisgarh.
2. Gurupreet Singh S/o Kuldeep Singh Aged About 27 Years R/o
Patiyala Trailer Service 38/13, Transport Nagar , Hathkhoj
Police Station Bhailai - 3 Tashil And District Durg Chhattisgarh.
3. National Insurance Company Limited , 03 Mildatan Street Post
Box No. 9229, Kolkata Local Office - Branch No. 01 , Bhutani
Complex, G E Road Power House Bhilai Tashil And District
Durg Chhattisgarh.
---- Respondents
For Appellants : Shri Raj Bahadur Singh, Advocate For Respondent No.1 & 2 : Ms.Seema Mishra, Advocate For Respondent No.3 : Shri Sanjay Patel, Advocate Hon'ble Shri Sachin Singh Rajput Order On Board 30/11/2023 This appeal under Section 173 of the Motor Vehicle Act, 1988 (for short "MV Act") has been filed by the appellants/claimants Neutral Citation 2023:CGHC:29955 2 aggrieved by the award dated 02.04.2018 passed in Claim Case No. 252/2015 by the learned First Additional Tribunal of First Additional Motor Accident Claims Tribunal, Durg (CG) .
2. Facts of the case in brief is that on the date of accident i.e. 09.05.2015 at about 11.00 am in the morning, deceased Ramkali Devdas was sitting near the shade of the standing Trailer (offending vehicle) bearing number CG 07/N.A./7583, in front of Jain Petrol Pump, Taatiband Square, at that point of time respondent No.1/driver of the offending vehicle drove the vehicle negligently over the deceased Ramkali as she came beneath the left side of the rear wheel and died on the spot. The incident was reported to the police station Amanaka Raipur upon which Crime No. 92/15 under Section 304-A IPC was registered against the respondent No.1/driver and after due investigation, charge sheet was filed.
3. At the time of accident,deceased was aged about 35 years and was earning Rs. 15,000/- by working in a firm named JB Coolers and Furnitures, Bhilai and used to contribute in raising her family. Respondent No.2 is the owner of the offending vehicle and respondent No.3 is the Insurer of the offending vehicle. The appellants/claimants claimed total compensation of Rs. 44,70,000/- as compensation.
4. Learned Counsel for Respondent No.1 and 2/driver and owner of the offending vehicle filed their written statement and denied the averments in the claim application. It was pleaded that false report was lodged against the respondent No.1/driver, there is no negligence on his part and the amount of claim is exaggerated and on the date of accident, the offending vehicle was duly insured with the respondent Neutral Citation 2023:CGHC:29955 3 No.3/Insurance Company hence, the Insurance Company is liable to pay the compensation and they may be exonerated.
5. Respondent No.3/Insurance Company also filed its written statement and as usual denied the averments of the claim application. It was pleaded that the incident occurred due to the sole negligence of the deceased, the amount claimed is exaggerated, the respondent No.1/driver did not have valid and effective driving license and there is a violation of insurance policy therefore, they are not liable to pay the compensation.
6. On the basis of the above broad pleadings, the learned Tribunal has framed as many as 5 issues and after appreciating the evidence and material available on record, decided the same in favour of the appellants/claimants however awarded total compensation of Rs. 8,81,400/- and apportioned the contributory negligence amongst the deceased and driver of the offending vehicle to 60:40 and thus awarded Rs. 3,52,560/- as compensation in favour of the appellants/claimants by the impugned award.
7. Shri Raj Bahadur Singh, learned counsel for the appellants/claimants submits that the finding with regard to the contributory negligence is absolutely perverse. The deceased was neither driving any vehicle and he was simply sitting under the shade and the driver has not taken proper care and drove the offending vehicle rashly and negligently thereby causing the death of the deceased. Under any stage of violation, the finding with regard to holding 60% contributory negligence to the deceased cannot sustain in the scrutiny of this Court. Apart from this, he submits that the income Neutral Citation 2023:CGHC:29955 4 of the deceased is taken on the lower side and the amount of compensation under other heads is also on the lower side.
8. On the other hand hand, learned counsel for the respondents support the impugned award and submit that the finding with regard to the contributory negligence is based on proper appreciation of evidence and from the evidence of NAW-1, it is established that it is contributory accident. Since no cogent evidence is brought on record with regard to the income of the deceased hence the finding with regard to income and assessment of compensation is also correct.
9. Heard counsel for the parties and perused the record.
10. This Court would like to deal with the first submission with regard to the contributory negligence. Learned Tribunal relied upon the statement of NAW-1 to substantiate that the deceased had contributed 60% to the accident. From the evidence on record, the respondent No.1/driver was prosecuted for the offence punishable under Section 304-A IPC and he has stated that he has parked his vehicle in front of Jain Petrol Pump, Taatiband Square, Raipur and when the deceased came and sat below the vehicle, he was not aware at that point of time, one person came and asked him to move the vehicle thereafter another person informed him that one lady has come beneath the left side of the rear wheel of the vehicle thereafter he took the vehicle to the police station. He has stated that there is no negligence on his part. In cross- examination, he tried to justify that he was not negligent. He has stated that it is true to say that before starting the vehicle he used to see on both sides and then starts the vehicle. He has also admitted that on the date of incident, before starting the vehicle, he Neutral Citation 2023:CGHC:29955 5 didn't check. He has also deposed that it is true to say that he do not know as to whether the deceased was lying or sitting below the vehicle.
11. From the cumulative assessment of the evidence, it cannot be said that the deceased had contributed to the accident. A driver who is driving such a heavy vehicle should be careful while moving it and ought to have taken proper care to make sure that no one is near his vehicle. As admitted by him he has not taken care to see on right and left side of the vehicle before starting it, therefore, the finding recorded by the learned Tribunal cannot sustain and is liable to be set aside.
12. Now, this leads me to the second submission as to whether just compensation is awarded or not. Though the appellants/claimants had to prove that she was earning Rs. 15,000/- per month, no cogent and prudent evidence is brought on record to accept this submission. Learned Tribunal found the monthly income of the deceased as Rs. 4500/-. The date of incident is 09.05.2015. Considering the entire facts and circumstances of the case and the evidence on record, the nature of job, the minimum wages prevailing at that point of time, the number of dependents and in view of the judgment of Hon'ble Supreme Court in the matter of Arun Kumar Agrawal & Anr vs National Insurance Co. Ltd. & Ors., (2010) 9 SCC 218, this Court assess the monthly income of the deceased to Rs. 6,000/-. As the deceased was aged about 35 years therefore 40% of the future prospects is also added which comes to Rs. 2400/- and the yearly dependency would come to Rs. 8400X12x16= Rs. 16,12,800/- and the personal expenses would come to Rs. 5,37,600/- (Rs. 16,12,800/3) and the compensation would come Neutral Citation 2023:CGHC:29955 6 to Rs. 10,75,200/- (Rs. 16,12,800 - Rs.5,37,600/-) + Rs. 70,000/- (to the appellant No.1/husband) + Rs. 80,000/- (to the children) for loss of parental consortium, total compensation would come to Rs. 12,25,200/-. The learned Tribunal has awarded Rs. 3,53,000/- as compensation which has been enhanced to Rs. 12,25,200/-. Thus, the enhanced amount is Rs. 8,72,200/- . This enhanced amount of Rs. 8,72,200/- shall carry interest @ 6% from the date of claim application till its realization. After the amount is deposited, Rs. 2,50,000/- each shall be invested in the name of appellant No.2 Vijay and appellant No.3 Kusum in a fixed deposit in a Nationalized Bank for a period of two years, Rs. 3,00,000/- shall be invested as fixed deposit in the name of appellant No.1 Shrawan in a nationalized bank for two years and remaining amount shall be paid to the appellant No.1/husband through bank transaction/account payee cheque. The respondent No.3 is directed to deposit the enhanced amount with interest within a period of 60 days.
7. Appeal is thus partly allowed.
Sd/-
(Sachin Singh Rajput) Judge suguna