Chattisgarh High Court
Smt Seema vs Ashok Kumar Singh on 28 January, 2010
Author: Rajeev Gupta
Bench: Sunil Kumar Sinha, Rajeev Gupta
HIGH COURT OF CHATTISGARH AT BILASPUR
Misc Appeal No 958 of 2004
Smt Seema
...Petitioners
VERSUS
1 Ashok Kumar Singh
2 Ravindra Singh Yadav
3 The Oriental Insurance Co Ltd
...Respondents
! Shri Manoj Paranjpe counsel for the appellant
^ Shri Anand Kesharwani counsel for respondents No 1 and 2 Shri Shailendra Sharma counsel for respondent No 3
CORAM: HONBLE SHRI RAJEEV GUPTA CJ & HONBLE SHRI RANGNATH CHANDRAKAR J
Dated: 28/01/2010
: Judgement
ORDER
(28th January, 2010) Miscellaneous Appeal under Section 173 of Motor Vehicles Act The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimant's appeal for enhancement of the compensation awarded by Fifth Additional Motor Accidents Claims Tribunal, Ambikapur, (for short `the Tribunal') vide award dated 02.08.2004, passed in Claim Case No.52/2004.
2. As against the compensation of Rs.10,00,000/- claimed by the appellant/ claimant, unfortunate mother of deceased child Yuzin Tirki, aged about 6 years, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 30.12.2002, the Tribunal awarded a total sum of Rs.50,000/- as compensation along with interest @ 9% per annum.
3. Shri Manoj Paranjpe, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.50,000/- only though the deceased child was a brilliant student and had bright future.
4. Shri Shailendra Sharma, learned counsel for respondent No.3 - The Oriental Insurance Company Limited, on the other hand supported the award and contended that the compensation of Rs.50,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
5. Shri Anand Kesharwani, learned counsel for respondents No.1 and 2 also supported the impugned award.
6. The Apex Court while considering as to what would be the just and proper compensation for the death of a child aged about 7 years in the case of Oriental Insurance Co. Ltd. Vs Syed Ibrahim and others, reported in 2007 (4) TAC-385 (SC) observed in paras 9 & 10 :
"9. This Court in Lata Wadhwa while computing compensation made distinction between the deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years.
10. In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither is the income of the deceased child capable of assessment on estimated basis nor is the financial loss suffered by the parents capable of mathematical computation."
The Apex Court in the case of Oriental Insurance Co. Ltd. Vs Syed Ibrahim and others (supra) held that the compensation of Rs.51,500/- was just and proper compensation for the death of a child aged about seven years.
7. Now reverting to the present case, admittedly, the appellant's son Yuzin Tirki was aged about 6 years on the date of the accident. The compensation of Rs.50,000/- awarded by the Tribunal when examined in the context of the above quoted dictum of the Apex Court in the case of Oriental Insurance Co. Ltd., (supra), we are satisfied, is just and proper compensation in the facts and circumstances of the present case and does not call for any enhancement in this appeal.
8. We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
9. The appeal filed by the appellant/ claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed .
10. No order as to costs.
CHIEF JUSTICE J U D G E
subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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Cr.M.P. (P.R) No. 3927 of 2009.
Appellant The State of Chhattisgarh Through - District Magistrate, Korea (C.G.).
VERSUS
Respondent Shivprasad, S/o Shri
Katvariram Rajwade, Aged
about -43 years, Occupation
Driver, R/o Village Ghughra,
P.S. Sonhat, Distt. Korea
(C.G.).
Application for grant of leave to appeal under Section 378 (3) and Memorandum of Appeal u/s 378(1) of Code of Criminal Procedure.
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---------------------------------- Present : Shri Kishore Bhaduri, Additional Advocate General for the State/ petitioner.
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----------------------------------
Order (22nd February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri Kishore Bhaduri, learned Additional Advocate General, for the State/ petitioner is heard on I.A.No.01/2009, an application for condonation of the delay in filing the petition under Section 378 (3) of Code of Criminal Procedure (for short `Cr.P.C.').
2) On due consideration of the submissions of learned Additional Advocate General and the grounds taken in the application, we are satisfied that the petitioner/ State has succeeded in showing sufficient cause for the delay in filing the petition under Section 378 (3) of Cr.P.C.
3) I.A.No.01/2009, therefore, is allowed and the delay in filing the petition under Section 378 (3) of Cr.P.C. is hereby condoned.
4) Shri Kishore Bhaduri, learned Additional Advocate General is heard on the question of grant of leave to appeal against the acquittal of respondent/ accused Shivprasad.
5) Police Charcha, District Korea charge-sheeted respondent/ accused Shivprasad and his co-accused Bagarsai for the alleged commission of offence punishable under Section 307 read with Section 34 of Indian Penal Code (for short `I.P.C.') on the accusation of their having attempted at the life of complainant - Sachidanand on 09.11.2006.
6) The trial Court on a close scrutiny of the entire evidence led by the prosecution at the trial held that the prosecution though could establish the charge punishable under Section 307 of the I.P.C. against accused Bagarsai, the prosecution evidence fell short of establishing the charge under Section 307 read with Section 34 of the I.P.C. against respondent/ accused Shivprasad. The trial Court, therefore, while convicting accused Bagarsai under Section 307 of the I.P.C. vide impugned judgment dated 18.08.2008, acquitted respondent/ accused Shivprasad of the charge under Section 307 read with Section 34 of the I.P.C.
7) Shri Kishore Bhaduri, learned Additional Advocate General vehemently argued that the trial Court has erred in recording the acquittal of respondent/ accused Shivprasad though the evidence led by the prosecution at the trial was more than sufficient to establish the charge punishable under Section 307 read with Section 34 of the I.P.C. against respondent/ accused Shivprasad.
8) In the First Information Report lodged by injured/ complainant - Sachidanand, name of respondent/ accused Shivprasad was not mentioned at all. The prosecution case itself is that accused Bagarsai was driving the Jeep and he dashed the Jeep against complainant - Sachidanand in an attempt to kill him. The prosecution case against respondent/ accused Shivprasad was that he was also present in the said Jeep when his co-accused Bagarsai dashed the Jeep against complainant - Sachidanand. The complainant has not offered any explanation for omission of the name of respondent/ accused Shivprasad in the First Information Report. Even assuming that respondent/ accused Shivprasad was accompanying accused Bagarsai in the said Jeep at the time of the incident, his participation with the aid of Section 34 of the I.P.C. cannot be held to have been proved by the prosecution in view of the dictum of the Apex Court in the case of Javed Alam Vs. State of Chhattisgarh and another, reported in (2009) 6 S.C.C. - 450, wherein it was observed in paras 21 to 23 :
"21. The other question is the applicability of Section 34 IPC.
" 5. Section 34 has been enacted on the principle of joint liability in the (commission) of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was a plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it prearranged or on the spur of the moment; but it must necessarily be before the commission of the crime. The true contents of the section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar v. State of Punjab (1977)1 SCC 746: 1977 SCC (Cri)177: AIR 1977 SC 109, the existence of a common intention amongst the participants in a crime is the essential element for application of this section.
It is not necessary that the acts of the several persons charged with commission of n offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.
6. The section does not say `the common intentions of all' nor does it say `an intention common to all'. Under the provisions of Section 34 the essence of the liability is to be founded in the existence of a common intention animating the accused leading to the (commission) of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy v. State of A.P. 1993 Supp.(3) SCC 134 : 1993 SCC (Cri) 875 : AIR 1993 SC 1899 Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused."
The above position has been highlighted in Chimanbhai Jagabhai Patel V. State of Gujarat, (2009) 11 SCC 273.
22. There is no evidence, much less credible, which has been salvaged from the onslaught on the witnesses which suggests that there was any meeting of minds, because everything appears to have happened suddenly. The evidence of PW 8 on which the prosecution has placed strong reliance for the purpose of attracting Section 34 IPC gave prevaricating statements so far as others are concerned, though her statement is sufficient to fasten guilt on Samar Vijay Singh.
23. Considering the background facts it is clear that Section 34 has no application. That being so, while dismissing the appeal filed by Samar Vijay Singh, the conviction recorded qua other accused persons has to be set aside which we direct. They shall be released from custody forthwith unless required to be in custody in connection with any other case."
9) On due consideration of the submissions of learned Additional Advocate General; the findings recorded by the trial Court leading to acquittal of respondent/ accused Shivprasad; the nature of the overt-act attributed to respondent/ accused Shivprasad; the fact that the complainant in his First Information Report did not even mention the presence of Shivprasad at the time of the incident; and in view of the above quoted dictum of the Apex Court in the case Javed Alam Vs. State of Chhattisgarh (supra), we do not find any infirmity in the findings recorded by the trial Court leading to acquittal of respondent/ accused Shivprasad, which may warrant interference by this Court in this appeal against acquittal.
10) For the foregoing reasons, the petition filed under Section 378 (3) of Cr.P.C. against the acquittal of respondent/ accused Shivprasad fails and is hereby dismissed summarily.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
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----------------------------------M.A. (C) No. 303 of 2010 Appellant National Insurance Company (Insurer) Ltd., Branch Office, Kosa Badi, Korba, Distt Korba -
(CG).
VERSUS Respondents 1. Smt Janki Bai Wd/o Late (No.1 to 3 Ashique Ram, Aged about 48 Claimants) years
2. Manoj Kumar S/o Late Shri Ashique Ram, Aged about 21 years
3. Ku. Om Bai, D/o Late Ashique Ram Aged about 19 years All are R/o Kaveri Bihar, NTPC Colony, Jamnipali, Katghora, Distt Korba (CG) (Driver) 4 Vishram Singh, S/o Ramadhar Singh, Aged about 38 years, R/o Tharahakpur, Nargorh, Seepat Bilaspur, Distt Bilaspur (CG) (Owner) 5 Smt Rajni Rishi W/o Gulshan Rishi, R/o Green Park, Jarhabhata, Bilaspur, Distt Bilaspur (CG) Misc Appeal u/S 173 of the Motor Vehicles Act, 1988
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--------------------------------- Present : Shri Raj Awasthi, counsel for the appellant.
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---------------------------------
ORDER (22nd March, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
As the Tribunal did not pass any order under Section 170 of the Motor Vehicles Act, 1988 (for short, `the Act') because no application under Section 170 of the Act was filed by the appellant/Insurance Company, I.A.No. 2 of 2010 is allowed and the appellant/Insurance Company is granted exemption from filing the certified copy of the order under Section 170 of the Act.
2) Shri Raj Awasthi, learned counsel for the appellant is heard on admission.
3) This is insurer's appeal against the award dated 17.12.2009, passed by the Additional Motor Accident Claims Tribunal, Katghora, District Korba (for short "the Tribunal") in Claim Case No. 297 of 2007.
4) As against the compensation of Rs.24,60,000/- claimed by respondents No. 1 to 3 (claimants), unfortunate mother, brother and sister of deceased Bhushan Lal Dongre, by filing a claim petition under Section 166 of the Act for his death in the motor accident on 5.11.2006, the Tribunal awarded a total sum of Rs.3,26,000/- as compensation along with interest @ 8% per annum from the date of filing of the claim petition till the date of actual payment.
5) Shri Raj Awasthi, learned counsel for the appellant/Insurance Company frankly and fairly submitted that the appellant/Insurance Company is challenging only the quantum of compensation awarded by the Tribunal in this appeal. Learned counsel further fairly conceded that in fact, no application under Section 170 of the Act for grant of permission to contest the claim on all available defences was filed by the appellant/Insurance Company before the Tribunal and as such, there was no occasion for the Tribunal to pass any order under Section 170 of the Act. Learned counsel, however, submitted that in fact such an application was got prepared by the appellant/Insurance Company before the Tribunal, but the same was not filed by the counsel of the appellant/Insurance Company.
6) Be that as it may, the fact remains that neither the appellant/Insurance Company submitted any application before the Tribunal for grant of permission to contest the claim on all available defences nor such permission was granted by the Tribunal. Even otherwise, as the owner and driver of the offending vehicle were represented and contested the claimants' claim, permission under Section 170 of the Act could not have been legally granted to the appellant/Insurance Company.
7) The Apex Court while considering the permissibility of challenge to the quantum of compensation by the Insurance Company in the absence of permission under Section 170 of the Act in the case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC) observed in paras 31 & 32 as under:
"31. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act is satisfied, Insurance Company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not, implead the Insurance Company to contest the claim in such cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of Section 149 of 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award.
32. For the reasons, our answer to the question is that even if no appeal is preferred under Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle."
8) Now reverting to the present case, admittedly the Tribunal did not grant permission under Section 170 of the Act to the appellant/Insurance Company to contest the claim on all available defences. The owner and driver of the offending vehicle contested the claim before the Tribunal. There was no material before the Tribunal to demonstrate that there was any collusion between the claimants and owner and driver of the offending vehicle. As such, the appellant/Insurance Company in this appeal cannot be permitted to challenge the quantum of compensation in view of the dictum of the Apex Court in the case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others (supra).
9) As no other grounds are raised in this appeal for challenging the impugned award, the appeal filed by the insurer of the offending vehicle is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE J U D G E Subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
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----------------------------------M.A.(C) No. 579 of 2007 Appellants 1 Smt Kumari Bai, Age 37 yrs, Claimants W/o Late Fekuram Sahu, 2 Sunil Kumar Sahu, Age 18 yrs S/o Late Fekuram Sahu 3 Pankaj Sahu, Age 10 yrs, Minor, S/o Late Fekuram Sahu (Minor represented by appellant No.01 Smt Kumari Bai, W/o Late Fekuram) All the above are R/o Village Bhothali, PS Arang, Distt Raipur , At present village -
Boriyajhar, PS & Tahsil -
Mahasamund Distt Mahasamund (CG) VERSUS Respondents 1 Surendra Kumar, Age 28 yrs, Non-applicants S/o Abhay Ram Pal, By Profession - Driver, R/o Mahamayapara, Kharora, PS Kharora, Tahsil & Distt Raipur (CG) (Driver of the Mini-Bus No. CG 10/A/3007) 2 Bhupendra Singh, Age - 35 yrs, S/o Late Pritam Singh Saluja, R/o Kharora, Tahsil -
Raipur Distt Raipur (CG) (Owner of the Mini-Bus No. CG 10/A/3007)
3. The Oriental Insurance Com.
Ltd., Divisional Office at Madina Building, Jail - Road, Riapur, Tahsil & Distt Raipur (CG) (Ins. Com. of Mini-Bus No. CG 10/A/3007) Misc. Appeal under Section 173 of Motor Vehicles Act
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---------------------------------
Present : Shri J.A. Lohani, learned counsel
for the appellant.
None for respondent No.1 though
served.
Shri Manoj Jaiswal, learned counsel for respondent No.2.
Shri A.K. Athaley, learned counsel for respondent No.3.
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----------------------------------
ORDER (6th September, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimants' appeal for enhancement of the compensation awarded by First Additional Motor Accident Claims Tribunal, Mahasamund (for short `the Tribunal') vide award dated 30.11.2006, passed in claim case No.42/2006.
2) As against the compensation of Rs.14,50,000/- claimed by the appellants/ claimants, unfortunate widow and minor children of deceased Fekuram Sahu, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 10.04.2006, the Tribunal awarded a total sum of Rs.1,72,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Fekuram Sahu died on account of the injuries sustained by him in the motor accident on 10.04.2006; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Minibus bearing registration No.CG-10/A/3007; as the offending vehicle Minibus on the date of the accident was insured with the Oriental Insurance Company Limited, the Insurance Company was liable to pay the compensation to the claimants.
4) As the respondents have not filed any appeal against the award, the above findings recorded by the Tribunal have now attained finality.
5) The Tribunal assessed the income of the deceased at Rs.15,000/- per annum on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act. By deducting 1/3rd of the income of the deceased towards his personal expenses, the claimants' dependency was assessed at Rs.10,000/- per annum. By multiplying the annual dependency of Rs.10,000/- with the multiplier of 13, the compensation was worked out to Rs.1,30,000/-. By awarding further sum of Rs.42,000/- under other heads, the Tribunal awarded a total sum of Rs.1,72,000/- as compensation to the claimants for the death of deceased Fekuram Sahu in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,72,000/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
6) Shri J.A. Lohani, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.15,000/- per annum only; and in awarding low compensation of Rs.1,72,000/- only.
7) Shri A.K. Athaley, learned counsel for respondent No.3 - the Oriental Insurance Company Limited, on the other hand, supported the award and contended that the compensation of Rs.1,72,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
8) Shri Manoj Jaiswal, learned counsel for respondent No.2, also supported the award.
9) True, the claimants pleaded that deceased Fekuram Sahu used to earn Rs.200/- per day as Mason, the evidence led in that behalf was not of clinching nature. In this state of evidence, we do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased.
10) Nevertheless, the income of the deceased assessed by the Tribunal at Rs.15,000/- per annum in the year 2006 is certainly on the lower side and requires reconsideration.
11) Section 163-A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows :
"[163A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
12) The above quoted Sub- section (3) of Section 163- A of the Act mandated the Central Government to amend the Second Schedule from time to time keeping in view the cost of living.
13) As the Central Government has failed in amending the Second Schedule as provided in Sub-section (3) of Section 163-A of the Act, the Courts/ Tribunal can take judicial notice of increase in the prices of essential commodities and the cost of living during the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case.
14) Now reverting to the present case, the unfortunate accident in which deceased Fekuram Sahu lost his life took place in the year 2006. If the increase in the prices of the essential commodities and the cost of living between the year 1994 and the year 2006 are taken into consideration, the notional income of Rs.15,000/- prescribed in the Second Schedule in the year 1994 would certainly come to Rs.36,000/- in the year 2006. We, therefore, propose to compute the compensation taking the income of the deceased at Rs.36,000/- per annum.
15) By deducting the usual 1/3rd of Rs.36,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.24,000/- per annum.
16) Considering the age of the deceased; his widow and their children, we are of the opinion that the multiplier of 12 would be appropriate in the present case.
17) By multiplying the annual dependency of Rs.24,000/- with the multiplier of 12, the compensation works out to Rs.2,88,000/-. The claimants are further entitled to receive Rs.5,000/- towards funeral expenses; Rs.5,000/- towards loss of estate; and Rs.5,000/- for loss of consortium to the widow. The claimants, thus, become entitled to receive a total sum of Rs.3,03,000/- as compensation for the death of deceased Fekuram Sahu in the motor accident.
18) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
19) Considering all the relevant aspects of the matter including the delay in disposal of the claim petition and the present appeal and the fact that the Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.1,31,000/- at Rs.14,000/-.
20) For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. The compensation of Rs.1,72,000/- awarded by the Tribunal is enhanced to Rs.3,03,000/- with further quantified amount of interest of Rs.14,000/- on the enhanced amount of compensation of Rs.1,31,000/-.
21) Respondent No.3 The Oriental Insurance Company Limited is granted three months' time for depositing the total sum of Rs.1,45,000/- (Rs.1,31,000/- towards enhanced amount of compensation + Rs.14,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.1,31,000/-) before the concerning Claims Tribunal.
22) No order as to costs.
CHIEF JUSTICE J U D G E nimmi
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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---------------------------------- Misc. Appeal No. 338 of 2003 Appellant : Smt. Saroj Sharma, aged about 40 Claimant yrs, w/o Subhash Sharma, R/o.
Udhyog Nagari, Bhanpuri, P.O. Birgaon, district Raipur (C.G.) Versus Respondents 1. Jalandhar Tandi, S/o Navaji Non-applicants Tandi, R/o Trimurty Nagar, near Shiv Mandir, Raipur, dist:
Raipur (C.G.)
2. Prakash Kumar, S/o. S.P. Vidhyarthi, R/o. M.I.G.-5, Kabir Nagar, Ring Road No.2, Hirapur, P.O. Hirapur, dist: Raipur (C.G.)
3. The New India Insurance Co. Ltd.
through Divisional Manager,
Divisional Office, Jail Road,
Raipur (C.G.)
Miscellaneous appeal under Section 173 of the Motor Vehicles Act
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---------------------------------- Present : Shri S.C. Verma, learned counsel for the appellant.
Shri H.P. Agrawal, learned counsel for respondent No.3.
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O R D E R (30th August, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant Smt. Saroj Sharma is seeking enhancement of the compensation awarded by the Third Additional Motor Accident Claims Tribunal, Raipur (for short `the Tribunal') vide award dated 20.12.2002, passed in claim case No.57/2002.
2) As against the compensation of Rs.10,00,000/- claimed by the appellant/ claimant by filing a claim petition under Section 166 of the Motor Vehicles Act, for the injuries sustained by her in the motor accident on 14.06.2001, the Tribunal awarded a total sum of Rs.25,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Smt. Saroj Sharma sustained multiple injuries in the motor accident on 14.06.2001; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Tata Sumo bearing registration No. B.R.J.-0032; as the offending vehicle Tata Sumo on the date of the accident was insured with the New India Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimant.
4) As the respondents have not filed any appeal against the award, the above findings recorded by the Tribunal have now attained finality.
5) The Tribunal considering the number and nature of the injuries proved to have been sustained by the appellant/ claimant in the motor accident and the amount proved to have been spent on the treatment, awarded Rs.25,000/- as compensation to the claimant. The Tribunal further directed payment of interest on the above amount of compensation of Rs.25,000/- @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
6) Shri S.C. Verma, learned counsel for the appellant submitted that the Tribunal has erred in awarding low compensation of Rs.25,000/- only though the appellant/ claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability to the extent of 15%.
7) Shri H.P. Agrawal, learned counsel for respondent No. 3 the New India Insurance Company Limited, on the other hand, submitted that the compensation of Rs.25,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
8) From para 22 of the award we gather that the Tribunal has awarded Rs.10,000/- towards medical expenses and Rs.15,000/- towards the injuries suffered by the claimant in the motor accident. Thus, it is apparent that the Tribunal has not awarded any sum towards pain and suffering.
9) In our opinion, a sum of Rs.5,000/- ought to have awarded to the claimant towards pain and suffering on account of the injuries sustained by her in the motor accident.
10) The appeal filed by the appellant/ claimant for enhancement of the compensation, therefore, is allowed in part. The appellant/ claimant is further awarded a sum of Rs.5,000/- inclusive of interest component on the enhanced amount of compensation, in addition to the sum of Rs.25,000/- awarded by the Tribunal.
11) Respondent No.3 the New India Insurance Company Limited is granted three months' time for depositing the further sum of Rs.5,000/- before the concerning claims Tribunal.
12) No order as to costs.
CHIEF JUSTICE J U D G E
subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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---------------------------------- Misc. Appeal No. 537 of 2002 Appellant : Bharatgir Goswami, aged about 35 Claimant years, son of Bhuwangir Goswami, resident of village Kuwagaon P.S. Jarhagaon, Teh. Mungeli, Distt. Bilaspur, C.G. Versus Respondents 1. Sheikh Roshan son of Sheikh Diar Non-applicants (Jeep Driver), resident of village Barela, P.S. Jarhagaon, Distt. Bilaspur, C.G.
2. Palan Singh Thakur son of fool Singh Thakur, (Jeep Owner) resident of village and post Takhatpur, P.S. Takhatpur, Distt. Bilaspur, C.G.
3. The Oriental Insurance Co. Ltd Through Divisional Manager, Division Office, in front of Normal School, Bilaspur.
4. Vinod Dahiya son of Radhelal Dahiya, Truck Driver.
5. Ramcharan Yadav son of B.L. Yadav, Truck owner.
Respondents no. 4 and 5 are residents of village Kosner Mohaniya, Panagar, Distt.
Jabalpur, M.P.
6. National Insurance Co. Ltd.
through Branch Manager, Branch Office, Ring Road, Vyapar Vihar Road, Bilaspur, C.G. Memo of appeal under Section 173 of the Motor Vehicles Act
-----------------------------------------------------
---------------------------------- Present : Shri Malay Kumar Bhaduri, learned counsel for the appellant.
Shri Rakesh Sahu, learned counsel for respondents No. 1 & 2.
Shri Sudhir Agrawal and Shri P. Dutta, learned counsel for respondent No.3. Shri Shree Kumar Agrawal, learned Senior counsel with Shri Anand Gupta, learned counsel for respondent No.6.
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----------------------------------
O R D E R (23rd August, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant - Bharatgir Goswami is seeking enhancement of the compensation awarded by Fifth Additional Motor Accident Claims Tribunal, Bilaspur (for short `the Tribunal') vide award dated 08-01- 2002, passed in Claim Case No.59/2001.
2) The appellant/ claimant claimed compensation of Rs.2,29,000/- by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 19- 04-2000.
3) The Tribunal though assessed the compensation payable to the claimant at Rs.3,65,600/-, it awarded only Rs.2,29,000/- as compensation to the claimant as the amount claimed by the claimant was to that extent only.
4) Respondent No.3 - Oriental Insurance Company Limited has also filed cross-objections seeking exoneration from its liability to pay compensation to the claimant on the ground that the insurer of the other vehicle Truck alone was liable to pay compensation to the claimant.
5) The Tribunal on a close scrutiny of the entire evidence led before it held that claimant Bharatgir Goswami sustained multiple injuries including fractures in the motor accident on 19-04-2000; the drivers of both the vehicles i.e. Jeep bearing registration No.M.P.26/E-5838, in which the injured/ claimant was travelling and the Truck bearing registration No. M.P.20G/0951 were equally responsible for the accident; the insurers of both the vehicles i.e. Oriental Insurance Company Limited, insurer of the Jeep and National Insurance Company Limited, insurer of the Truck were liable to pay 50% of the compensation awarded by the Tribunal.
6) Shri Malay Kumar Bhaduri, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding only Rs.2,29,000/- though the compensation assessed was Rs.3,65,600/- on the ground that the claimant claimed only Rs.2,29,000/- as compensation.
7) Shri Sudhir Agrawal and Shri P. Dutta, learned counsel for respondent No.3 Oriental Insurance Company Limited contended that the Tribunal has erred in holding that the driver of the Jeep also equally contributed to the accident and as such, the insurer of the Jeep is also liable to pay 50% of the compensation awarded.
8) Shri Shree Kumar Agrawal, learned Senior Counsel with Shri Anand Gupta, learned counsel for respondent No.6 National Insurance Company Limited contended that the compensation of Rs.2,29,000/- awarded by the Tribunal is rather excessive.
9) Shri Rakesh Sahu, learned counsel for respondents No.1 & 2, the driver and owner of the Jeep also supported the award.
10) Before the Tribunal, claimant Bharatgir Goswami examined two witnesses including himself (AW1 Bharatgir Goswami and AW2 Dr. Vinod Tiwari). The claimant adduced in evidence disability certificate (Ex.A/14) purported to have been issued by the Civil Surgeon-cum-Chief Hospital Superintendent, Bilaspur in his capacity as Chairman of the Medical Board, which also bears the signature of another doctor, who was Orthopedic Surgeon in the District Hospital, Bilaspur. For the reasons best known to the claimant, none of these two doctors was examined before the Tribunal to prove the contents of the disability certificate. The doctor examined by the claimant before the Tribunal i.e. AW-2 Dr.Vinod Tiwari has not stated even a word about the alleged permanent disability, which the claimant claims to have suffered on account of the injuries sustained by him in the motor accident.
11) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under:
"6. After hearing learned counsel for the respondent-claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
12) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
13) In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), the disability certificate produced by the appellant/claimant before the Tribunal without examining the doctor who had issued the said certificate cannot be taken into consideration in the case.
14) In this view of the matter, we hold that the claimant has miserably failed in establishing that the injuries and fractures said to have been sustained by him in the motor accident resulted in any permanent disability, much less to the extent of 90%.
15) The compensation of Rs.2,29,000/- awarded by the Tribunal when examined in the context of the fact that the claimant could not establish that he sustained any permanent disability on account of the injuries sustained by him in the motor accident, resulting in loss of his future earning capacity, we are satisfied, does not call for any enhancement in the appeal.
16) So far as the cross-objections filed on behalf of respondent No.3 Oriental Insurance Company Limited, insurer of the Jeep are concerned, the pleadings of the parties, the contents of the First Information Report and the specific evidence of the claimant clearly establish that the accident occurred on account of the negligence of the drivers of both the vehicles i.e. Jeep and the Truck. We, therefore, do not find any infirmity in the finding recorded by the Tribunal holding the insurers of both the vehicles i.e. Jeep and the Truck liable to pay compensation to the extent of 50% of the compensation awarded by the Tribunal.
17) For the foregoing reasons, the appeal filed by the appellant/claimant for enhancement of the compensation and the cross-objections filed on behalf of respondent No.3 Oriental Insurance Company Limited, seeking its exoneration from liability to pay 50% of the compensation, are liable to be dismissed and are hereby dismissed.
18) No order as to costs.
CHIEF JUSTICE J U D G E
subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
-----------------------------------------------------
---------------------------------- Misc. Appeal No. 505 of 2000 Appellants 1. Smt. Kundia Bai W/o Budhram Patel, aged 35 years.
2. Dharmendra Patel, S/o Budhram Patel, aged 16 years.
3. Kamlesh Patel, S/o Budhram Patel, aged 12 years.
4. Deraharam S/o Deva Singh Patel, aged 58 years,
5. Smt. Phoolbati bai w/o Deraharam Patel, aged 55 years, All residents of village Urla B.M.Y. Post- Urla, distt. Durg (M.P.) Versus Respondents 1. Rishi Singh, s/o Ballu Singh Rajput, aged 28 years, r/o Lodhipara, near Canal near Bajrang Mandir, Police Station -
Civil Lines, Raipur (M.P.)
2. Mohd. Shakeel S/o Mohd. Said, R/o Chhotapara, Raipur (M.P.) 3 The Oriental Insurance Company Limited, City Branch Office No.1, Pandari, Raipur (M.P.) Memo of appeal under Section 173 of the Motor Vehicles Act
-----------------------------------------------------
---------------------------------- Present : Shri A.L. Singraul, learned counsel for the appellants.
None for respondents No. 1 & 2.
Shri Vinay Pandey and Shri Shailendra Sharma, learned counsel for respondent No.3.
-----------------------------------------------------
----------------------------------
O R D E R (3rd August, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimants' appeal for enhancement of the compensation awarded by the Additional Motor Accidents Claims Tribunal, Raipur (for short `the Tribunal') vide award dated 27.10.1999, passed in claim case No.17/1999.
2) As against the compensation of Rs.11,00,000/- claimed by the appellants/ claimants, unfortunate widow, minor children and parents of deceased Budhram Patel by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 06.05.1998, the Tribunal awarded a total sum of Rs.1,32,000/- as compensation along with interest @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Budhram Patel died on account of the injuries sustained by him in the motor accident on 06.05.1998; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Jeep bearing registration No. M.P.-20 H-1840; as the offending vehicle Jeep on the date of the accident was insured with the Oriental Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
4) As the respondents have not filed any appeal against the award, the above findings recorded by the Tribunal have now attained finality.
5) The Tribunal assessed the income of the deceased at Rs.40/- per day; Rs.1,000/- per month assuming that the deceased was getting work only for 25 days in a month; Rs.12,000/- per annum. By deducting 1/3rd of Rs.12,000/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.8,000/- per annum. By multiplying the annual dependency of Rs.8,000/- with the multiplier of 15, the compensation was worked out to Rs.1,20,000/-. By awarding further sum of Rs.12,000/- under other heads, the Tribunal awarded a total sum of Rs.1,32,000/- as compensation to the claimants for the death of deceased Budhram Patel in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,32,000/- @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
6) Shri A.L. Singraul, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.40/- per day; Rs.1,000/- per month; and Rs.12,000/- per annum only; and in awarding low compensation of Rs.1,32,000/- only.
7) Shri Vinay Pandey and Shri Shailendra Sharma, learned counsel for respondent No.3 the Oriental Insurance Company Limited on the other hand supported the award and contended that as the claimants could not establish the income of the deceased as pleaded by them, the compensation of Rs.1,32,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
8) True, the claimants pleaded that deceased Budhram Patel used to earn Rs.100/- per day as Mason, the evidence led in that behalf was not of clinching nature. We, therefore, do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased.
9) Nevertheless, the income of the deceased assessed by the Tribunal at Rs.12,000/- per annum is certainly on the lower side and requires reconsideration. The Tribunal while discarding the claimants' evidence about the income of the deceased ought to have assessed his income on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act.
10) Section 163-A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows :
"[163A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
11) The above quoted Sub- section (3) of Section 163- A of the Act mandated the Central Government to amend the Second Schedule from time to time keeping in view the cost of living.
12) As the Central Government has failed in amending the Second Schedule as provided in Sub-section (3) of Section 163-A of the Act, the Courts/ Tribunal can take judicial notice of increase in the prices of essential commodities and the cost of living during the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case.
13) Now reverting to the present case, the unfortunate accident wherein deceased Budhram Patel lost his life took place in the year 1998. If the increase in the prices of the essential commodities and the cost of living between the year 1994 and the year 1998 are taken into consideration, the notional income of Rs.15,000/- prescribed in the year 1994 would certainly come to Rs.21,000/- in the year 1998. We, therefore, propose to recompute the compensation taking the income of the deceased at Rs.21,000/- per annum.
14) By deducting the usual 1/3rd of Rs.21,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.14,000/- per annum.
15) Considering that deceased Budhram Patel was 45 years of age on the date of the accident as shown in his postmortem report, we are of the opinion that multiplier of 13 would be appropriate in the present case.
16) By multiplying the annual dependency of Rs.14,000/- with the multiplier of 13, the compensation works out to Rs.1,82,000/-. The claimants are further entitled to receive a sum Rs.10,000/- towards funeral expenses; loss of consortium to the widow; and loss of estate. The claimants, thus, become entitled to receive a total sum of Rs.1,92,000/- as compensation for the death of deceased Budhram Patel in the motor accident.
17) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
18) Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal and the fact that the Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.60,000/- at Rs.6,000/-.
19) For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. The compensation of Rs.1,32,000/- awarded by the Tribunal is enhanced to Rs.1,92,000/- with further quantified amount of interest of Rs.6,000/- on the enhanced amount of compensation of Rs.60,000/-.
20) Respondent No.3 The Oriental Insurance Company Limited is granted three months' time for depositing the total sum of Rs.66,000/- (Rs.60,000/- towards enhanced amount of compensation + Rs.6,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.60,000/-) before the concerning Claims Tribunal.
21) No order as to costs.
CHIEF JUSTICE J U D G E
subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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----------------------------------
Misc. Appeal No. 541 of 2001 Appellant : Rajkumar, aged about 13 Claimant years, S/o late Gouranandpuri, minor through Vali Devnarayan Puri, aged about 35 years, S/o Tribhuvanpuri, R/o village Chotiya, Police Station Bango, Tehsil Katghora, distt. Korba (Chhattisgarh) VERSUS Respondents 1 Mahavir Prasad Jain, aged Non-applicants about 33 years, S/o Kesrimal Jain, R/o near Shri Ram Temple, Ambikapur, distt.
Surguja (Chhattisgarh) 2 Bhaiyalal, aged about 30 years, S/o Jhagansay, caste Uraon, R/o Batoli, Police Station Batoli, distt.
Surguja (Chhattisgarh) and second addres Ravindra Bus Service, Driver, Ambikapur.
3 United India Insurance Company, through the Branch Manager near Shri Ram Temple, Ambikapur, District Sarguja (Chhattisgarh) Miscellaneous Appeal under Section 173 of Motor Vehicles Act
-----------------------------------------------------
--------------------------------- Present : Shri Sudhir Agrawal, learned counsel for the appellant.
Shri Dashrath Gupta, learned counsel for respondent No.3/ Insurance Company.
-----------------------------------------------------
----------------------------------
ORDER (13th July, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimant's appeal for enhancement of compensation awarded by the Fifth Additional Motor Accident Claims Tribunal, Bilaspur (for short `the Tribunal') vide award dated 27.03.2001, passed in Claim Case No.23/1998.
2) As against the compensation of Rs.5,28,400/- claimed by original claimants Mantarpuri and Gouranandpuri, unfortunate husband and son of deceased Urmila Goswami, by filing a claim petition under Section 166 of the Motor Vehicles Act, for her death in the motor accident on 25.12.1996, the Tribunal awarded a total sum of Rs.1,07,000/- to the appellant (grandson of deceased Urmila Goswami) as compensation along with interest @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
3) Respondent No.3 United India Insurance Company Limited has also filed cross-objections (M.C.P. No. 1790/2006) in this appeal seeking exoneration from its liability to pay compensation to the claimant on the grounds that the appellant was not dependant on the deceased and that the compensation of Rs.1,07,000/- awarded by the Tribunal is excessive in the facts and circumstances of the present case.
4) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Urmila Goswami died on account of the injuries sustained by her in the motor accident on 25-12-1996; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Bus bearing registration No.MP27-B-1444; and as the offending vehicle Bus on the date of the accident was insured with the United India Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimant.
5) The Tribunal held that the deceased was not having any independent income of her own. The Tribunal, therefore, assessed lump-sum compensation of Rs.1,00,000/- and by awarding further sum of Rs.7,000/- under other heads, the claimant was awarded a total sum of Rs.1,07,000/- as compensation for the death of his grandmother Urmila Goswami in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,07,000/- @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
6) Shri Sudhir Agrawal, learned counsel for the appellant submitted that the Tribunal has erred in holding that deceased Urmila Goswami was not having any independent income of her own on the date of the accident; and in awarding low compensation of Rs.1,07,000/- only.
7) Shri Dashrath Gupta, learned counsel for respondent No.3- the United India Insurance Company Limited on the other hand submitted that the Tribunal has erred in holding that appellant Rajkumar was dependant on deceased Urmila Goswami; and in awarding excessive compensation of Rs.1,07,000/- to the claimant. 8) It was the case of the claimants and has also come in the evidence that deceased Urmila Goswami, her husband Mantarpuri, their son Gouranandpuri and appellant Rajkumar used to live together in the same house. As such, whatever income was earned by the deceased, her husband and her son was spent on all the members of the family including appellant Rajkumar, who is grandson of deceased Urmila Goswami. We, therefore, do not find any substance in the submission advanced on behalf of respondent No.3 United India Insurance Company Limited that appellant Rajkumar was not dependant on deceased Urmila Goswami.
9) True, the claimants pleaded that deceased Urmila Goswami used to earn Rs.70/- per day as labour and the Tribunal held that the deceased was not an earning member. It is a matter of common knowledge that in the village every member of the family earn either as an agriculturist or labour. The Tribunal, in our opinion, therefore has fallen into error in holding that deceased Urmila Goswami was not an earning member.
10) We, therefore, propose to recompute the compensation treating deceased Urmila Goswami as an earning member having income of Rs.70/- per day; Rs.2,100/- per month; and Rs.25,200/- per annum.
11) Considering that both the original claimants Mantarpuri and Gouranandpuri, the husband and son of deceased Urmila Goswami were having income of their own, we deem it proper to deduct 50% of Rs.25,200/- per annum towards the personal expenses of the deceased. The claimants' dependency, therefore is assessed at Rs.12,600/- per annum.
12) The claimants/claimant pleaded that deceased Urmila Goswami was aged about 58-60 years. In the postmortem report there appears to be some overwriting in the column relating to the age of the deceased. It appears that earlier, figure of 60 years was mentioned, which later on has been altered to 70 years. There is no evidence available in the record as to who and at what stage altered the age in the postmortem report from 60 years to 70 years.
13) Considering the age of the husband of the deceased; her son; and grandson, we take the age of the deceased between 56-60 years. For this age group, the recent dictum of the Apex Court in the case of Sarla Verma (Smt) and Others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, has prescribed the multiplier of 9. In our opinion, multiplier of 9 would be appropriate in the present case.
14) By multiplying the annual dependency of Rs.12,600/- with the multiplier of 9 the compensation works out to Rs.1,13,400/-. By adding further sum of Rs.6,600/- under other permissible heads, the claimant becomes entitled to receive a total sum of Rs.1,20,000/- as compensation for the death of his grandmother Urmila Goswami in the motor accident.
15) Considering all the relevant factors, we quantify the amount of interest on the enhanced amount of compensation of Rs.13,000/- at Rs.2,000/-
16) For the foregoing reasons, the appeal filed by the appellant/ claimant for enhancement of the compensation is allowed in part. The compensation of Rs.1,07,000/- awarded by the Tribunal is enhanced to Rs.1,20,000/- with further quantified amount of interest of Rs.2,000/- on the enhanced amount of compensation of Rs.13,000/-.
17) Respondent No.3 the United India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.15,000/- (Rs.13,000/- towards enhanced amount of compensation + Rs.2,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.13,000/-) before the concerning Claims Tribunal.
18) For the foregoing reasons, the cross-objections (M.C.P. No.1790/2006) fail and are hereby dismissed.
19) No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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---------------------------------- Misc. Appeal No. 1437 of 1999 Appellants 1. Tara Bai wd/o Shankar Caste Claimants Satnami, aged about 27 years.
2. Virendra Kumar s/o late Shankar Satnami, aged about 6 years.
3. Raj Bai d/o Shankar Satnami, aged about 3 years.
4. Romant Kumar s/o late Shankar Satnami, aged about 1 years.
Appellant No. 2 to 4 are minor through their mother appellant No.1 All resident of village Bhatapar, (Bundeli), P.S. and Tehsil Mungeli, District Bilaspur (M.P.) VERSUS Respondents 1 Prabhudayal alias Nanha, aged Non-claimants about 22 years, S/o Ramkripal Dubey, driver Mini Bus MP 26C. 5317, R/o Fokatpara, Mungeli, P.S. and Tehsil Mungeli, distt. Jabalpur, M.P. 2 Ganesh Prasad Tamrkar aged about 35 years, S/o Ramsahay Tamrakar Owner of Mini Bus No. MP 26 C 5317, R/o Badi Bazar, Mungeli Tehsil Mungeli at present R/o Tamrkar Badar, Kankalipara, Raipur, M.P. 3 The New India Insurance Company, through Branch Manager, Rajendra Nagar, Hero Honda Agency, Ke Pas Bilaspur, M.P. Miscellaneous Appeal under Section 173 of Motor Vehicles Act
-----------------------------------------------------
--------------------------------- Present : Shri Rajeev Shrivastava and Shri Malay Shrivastava, learned counsel for the appellants.
None for respondents No. 1 & 2.
Shri Dashrath Gupta, learned counsel for respondent No.3/ Insurance Company.
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----------------------------------
ORDER (12th July, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimant's appeal for enhancement of compensation awarded by the Additional Motor Accident Claims Tribunal, Mungeli, District Bilaspur (for short `the Tribunal') vide award dated 07.05.1999, passed in Claim Case No.12/1997.
2) As against the compensation of Rs.4,30,000/- claimed by the appellants/ claimants, unfortunate widow and minor children of deceased Shankar Satnami, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death on 14-12-1996 on account of the injuries sustained by him in the motor accident on 13.05.1996, the Tribunal awarded a total sum of Rs.72,000/- as compensation along with interest @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Shankar Satnami died on 14-12-1996 on account of the injuries sustained by him in the motor accident on 13-05-1996; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Minibus bearing registration No.MP26-C-5317; and as the offending vehicle Minibus on the date of the accident was insured with the New India Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
4) As the respondents have not filed any appeal against the award, the above findings recorded by the Tribunal have now attained finality.
5) The Tribunal assessed the income of the deceased at Rs.30/- per day. By deducting 1/3rd of Rs.30/- towards the personal expenses of the deceased and assuming that the deceased would be getting work for 15 days in a month only, the Tribunal assessed the claimants' dependency at Rs.300/- per month and Rs.3,600/- per annum. By multiplying the annual dependency of Rs.3,600/- with the multiplier of 15, the compensation was worked out to Rs.54,000/-. By awarding further sum of Rs.18,000/- under other heads, the Tribunal awarded a total sum of Rs.72,000/- as compensation to the claimants. The Tribunal further directed payment of interest on the above amount of compensation of Rs.72,000/- @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
6) Shri Rajeev Shrivastava and Shri Malay Shrivastava, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.30/- per day only; in selecting the lower multiplier of 15; and in awarding low compensation of Rs.72,000/- only.
7) Shri Dashrath Gupta, learned counsel for respondent No.3- the New India Insurance Company Limited on the other hand supported the award and contended that as the claimants could not establish the income of the deceased as pleaded by them, the compensation of Rs.72,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
8) True, the claimants pleaded that deceased Shankar Satnami used to earn Rs.50 - 60/- per day as labour, the evidence led in that behalf was not of clinching nature. We, therefore, do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased.
9) Nevertheless, the income of the deceased assessed by the Tribunal at Rs.30/- per day is certainly on the lower side. The Tribunal while discarding the claimants' evidence about the income of the deceased, ought to have assessed his income on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act. We, therefore, propose to recompute the compensation taking the income of the deceased at Rs.15,000/- per annum on the basis of the notional income prescribed in the Second Schedule.
10) By deducting the usual 1/3rd of Rs.15,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.10,000/- per annum.
11) Considering that deceased Shankar Satnami was aged about 30 years and his widow Tarabai was shown to be 27 years of age in the claim petition, we are of the opinion that the multiplier of 16 would be appropriate in the present case.
12) By multiplying the annual dependency of Rs.10,000/- with the multiplier of 16 the compensation works out to Rs.1,60,000/-. The claimants are further entitled to receive Rs.10,000/- towards funeral expenses; loss of consortium to the widow; and loss of estate. The claimants, thus, become entitled to receive a total sum of Rs.1,70,000/- as compensation for the death of deceased Shankar Satnami in the motor accident.
13) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
14) Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal and the fact that the Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.98,000/- at Rs.13,000/-
15) For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. The compensation of Rs.72,000/- awarded by the Tribunal is enhanced to Rs.1,70,000/- with further quantified amount of interest of Rs.13,000/- on the enhanced amount of compensation of Rs.98,000/-.
16) Respondent No.3 the New India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.1,11,000/- (Rs.98,000/- towards enhanced amount of compensation + Rs.13,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.98,000/-) before the concerning Claims Tribunal.
17) No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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----------------------------------
Criminal Appeal No.592 of 1993 Appellant : Loknath son of Bansingh, aged about 26 years, Labourer, resident of village Teli-
Marenga, Police Station Gramin
Thana Frezarpur, District
Bastar
VERSUS
Respondent : The State of Madhya Pradesh
Criminal Appeal under Section 374 (2) of the Code of Criminal Procedure
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---------------------------------- Present : None for the appellant.
Shri Akhil Mishra, learned Deputy Government Advocate, for the State.
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----------------------------------
Judgment (1st July, 2010) The following judgment of the Court was passed by Rajeev Gupta, C.J.
Appellant Loknath stands convicted under Section 302 of the Indian Penal Code with sentence of imprisonment for life vide impugned judgment dated 26.04.1993, passed by the First Additional Sessions Judge, Bastar at Jagdalpur in Sessions Trial No.11/89.
2) Appellant Loknath has been found guilty by the trial Court for the commission of murder of deceased Sukhdev by causing injuries on him by means of an axe in the evening of 23.05.1988.
3) The appellant's conviction is founded on the eyewitness account of PW/1 Chamari Bai, widow of deceased Sukhdev, who categorically stated that the appellant caused two injuries on the right hand of her husband, deceased Sukhdev by means of an axe.
4) From the memo of appeal, we gather that the appellant has challenged his conviction mainly on the grounds that the sole testimony of PW/1 Chamari Bai is not reliable; deceased Sukhdev was not given any treatment immediately; and copy of the First Information Report was not sent to the concerned Magistrate. Para 2 of the memo of appeal further mentions one more ground that the injuries are on the hand; there is no injury on any vital part of the body; there was no intention to cause death and as such the offence even if proved, will not be one of murder punishable under Section 302 of the Indian Penal Code.
5) On a close scrutiny of the evidence of PW/1 Chamari Bai, solitary eyewitness, we are satisfied that her presence at the time of the incident is quite natural. Nothing could be elicited by the defense in her cross-examination which may render her evidence unworthy of credence. Her evidence is fully corroborated by her own First Information Report (Ex.P/1). The medical evidence of PW/7 Dr.KV Sharma also corroborates the eyewitness account of PW/1 Chamari Bai as the two injuries found on the right hand of deceased Sukhdev, according to the doctor, could have been caused by means of a sharp edged weapon like axe.
6) Thus, we do not find any infirmity in the finding recorded by the trial Court that it was appellant Loknath who caused those two injuries on the right hand of deceased Sukhdev, which resulted in his death. We, therefore, affirm the finding recorded by the trial Court holding appellant Loknath guilty of causing those two injuries on the right hand of deceased Sukhdev by means of an axe which ultimately resulted in his death.
7) The next question which now crops up for our consideration in this appeal is as to whether the above proved act of appellant Loknath in causing those two injuries on the right hand of deceased Sukhdev by means of an axe, which ultimately resulted in his death would amount to the offence of `murder' punishable under Section 302 of the Indian Penal Code as has been held by the trial Court or it would amount to some lesser offence.
8) In the evidence of PW/1 Chamari Bai, it has come that her husband Sukhdev and appellant Loknath were cousin brothers. There is not even an iota of evidence about any prior ill-will between deceased Sukhdev and appellant Loknath. From the prosecution case itself, it is apparent that the immediate cause for the unfortunate assault on deceased Sukhdev at the hands of appellant Loknath was a wordy quarrel in the evening between deceased Sukhdev and the wife and mother of appellant Loknath in regard to taking of water from the tube-well. Though the appellant was armed with a heavy sharp weapon, axe, no attempt was made by him to cause any injury on the vital parts of the body i.e. head, chest or abdomen. Both the external injuries found on deceased Sukhdev were on his right hand. It was unfortunate that the medical help could not be provided to the deceased in time and on account of the excessive bleeding from the two external injuries on his right hand, he died next morning.
9) On a cumulative consideration of the above mentioned broad features of the case, we find it difficult to hold with certainty that appellant Loknath while causing those two injuries on the right hand of deceased Sukhdev by means of an axe, which ultimately resulted in his death, had intended to cause his death.
10) In this view of the matter, we are of the considered opinion that the above proved act of appellant Loknath would not amount to the offence of murder punishable under Section 302 of the Indian Penal Code.
11) Nevertheless, appellant Loknath cannot escape from his liability altogether. The above proved act of appellant Loknath in causing those two injuries on the right hand of deceased Sukhdev by means of an axe which ultimately resulted in his death next day would certainly amount to the offence of `culpable homicide not amounting to murder' and in the facts and circumstances of the present case would be punishable under Section 304 part II of the Indian Penal Code.
12) As for the sentence, we gather from the record that appellant Loknath was sent to jail after his conviction by the trial Court on 26.04.1993 and was released on bail in compliance of this Court's order dated 13.11.1998 on 26.11.1998. As such, appellant Loknath has already remained in jail for a period of about 5 years and 7 months. In our considered opinion, sentence of 5 years and 7 months already undergone by appellant Loknath would be sufficient punishment for the offence proved against him and would meet the ends of justice.
13) For the foregoing reasons, the appeal filed by appellant Loknath against his conviction and sentence is allowed in part. His conviction under Section 302 of the Indian Penal Code and sentence of imprisonment for life awarded by the trial Court are hereby set aside. Instead, he is convicted under Section 304 part II of the Indian Penal Code and is sentenced to the period already undergone by him which in the present case is 5 years and 7 months.
14) Appellant Loknath is on bail. His bail bonds shall stand discharged.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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---------------------------------- Misc. Appeal No. 742 of 2002 Appellants 1. Kalibai, widow of Ramji Marar, Applicants aged about 30 years, resident of Village Kopebhatha, Thana, Salhewara, Tahsil Khairagarh, District Rajnandgaon (C.G.)
2. Ramadhar, son of late Ramji Marar, aged about 18 years, occupation student No.1 & No.2 resident of Village Kritbans, (Gandai-Pandariya), Tahsil Chhuikhadan, district Rajnandgaon (C.G.) Versus Respondents 1. Mohd. Aswar @ Ajwar Ali, son of Non-applicants Nimajuddin Ali, aged about 30 years, resident of Manan Road Corporation - 17 Kashinath Malik Kon Choutha Manzil Calcutta -
73, Driver of Truck No. W.B./25/4127
2. Jaimal Singh son of not known Manan Road Corporation - 17 Kashinath Malik Kon Choutha Manzil Calcutta - 72, Owner of Truck No. W.B./25/4127 3 Manager, The New India Assurance Company Limited Calcutta, P.B. No. 113/4, Mango Lane Calcutta West Bengal.
Memo of appeal under Section 173 of the Motor Vehicles Act
-----------------------------------------------------
---------------------------------- Present : Shri Venkteshwar Tiwari, learned counsel for the appellants.
None for respondents No.1 & 2.
Shri Q. Aziz, learned counsel for respondent No.3.
-----------------------------------------------------
----------------------------------
O R D E R (23rd July, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimants' appeal for enhancement of the compensation awarded by the Additional Motor Accidents Claims Tribunal, Khairagarh, District Rajnandgaon, (for short `the Tribunal') vide award dated 04.09.2002, passed in claim case No.22/1998.
2) As against the compensation of Rs.6,80,000/- claimed by the appellants/ claimants, unfortunate widow and son of deceased Ramji Marar by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 02.04.1998, the Tribunal awarded a total sum of Rs.1,75,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Ramji Marar died on account of the injuries sustained by him in the motor accident on 02.04.1998; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Truck bearing registration No. W.B./25/4127; as the deceased was travelling as a passenger in the goods vehicle, the Insurance Company was not liable to pay compensation to the claimants and the liability to pay compensation was that of the owner and driver of the Truck.
4) The Tribunal assessed the income of the deceased at Rs.50/- per day; Rs.1,500/- per month; and Rs.18,000/- per annum. By deducting 1/3rd of Rs.18,000/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.12,000/- per annum. By multiplying the annual dependency of Rs.12,000/- with the multiplier of 13, the compensation was worked out to Rs.1,56,000/-. By awarding further sum of Rs.19,000/- under other heads, the Tribunal awarded a total sum of Rs.1,75,000/- as compensation to the claimants for the death of deceased Ramji Marar in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,75,000/- @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
5) Shri Venkteshwar Tiwari, learned counsel for the appellants vehemently argued that the Tribunal has erred in exonerating the insurer of the Truck from its liability to pay compensation to the claimants; in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.50/- per day only; in selecting the lower multiplier of 13; and in awarding low compensation of Rs.1,75,000/- only.
6) Shri Q. Aziz, learned counsel for respondent No.3 the New India Insurance Company Limited on the other hand supported the award and contended that as the deceased was travelling as a passenger in a goods vehicle, the Insurance Company has been rightly exonerated by the Tribunal.
7) Admittedly, the vehicle in question (Truck) is a goods vehicle. Though, the claimants pleaded that deceased Ramji Marar was travelling in the Truck along with his goods, it has nowhere been specified as to what were his goods, as the claim petition and the claimants' witnesses are silent about that aspect of the matter. In the First Information Report (Ex P/1) it is mentioned that as many as 20 labourers were travelling in the Truck. AW1 Kali Bai and AW2 Dewan also admitted that there were several other labourers in the Truck. In this view of the matter, we do not find any infirmity in the finding recorded by the Tribunal exonerating the insurer of the Truck from its liability to pay compensation to the claimants.
8) True, the claimants pleaded that deceased Ramji Marar used to earn Rs.70/- per day as Labour, the evidence led in that behalf was not of clinching nature. We, therefore, do not find any infirmity in the assessment of the income of the deceased by the Tribunal at Rs.50/- per day; Rs.1,500/- per month; and Rs.18,000/- per annum.
9) The claimants' dependency also has been rightly assessed by the Tribunal by deducting the usual 1/3rd of Rs.18,000/- towards the personal expenses of the deceased.
10) The multiplier of 13 selected by the Tribunal too cannot be found fault with in view of the fact that in the postmortem report deceased Ramji Marar was shown to be 50 years of age and the Apex Court in a recent dictum in the case of Sarla Verma (Smt) and Others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, has prescribed the multiplier of 13 for the age group between 46-50 years.
11) For the foregoing reasons, we do not find any scope for interference in the finding recorded by the Tribunal leading to exoneration of the insurer of the Truck and for enhancement of the compensation either on account of the assessment of the income of the deceased or the claimants' dependency by the Tribunal or the multiplier selected.
12) The appeal filed by the appellants/ claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
13) No order as to costs.
CHIEF JUSTICE J U D G E
subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
-----------------------------------------------------
---------------------------------- Misc. Appeal No. 782 of 2002 Appellants 1 Shailendri Bai, Wd/o Nituram Claimants Mahar, aged about 23 years.
2 Ku. Chabila D/o Late Shri Nituram aged about 3 years.
3 Ku. Ranuka D/o Late Nituram aged about 5 months.
(Sl.No.2 and 3 through its natural guardian mother Smt. Shailendri Bai) All resident of village Belodi Thana Ranchiraee, District Durg (CG).
Versus Respondents 1. Lileshwar S/o Mahasai Sahu, R/o Non-applicants Village Gagra Tehsil and District Dhamtari (CG)
2. Ashwani Kumar S/o Jiwandhan Sahu, R/o Village Kandel, District Dhamtari (CG) 3 United India Insurance Company Limited, Krishna Complex, Kachhery Chowk, Raipur n(CG) Memo of appeal under Section 173 of the Motor Vehicles Act.
-----------------------------------------------------
---------------------------------- Present : Shri GS Agrawal, Senior Advocate with Shri KR Nair, counsel for the appellants. None for respondents No. 1 & 2 though served.
Shri Dasarath Gupta, counsel for respondent No.3.
-----------------------------------------------------
----------------------------------
O R D E R (19th July, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimants' appeal for enhancement of the compensation awarded by the Additional Motor Accidents Claims Tribunal, Dhamtari, District Raipur (for short `the Tribunal') vide award dated 15.07.2002, passed in claim case No.193/2002.
2) As against the compensation of Rs.20,34,000/- claimed by the appellants/ claimants, unfortunate widow and minor children of deceased Nituram Mahar by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 01.06.2001, the Tribunal awarded a total sum of Rs.94,000/- as compensation along with interest @ 8% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Nituram Mahar died on account of the injuries sustained by him in the motor accident on 01.06.2001; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Tractor bearing registration No. M.P.-62-1020; as the offending vehicle Tractor on the date of the accident was insured with the United India Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
4) As the respondents have not filed any appeal against the award, the above findings recorded by the Tribunal have now attained finality.
5) The Tribunal assessed the income of the deceased at Rs.1,300/- per month. By deducting Rs.600/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.700/- per month and Rs.8,400/- per annum. By multiplying the annual dependency of Rs.8,400/- with the multiplier of 10, the compensation was worked out to Rs.84,000/- . By awarding further sum of Rs.10,000/- under other heads, the Tribunal awarded a total sum of Rs.94,000/- as compensation to the claimants for the death of deceased Nituram Mahar in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.94,000/- @ 8% per annum from the date of filing of the claim petition till the date of actual payment.
6) Shri GS Agrawal, learned Senior Counsel with Shri KR Nair, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.1,300/- per month only; in deducting 50% of the income of the deceased towards his personal expenses; in selecting the lower multiplier of 10; and in awarding low compensation of Rs.94,000/- only.
7) Shri Dasarath Gupta, learned counsel for respondent No.3 the United India Insurance Company Limited on the other hand supported the award and contended that as the claimants could not establish the income of the deceased as pleaded by them, the compensation of Rs.94,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
8) True , the claimants pleaded that deceased Nituram Mahar used to earn Rs.4,500/- per month as Mason, the evidence led in that behalf was not of clinching nature. We, therefore, do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased.
9) Nevertheless, the income of the deceased assessed by the Tribunal at Rs.1,300/- per month is certainly on the lower side. The Tribunal while discarding the claimants' evidence about the income of the deceased ought to have assessed his income on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act.
10) Section 163-A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows :
"[163A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
11) The above quoted Sub- section (3) of Section 163- A of the Act mandated the Central Government to amend the Second Schedule from time to time keeping in view the cost of living.
12) As the Central Government has failed in amending the Second Schedule as provided in Sub-section (3) of Section 163-A of the Act, the Courts/ Tribunal can take judicial notice of increase in the prices of essential commodities and the cost of living during the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case.
13) Now reverting to the present case, the unfortunate accident wherein deceased Nituram Mahar lost his life took place in the year 2001. If the increase in the prices of the essential commodities and the cost of living between the year 1994 and the year 2001 are taken into consideration, the notional income of Rs.15,000/- prescribed in the year 1994 would certainly come to Rs.30,000/- in the year 2001. We, therefore, propose to recompute the compensation taking the income of the deceased at Rs.30,000/- per annum.
14) By deducting the usual 1/3rd of Rs.30,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.20,000/- per annum.
15) Considering the age of the deceased, his widow and their children, we are of the opinion that multiplier of 16 would be appropriate in the facts and circumstances of the present case.
16) By multiplying the annual dependency of Rs.20,000/- with the multiplier of 16, the compensation works out to Rs.3,20,000/-. The claimants are further entitled to receive a sum Rs.5,000/- towards funeral expenses; Rs.5,000/- for loss of consortium to the widow; and Rs.5,000/- for loss of estate. The claimants, thus, become entitled to receive a total sum of Rs.3,35,000/- as compensation for the death of deceased Nituram Mahar in the motor accident.
17) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
18) Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal and the fact that the Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.2,41,000/- at Rs.24,000/-.
19) For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. The compensation of Rs.94,000/- awarded by the Tribunal is enhanced to Rs.3,35,000/- with further quantified amount of interest of Rs.24,000/- on the enhanced amount of compensation of Rs.2,41,000/-.
20) Respondent No.3 The United India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.2,65,000/- (Rs.2,41,000/- towards enhanced amount of compensation + Rs.24,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.2,41,000/-) before the concerning Claims Tribunal.
21). No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
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----------------------------------M.A. No. 1227 of 2000 Appellant : Jeerabai wd/o. Samaru Singh, Applicant agead 63 years, R/o.
Dhavaipur, Thana Katghora, district Bilaspur, through Ashok Saw Mill, Katghora, District Bilaspur M.P. VERSUS Respondents 1 Devendra Kumar s/o. D.V. Non-applicants Batra, through Batra Brothers Private Ltd., 15/1 Mathura Road, Faridabad (U.P.) 2 Oriental Insurance Co. Ltd., Oriental House, A-25/27, Asaf Ali Road, New Delhi.
3 Dhaneshwar Yadav, S/o.
Ramdhani Yadav, Batra Brothers L.P.G. Transport Sakur Basti, New Delhi 26.
4 Rahul Kumar S/o Kishore Kumar, Wali father Kishore Kumar S/o Hanuman Prasad, R/o. Katghora, district Bilaspur M.P. 5 Oriental Insurance Co. Ltd., Bilaspur M.P. Memorandum of Appeal U/S. 173 of the Motor Vehicles Act
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--------------------------------- Present : Shri Sanjay S. Agrawal, learned counsel for the appellant.
None for respondents No. 1, 3 & 4.
Shri Abhishek Sinha and Shri D.L. Dewangan, learned counsel for respondents No. 2 & 5.
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----------------------------------
ORDER (1st July, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant Jeerabai is seeking enhancement of the compensation awarded by the Fifth Additional Motor Accidents Claims Tribunal, Bilaspur (for short, `the Tribunal') vide award dated 24.02.2000, passed in Claim Case No. 68 of 1998.
2) As against the compensation of Rs.5,00,000/- claimed by the appellant/ claimant, unfortunate mother of deceased Bahoran, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 22.07.1993, the Tribunal awarded a total sum of Rs.94,000/- as compensation along with interest @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
3) Shri Sanjay S. Agrawal, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.94,000/- only.
4) Shri Abhishek Sinha and Shri D.L. Dewangan, learned counsel for respondents No.2 & 5, on the other hand supported the award and contended that the compensation of Rs.94,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
5) As the claimant herself pleaded and proved the income of the deceased at Rs.1,500/- per month, she cannot have any legitimate grievance in regard to assessment of the income of the deceased by the Tribunal at Rs.1,500/- per month.
6) The Tribunal has been quite liberal in deducting only 1/3rd of the income of the deceased towards his personal expenses, though the deduction in that behalf could have been to the extent of 50% as only two persons were dependant on the income of the deceased i.e. deceased himself and his mother claimant Jeerabai.
7) The multiplier of 7, selected by the Tribunal also cannot be found fault with in view of the fact that sole claimant Jeerabai was aged about 63 years on the date of the accident and in view of the dictum of the Apex Court in the case of Sarla Verma (Smt) and Others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, wherein multiplier of 7 was prescribed for the age group between 61-65 years.
8) For the foregoing reasons, we do not find any scope for enhancement of the compensation either on account of the assessment of the income of the deceased or the claimant's dependency by the Tribunal or the multiplier selected.
9) The appeal filed by the appellant/ claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
10) No order as to costs.
CHIEF JUSTICE J U D G E
subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
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----------------------------------Misc. Appeal (C) No. 442 of 2010 Appellants/ 1. Basant Singh (Maharath) S/o Claimants Anirudh Singh, aged about 50 years.
2. Smt. Bajni Devi W/o. Basant Singh (Maharath), aged about 45 years.
Both are R/o. Nawapara Chhal, District Raigarh, (C.G.) VERSUS Respondents/ 1 Love Kumar Kewat, S/o. Shyam Non-applicants Lal Kewat, aged about 27 years, occupation Driver, R/o. village Nirtu, Police Station, Sipath, District Bilaspur (C.G.) 2 Rakesh Agrawal, s/o. Balram Agrawal, occupation Owner of Vehicle R/o Agrasen Road, Korba, District Korba (C.G.) 3 Manager, National Insurance Company, B-1, Taha Complex, Priyadarshini Nagar, Vyapar Vihar, Bilaspur, District Bilaspur (C.G.) (Miscellaneous appeal under Section 173 of the Motor Vehicles Act, 1988)
-----------------------------------------------------
--------------------------------- Present: Shri Vikas Pradhan, learned counsel for the appellants.
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----------------------------------
ORDER (8th July, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri Vikas Pradhan, learned counsel for the appellants is heard on admission.
2) The appellants are seeking enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Raigarh (for short, `the Tribunal') vide award dated 28.01.2010, passed in Claim Case No. 02 of 2009.
3) As against the compensation of Rs.46,35,000/- claimed by the appellants/ claimants, unfortunate parents of deceased Vijay Singh, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 07.11.2008, the Tribunal awarded a total sum of Rs.2,45,000/- as compensation along with interest @ 8% per annum from the date of filing of the claim petition till the date of actual payment.
4) Shri Vikas Pradhan, learned counsel for the appellants vehemently argued that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.30,000/- per annum only; in selecting the lower multiplier of 10; and in awarding low compensation of Rs.2,45,000/- only.
5) True, the claimants pleaded that their son deceased Vijay Singh used to earn Rs.1,20,000/- per annum by plying a Truck, no documentary evidence was produced before the Tribunal to establish that the deceased even owned a Truck. In this state of evidence, we do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased and in assessing his income on its own estimate.
6) The Tribunal has been quite liberal in deducting only 1/3rd of the income of the deceased towards his personal expenses though the deduction in that behalf could have been to the extent of 50% of the income of the deceased in view of the dictum of the Apex Court in the case of Syed Basheer Ahamed and others Versus Mohammed Jameel and another reported in (2009) 2 Supreme Court Cases 225.
7) The multiplier of 10 selected by the Tribunal cannot be found fault with in view of the fact that the claimants are parents of the deceased and in view of the dictum of the Apex Court in the case of Municipal Corporation of Greater Bombay Vs. Laxman Iyer and another, reported in (2003) 8 SCC-731, wherein it was held that in those cases where the claimants are parents of the deceased, the multiplier should never exceed 10.
8) For the foregoing reasons, we do not find any scope for enhancement of the compensation either on account of the assessment of the income of the deceased or the claimants' dependency by the Tribunal or the multiplier selected.
9) The appeal filed by the appellants/ claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE
subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------
---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
-----------------------------------------------------
----------------------------------M.A. (C) No. 563 of 2010 Appellant : The Oriental Insurance Co. Non-applicant Ltd., Branch Dhamtari, Distt.
No.3 Dhamtari (C.G.)
VERSUS
Respondents 1) Dalim Panigrahi, s/o. Maniram
Non-applicants aged about 32 years, R/o.
Village - Chamiya, P.S. -
Bhanpuri, distt. Bastar
(C.G.)
Driver
2) Leeladhar Khatri, S/o Mohan
Lal Khatri, r/o Kumhar Khan,
Jagdalpur, distt. Bastar
(C.G.)
Owner
Claimants 3) Smt. Parikal @ PLarika Bai,
W/o Kunwar Singh, aged about
47 years,
4) Ku. Biran Suryavanshi, D/o
Late Kunwar Singh, aged about
22 years,
Respondent No. 3 & 4 are R/o
Village Bagdai, Post -
Dimora, P.S. & Tahsil -
Gurur, distt. Durg (C.G.)
Appeal U/S. 173 of the Motor Vehicles Act
-----------------------------------------------------
--------------------------------- Present : Shri H.P. Agrawal, learned counsel for the appellant.
-----------------------------------------------------
----------------------------------
ORDER (16th June, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
By allowing I.A. No. 02/2010, the documents filed along with this application are taken on record.
2. Shri H.P. Agrawal, learned counsel for the appellant is heard on admission.
3. This is insurer's appeal against the impugned award dated 27.11.2009, passed by the Additional Motor Accident Claims Tribunal, Balod, District Durg (for short `the Tribunal') in Claim Case No. 88/2008.
4. As against the compensation of Rs.12,25,000/- claimed by respondents No.3 and 4 Smt. Parikal @ Parika Bai and Ku. Biran Suryavanshi by filing a claim petition under Section 166 of the Motor Vehicles Act for the death of deceased Lekhram in the motor accident on 27.08.2008, the Tribunal awarded a total sum of Rs.5,57,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
5. Shri H.P. Agrawal, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding excessive compensation of Rs.5,57,000/- to the claimants.
6. During the course of hearing, learned counsel for the appellant/ Insurance Company submitted that though the appellant/ Insurance Company had filed an application before the Tribunal for grant of permission under Section 170 of the Motor Vehicles Act to contest the claim on all available defenses, the same was dismissed by the Tribunal. Learned counsel for the appellant fairly conceded that the driver and owner of the offending vehicle had contested the claim before the Tribunal.
7. As the driver and owner of the offending vehicle contested the claim before the Tribunal and the appellant/ Insurance Company could not demonstrate either before the Tribunal or before us in this appeal that there was any collusion between the claimants and the driver and owner of the offending vehicle, the application filed by the appellant/ Insurance Company before the Tribunal for grant of permission under Section 170 of the Motor Vehicles Act, in our opinion, has been rightly dismissed by the Tribunal.
8. The Apex Court while considering the permissibility of challenge to the quantum of compensation by the insurer of the offending vehicle in the absence of permission under Section 170 of the Motor Vehicles Act in the case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC) observed in paras 31 & 32 as under:
"31. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act is satisfied, Insurance Company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not, implead the Insurance Company to contest the claim in such cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of Section 149 of 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award.
32. For the reasons, our answer to the question is that even if no appeal is preferred under Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle."
9. Now reverting back to the present case, admittedly the appellant / Insurance Company in this appeal is challenging the quantum of compensation alone. No permission under Section 170 of the Motor Vehicles Act was granted by the Tribunal as the application filed by the appellant / Insurance Company was dismissed by the Tribunal. No fault can be found with the order of the Tribunal dismissing the appellant's application under Section 170 of the Motor Vehicles Act as the driver and owner of the offending vehicle contested the claim before the Tribunal and no material could be shown to indicate any collusion between the claimants and the driver/ owner of the offending vehicle. As permission under Section 170 of the Motor Vehicles Act was refused to the appellant/ Insurance Company, the Insurance Company cannot be permitted to challenge the quantum of compensation in this appeal in view of the above quoted dictum of the Apex Court in the case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others (supra).
10. We, therefore, do not find any scope for interference in this appeal filed by the appellant / Insurance Company against the impugned award challenging the quantum of compensation alone.
11. The appeal filed by the appellant/ Insurance Company, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE J U D G E nimmi
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------
----------------------------------CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI RANGNATH CHANDRAKAR J.
-----------------------------------------------------
---------------------------------- Misc. Appeal No. 551 of 2000 Appellants 1 Smt. Basantin Bai, aged 30 years, w/o. Panchuram Pardhi 2 Ku. Nani Bai, aged 8 years, Minor daughter of Panchuram Pardhi 3 Lalluram, aged 6 years, minor son of late Panchuram 4 Ku. Sumitra Bai, aged 4 years, minor daughter of late Panchuram 5 Lalit, aged 2 years, minor s/o.
late Panchuram Pardhi 6 Mighalal Pardhi, aged 58 years, s/o late Dulichand Pardhi 7 Smt. Geetabai, aged 50 years, w/o Midhalal Pardhi Minor applicant No. 2, 3, 4 and 5 through their natural guardian mother Smt. Basantin Bai appellant No.1 All residents of village Dumartarai, post Devpluri, Tahsil and distt. Raipur.
Versus Respondents 1. Gandhi Godse Dheemar, aged 24 years, s/o. Khilawan Dheemar, R/o Santoshi Nagar, Raipur (M.P.)
2. Abdul Rizwan S/o Abdul Waheed, R/o Inna construction, near Electricity Office, Nayapara, Raipur.
3. The National Insurance Company Limited, through Divisional Manager, Divisional Office, Mobin Mahal, G.E. Road, Raipur.
Memorandum of appeal under Section 173 of the Motor Vehicles Act, 1988
-----------------------------------------------------
---------------------------------- Present : Shri A.L. Singraul, learned counsel for the appellants.
None for respondents No. 1 & 2 though served.
Shri Sanjay K. Agrawal, learned counsel for respondent No.3.
-----------------------------------------------------
----------------------------------
O R D E R (25th June, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimants' appeal for enhancement of the compensation awarded by the Seventh Additional Motor Accidents Claims Tribunal, Raipur (for short `the Tribunal') vide award dated 04.02.2000, passed in Claim Case No.36/1998.
2. As against the compensation of Rs.20,00,000/- claimed by the appellants/ claimants, unfortunate widow, minor children and parents of deceased Panchuram Pardhi by filing a claim petition under Section 166 of the Motor Vehicles Act for his death in the motor accident on 04.09.1998, the Tribunal awarded a total sum of Rs.1,26,000/- as compensation along with interest @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
3. The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Panchuram Pardhi died on account of the injuries sustained by him in the motor accident on 04.09.1998; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Truck bearing registration No. CPT-8751; as the offending vehicle Truck on the date of the accident was insured with the National Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
4. As the respondents have not filed any appeal against the award, the above findings recorded by the Tribunal have now attained finality.
5. The Tribunal assessed the income of the deceased at Rs.1,500/- per month and Rs.18,000/- per annum. By deducting 1/3rd of Rs.18,000/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.12,000/- per annum. By multiplying the annual dependency of Rs.12,000/- with the multiplier of 12, selected by the Tribunal the compensation ought to have been worked out to Rs.1,44,000/-, but the Tribunal appears to have committed a computation mistake and arrived at a figure at Rs.1,20,000/-. By awarding further sum of Rs.6,000/- under other heads, the Tribunal awarded a total sum of Rs.1,26,000/- as compensation to the claimants. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,26,000/- @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
6. Shri A.L. Singraul, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.1,500/- per month and Rs.18,000/- per annum only; in selecting the lower multiplier of 12; and in awarding low compensation of Rs.1,26,000/- only.
7. Shri Sanjay K. Agrawal, learned counsel for respondent No.3 the National Insurance Company Limited, on the other hand, supported the award and contended that as the claimants could not establish the income of the deceased as pleaded by them, the compensation of Rs.1,26,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
8. In a motor accident claim case what is important is that the compensation to be awarded by the Courts/Tribunal 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.1,26,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
10. True, the claimants pleaded that deceased Panchuram Pardhi used to earn Rs.5,000/- per month, but the evidence led in that behalf was not of clinching nature. We, therefore, do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased and in assessing his income at Rs.1,500/- per month and Rs.18,000/- per annum on its own estimate.
11. Similarly, the claimants' dependency also has been rightly assessed by the Tribunal at Rs.12,000/- per annum by deducting the usual 1/3rd of the income of the deceased towards his personal expenses.
12. The multiplier of 12 selected by the Tribunal is certainly on the lower side. Considering the age of the deceased, his widow, their children and parents, we are of the opinion that multiplier of 15 would be appropriate in the present case.
13. By multiplying the annual dependency of Rs.12,000/- with the multiplier of 15 the compensation works out to Rs.1,80,000/-. The claimants are further entitled to receive Rs.10,000/- towards funeral expenses; loss of consortium to the widow; and loss of estate. The claimants, thus, become entitled to receive a total sum of Rs.1,90,000/- as compensation for the death of deceased Panchuram Pardhi in the motor accident.
14. Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
15. Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal and the fact that Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.64,000/- at Rs.6,000/-
16. For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. The compensation of Rs.1,26,000/- awarded by the Tribunal is enhanced to Rs.1,90,000/- with further quantified amount of interest of Rs.6,000/- on the enhanced amount of compensation of Rs.64,000/-.
17. Respondent No.3 the National Insurance Company Limited is granted three months' time for depositing the total sum of Rs.70,000/- (Rs.64,000/- towards enhanced amount of compensation + Rs.6,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.64,000/-) before the concerning Claims Tribunal.
18. No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------
----------------------------------CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI RANGNATH CHANDRAKAR J.
-----------------------------------------------------
---------------------------------- Misc. Appeal No. 1548 of 2000 Appellant : Mahangu Ram S/o Channu Ram, aged about 35 years, R/o Panchayat House No. 95, Ganga Nagar, Bhanpuri, Raipur (M.P.) Versus Respondents 1. Shekh Nasir S/o Sheku Magabool, R/o MIG 2-225 HUDCO P.S. Sector
-6, Bhilai district Durg (M.P.)
2. Sheku Magabool s/o late Umeraddin R/o MIG 2-227 HUDCO P.S. Sector -6, Bhilai district Durg (M.P.)
3. National Insurance co. Ltd.
Through Branch Manager, Thakkar Chamber in front of Project Automobiles Power House, Bhilai District Durg (M.P.) Memo of appeal under Section 173 of the Motor Vehicles Act.
-----------------------------------------------------
---------------------------------- Present : Shri Prafull Bharat and Shri Vikas Shrivastava, learned counsel for the appellant.
Shri Malay Shrivastava, learned counsel for respondents No.1 and 2.
Shri Sourabh Sharma, learned counsel for respondent No.3.
-----------------------------------------------------
----------------------------------
O R D E R (28th June, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant - Mahangu Ram is seeking enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Raipur (for short `the Tribunal') vide award dated 24.04.2000, passed in Claim Case No.06/1999.
2) As against the compensation of Rs.12,99,600/- claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 12.04.1998, the Tribunal awarded a total sum of Rs.60,000/- as compensation along with interest @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
3) Shri Prafull Bharat and Shri Vikas Shrivastava, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.60,000/- only though the appellant/ claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability.
4) Shri Sourabh Sharma, learned counsel for respondent No.3 National Insurance Company Limited, on the other hand supported the award and contended that as the appellant could not establish the permanent disability on account of the injuries sustained by him in the motor accident, the compensation of Rs.60,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
5) Shri Malay Shrivastava, learned counsel for respondents No.1 and 2 also supported the award.
6) For the reasons best known to the appellant/ claimant, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/ claimant in the motor accident and the fact that those injuries resulted in any permanent disability.
7) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent-claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
8) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
9) In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), the medical certificate and the disability certificate produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued those certificates, cannot be taken into consideration for enhancement of the compensation in the case.
10) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
11) The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
12) No order as to costs.
CHIEF JUSTICE JUDGE
subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------
---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
-----------------------------------------------------
----------------------------------
Cr.M.P. No. 422 of 2007 Appellant : The State of Chhattisgarh Through - the District magistrate, Surguja (CG) VERSUS Respondents 1 Hardev Kodaku, S/o Somra, Aged about 45 years 2 Bira, S/o Somra Kodaku, Aged about 40 years 3 Purna Kodaku, S/o Hardev Kodaku, Aged about 21 years All's occupation -
Agriculturist, R/o Village -
Putsu, Thana - Balrampur, District, Surguja (CG) Application for grant of leave to appeal U/S 378 (3) and memo of appeal u/s 378 (1) of Code of Criminal Procedure 1973
-----------------------------------------------------
---------------------------------- Present : Shri Akhil Agrawal, learned Panel Lawyer, for the State/petitioner.
-----------------------------------------------------
----------------------------------
ORDER (28th June, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
By allowing I.A. No. 02/2007, the documents filed along with this application are taken on record.
2. Shri Akhil Agrawal, learned Panel Lawyer, is heard on I.A. No. 01/2007, an application for condonation of the delay in filing the petition under Section 378(3) of Cr.P.C.
3. On due consideration of the submissions of learned Panel Lawyer and the grounds taken in the application, we are satisfied that the petitioner/ State has succeeded in showing sufficient cause for the delay in filing the petition under Section 378(3) of Cr.P.C.
4. I.A. No.01 of 2007, therefore, is allowed and the delay of 21 days in filing the petition under Section 378(3) of Cr.P.C. is hereby condoned.
5. Learned Panel Lawyer is heard on the question of grant of leave to appeal against the acquittal of respondents/ accused persons Hardev Kodaku, Bira and Purna Kodaku.
6. Police Balrampur, District Surguja, after completion of the investigation of the case registered on the report of one Rameshwari charge- sheeted the respondents/ accused persons for the alleged commission of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, on the accusation of their having committed murder of deceased Somra by causing injuries on him by means of lathi and fists in the evening of 23-04- 2006.
7. The respondents/ accused persons abjured their guilt and pleaded false implication to the charge framed by the trial Court under Section 302 read with Section 34 of the Indian Penal Code.
8. The charge of murder punishable under Section 302 read with Section 34 of the Indian Penal Code was sought to be proved against the respondents/ accused persons on the evidence of PW1 Ramdas, PW2 Bifna, PW3 Basiya, PW4 Debkumar, PW5 Raghuvansh, PW6 Shankar Yadav, PW7 Somra, PW8 Smt. Mangni, PW9 Hirawa, PW10 Shivkumar, PW11 Rajesh Kumar, PW12 Anand Masih, PW13 Jawahar Tirkey, PW14 Bhuvaneshwar Singh, PW15 Dr. R.S. Markam, PW16 Arjun Kumar Singh, PW17 Powni and PW18 Rameshwari.
9. Of the above named 18 prosecution witnesses, PW18 Rameshwari alone was examined by the prosecution as an eyewitness of the alleged incident of assault on deceased Somra.
10. The trial Court on a close scrutiny of the entire evidence led by the prosecution at the trial found that the evidence of the prosecution witnesses fell short of establishing the charge of murder punishable under Section 302 read with Section 34 of the Indian Penal Code against the respondents / accused persons. The trial Court, therefore, acquitted the respondents/ accused persons vide impugned judgment dated 04-04-2007.
11. Shri Akhil Agrawal, learned Panel Lawyer vehemently argued that the trial Court has erred in discarding the evidence of the prosecution witnesses on flimsy and untenable grounds. Learned Panel Lawyer further submitted that the evidence led by the prosecution at the trial was more than sufficient to establish the charge of murder punishable under Section 302 read with Section 34 of the Indian Penal Code against the respondents/ accused persons.
12. The entire prosecution case against the respondents/ accused persons hinges on the solitary eyewitness account of PW18 Rameshwari, who lodged the First Information Report. PW18 Rameshwari, at the trial, did not support the prosecution case at all and was declared hostile. In fact, she has feigned ignorance about the alleged incident of assault on her husband Somra. Since the evidence of other prosecution witnesses was founded on the disclosure made by PW18 Rameshwari about the alleged incident of assault on her husband Somra at the hands of respondents/ accused persons Hardev Kodaku, Bira and Purna Kodaku and PW18 Rameshwari has not deposed anything against the respondents/ accused persons in her evidence before the trial Court, the trial Court obviously was left with no other option but to discard the evidence of all the prosecution witnesses and record acquittal of the respondents/ accused persons.
13. On due consideration of the submissions of learned Panel Lawyer; the findings recorded by the trial Court leading to acquittal of respondents/ accused persons Hardev Kodaku, Bira and Purna Kodaku; and the evidence led by the prosecution at the trial in general and that of PW18 Rameshwari in particular, we are satisfied that the findings recorded by the trial Court leading to acquittal of respondents/ accused persons Hardev Kodaku, Bira and Purna Kodaku do not suffer from any infirmity whatsoever.
14. Mere possibility of another view on the prosecution evidence will not by itself be a sufficient ground to warrant interference in an appeal against acquittal.
15. We, therefore, do not find any ground for grant of leave to appeal against the acquittal of the respondents/ accused persons.
16. The petition filed by the petitioner/ State under Section 378 (3) of Cr.P.C., therefore, fails and is hereby dismissed.
CHIEF JUSTICE J U D G E Subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------
---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
-----------------------------------------------------
----------------------------------M.A.No. 538 of 2005 Appellants 1 Sajna Bai, W/o Late Manohar Giri, aged 40 years 2 Santosh Giri S/o Late Manohar Giri, aged 26 years 3 Jhaniya Bai, d/o Late Manohar Giri aged 18 years 4 Chandra Giri, s/o Late Manohar Giri, aged 16 years (Through legal Guardian Mother Sajna Bai) 5 Dhukia Bai W/o Late Sarju Giri aged 67 years (Mother of the deceased late Manohar Giri all of the appellant resident Store para Bhilai 3 District Durg (CG) VERSUS Respondents 1 Arun Kumar Sahu @ (Guddu) S/o Sakharam Sahu, Caste - Sahu, aged 29 years R/o Tata Line Kohka Bhilai, Durg & TAhsil Durg (Driver) 2 Sushil Panday S/o GD Panday R/o MIS 1/582 Hudco Bhilai, Tahsil & District Durg (CG) (Owner) 3 The New India Insurance Company Ltd., Paras Bhawan Station Road, Durg/Beside Petrol Pump Power House Bhilai, Tahsil & District-
Durg (CG) (Insurer) Misc. Appeal under Section 173 of Motor Vehicles Act
-----------------------------------------------------
--------------------------------- Present : Shri NK Chatterjee, counsel for the appellants.
None for respondents No 1 &2.
Shri Dasarath Gupta, counsel for respondent No.3.
-----------------------------------------------------
----------------------------------
ORDER (4th May, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimants' appeal for enhancement of the compensation awarded by Ninth Additional Motor Accidents Claims Tribunal, Durg (for short `the Tribunal') vide award dated 27.12.2004, passed in claim case No.238/2004.
2. The appellants/ claimants, unfortunate widow, children and mother of deceased Manohar Giri, claimed compensation of Rs.15,00,000/- by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 20.04.2003.
3. The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Manohar Giri died on account of the injuries sustained by him in the motor accident on 20.04.2003; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Mini Bus bearing registration No.CG07 ZA 0143; as the offending vehicle Mini Bus, on the date of the accident was insured with the New India Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
4. As the respondents have not filed any appeal against the award, the above findings recorded by the Tribunal have now attained finality.
5. The Tribunal assessed the income of the deceased at Rs.15,000/- per annum. By deducting 1/3rd of Rs.15,000/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.10,000/- per annum. By multiplying the annual dependency of Rs.10,000/- with the multiplier of 13, the compensation was worked out to Rs.1,30,000/-. By awarding further sum of Rs.7,000/- under other heads, the Tribunal awarded a total sum of Rs.1,37,000/- as compensation to the claimants for the death of deceased Manohar Giri in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,37,000/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
6. Shri NK Chatterjee, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.15,000/- per annum only; and in awarding low compensation of Rs.1,37,000/- only.
7. Shri Dasarath Gupta, learned counsel for respondent No.3 the New India Insurance Company Limited, on the other hand, supported the award and contended that as the claimants could not establish the income of the deceased as pleaded by them, the compensation of Rs.1,37,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
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.1,37,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
10. True, the claimants pleaded that deceased Manohar Giri used to earn Rs.4,000/- per month as Contractor in HSCL, no reliable evidence was led to establish the income of the deceased to that extent. We, therefore, do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased.
11. Nevertheless, the income of the deceased assessed by the Tribunal at Rs.15,000/- per annum is certainly on the lower side and requires reconsideration.
12. Section 163-A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows :
"[163A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
13. The above quoted Sub- section (3) of Section 163- A of the Act mandated the Central Government to amend the Second Schedule from time to time keeping in view the cost of living.
14. As the Central Government has failed in amending the Second Schedule as provided in Sub-section (3) of Section 163-A of the Act, the Courts/ Tribunal can take judicial notice of increase in the prices of essential commodities and the cost of living during the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case.
15. Now reverting to the present case, the unfortunate accident wherein deceased Manohar Giri lost his life took place in the year 2003. If the increase in the prices of the essential commodities and the cost of living between the year 1994 and the year 2003 are taken into consideration, the notional income of Rs.15,000/- prescribed in the Second Schedule in the year 1994 would certainly come to Rs.30,000/- in the year 2003. We, therefore, propose to recompute the compensation taking the income of the deceased at Rs.30,000/- per annum.
16. By deducting the usual 1/3rd of Rs.30,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.20,000/- per annum.
17. The multiplier of 13 selected by the Tribunal in our opinion is appropriate considering the age of the deceased and in view of the dictum of the Apex Court in the case of Sarla Verma (Smt) and Others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 wherein multiplier of 13 was prescribed for the age group between 46-50 years.
18. By multiplying the annual dependency of Rs.20,000/- with the multiplier of 13, the compensation works out to Rs.2,60,000/-. The claimants are further entitled to get a sum of Rs.5,000/- towards funeral expenses; Rs.5,000/- for loss of estate; and Rs.5,000/- for loss of consortium to the widow. The claimants, thus, become entitled to receive a total sum of Rs.2,75,000/- as compensation for the death of deceased Manohar Giri in the motor accident.
19. Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
20. Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal and the fact that Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.1,38,000/- at Rs.13,000/-
21. For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. The compensation of Rs.1,37,000/- awarded by the Tribunal is enhanced to Rs.2,75,000/- with further quantified amount of interest of Rs.13,000/- on the enhanced amount of compensation of Rs.1,38,000/-.
22. Respondent No.3 The New India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.1,51,000/- (Rs.1,38,000/- towards enhanced amount of compensation + Rs.13,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.1,38,000/-) before the concerning Claims Tribunal.
23. No order as to costs.
CHIEF JUSTICE J U D G E
padma
CHIEF JUSTICE J U D G E
padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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---------------------------------- Misc. Appeal No. 454 of 2002 Appellant : N. Kumar S/o. Shri B. Kumar, Claimant aged about 61 years, R/o HIG-C-
47, Shailendra Nagar, Raipur Tah. & Distt. Raipur (C.G.) Versus Respondents 1 Rajendra Kumar @ Gabbar aged Non-applicants about 21 years, s/o Mannuram Nishad, R/o. Kisan Ricemill (Near), Gariyaband Tah.
Gariyaband Distt. Raipur (C.G.) 2 Dinesh Kumar Tripathi S/o Ramkishore Tripathi, R/o.
Gariyaband, P.S. Gariyaband, Distt. Raipur (C.G.) 3 United India Insurance Co. Ltd., through Divisional Manager, Krishna Complex Kachhari Chauk, Raipur, Distt. Raipur (C.G.) Misc. Appeal under Section 173 of the Motor Vehicle Act
-----------------------------------------------------
---------------------------------- Present : Shri Aditya Khare, learned counsel for the appellant.
Shri Abhishek Saraf, learned counsel for respondents No. 1 & 2.
Shri H.B. Agrawal, learned Senior Counsel with Ms. Itu Rani Mukherjee, learned counsel for respondent No.3.
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----------------------------------
O R D E R (22nd April, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimant's appeal for enhancement of the compensation awarded by the Second Additional Motor Accident Claims Tribunal, Raipur (for short, `the Tribunal') vide award dated 25.01.2002, passed in Claim Case No. 111 of 2001.
2) Claimant N Kumar claimed compensation of Rs.7,65,000/- by filing a claim petition under Section 166 of the Motor Vehicles Act, for the injuries sustained by him in the motor accident on 21-04-2001.
3) The Tribunal on a close scrutiny of the entire evidence led by the parties before it held that claimant N. Kumar sustained injuries in the motor accident on 21-04-2001; the injuries sustained by the claimant in the motor accident resulted in permanent disability to the extent of 5%; the accident occurred due to rash and negligent driving of the drivers of both the vehicles i.e. Gypsy bearing registration No. C.G.02-263 and Commander Jeep bearing registration No. M.P.23D-389; as the Commander Jeep bearing registration No. M.P.23D-389 was insured with respondent No.3 United India Insurance Company Limited, the Insurance Company was liable to pay 50% of the compensation assessed, to the claimant.
4) The Tribunal considering the number and nature of the injuries sustained by the claimant in the motor accident and the resultant permanent disability to the extent of 5%; and the amount proved to have been spent by the claimant on his treatment, awarded Rs.26,639/- towards medical expenses; Rs.10,000/- towards pain and suffering; and Rs.10,000/- towards future medical expenses. The Tribunal, thus, assessed the total compensation of Rs.46,639/- in the case. The Tribunal finding it to be a case of `Contributory Negligence' directed the United India Insurance Company Limited, insurer of one of the two vehicles i.e. Commander Jeep to pay 50% of Rs.46,639/- i.e. Rs.23,319/- to the claimant with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
5) Shri Aditya Khare, learned counsel for the appellant placing reliance on the dictum of the Apex Court in the case of T.O. Anthony Vs. Karvarnan and Others reported in (2008) 3 SCC 748 submitted that the Tribunal has erred in holding it to be a case of `Contributory Negligence' whereas in fact it was a case of `Composite Negligence' as the claimant admittedly was not driving any of the two vehicles involved in the accident. Learned counsel further submitted that as it was a case of `Composite Negligence', the insurer of the Commander Jeep was liable to pay the entire compensation of Rs.46,639/- assessed by the Tribunal to the claimant.
6) Shri H.B. Agrawal, learned Senior Counsel for respondent No.3 United India Insurance Company Limited, on the other hand, supported the award and contended that the claimant could have realized the remaining amount of compensation (50% of Rs.46,639/-) from the owner and insurer of the other vehicle Gypsy.
7) Shri Abhishek Saraf, learned counsel for respondents No. 1 & 2 also supported the award.
8) The Apex Court in the case of T.O. Anthony Vs. Karvarnan and Others (Supra), while considering the distinction between the cases of `Contributory Negligence' and that of `Composite Negligence' observed in para 6 :
"6. "Composite negligence" refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence."
9) As admittedly claimant N Kumar was not driving any of the two vehicles involved in the accident, the present case is one of `Composite Negligence', in view of the above quoted observation of the Apex Court in the case of T.O. Anthony Vs. Karvarnan and Others (Supra). As such, the finding recorded by the Tribunal that it was a case of `Contributory Negligence' is liable to be set aside and is hereby set aside.
10) As it was a case of composite negligence, wherein the claimant himself did not contribute to the accident, the claimant is entitled to claim compensation from any of the driver, owner and insurer of the two vehicles. In the present case, as the claimant had opted to claim compensation from the owner, driver and insurer of the Commander Jeep, the owner, driver and insurer of the said Jeep are liable to pay the entire compensation assessed by the Tribunal. Thus, respondent No.3 United India Insurance Company Limited is held liable to pay the entire amount of compensation of Rs.46,639/- assessed by the Tribunal.
11) For the foregoing reasons, the appeal, filed by the appellant/claimant is allowed in part. By setting aside the finding recorded by the Tribunal, holding respondent No.3 United India Insurance Company Limited to pay only 50% of the amount of compensation assessed i.e. Rs.46,639/-, it is held that respondent No.3 United India Insurance Company Limited is liable to pay the entire amount of compensation of Rs.46,639/-. As respondent No.3 United India Insurance Company Limited has already paid 50% of Rs.46,639/- i.e Rs.23,319/- under the directions of the Tribunal in the impugned award, the Insurance Company i.e. respondent No.3 United India Insurance Company Limited is directed to pay the balance amount of Rs.23,319/- to the claimant.
12) Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal and the fact that, the Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the balance amount of Rs.23,319/- at Rs.1,681/-.
13) Respondent No.3 United India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.25,000/- (Rs.23,319/- towards balance amount of compensation + Rs.1,681/- towards quantified amount of interest on the balance amount of compensation of Rs.23,319/-) before the concerning Claims Tribunal.
14) No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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---------------------------------- Misc. Appeal No. 300 of 1999 Appellants 1 Smt. Jamanti Devi, widow of late Samaylal, aged about 38 years, 2 Rajkumar, S/o Samaylal, aged about 14 years, (Minor), through his natural guardian mother Smt. Jamanti Devi i.e. appellant No.1.
Both are resident of village-
Mithlapur, Thana-Basantpur, Tahsil-Wadrafnagar, District -
Sarguja (M.P.) Versus Respondents 1 Siyaram, S/o. Nandkishore, aged about 30 years, Owner of Matador (Truck Model 608) No. M.P. 27/8161, R/o Wadrafnagar, Thana- Basantpur, Tahsil- Wadrafnagar, District - Sarguja (M.P.) 2 Easlaam @ Usman, S/o Akbar, aged about 30 years, Driver of Matador, R/o village -
Basantpur, Thana- Basantpur, district - Sarguja (M.P.) 3 Regional Manager, The New India Insurance Company Limited, Regional Office Korba, District
- Bilaspur (M.P.) Misc. Appeal under Section 173(2) of the Motor Vehicle Act, 1988
-----------------------------------------------------
---------------------------------- Present : Ms. Pushpa Dwivedi, learned counsel for the appellants.
None for respondents No. 1 & 2 though served.
Shri Deepak Gupta, learned counsel for respondent No.3.
-----------------------------------------------------
----------------------------------
O R D E R (21st April, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimants' appeal for enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Sarguja (for short, `the Tribunal') vide award dated 24.07.1998, passed in Claim Case No. 07 of 1993.
2) As against the compensation of Rs.7,00,000/- claimed by the appellants/ claimants, unfortunate widow and minor son of deceased Samaylal, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 02-09-1993, the Tribunal awarded a total sum of Rs.1,45,000/- as compensation along with interest @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Samaylal died on account of the injuries sustained by him in the motor accident on 02-09-1993; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Metador bearing registration No.MP-27/8161; as the offending vehicle Metador was being plied in breach of the policy conditions, the Insurance Company was not liable to pay compensation to the claimants; and the amount of compensation was payable by the owner of the Metador.
4) The Tribunal assessed the income of the deceased at Rs.20,000/- per annum. The claimants' dependency was assessed at Rs.750/- per month and Rs.9,000/- per annum. By multiplying the annual dependency of Rs.9,000/- with the multiplier of 15, the compensation was worked out to Rs.1,35,000/-. By awarding further sum of Rs.10,000/- under other heads, the Tribunal awarded a total sum of Rs.1,45,000/- as compensation to the claimants for the death of deceased Samaylal in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,45,000/- @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
5) Ms. Pushpa Dwivedi, learned counsel for the appellants submitted that, the Tribunal has erred in deducting Rs.11,000/- per annum towards the personal expenses of the deceased and in assessing the claimants' dependency at Rs.750/- per month and Rs.9,000/- per annum only; in awarding low compensation of Rs.1,45,000/- only; and in exonerating the insurer of the Metador from its liability to pay compensation to the claimants though the fact of insurance of the offending vehicle on the date of the accident was not in dispute.
6) Shri Deepak Gupta, learned counsel for respondent No.3 the New India Insurance Company Limited, on the other hand supported the award and contended that, the Tribunal has rightly exonerated the Insurance Company from its liability to pay compensation to the claimants as deceased Samaylal was travelling as Barati in the goods vehicle.
7) So far as the Tribunal's finding exonerating the insurer of the offending vehicle Metador from its liability to pay compensation to the claimants is concerned, we are not required to dilate much on the issue in view of the fact that deceased Samaylal was travelling in the Metador which is a goods vehicle, as Barati and in view of the dictum of the Apex Court in the case of New India Assurance Co. Ltd. Vs. Asha Rani and Others, reported in (2003) 2 SCC 223, wherein it was held that if a claim relates to injury or death of a person who was travelling in a goods vehicle as passenger, the insurer of the vehicle is not liable to pay compensation to the claimant/ claimants. We, therefore, uphold the finding recorded by the Tribunal exonerating the insurer of the Metador from its liability to pay compensation to the claimants and holding the owner of the Metador alone liable to pay compensation to the claimants.
8) Now, we shall examine as to whether the compensation of Rs.1,45,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
9) So far as the assessment of the income of the deceased by the Tribunal at Rs.20,000/- per annum is concerned, the claimants cannot have any legitimate grievance as they themselves pleaded and proved the income of the deceased to the extent of Rs.20,000/- per annum only.
10) The Tribunal certainly has erred in deducting Rs.11,000/- towards the personal expenses of the deceased while assessing the claimants' dependency at Rs.750/- per month and Rs.9,000/- per annum. In our considered opinion, deduction of Rs.8,000/- per annum towards the personal expenses of the deceased would be appropriate in the facts and circumstances of the present case. We, therefore, propose to recompute the compensation taking the claimants' dependency at Rs.12,000/- per annum.
11) Considering that deceased Samaylal was shown to be 45 years of age in his postmortem report and his widow, claimant No.1 Smt. Jamanti Devi, was shown 38 years of age in the claim petition, we are of the opinion that multiplier of 15 selected by the Tribunal is appropriate in the facts and circumstances of the present case.
12) By multiplying the annual dependency of Rs.12,000/- with the multiplier of 15, the compensation works out to Rs.1,80,000/-. The claimants are further entitled to receive Rs.10,000/- under other heads. The claimants, thus, become entitled to receive a total sum of Rs.1,90,000/- as compensation for the death of deceased Samaylal in the motor accident.
13) For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. The compensation of Rs.1,45,000/- awarded by the Tribunal is enhanced to Rs.1,90,000/-. The claimants are further awarded interest on the enhanced amount of compensation of Rs.45,000/- @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
14) No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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----------------------------------
WRIT PETITION NO. 264 of 2003 Petitioner Ashok Kumar Tejwani, PROP. M/s. Anand Trading Co.
Gudakhu Lane, Rajnandgaon
VERSUS
Respondents 1 State of Chhattisgarh, Through
Secretary Commercial Tax
Department, D.K. Mantralaya
Bhawan, Raipur (Chhattisgarh)
2 Commissioner of Profession Tax, Vanijyik Kar Bhawan, Civil Line, Raipur (CG) 3 Assistant Commissioner, Profession Tax, Durg (CG) PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA
-----------------------------------------------------
---------------------------------- Present : Shri Neelabh Dubey, Counsel for the petitioner.
Shri Alok Bakshi, Government Advocate for the State/ respondents.
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----------------------------------
Order (5th March, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
"7-1 That, the Hon'ble Court be pleased to issue suitable writ orders and directions including writs in the nature of mandamus certiorari prohibition etc. Quashing order dated 10/04/2002 passed by the Assistant Commissioner of Profession Tax, Durg being annexure `P-1' as being illegal in-so-far as it seeks to recover tax & penalty in excess of Rs.2,500/- (Two thousand five hundred only).
7-2 Declaring section 8(4) and 13 of the Professional Tax Act, 1995 as being unconstitutional and liable to be struck off.
7-3 Declaring alternatively that sections 8(4) and 13 of the Professional Tax Act, 1995 should be read down to mean that penalties leviable under the said sections together with tax leviable thereon cannot exceed Rs.2,500/- (Two Thousand five hundred only).
7-4 Any other relief that the Hon'ble High Court may deem fit."
3) Petitioner Ashok Kumar Tejwani is proprietor of M/s Anand Trading Company, Rajnandgaon. The petitioner's firm M/s Anand Trading Company is registered under the Professional Tax Act, 1995 at registration No.RDN/PT/17/1762. The Assistant Commissioner, Professional Tax, Durg assessed the petitioner's firm vide order dated 10.04.2002 for the period 01.04.1998 to 31.03.1999, whereby professional tax of Rs.2,500/- was assessed on the petitioner's firm and for non-payment of the professional tax within the prescribed period, penalty of Rs.1,666/- was also imposed under Section 13 of the Professional Tax Act, 1995 (for short, `the Act').
4) The petitioner has challenged the constitutional validity of Section 8 (4) and Section 13 of the Act on the sole ground that the provisions contained in these two sections providing for imposition of penalty in addition to maximum amount of professional tax of Rs.2,500/- is ultra vires to Article 276 of the Constitution of India which has prescribed a ceiling of Rs.2,500/-.
5) Shri Neelabh Dubey, learned counsel for the petitioner vehemently argued that any levy under the provisions of the Act, whether it is in the form of tax, penalty or interest is subject to consolidated ceiling of Rs.2,500/- prescribed in Article 276 of the Constitution of India. Learned counsel further submitted that, sub-Section (4) of Section 8 providing for imposition of penalty on account of non-registration and Section 13 providing for imposition of penalty on account of non-payment of tax, therefore, are ultra vires to Article 276 of the Constitution of India.
6) Section 8 and Section 13 of the Act, constitutional validity whereof is under challenge in this writ petition read as follows :
"Section 8 Registration :- (1) Every employer, other than any officer of the Central Government, Railways or the State Government, liable to pay tax under section 4 shall obtain a certificate of registration from the Profession Tax Assessing Authority in such manner and form as may be prescribed.
(2) Every person liable to pay tax under this Act, other than a person earning (salary or wage) in respect of whom the tax is payable by the employer but including a person who in addition to earning a (salary or wage) he is also carrying on a trade, profession or calling other than agriculture or who is simultaneously in employment of more than one employer, shall obtain a certificate of registration from the Profession Tax Assessing Authority in such manner and form as may be prescribed. (3) Every employer or person required to obtain a certificate or registration under sub-section (1) or sub-section (2), shall within thirty days of his becoming liable to pay tax under this Act apply for the certificate of registration to the Profession Tax Assessing Authority in the prescribed form and that authority shall, after such enquiry as it considers necessary, within sixty days of the receipt of application, if the application is in order, grant the certificate of registration.
(4) Where an employer or person liable to registration has wilfully failed to apply for such certificate within the time specified in sub-section (3), the Profession Assessing Authority may, after giving him a reasonable opportunity of being heard, impose penalty not exceeding rupees twenty for each day of delay subject to a maximum of rupees two thousand five hundred. (5) Where an employer or a person liable to registration has given false information in any application submitted under this section, the Profession Tax Assessing Authority may after giving him a reasonable opportunity of being heard impose a penalty not exceeding rupees five hundred."
Section-13 Penalty for non-payment of tax :-
If an employer or person fails without reasonable cause, to make payment of any amount of tax within the specified time or the date as specified in the notice of demand, the Profession Tax Assessing Authority may, after giving him a reasonable opportunity of being heard, impose upon him a penalty equal to two percent per month of the amount of tax due a subject to a maximum of two-third of the amount of tax due."
7) From the above quoted Section 8 of the Act, it becomes apparent that sub-Section (4) of Section 8 provides for imposition of penalty not exceeding rupees twenty for each day of delay subject to a maximum of Rs.2,500/-. Similarly, Section 13 provides for imposition of penalty equal to 2% per month of the amount of tax due subject to a maximum of 2/3rd of the tax due for default in payment of amount of tax within the specified time or date as prescribed in the notice of demand without reasonable cause.
8) Before examining the submissions advanced by learned counsel for the petitioner, it would be useful to re-produce Article 276 of the Constitution of India.
"276. Taxes on professions, trades, callings and employments.-
(1) Notwithstanding anything in article 246, no law of the Legislature of a State relating to taxes for the benefit of the State or of a municipality, district board, local board or other local authority therein in respect of professions, trades, callings or employments shall be invalid on the ground that it relates to a tax on income. (2) The total amount payable in respect of any one person to the State or to any one municipality, district board, local board or other local authority in the State by way of taxes on professions, trades, callings and employments shall not exceed two thousand and five hundred rupees per annum; 2(***) (3) The power of the Legislature of a State to make laws as aforesaid with respect to taxes on professions, trades, callings and employments shall not be construed as limiting in any way the power of Parliament to make laws with respect to taxes on income accruing from or arising out of professions, trades, callings and employments."
9) True, the above quoted Article 276 of the Constitution of India imposes a ceiling of Rs.2,500/- per annum as amount of tax payable in respect of any person to the State or to any one municipality, district board, local board or other local authority.
10) The Scheme under the Act provides for imposition of tax and penalty under different Sections. Section 11 of the Act provides for assessment of the tax. Sub-Sections (1), (2) and (3) of Section 8 of the Act provides for registration of the employer and other persons liable to pay tax under this Act, whereas sub- Section (4) and sub-Section (5) of Section 8 provides for imposition of penalty on account of wilful failure to apply for registration and for giving false information, respectively. Section 13 of Act provides for imposition of penalty for non- payment of tax within the specified time.
11) The cause of action or event which attracts tax and penalty under the Act are separate and different in their essential nature. As such, penalty imposable under Section 8 (4) and Section 13 of the Act cannot be considered to be at par with the tax imposable under the Act. The penalty, therefore, cannot be considered as tax or additional tax for the purposes of Clause (2) of Article 276 of the Constitution of India.
12) Admittedly, in the present case, a sum of Rs.2,500/- only has been imposed by the authorities on the petitioner's firm as professional tax which is well within the ceiling prescribed in Article 276 of the Constitution of India.
13) We, therefore, do not find any substance in the petitioner's challenge to the constitutional validity of Section 8 (4) and Section 13 of the Act, which provides for imposition of penalty in addition to professional tax of Rs.2,500/-.
14) The writ petition, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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---------------------------------- M.A. No.52 of 1999 Appellants 1 Sukhwati @ Bhuri, widow of Dayalu, aged about 30 years 2 Janaki, daughter of Dayalu, aged about 22 years 3 Jantram, son of Dayalu, aged about 19 years 4 Tikam son of Dayalu, aged about 4 years, through guardian / mother Sukhwati @ Bhuri All resident of Chingarod, Post Bamhani, Police Station and Tahsil Mahasamund, Distt Raipur (MP) (Now Distt Mahasamund) VERSUS RESPONDENTS 1 Prahalad, son of Dattram, aged about 27 years, resident of Choukhdainpur, Palli, Police Station Itwara, Distt Nadedh (Maharashtra) 2 Makhan Singh, son of Arjun Singh, resident of 130, Mechenic Nagar, Indore (MP) 3 The National Insurance Company Ltd., Nagina Gatroad, Nandedh, Maharashtra Appeal under Section 173 of the Motor Vehicles Act 1988
-----------------------------------------------------
---------------------------------- Present : Shri AL Singraul, counsel for the appellants.
Shri Goutam Khetrapal, counsel for respondent No.3.
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----------------------------------
ORDER (8th March, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimants' appeal for enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Rajnandgaon (for short `the Tribunal') vide award dated 29.07.1998, passed in Claim Case No.3/92.
2) As against the compensation of Rs.7,87,000/-, claimed by the appellants / claimants, unfortunate widow and children of deceased Dayalu, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 14.12.1991, the Tribunal awarded a total sum of Rs.1,87,000/- as compensation along with interest @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
12) The Tribunal has been quite liberal in deducting only 1/4th of the income of the deceased towards his personal expenses, though the deduction in that behalf could have been to the extent of 1/3rd in view of the dictum of the Apex Court in the case of Syed Basheer Ahamed and others Versus Mohammed Jameel and another reported in (2009) 2 Supreme Court Cases 225.
13) Considering that deceased Dayalu was aged about 35 years and his widow Sukhwati @ Bhuri was shown to be 30 years of age in the claim petition, multiplier of 16 selected by the Tribunal cannot be found fault with in view of the recent dictum of the Apex Court in the case of Sarla Verma (Smt) and Others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, wherein multiplier of 16 has been prescribed for the age group between 31-35 years.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
-----------------------------------------------------
---------------------------------- Misc. Appeal No.362 of 1998 Appellant Abhiram Jha son of Ram Anoop Applicant Jha, aged 32 years, occupation Service (Fitter) resident of Malajkhand, District Balaghat, MP.
VERSUS
Respondents 1 Jhumuk Lal Gond son of Chaitu
Non-Applicant Gond, r/o Barbajpur, Tehsil
Khairagarh, Distt
Rajnandgaon, MP
2 Lalit Singh s/o Paryatan
Singh Thakur, r/o
Chhikhaldah, tehsil
Khairagarh, Distt Rajnandgaon
3 The New India Assurance Co.
Ltd., through Branch Manager,
Rajnandgaon.
Appeal under Section 173 of the Motor Vehicles Act
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---------------------------------- Present : Shri P.S. Koshy and Shri Vinod Deshmukh, counsel for the appellant.
Shri Dashrath Prajapati, counsel for respondents No.1 and 2.
Shri Shreekumar Agrawal, Senior Counsel with Shri Anand Gupta, counsel for respondent No.3.
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----------------------------------
ORDER (16th February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimant's appeal for enhancement of the compensation awarded by the Motor Accidents Claims Tribunal, Khairagarh, District Rajnandgaon (for short `the Tribunal') vide award dated 10.01.1998, passed in Claim Case No.01/1992.
2) As against the compensation of Rs.10,60,000/- claimed by the appellant/ claimant, by filing a claim petition under Section 166 of the Motor Vehicles Act, for the injuries sustained by him in the motor accident on 24.03.1991, the Tribunal awarded a total sum of Rs.95,000/- as compensation along with interest @ 12% per annum from the date of the award till the date of actual payment.
3) The Tribunal on a close scrutiny of the evidence led by the parties held that claimant Abhiram Jha sustained multiple grievous injuries in the motor accident on 24.03.1991; the accident occurred due to rash and negligent driving of the driver of the Jeep in which the claimant was travelling; as the Jeep on the date of the accident was insured with New India Assurance Company Limited, the Insurance Company was liable to pay compensation to the claimant.
4) The Tribunal considering that the claimant could not establish that the injuries sustained by him in the motor accident resulted in any permanent disability, awarded a total sum of Rs.95,000/- as compensation.
5) Shri P.S. Koshy and Shri Vinod Deshmukh, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.95,000/- only; and in awarding interest on the above amount of compensation from the date of the award.
6) Shri Shreekumar Agrawal, learned Senior Counsel for respondent No.3 - New India Assurance Company Limited, supported the award and contended that the compensation of Rs.95,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
7) Shri Dashrath Prajapati, learned counsel for respondents No.1 and 2 also supported the award.
8) As the respondents have not filed any appeal against the award, the findings recorded by the Tribunal that the appellant/ claimant sustained injuries in the motor accident on 24.03.1991; the accident occurred due to rash and negligent driving of the driver of the Jeep; and the insurer of the Jeep was liable to pay compensation to the claimant, have now attained finality.
9) Claimant Abhiram Jha, on the date of the accident and even thereafter, was in the service of Hindustan Copper Limited. The Tribunal has found that inspite of the claimant having sustained injuries in the motor accident, he continued to get the same salary as he was getting prior to the accident. The claimant in para 4 of his cross- examination categorically admitted that he has not produced any bill in regard to the expenses incurred on his treatment before the Tribunal. He further admitted that the entire medical expenses were reimbursed by his employer company.
10) On due consideration of the submissions of learned counsel for the parties and nature of the injuries found to have been sustained by the appellant/ claimant in the motor accident, we are of the opinion that the compensation of Rs.95,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
11) So far as award of interest on the amount of compensation is concerned, Section 171 of the Motor Vehicles Act, which provides for award of interest, reads as follows :
"171. Award of interest where any claim is allowed -- Where any Claims Tribunal allows a claim for compensation made under this Act, such Tribunal may direct that in addition to the amount of compensation simple interest shall also be paid at such rate and from such date not earlier than the date of making the claim as it may specify in this behalf."
12) The main purpose for award of interest on the amount of compensation is to compensate the claimant / claimants to some extent for the delay which occurred in the matter. True, the above quoted Section 171 of the Motor Vehicles Act vests discretion in the Tribunal to decide the rate of interest and the date from which the interest is payable, ordinarily the interest is awarded from the date of filing of the claim petition. It is only in exceptional cases where the Tribunal comes to the conclusion that the delay in disposal of the claim petition was solely and wholly attributable to the claimant/claimants, the interest is made payable from the date of the award and not from the date of filing of the claim petition.
13) In the present case, the Tribunal has not recorded a finding in the impugned award that the delay in the matter was solely and wholly attributable to the claimant. The Tribunal, as such, ought to have awarded interest on the amount of compensation to the claimants from the date of filing of the claim petition.
14) Considering all the relevant factors, we award a quantified amount of Rs.10,000/- towards interest on the amount of compensation for the period from the date of filing of claim petition till the date of the award.
15) For the foregoing reasons, the appeal filed by the appellant/ claimant for enhancement of the compensation is allowed in part. While maintaining the amount of compensation of Rs.95,000/- awarded by the Tribunal, a further sum of Rs.10,000/- is awarded to the claimant towards quantified amount of interest on the amount of compensation of Rs.95,000/- awarded by the Tribunal for the period between the date of filing of the claim petition and the date of the award.
16) Respondent No.3 New India Assurance Company Limited is granted three months' time for depositing the total sum of Rs.10,000/- before the concerning Claims Tribunal.
17) No order as to costs.
CHIEF JUSTICE J U D G E
subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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----------------------------------
Writ Appeal No.39 of 2010
Appellant Sahasram Valre, S/o Shri
Petitioner in Hansulal, aged about 44 years,
writ petition Caste-Gond (SCT), Resident of
Village Sachara Tola,
(Khalotaya Tola), P.O. Raloya,
Tahsil - Pendra Road, Bilaspur,
District- Bilaspur
(Chhattisgarh).
VERSUS
Respondents 1 State of Madhya Pradesh (now
(in writ Chhattisgarh), through the
petition) Secretary, School Education
Vallabh Bhawan, Bhopal (M.P).
(Now D.K.S. Bhawan,
Mantralaya, Raipur (C.G.).
2 Deputy Director, Education
District Bilaspur
(Chhattisgarh)
3 Block Education Officer,
Block Marwahi, Tahsil -
Pendra Road, District
Bilaspur (Chhattisgarh).
4 Smt. Madhu Namdeo, W/o Tarun
Namdeo, aged about 29 years,
R/o Village Kumhari, P.O.
Marwahi, Tahsil - Pendra
Road, District- Bilaspur
(Chhattisgarh).
Writ Appeal under Section 2 Sub-Section (1)of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2007.
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---------------------------------- Present : Shri Sandeep Dubey, counsel for the appellant.
Shri Kishore Bhaduri, Additional Advocate General for the State/ respondents No.1 to 3.
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----------------------------------
Judgment (18th February, 2010) The following judgment of the Court was passed by Rajeev Gupta, C.J.
Learned counsel for the parties are heard on I.A.No.01/2010, an application for condonation of the delay in filing the writ appeal.
2) On due consideration of the submissions of learned counsel for the parties and the grounds taken in the application, we are satisfied that the appellant has succeeded in showing sufficient cause for the delay in filing the writ appeal.
3) I.A.No.01/2010, therefore, is allowed and the delay in filing the writ appeal is hereby condoned.
4) Shri Sandeep Dubey, learned counsel for the appellant is heard on admission.
5) Appellant - Sahasram Valre has filed this writ appeal against the impugned order dated 13.11.2009, passed in W.P.S.No.1279/2005.
6) The appellant/ petitioner in his writ petition was seeking quashing of the order dated 28.08.1993, so far as it related to the appointment of respondent No.4 Smt. Madhu Namdeo, as Assistant Teacher and a further direction to respondents No.1,2 and 3 to appoint the petitioner on the said post.
7) Leaned Single Judge on a thorough consideration of the submissions advanced on behalf of the writ petitioner and considering that respondent No.4 Smt. Madhu Namdeo was appointed long back in the year 1993, declined to grant any of the reliefs sought by the petitioner in the writ petition.
8) Shri Sandeep Dubey, learned counsel for the appellant vehemently argued that the learned Single Judge has erred in dismissing the appellant's writ petition though the appointment of respondent No.4 Smt. Madhu Namdeo, on the post of Assistant Teacher was in breach of the guide-lines in the matter.
9) Respondent No.4 Smt. Madhu Namdeo was appointed as Assistant Teacher at fixed remuneration of Rs.500/- per month under specific scheme referred to in Annexure-A/2, for a limited period. Her appointment order further provided that after completion of three years successful service, she would be eligible for appointment as Assistant Teacher after passing BTI course on her own expenses.
10) The sole ground pressed into service by the appellant before us in this appeal and in the writ petition for challenging the appointment of respondent No.4 Smt. Madhu Namdeo was that she did not belong to the village where she was appointed.
11) Be that as it may, it was never the stand of the appellant/ petitioner that respondent No.4 Smt. Madhu Namdeo did not fulfill the essential educational qualifications for the post of Assistant Teacher. Even assuming that she did not belong to the village where she was appointed, that by itself will not render her appointment illegal.
12) We, therefore, do not find any scope for interference in this intra Court appeal.
13) The writ appeal, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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---------------------------------- Misc Appeal No.1270 of 2000 Appellants 1 Smt Rama Sharma, widow of late Lal Bahadur Sharma, aged about 37 years 2 Sachin Sharma, aged about 17 years 3 Ku. Sarika Sharma, aged about 16 years 4 Sheetal Sharma, aged about 14 years No.2 to 4 all sons and daughter of late Lal Bahadur Sharma and minors though next friend and natural guardian mother Smt Rama Sharma 5 BP Sharma, son of late Devi Prasad Sharma, aged about 63 years All residents of MIG - F/509, HUDCO, Bhilai, Tahsil & Distt Durg (MP) VERSUS Respondents 1 Pardeshram son of Vikram Dhruv, aged about 30 years, R/o village Nandghat, PS Nandghat, Distt Durg (MP) 2 Iqbal Singh son of late Harmeet Singh Sikh, aged about 45 years, Resident of Shyamnagar, Behind Gurudwara, Raipur, Tahsil & District Raipur (MP) 3 The Branch Manager, National Insurance Company Ltd., City Branch No.2 Mobil Mahal, IInd floor, GE Road, Raipur (MP) Misc Appeal under Section 173 of the Motor Vehicles Act, 1988
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---------------------------------- Present : Shri Aditya Khare, counsel for the appellants.
Shri Q Aziz, counsel for respondent No.3.
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----------------------------------
ORDER (17th February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimant's appeal for enhancement of the compensation awarded by Second Additional Motor Accidents Claims Tribunal, Durg (for short `the Tribunal') vide award dated 27.11.1999, passed in Claim Case No.67/1998.
2) As against the compensation of Rs.31,28,830/- claimed by the appellants/ claimants, unfortunate widow, minor children and father of deceased Lal Bahadur Sharma, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 23.11.1997, the Tribunal awarded a total sum of Rs.7,35,000/- as compensation along with interest @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal on a close scrutiny of the evidence led by the parties held that deceased Lal Bahadur Shrama died on account of the injuries sustained by him in the motor accident on 23.11.1997; the accident occurred due to rash and negligent driving of the driver of the offending vehicle truck; as the offending vehicle truck on the date of the accident was insured with National Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
4) The Tribunal assessed the income of the deceased at Rs.6,500/- per month and Rs.78,000/- per annum. By deducting the usual 1/3rd of the income of the deceased towards his personal expenses, the claimants' dependency was assessed at Rs.52,000/- per annum. By multiplying the annual dependency of Rs.52,000/- with the multiplier of 14, the compensation was worked out to Rs.7,28,000/-. By awarding further sum of Rs.7,000/- under other heads, the Tribunal awarded a total sum of Rs.7,35,000/- as compensation. The Tribunal further directed payment of interest on the above amount of compensation of Rs.7,35,000/- @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
5) Shri Aditya Khare, learned counsel for the appellants vehemently argued that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.6,500/- per month only; in selecting the lower multiplier of 14; and in awarding low compensation of Rs.7,35,000/- only.
6) Shri Q Aziz, learned counsel for respondent No.3
- National Insurance Company Limited, on the other hand, supported the award and contended that the Tribunal has been quite liberal in awarding substantial compensation of Rs.7,35,000/- to the claimants.
7) Even according to the claimants, deceased Lal Bahadur Sharma was in the service of Bhilai Steel Plant. His date of birth recorded in his service record was 14.07.1956. As such, he was aged about 41 years on the date of the accident. From his salary certificate (Ex.P/5) we gather that his basic pay was Rs.4,168/-, whereas the amount of dearness allowance was Rs.2,103.50. The other amounts shown in the column of his income relate to conveyance allowance and some incentives. The incentives received by the deceased in the particular month would not be a regular feature every month. These amounts, therefore, are required to be excluded while assessing the income of the deceased. In this view of the matter, we do not find any infirmity in the assessment of the income of the deceased by the Tribunal at Rs.6,500/- per month and Rs.78,000/- per annum.
8) The multiplier of 14 selected by the Tribunal considering that deceased Lal Bahadur Sharma was 41 years of age, cannot be found fault with in view of the recent dictum of the Apex Court in the case of Sarla Verma (Smt) and Others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, wherein also multiplier of 14 is prescribed for the age group between 41-45 years.
9) For the foregoing reasons, we do not find any scope for enhancement of the compensation either on account of the assessment of the income of the deceased or the claimants' dependency by the Tribunal or the multiplier selected.
10) The appeal filed by the appellants / claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
11) No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI RL JHANWAR, J.
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----------------------------------
MISC.APPEAL (C) No. 1565 of 2009
APPELLANT The Oriental insurance
Insurer Company Limited through
Branch Manger, Oriental
Insurance Company,
Ambikapur at Sarguja,
District Sarguja
(Chhattisgarh)
Versus
RESPONDENTS 1 Smt Kiran Devi, W/o late
CLAIMANTS Shri Ramakant Tiwari, aged
about 45 years
2 Gorelal Tiwari, S/o late
Shri Ambika Prasad Tiwari,
aged about 75 years
3 Sandeep @ Sonu S/o late
Shri Ramakant Tiwari, aged
about 22 years
4 Ruhi, D/o late Shri
Ramakant Tiwari, Aged
about 19 years
5 Antima, D/o late Shri
Ramakant Tiwari, Aged
about 18 years
6 Priyanshu, S/o late Shri
Ramakant Tiwari, Aged
about 10 years.
7 Smt Abha Devi, W/o Shri
Kesarinandan, aged about
26 years.
8 Smt Sudha Devi, W/o Shri
Dhanand Choubey, Aged about
23 years
Respondents No. 5 & 6 are
through Natural Guardian
Mother Smt Kiran Devi,
respondent No.1
R/o Kundeli, P.S.
Patna,Tahsil Baikunthpur,
Distrcict Koriya (C.G.).
Respondent No.7 R/o
Ambikapur, District Sarguja
(C.G.).
Respondent No.8 R/o Village
Barganwa, P.S. Darima,
District Sarguja (C.G.).
9 Shiv Kumar @ Deenbandhu,
S/o Shi Sonsai Kewat, Aged
aou 40 years, Occupation -
Driver, R/o Gram Mahora,
Thana - Patna, Tahsil &
District - Korea (CG)
Driver
10 Vedant Tiwari, s/o late
Shri Rajendra Tiwari, Aged
about 50 years, R/o Gram -
Kundeli, Than -Patna,
Tahsil & District - Korea
(CG) Owner
Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988
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----------------------------------
Present : Shri Abhishek Sinha and Shri G.S. Patel, learned counsel for the appellant.
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----------------------------------
ORDER (15th February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
By allowing I.A.No.02/2009, the documents filed along with this application are taken on record.
2) Learned counsel for the appellants are heard on admission.
3) This is insurer's appeal against the impugned award dated 27.04.2009, passed by the Motor Accidents Claims Tribunal, Korea (Baikunthpur) (for short "the Tribunal") in Motor Accident Claim Case No.39/2008.
4) The appellant/ Insurance has been directed by the Tribunal to pay a sum of Rs.15,55,624/- as compensation along with interest @ 7.5% per annum from the date of filing of the claim petition till the date of actual payment, for the death of deceased Ramakant Tiwari, an Assistant Teacher in Government School, in the motor accident on 01.03.2008.
5) The Tribunal assessed the income of the deceased at Rs.14,352/- per month on the basis of the salary certificate (Ex.P/3 and P/4). The claimants' dependency was assessed at Rs.11,482/- per month and Rs.1,37,784/- per annum. By multiplying the annual dependency of Rs.1,37,784/- with the multiplier of 11, the compensation was worked out to Rs.15,15,624/- . By awarding further sum of Rs.40,000/- under other heads, the Tribunal awarded a total sum of Rs.15,55,624/-.
6) Shri Abhishek Sinha and Shri G.S. Patel, learned counsel for the appellant - Insurance Company fairly and frankly conceded that the appellant-insurance company in present appeal is challenging only quantum of compensation awarded by the Tribunal and application filed by the appellant/ Insurance Company before the Tribunal under Section 170 of the Motor Vehicles Act was rejected by the Tribunal vide order dated 22.10.2008.
7) The Apex Court while considering permissibility of challenge by the insurer of the offending vehicle to the quantum of compensation awarded by the Tribunal, in absence of permission under Section 170 of the Motor Vehicles Act, in the case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC) observed in paras 31 & 32 as under:-
"31. We have already held that unless the conditions precedent specified in Section 170 of 1988 Act is satisfied, Insurance Company has no right of appeal to challenge the award on merits. However, in a situation where there is a collusion between the claimants and the insured or the insured does not contest the claim and, further, the Tribunal does not, implead the Insurance Company to contest the claim in such cases it is open to an insurer to seek permission of the Tribunal to contest the claim on the ground available to the insured or to a person against whom a claim has been made. If permission is granted and the insurer is allowed to contest the claim on merits in that case it is open to the insurer to file an appeal against an award on merits, if aggrieved. In any case where an application for permission is erroneously rejected the insurer can challenge only that part of the order while filing appeal on grounds specified in sub-section (2) of Section 149 of 1988 Act. But such application for permission has to be bona fide and filed at the stage when the insured is required to lead his evidence. So far as obtaining compensation by fraud by the claimant is concerned, it is no longer res integra that fraud vitiates the entire proceeding and in such cases it is open to an insurer to apply to the Tribunal for rectification of award.
32. For the reasons, our answer to the question is that even if no appeal is preferred under Section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as findings as regards negligence or contributory negligence of the offending vehicle."
8) Now reverting to the present case, admittedly the owner and driver of the offending vehicle contested the claim before the Tribunal. The appellant/ Insurance Company could not demonstrate before the Tribunal that there was any collusion between the claimants and owner & driver of the offending vehicle. As such, the order passed by the Tribunal rejecting the appellant's application filed under Section 170 of the Motor Vehicles Act cannot be found fault with.
9) The appellant/ Insurance Company, in the absence of permission under Section 170 of the Motor Vehicles Act cannot be permitted to challenge the quantum of compensation in this appeal, in view of the above quoted dictum of the Apex Court in the case of National Insurance Co. Ltd. (supra).
10) As the appellant/ Insurance Company has not challenged the impugned award on any other ground, the appeal is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE Subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
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----------------------------------M.A. (C). No.1550 of 2009 Appellant: National Insurance Company Non-Applicant Limited through the No.2. Divisional Manager, G.E. Road, Raipur (C.G.).
VERSUS Respondents 1 Gayatri Bai, aged about 20 Claimants years, W/o. Dhaniram.
2 Banshilal, aged about 48 years, S/o. Jethuram Shande, (Father of the deceased) and Father-in-law of Smt. Gayatri Bai.
Both are R/o. C/o. Shri Rekhlal Baghel, Manu Cycle Store, Baikunth Dham, Ward No.22, Bhilai, Thana -
Chhawni, Power House, Bhilai, District Durg (CG).
Claimants
3. Praksh Ram Babu, S/o. Ram Babu Jaiswal, R/o. Tekanaka, Ankush Plazan Building, Kamthi Road, Nagpur (MH).
Non-
Applicant No.3 Misc. Appeal U/S. 173 of the Motor Vehicles Act.
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--------------------------------- Present : Shri U.N.S. Deo, learned counsel for the appellant.
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----------------------------------
ORDER (26th February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
By allowing IA Nos.2 & 3 of 2009, the documents filed along with these applications are taken on record.
2) Shri UNS Deo, learned counsel for the appellant is heard on IA No.1/2009, an application for condonation of the delay in filing the appeal.
3) On due consideration of the submissions of learned counsel for the appellant and the grounds taken in the application, we are satisfied that the appellant / Insurance Company has succeeded in showing sufficient cause for the delay in filing the appeal.
4) IA No.1/2009, therefore, is allowed and the delay of two days in filing the appeal is hereby condoned.
5) Shri UNS Deo, learned counsel for the appellant is heard on admission.
6) This is insurer's appeal against the impugned award dated 24.11.2008, passed by the 7th Additional Motor Accident Claims Tribunal, Raipur (for short `the Tribunal') in Claim Case No.83 of 2007, whereby the Tribunal has awarded a sum of Rs.3,59,568/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
7) The claimants, unfortunate widow and father of deceased Dhaniram claimed compensation of Rs.4,97,000/- by filing a claim petition under Section 163-A of the Motor Vehicles Act, for his death in the motor accident on 01.10.2007, when Trailor in which the deceased was travelling as co- driver was dashed by the offending vehicle Truck, bearing registration No.CG 04/J 0299, resulting in his instantaneous death on the spot itself.
8) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Dhaniram died on account of the injuries sustained by him in the motor accident on 01.10.2007; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Truck; as the offending vehicle Truck on the date of the accident was insured with the National Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
9) The Tribunal assessed the income of the deceased at Rs.2,500/- per month. By deducting 1/3rd of Rs.2,500/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.1,667/- per month and Rs.20,004/- per annum. By multiplying the annual dependency of Rs.20,004/- with the multiplier of 17, the compensation was worked out to Rs.3,40,068/-. By awarding further sum of Rs.19,500/- under other permissible heads, the Tribunal awarded a total sum of Rs.3,59,568/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
10) Shri UNS Deo, learned counsel for the appellant vehemently argued that the Tribunal has erred in holding that the driver of the Truck was solely responsible for the accident, whereas it was a case of contributory negligence; the claim petition was liable to be dismissed for non-impleadment of the owner and insurer of the Trailor in which the deceased was travelling; in assessing the income of the deceased at 2,500/- per month without any evidence in that behalf; in selecting the higher multiplier of 17; and in awarding excessive compensation of Rs.3,59,568/-.
11) So far as the submission about contributory negligence is concerned, it deserves an outright rejection as admittedly, the deceased was not driving the Trailor and as such, so far he is concerned, it would be a case of composite negligence and not contributory negligence. In a case of composite negligence, the option is with the claimants to claim amount of compensation from any of the parties who contributed to the accident.
12) So far as the non-impleadment of the owner and insurer of the Trailor is concerned, in a case of composite negligence as the option is with the claimants to claim compensation from any of the parties who contributed to the accident, mere non-impleadment of the other party can never be fatal to the claim.
13) The assessment of the income of the deceased by the Tribunal at Rs.2,500/- per month cannot be found fault with considering that deceased Dhaniram was working as co-driver on the Trailor. It is a matter of common knowledge that a driver in the year of accident i.e. 2007 could have easily earned Rs.2,500 - 3,000/- per month.
14) The multiplier of 17 selected by the Tribunal also cannot be found fault with in view of the recent dictum of the Apex Court in the case of Sarla Verma (Smt) and Others Versus Delhi Transport Corporation and another, reported in (2009) 6 SCC 121, wherein multiplier of 17 has been prescribed for the age group between 26-30 years.
15) That apart, considering the nature of the occupation of the deceased; the fact that widow of the deceased is one of the claimants; and she is aged about 20 years only, the compensation of Rs.3,59,568/- awarded by the Tribunal cannot be termed as `excessive'.
16) We, therefore, do not find any scope for interference in this appeal filed by the insurer of the offending vehicle.
17) The appeal, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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----------------------------------
Misc. Appeal No. 915 of 2004.
Appellants 1 Meena Sarkar, w/o Late Arvind Claimants Kumar Sarkar, aged about 32 yrs; occu- House wife.
2 Aditi Sarkar, D/o Late Arvind Kumar Sarkar, aged about 15 yrs.
3 Megha Sarkar, D/o Late Arvind Kumar Sarkar, aged about 10 yrs.
4 Akash Sarkar, S/o Late Arvind Kumar Sarkar, aged about 10 yrs.
All resident of village Shivnandpur (Vishrampur) P.S. Vishrampur, Tah.-Surajpur, Distt. Surguja (C.G.).
Appellant No.2 to 4 through guardian mother appellant No.1 Meena Sarkar.
VERSUS Respondents 1 National Insurance Company Non-applicants Limited, through branch Manager, Bilaspur (C.G.).
2 Vijay Kumar Jaiswal, S/o Krishna Prasad Jaiswal, aged about 35 yrs. Resi. of Namnakala, Ambikapur.
3 Smt. Meena Agrawal, w/o Shri Rajesh Agrawal, aged about 32 yrs. Resi. of Ambikapur.
Manendragarh road, Near Cold Storage Distt. Surguja (C.G.).
Misc. Appeal Under Section 173 of the Motor Vehicles Act.
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---------------------------------- Present : Smt. Hamida Siddique, counsel for the appellants.
Shri Raj Awasthi, counsel for respondent No.1.
None for respondents No.2 and 3.
----------------------------------------------------
-----------------------------------
ORDER (29th January, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimants' appeal for enhancement of the compensation awarded by Third Additional Motor Accidents Claims Tribunal, Surajpur, District Surguja (for short `the Tribunal') vide award dated 24.07.2004, passed in claim case No.40/2003.
2) As against the compensation of Rs.19,60,000/- claimed by the appellants/ claimants, unfortunate widow and minor children of deceased Arvind Kumar Sarkar, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 12.06.2003, the Tribunal awarded a total sum of Rs.3,11,400/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal on a close scrutiny of the evidence led before it held that deceased Arvind Kumar Sarkar died on account of the injuries sustained by him in the motor accident on 12.06.2003; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Maruti Van; and as the offending vehicle Maruti Van on the date of the accident was insured with the National Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
4) The Tribunal assessed the income of the deceased at Rs.70/- per day and Rs.2,100/- per month. By deducting 1/3rd of Rs.2,100/- per month, towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.1,400/- per month and Rs.16,800/- per annum. By multiplying the annual dependency of Rs.16,800/- with the multiplier of 18, the compensation was worked out to Rs.3,02,400/-. By awarding further sum of Rs.9,000/- under other permissible heads, the Tribunal awarded a total sum of Rs.3,11,400/- as compensation to the claimants for the death of deceased Arvind Kumar Sarkar in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.3,11,400/- @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
5) Smt. Hamida Siddique, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.70/- per day and Rs.2,100/- per month only; and in awarding low compensation of Rs.3,11,400/- only.
6) Shri Raj Awasthi, learned counsel for respondent No.1 - the National Insurance Company Limited, on the other hand, supported the impugned award and contended that as the claimants could not establish the income of the deceased as pleaded by them, the compensation of Rs.3,11,400/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
7) As the respondents have not filed any appeal against the award, the above findings recorded by the Tribunal have now attained finality. That apart, these findings are not under challenge before us in this appeal. We, therefore, affirm the above findings recorded by the Tribunal.
8) True, the claimants pleaded that deceased Arvind Kumar Sarkar was getting Rs.10,000/- per month as salary as Manager in PRA Company. In addition to the above salary, the deceased used to earn Rs.5,000/- per month as petty contractor. To establish the above income of the deceased, the claimants examined AW-2 Suraj Agrawal before the Tribunal. AW-2 Suraj Agrawal is neither proprietor/ partner nor a Manager of PRA Company. On his own admission, he is a petty contractor executing petty contracts under PRA Company. We, therefore, do not find any fault in the approach of the Tribunal in discarding the evidence of AW-2 Suraj Agrawal about the income of the deceased.
9) Nevertheless, the income of the deceased assessed by the Tribunal at Rs.70/- per day and Rs.2,100/- per month in the year 2003 is certainly on the lower side and requires reconsideration.
10) Deceased Arvind Kumar Sarkar was aged about 40 years on the date of the accident. The Tribunal while discarding the claimants' evidence about the income of the deceased ought to have assessed his income on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act.
11) Section 163-A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows :
"[163A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
12) The above quoted Sub- section (3) of Section 163- A of the Act mandated the Central Government to amend the Second Schedule from time to time keeping in view the cost of living.
13) As the Central Government has failed in amending the Second Schedule as provided in Sub-section (3) of Section 163-A of the Act, the Courts/ Tribunal can take judicial notice of increase in the prices of essential commodities and the cost of living during the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case.
14) Now reverting to the present case, the accident wherein deceased Arvind Kumar Sarkar lost his life took place in the year 2003. If the increase in the prices of the essential commodities and the cost of living between the year 1994 and the year 2003 are taken into consideration, the notional income of Rs.15,000/- prescribed in the Second Schedule in the year 1994 would certainly come to Rs.36,000/- per annum in the year 2003. We, therefore, propose to recompute the compensation taking the income of the deceased at Rs.36,000/- per annum.
15) Considering that there were only two adult members in the family depending on the income of the deceased and remaining three members were minor children aged between 10 - 15 years, we are of the opinion that deduction of usual 1/3rd of the income of the deceased would be appropriate in the present case. By deducting the usual 1/3rd of Rs.36,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.24,000/- per annum.
16) Considering that deceased Arvind Kumar Sarkar was aged about 40 years on the date of the accident, multiplier of 15 would be appropriate in the present case.
17) By multiplying the annual dependency of Rs.24,000/- with the multiplier of 15, the compensation works out to Rs.3,60,000/-. The claimants are further entitled to receive a sum of Rs.5,000/- towards funeral expenses; Rs.5,000/- for loss of consortium to the widow; and Rs.5,000/- for loss of estate. The claimants, thus, become entitled to receive a total sum of Rs.3,75,000/- as compensation for the death of deceased Arvind Kumar Sarkar in the motor accident.
18) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
19) Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal and the fact that Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.63,600/- at Rs.6,400/-.
20) For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. The compensation of Rs.3,11,400/- awarded by the Tribunal is enhanced to Rs.3,75,000/- with further quantified amount of interest of Rs.6,400/- on the enhanced amount of compensation of Rs.63,600/-.
21) Respondent No.1 The National Insurance Company Limited is granted three months' time for depositing the total sum of Rs.70,000/- (Rs.63,600/- towards enhanced amount of compensation + Rs.6,400/- towards quantified amount of interest on the enhanced amount of compensation of Rs.63,600/-) before the concerning Claims Tribunal.
22) No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
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----------------------------------Misc. Appeal No.786 of 2005 Appellant Narendra kumar Pal, aged 16 Claimant years, S/o Ramkishan Pal, through legal guardian father Ramkishan, S/o Mansharam, age 41 years, Resident: Devendra Nagar, Raipur, Tah. & Distt. Raipur (CG) VERSUS Respondents 1. Santosh Kumar Chakradhari, Non-Applicants aged 35, S/o Dashrath Chakradhari, Occupation Driver of Truck, Resident:
Kumhari, P.S. Urla, Tahsil & Distt. Raipur (CG)
2. Smt Priti Devi Badvani, W/o Late Jhamumal Badvani, Occupation - Owner of Truck, Resident: Fafadiha, Street No.3 Raipur, Tah & Distt.
Raipur (CG) 3 The National Insurance Company Limited, through Divisional Manager, Divisional Office, Mobin Mahal, G.E. Road, Raipur (CG) Miscellaneous appeal U/s 173 of the Motor Vehicles Act 1988 --------------------------------------------
------------------------------------------- Present : Shri Aditya Khare, counsel for the appellant.
None for respondents No.1 & 2 though served.
Shri GVK Rao, counsel for respondent No.3.
-----------------------------------------------------
----------------------------------
ORDER (04th January, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant - Narendra Kumar Pal, a minor boy aged about 16 years has filed this appeal through his father for enhancement of the compensation awarded by the 14th Additional Motor Accidents Claims Tribunal, Raipur (for short `the Tribunal') vide award dated 26.04.2005, passed in Claim Case No.22/2004.
2. As against the compensation of Rs.21,00,000/- claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 27.08.2002, the Tribunal awarded a total sum of Rs.25,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3. Shri Aditya Khare, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.25,000/- only though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability.
4. Before the Tribunal, the appellant/claimant examined two witnesses including himself (AW/1 Narendra Kumar Pal and AW/2 Ramkishan Pal) in support of his claim. For the reasons best known to the appellant/ claimant and his father, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/ claimant in the motor accident and the fact that those injuries resulted in any permanent disability.
5. The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent-claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
6. The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
7. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), the medical certificate and the disability certificate produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued the said certificates, cannot be taken into consideration for enhancement of the compensation in the case.
8. We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
9. The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
10. No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
-----------------------------------------------------
---------------------------------- M.A. No.1330 of 2005 Appellants 1 Smt Ramala Bai, Wd /o Late Applicants Purushottam Lal Sahu, Age 23 2 Ku Chaya, Aged about 4 years 3 Kundan aged about 3 months No.2 & 3 by Guardian ad litem her mother appellant No.1 No.2 & 3 children of Late Purushottam Lal Sahu 4 Smt Janki Bai W/o Janaklal Sahu Age 50 years 5 Janaklal Sahu S/o Hirauram Sahu, Age 55 years All R/o Mana Basti, Raipur Versus Respondents 1. Nitai Ahir, S/o Banmali Ahir, Non-applicants Age 26 years
2. Krishna Prasad Kundoo S/o Subol Chandra Kundoo 1 & 2 r/o Ms Service Station, Telibandha, Raipur
3. The New India Insurance Co Ltd By Divisional Manager, Divisional Office, Kutchery Chowk, Jail Road, Raipur (CG) Appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------
----------------------------------Present: Shri Raja Sharma, counsel for the appellants.
Shri HB Agrawal, Senior Advocate with Shri SS Rajput, counsel on behalf of Shri Raj Awasthi, counsel for respondent No.3
-----------------------------------------------------
----------------------------------
O R D E R (06th January, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
The appellants are seeking enhancement of the compensation awarded by 8th Additional Motor Accidents Claims Tribunal, Raipur (for short `the Tribunal') vide award dated 30.08.2005, passed in claim case No.6/2004.
2. As against the compensation of Rs.85,00,000/- claimed by the appellants/ claimants, unfortunate widow, minor children and parents of deceased Purushottam Lal Sahu, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 11.01.2004, the Tribunal awarded a total sum of Rs.1,87,000/- as compensation along with interest @ 4% per annum from the date of filing of the claim petition till the date of actual payment.
3. The Tribunal on a close scrutiny of the evidence led by the parties held that deceased Purushottam Lal Sahu died on account of the injuries sustained by him in the motor accident on 11.01.2004; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Truck; and as the offending vehicle Truck on the date of the accident was insured with the New India Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
4. The Tribunal assessed the income of the deceased at Rs.15,000/- per annum on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Motor Vehicles Act. By deducting 1/3rd of Rs.15,000/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.10,000/-. By multiplying the annual dependency of Rs.10,000/- with the multiplier of 18, the compensation was worked out to Rs.1,80,000/-. By awarding further sum of Rs.2,000/- towards funeral expenses and Rs.5,000/- for loss consortium to the widow, the Tribunal awarded a total sum of Rs.1,87,000/- as compensation to the claimants for the death of deceased Purushottam Lal Sahu in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.1,87,000/- @ 4% per annum from the date of filing of the claim petition till the date of actual payment.
5. Shri Raja Sharma, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.15,000/- per annum only; and in awarding low compensation of Rs.1,87,000/- only.
6. Shri H.B. Agrawal, learned Senior Counsel and Shri S.S. Rajput, appearing on behalf of Shri Raj Awasthi, learned counsel for respondent No.3 - the New India Insurance Company Limited, on the other hand, supported the impugned award and contended that as the claimants could not establish the income of the deceased as pleaded by them, the compensation of Rs.1,87,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
7. As the respondents have not filed any appeal against the award, the findings recorded by the Tribunal that deceased Purushottam Lal Sahu died on account of the injuries sustained by him in the motor accident on 11.01.2004; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Truck; and the insurer of the Truck was liable to pay compensation to the claimants, have now attained finality. That apart, these findings are not under challenge before us in this appeal. We, therefore, affirm the above findings recorded by the Tribunal.
8. True, the claimants pleaded that deceased Purushottam Lal Sahu used to earn Rs.8,000/- per month by running a Kirana Shop, but the evidence led in that behalf was not of clinching nature. We, therefore, do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased.
9. Nevertheless, the income of the deceased assessed by the Tribunal at Rs.15,000/- per annum is certainly on the lower side and requires reconsideration.
10. Section 163-A of the Act where-under the Second Schedule was introduced in the year 1994 reads as follows :
"[163A. Special provisions as to payment of compensation on structured formula basis.-(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or permanent disablement due to accident arising out of the use of motor vehicle, compensation, as indicated in the Second Schedule, to the legal heirs or the victim, as the case may be.
Explanation - For the purposes of this sub-section, "permanent disability" shall have the same meaning and extent as in the Workmen's Compensation Act, 1923 (8 of 1923).
(2) In any claim for compensation under sub-section(1), the claimant shall not be required to plead or establish that the death or permanent disablement in respect of which the claim has been made was due to any wrongful act or neglect or default of the owner of the vehicle or vehicles concerned or of any other person.
(3) The Central Government may, keeping in view the cost of living by notification in the Official Gazette, from time to time amend the Second Schedule."
11. The above quoted Sub- section (3) of Section 163- A of the Act mandated the Central Government to amend the Second Schedule from time to time keeping in view the cost of living.
12. As the Central Government has failed in amending the Second Schedule as provided in Sub-section (3) of Section 163-A of the Act, the Courts/ Tribunal can take judicial notice of increase in the prices of essential commodities and the cost of living during the period between the introduction of the Second Schedule in the year 1994 and the date of accident in the given case.
13. Now reverting to the present case, the accident wherein deceased Purushottam Lal Sahu lost his life took place in the year 2004. If the increase in the prices of the essential commodities and the cost of living between the year 1994 and the year 2004 are taken into consideration, the notional income of Rs.15,000/- prescribed in the Second Schedule in the year 1994 would certainly come to Rs.36,000/- in the year 2004. We, therefore, propose to recompute the compensation taking the income of the deceased at Rs.36,000/- per annum.
14. By deducting the usual 1/3rd of Rs.36,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.24,000/- per annum.
15. Considering the age of the deceased and his widow and children, we are of the opinion that the multiplier of 17 would be appropriate in the present case.
16. By multiplying the annual dependency of Rs.24,000/- with the multiplier of 17, the compensation works out to Rs.4,08,000/-. The claimants are further entitled to get a sum of Rs.5,000/- towards funeral expenses; Rs.5,000/- for loss of consortium to the widow; and Rs.5,000/- for loss of estate. The claimants, thus, become entitled to receive a total sum of Rs.4,23,000/- as compensation for the death of deceased Purushottam Lal Sahu in the motor accident.
17. Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
18. Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal and the fact that Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.2,36,000/- at Rs.15,000/-.
19. For the foregoing reasons, the appeal filed by the appellants/ claimants for enhancement of the compensation is allowed in part. The compensation of Rs.1,87,000/- awarded by the Tribunal is enhanced to Rs.4,23,000/- with further quantified amount of interest of Rs.15,000/- on the enhanced amount of compensation of Rs.2,36,000/-.
20. Respondent No.3 The New India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.2,51,000/- (Rs.2,36,000/- towards enhanced amount of compensation + Rs.15,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.2,36,000/-) before the concerning Claims Tribunal.
21. No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------
---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J. Misc. Appeal No. 873 of 2004 Appellant Gouri Shankar Dubey, S/o. Claimant Shri Ram Dutt Dubey, aged about 36 years, occupation -
Cable operator, R/o.
Mothinagar Tikarapara, Raipur
(CG).
VERSUS
Respondents 1 Sevaram, S/o. Suklal @ Lala
Sahu, aged about 21 years,
occupation Auto Driver, R/o.
Lalpur, Raipur (CG). (owner
of Auto trailer bring
registration No.
MP23/B.A/3140).
2 The Oriental Insurance Com.
Ltd., Branch Office, Mhabir
Gaushala K.K. Road, through
Divisional Manager,
Divisional office, Katchahari
chowk, Raipur (CG).
Miscellaneous Appeal under Section 173 of Motor Vehicles Act.
-----------------------------------------------------
---------------------------------
Present : Shri Y.C. Sharma and Shri Vivek Rathore, counsel for the appellant.
Shri Vivek Chopra, counsel for respondent No.1.
Shri D.L. Dewangan, counsel for respondent No.2.
-----------------------------------------------------
----------------------------------
ORDER (28th January, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant - Gouri Shankar Dubey is seeking enhancement of the compensation awarded by 4th Additional Motor Accident Claims Tribunal, Raipur (for short `the Tribunal') vide award dated 21.01.2004, passed in Claim Case No.27/2001.
2). As against the compensation of Rs.5,50,000/- claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 13.07.1999, the Tribunal awarded a total sum of Rs.17,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3). Shri Y.C. Sharma and Shri Vivek Rathore, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.17,000/- only though the appellant/claimant sustained multiple serious injuries including fracture in the motor accident resulting in permanent disability.
4) Shri D.L. Dewangan, learned counsel for respondent No.2 - The Oriental Insurance Company Limited, on the other hand, supported the award and contended that as the appellant could not establish that the injuries sustained by him in the motor accident resulted in any permanent disability, the compensation of Rs.17,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
5) Shri Vivek Chopra, learned counsel for respondent No.1 Sevaram, owner-cum-driver of the offending vehicle also supported the impugned award.
6) Before the Tribunal, the claimant examined himself alone as AW-1 in support of his claim. For the reasons best known to the appellant/ claimant, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/ claimant in the motor accident and the fact that those injuries resulted in any permanent disability.
7) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent-claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
8) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
9) In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), the medical certificates produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued those certificates, cannot be taken into consideration for enhancement of the compensation in the case.
10) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
11) The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
12) No order as to costs.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------
---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
-----------------------------------------------------
----------------------------------
Criminal Revision No. 465 of 2002 PETITIONER Shantilal D/o Bhimsai, aged COMPLAINANT about 19 years, R/o Village Golabuda PS Kapoo, District Raigarh (CG) VERSUS RESPONDENT 1. The State of Chhattisgarh, Police Station - Kapoo, Distt Raigarh (Chhattisgarh)
2. Mandil Sai, S/o Kelheram Uraon, aged about 26 years, R/o Village Golabuda PS Kapoo District Raigarh (CG) CRIMINAL REVISION UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE
-----------------------------------------------------
---------------------------------- Present : Shri SC Verma, Counsel for the petitioner.
Shri Alok Bakshi, Government Advocate for the State/Respondent No.1 Shri Wasim Miya, Counsel for respondent No.2
-----------------------------------------------------
----------------------------------
ORDER (05th January, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
The petitioner/complainant has filed this revision petition against the impugned judgment of acquittal dated 27.08.2002, passed by the Second Additional Sessions Judge, Raigarh, in Sessions Trial No.39/2000, whereby respondent / accused Mandil Sai was acquitted of the charges under Sections 376, 417 and 506 Part - II of the Indian Penal Code.
2) Police Kapoo, District Raigarh after completion of the investigation of the case registered on the report of the prosecutrix, charge-sheeted respondent/ accused Mandil Sai for the alleged commission of offences punishable under Sections 376, 415 and 506- B of the Indian Penal Code on the accusation of his having committed sexual intercourse with the prosecutrix without her consent and against her will during the period of about three years.
3) Respondent/ accused Mandil Sai abjured his guilt and pleaded false implication to the charges framed by the trial Court under Sections 376, 417 and 506-B of the Indian Penal Code.
4) At the trial, the above charges against the respondent / accused were sought to be proved on the evidence of PW-1 Dr Bindu Singhal, PW-2 Shanti Bai, PW-3 Kamal Sai, PW-4 Sonkunwar, PW-5 Dr.DS Pekra, PW- 6 Bholsai, PW-7 Ramsai, PW-8 Amarsai and PW-9 RK Bhoi.
5) The trial Court, on a close scrutiny of the evidence of the above named prosecution witnesses in general and that of the prosecutrix in particular found that the prosecution evidence fell short of establishing the above charges against respondent / accused Mandil Sai. The trial Court, therefore, acquitted respondent/ accused Mandil Sai vide impugned judgment dated 27.08.2002.
6) Shri SC Verma, learned counsel for the petitioner/complainant vehemently argued that the trial Court has erred in discarding the evidence of the prosecution witnesses including the prosecutrix on flimsy and untenable grounds. Learned counsel further submitted that the evidence of the prosecutrix alone is more than sufficient to establish the charges under Sections 376, 417 and 506
- B of the Indian Penal Code against the accused.
7) Shri Wasim Miya, learned counsel for respondent / accused Mandil Sai, on the other hand, supported the impugned judgment of acquittal and submitted that as the evidence of the prosecutrix suffered from serious infirmities, the trial Court was left with no other option, but to acquit the respondent / accused.
8) Shri Alok Bakshi, learned Government Advocate supported the submissions of Shri SC Verma, learned counsel for the petitioner.
9) The Apex Court while considering the scope of interference in a complainant's revision petition against the judgment of acquittal in the case of Ram Briksh Singh And Others Vs. Ambika Yadav And Another, reported in (2004) 7 SCC - 665, observed in paras 3 to 7 :
"3. The principles on which a revisional court can set aside a judgment and order of acquittal passed in favour of the accused are well settled by a catena of judgments. The difficulty, however, arises at times about the application of the said principles. It is true that there is a statutory prohibition contained in sub- section (3) of Section 401 of the Criminal Procedure Code on converting a finding of acquittal into one of conviction and what is prohibited cannot be done indirectly as well. The question, however, is, has the High Court indirectly done what is prohibited.
4. Sections 397 to 401 of the Code are a group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.
5. More than half a century ago, in D. Stephens v. Nosibolla (AIR 1951 SC 196 :
1951 SCR 284 : 52 Cri LJ 510) this Court held that revisional jurisdiction when it is invoked against an order of acquittal by a private complainant is not to be lightly exercised, it could be exercised only in exceptional cases to correct a manifest illegality or to prevent gross miscarriage of justice and not to be ordinarily used merely for the reason that the trial court has misappreciated the evidence on record.
6. In K. Chinnaswamy Reddy v. State of A.P. (AIR 1962 SC 1788 : (1963) 3 SCR 412 : (1963) 1 Cri LJ 8) a note of caution was appended so that the High Court does not convert a finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot directly convert a finding of acquittal into a finding of conviction in view of specific statutory prohibition. While noticing that it is not possible to lay down the criteria for determining exceptional cases which would cover all contingencies for exercise of revisional power, some cases by way of illustration were mentioned wherein the high Court would be justified in interfering with the finding of acquittal in revision. The High Court would be justified to interfere where material evidence is overlooked by the trial court.
7. In a recent decision in Bindeshwari Prasad Singh v. State of Bihar (now Jharkhand) ((2002) 6 SCC 650 : 2002 SCC (Cri) 1448 noticing principles laid down in Stephens1 and Chinnaswamy Reddy2 it was held that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code since it was well settled that the order of acquittal cannot be interfered with in revision merely on the ground of errors in appreciation of evidence. Relying upon these decisions, Mr Mishra contends that the High Court while interfering with the judgment and order of the Court of Session has not kept in view the parameters of exercise of revisional jurisdiction."
10) Mere alleged mis-appreciation of the evidence of the prosecution witnesses by the trial Court in view of the above quoted dictum of the Apex Court in the case of Ram Briksh Singh And Others Vs. Ambika Yadav And Another (Supra) will not by itself be a sufficient ground to warrant interference in a complainant's revision petition against the judgment of acquittal.
11) The prosecutrix in the present case is a grown- up woman aged about 20-22 years. The First Information Report against the accused came to be lodged after more than three years of the first alleged act of sexual intercourse by the accused with the prosecutrix. Though, in the First Information Report it was alleged that the accused committed sexual intercourse with the prosecutrix on the assurance of marrying her, in her evidence before the Court, no such allegations have been made by the prosecutrix against the accused. In her evidence in the Court, the prosecutrix has not given any explanation at all about the inordinate delay of about three years in reporting the matter to the police. On the contrary, in her cross-examination, she has stated that the First Information Report was lodged at the Police Station immediately after the incident. No such First Information Report was produced by the prosecution before the trial Court which purports have been lodged by the prosecutrix immediately after the incident. The only First Information Report produced before the trial Court and available in the records was lodged after three years of the alleged incident. For the reasons best known to the prosecution, the parents of the prosecutrix were not examined at the trial. Of the nine prosecution witnesses examined by the prosecution at the trial, PW-3 Kamal Sai, PW-4 Smt Sonkunwar, PW-7 Ramsai and PW-8 Amarsai did not support the prosecution case and were declared hostile.
12) On due consideration of the submissions of learned counsel for the parties; the findings recorded by the trial court leading to acquittal of respondent/ accused Mandil Sai; the evidence led by the prosecution at the trial in general and that of the prosecutrix in particular; and the above- mentioned broad features of the case, in the context of the above quoted dictum of the Apex Court in the case of Ram Briksh Singh And Others Vs. Ambika Yadav And Another (Supra), we are satisfied that the findings recorded by the trial Court leading to acquittal of the respondent / accused do not suffer from any such infirmity, which may warrant interference by this Court in this complainant's revision petition against the impugned judgment of acquittal.
13) The revision petition filed by the petitioner/ complainant against the impugned judgment of acquittal, therefore, is liable to be dismissed and is hereby dismissed.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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----------------------------------
Cr.M.P. No. 422 of 2007 Appellant : The State of Chhattisgarh Through - the District magistrate, Surguja (CG) VERSUS Respondents 1 Hardev Kodaku, S/o Somra, Aged about 45 years 2 Bira, S/o Somra Kodaku, Aged about 40 years 3 Purna Kodaku, S/o Hardev Kodaku, Aged about 21 years All's occupation -
Agriculturist, R/o Village -
Putsu, Thana - Balrampur, District, Surguja (CG) Application for grant of leave to appeal U/S 378 (3) and memo of appeal u/s 378 (1) of Code of Criminal Procedure 1973
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---------------------------------- Present : Shri Akhil Agrawal, learned Panel Lawyer, for the State/petitioner.
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----------------------------------
ORDER (28th June, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
By allowing I.A. No. 02/2007, the documents filed along with this application are taken on record.
2. Shri Akhil Agrawal, learned Panel Lawyer, is heard on I.A. No. 01/2007, an application for condonation of the delay in filing the petition under Section 378(3) of Cr.P.C.
3. On due consideration of the submissions of learned Panel Lawyer and the grounds taken in the application, we are satisfied that the petitioner/ State has succeeded in showing sufficient cause for the delay in filing the petition under Section 378(3) of Cr.P.C.
4. I.A. No.01 of 2007, therefore, is allowed and the delay of 21 days in filing the petition under Section 378(3) of Cr.P.C. is hereby condoned.
5. Learned Panel Lawyer is heard on the question of grant of leave to appeal against the acquittal of respondents/ accused persons Hardev Kodaku, Bira and Purna Kodaku.
6. Police Balrampur, District Surguja, after completion of the investigation of the case registered on the report of one Rameshwari charge- sheeted the respondents/ accused persons for the alleged commission of the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, on the accusation of their having committed murder of deceased Somra by causing injuries on him by means of lathi and fists in the evening of 23-04- 2006.
7. The respondents/ accused persons abjured their guilt and pleaded false implication to the charge framed by the trial Court under Section 302 read with Section 34 of the Indian Penal Code.
8. The charge of murder punishable under Section 302 read with Section 34 of the Indian Penal Code was sought to be proved against the respondents/ accused persons on the evidence of PW1 Ramdas, PW2 Bifna, PW3 Basiya, PW4 Debkumar, PW5 Raghuvansh, PW6 Shankar Yadav, PW7 Somra, PW8 Smt. Mangni, PW9 Hirawa, PW10 Shivkumar, PW11 Rajesh Kumar, PW12 Anand Masih, PW13 Jawahar Tirkey, PW14 Bhuvaneshwar Singh, PW15 Dr. R.S. Markam, PW16 Arjun Kumar Singh, PW17 Powni and PW18 Rameshwari.
9. Of the above named 18 prosecution witnesses, PW18 Rameshwari alone was examined by the prosecution as an eyewitness of the alleged incident of assault on deceased Somra.
10. The trial Court on a close scrutiny of the entire evidence led by the prosecution at the trial found that the evidence of the prosecution witnesses fell short of establishing the charge of murder punishable under Section 302 read with Section 34 of the Indian Penal Code against the respondents / accused persons. The trial Court, therefore, acquitted the respondents/ accused persons vide impugned judgment dated 04-04-2007.
11. Shri Akhil Agrawal, learned Panel Lawyer vehemently argued that the trial Court has erred in discarding the evidence of the prosecution witnesses on flimsy and untenable grounds. Learned Panel Lawyer further submitted that the evidence led by the prosecution at the trial was more than sufficient to establish the charge of murder punishable under Section 302 read with Section 34 of the Indian Penal Code against the respondents/ accused persons.
12. The entire prosecution case against the respondents/ accused persons hinges on the solitary eyewitness account of PW18 Rameshwari, who lodged the First Information Report. PW18 Rameshwari, at the trial, did not support the prosecution case at all and was declared hostile. In fact, she has feigned ignorance about the alleged incident of assault on her husband Somra. Since the evidence of other prosecution witnesses was founded on the disclosure made by PW18 Rameshwari about the alleged incident of assault on her husband Somra at the hands of respondents/ accused persons Hardev Kodaku, Bira and Purna Kodaku and PW18 Rameshwari has not deposed anything against the respondents/ accused persons in her evidence before the trial Court, the trial Court obviously was left with no other option but to discard the evidence of all the prosecution witnesses and record acquittal of the respondents/ accused persons.
13. On due consideration of the submissions of learned Panel Lawyer; the findings recorded by the trial Court leading to acquittal of respondents/ accused persons Hardev Kodaku, Bira and Purna Kodaku; and the evidence led by the prosecution at the trial in general and that of PW18 Rameshwari in particular, we are satisfied that the findings recorded by the trial Court leading to acquittal of respondents/ accused persons Hardev Kodaku, Bira and Purna Kodaku do not suffer from any infirmity whatsoever.
14. Mere possibility of another view on the prosecution evidence will not by itself be a sufficient ground to warrant interference in an appeal against acquittal.
15. We, therefore, do not find any ground for grant of leave to appeal against the acquittal of the respondents/ accused persons.
16. The petition filed by the petitioner/ State under Section 378 (3) of Cr.P.C., therefore, fails and is hereby dismissed.
CHIEF JUSTICE J U D G E Subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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----------------------------------CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI PRASHANT KUMAR MISHRA, J.
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---------------------------------- M.A. No. 1173 of 2003 Appellants 1. Smt Vijay Lakda, aged about 33 years, Wd/o Late Martin Lakda
2. Minor Abhishek Lakda, aged about 11 years, S/o Late Martin Lakda
3. Minor Ashish Lakda, aged about 9 years, S/o Late Martin Lakda
4. Minor Avinash Lakda, aged about 5 years, S/o Late Martin Lakda Appellant 2 to 4 are minor through the natural guardian mother Smt. Vijay Lakda, Widow of Late Martin Lakda All R/o Village - Dhimarapur, Near Second Bridge, Tah & Distt - Raigarh (CG) VERSUS Respondents 1. Rahmat Khan, aged about years, S/o Hasan Khan, R/o Shantinagar, Pathalgaon, Distt Jashpur Nagar (CG)
2. Satya Narayan Agrawal, S/o Baburam Agrawal, aged about years, R/o Darrapara Road, Pathalgaon, Distt Jashpur Nagar (CG)
3. The Branch Manager, The New India Insurance Company Limited, Raigarh (CG) Miscellaneous appeal under Section 173 of the Motor Vehicles Act, 1988
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--------------------------------- Present: Shri Awadh Tripathi and Shri Sanjeev Banjare, learned counsel for the appellants.
Shri Pankaj Agrawal, learned counsel for respondent No.3.
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----------------------------------
ORDER (17th August, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
This is claimants' appeal for enhancement of the compensation awarded by the Second Additional Motor Accident Claims Tribunal, Raigarh (for short `the Tribunal') vide award dated 30.08.2003, passed in Claim Case No.06/2001.
2) As against the compensation of Rs.17,05,000/- claimed by the appellants/claimants, unfortunate widow and minor children of deceased Martin Lakda by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 18.10.2000, the Tribunal awarded a total sum of Rs.5,19,640/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal on a close scrutiny of the entire evidence led before it held that deceased Martin Lakda died on account of the injuries sustained by him in the motor accident on 18.10.2000; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Jeep bearing registration No. M.P.-26-E 9131; as the offending vehicle Jeep on the date of the accident was insured with the New India Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
4) As the respondents have not filed any appeal against the award, the above findings recorded by the Tribunal have now attained finality.
5) The Tribunal assessed the income of the deceased at Rs.4,000/- per month. By deducting Rs.1,330/- towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.2,670/- per month and Rs.32,040/- per annum. By multiplying the annual dependency of Rs.32,040/- with the multiplier of 16, the compensation was worked out to Rs.5,12,640/-. By awarding further sum of Rs.7,000/- under other heads, the Tribunal awarded a total sum of Rs.5,19,640/- as compensation to the claimants for the death of deceased Martin Lakda in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.5,19,640/- @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
6) Shri Awadh Tripathi and Shri Sanjeev Banjare, learned counsel for the appellants, submitted that the Tribunal has erred in assessing the income of the deceased at Rs.4,000/- per month only though the salary certificate established the income of the deceased more than Rs.6,000/- per month; and in awarding low compensation of Rs.5,19,640/- only.
7) Shri Pankaj Agrawal, learned counsel for respondent No.3 the New India Insurance Company Limited, on the other hand, supported the award and contended that the compensation of Rs.5,19,640/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
8) In a motor accident claim case, what is important is that, the compensation to be awarded by the Tribunals/ Courts 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.5,19,640/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
10) Deceased Martin Lakda was a Police Constable at the time of the accident. According to the salary certificate Ex.A/1 produced before the Tribunal, his basic pay was Rs.4,300/- and dearness allowance was Rs.1,634/-. In addition to the above, he was getting some other allowances. Thus, his gross salary was Rs.6,255/- per month. The Tribunal certainly has fallen into error in assessing the income of the deceased at Rs.4,000/- per month only. In our considered opinion, the salary of the deceased ought to have been assessed at Rs.6,000/- per month. We, therefore propose to recompute the compensation taking the income of the deceased at Rs.6,000/- per month and Rs.72,000/- per annum.
11) By deducting the usual 1/3rd of Rs.72,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.48,000/- per annum.
12) Considering the age of the deceased, his widow and their children, we are of the opinion that multiplier of 14 would be appropriate in the present case.
13) By multiplying the annual dependency of Rs.48,000/- with the multiplier of 14, the compensation works out to Rs.6,72,000/-. The claimants are further entitled to receive a sum of Rs.10,000/- towards funeral expenses; loss of estate; and loss of consortium to the widow. The claimants, thus, become entitled to receive a total sum of Rs.6,82,000/- as compensation for the death of deceased Martin Lakda in the motor accident.
14) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
15) Considering all the relevant aspects of the matter including the delay in disposal of the claim petition and the present appeal and the fact that the Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.1,63,360/- at Rs.16,640/-.
16) For the foregoing reasons, the appeal filed by the appellants/claimants for enhancement of the compensation is allowed in part. The compensation of Rs.5,19,640/- awarded by the Tribunal is enhanced to Rs.6,82,000/- with further quantified amount of interest of Rs.16,640/- on the enhanced amount of compensation of Rs.1,63,360/-.
17) Respondent No.3 The New India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.1,80,000/- (Rs.1,63,360/- towards enhanced amount of compensation + Rs.16,640/- towards quantified amount of interest on the enhanced amount of compensation of Rs.1,63,360/-) before the concerning Claims Tribunal.
18) No order as to costs.
CHIEF JUSTICE JUDGE nimmi
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
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----------------------------------M.A. (C). No. 1588 of 2009 Appellant ICICI Lombard General Insurer/Responde Insurance Co. Ltd., ICICI nt No.2 Towers, Bandra Kurla Complex, Bandra (East) Mumbai, through its Legal Manager, 3rd Floor, Lal Ganga Shopping Complex, G.E. Road, Raipur (CG).
VERSUS Respondents 1 Hariram, Son of Shri Salig Claimants Ram, aged about 51 years 2 Smt Uma Bai, Wife of Shri Hariram, aged about 50 years Both residents of Village Jamgaon (M), Post Jamgaon (M), Tahsil Patan, District Durg (CG) 3 Harish Shukla, son of Shri Amarnath Shukla, aged about 36 years, resident of Shukla Saw Mills, Bajrang Chowk, Kumhari, District Durg (CG) (Employer) Memorandum of appeal under Section 30 of the Workmen's Compensation Act, 1923
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--------------------------------- Present : Shri Amrito Das, counsel for the appellant.
Shri P.R. Patankar, counsel for respondents No.1&2
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----------------------------------
ORDER (8th March, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
By allowing I.A.No.3 of 2010, the document filed along with this application is taken on record.
2) Learned counsel for the parties are heard on I.A.No.1 of 2009, an application for condonation of the delay in filing the appeal.
3) On due consideration of the submissions of learned counsel for the parties and the grounds taken in the application, we are satisfied that the appellant/Insurance Company has succeeded in showing sufficient cause for the delay in filing the appeal.
4) I.A.No.1 of 2009, therefore, is allowed and the delay in filing the appeal is hereby condoned.
5) On due consideration, I.A.No. 2 of 2009 is allowed and the appellant/Insurance Company is permitted to incorporate the following as additional substantial question of law in the memo of appeal:
"Where the claimants are the old parents, whether the relevant factor has to be applied on the basis of the age of the deceased or on the basis of the mean age of the parents / claimants, whichever being lower?"
6) Shri Amrito Das, learned counsel for the appellant is heard on admission.
7) This is insurer's appeal against the impugned award dated 03.01.2009, passed by the Commissioner for Workmen's Compensation/Labour Court, Durg, in Case No.177/WC Act/Fatal/2007.
8) Deceased Om Prakash was working as Truck Driver in the employment of respondent No.3 Harish Shukla. Respondents No.1 Hariram and No.2 Smt. Uma Bai, unfortunate parents of deceased Om Prakash (aged about 29 years) claimed compensation of Rs.4,19,840/- with interest and penalty, for his death in the accident, during the course of his employment, on 29.10.2007. The accident occurred when the Truck over-turned in an attempt to save a cyclist.
9) The Commissioner vide impugned award dated 03.01.2009 has directed the appellant/Insurance Company to pay a sum of Rs.3,11,970/- as compensation with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
10) Shri Amrito Das, learned counsel for the appellant vehemently argued that the Commissioner has erred in awarding excessive compensation of Rs.3,11,970/- and in directing payment of interest from the date of filing of the claim petition.
11) According to the appellant/ Insurance Company, following two substantial questions of law are involved in the present appeal:
"1) Whether the Commissioner for Workmen's Compensation has erred in directing the appellant to pay a simple interest at the rate of 9% annually from the date of presentation of the claim application instead of the date on which the compensation fell due?
2) Where the claimants are the old
parents, whether the relevant factor
has to be applied on the basis of
the age of the deceased or on the
basis of the mean age of the parents / claimants, whichever being lower?"
12) So far as the quantum of compensation awarded by the Commissioner is concerned, the same apparently is assessed on the basis of the factor value prescribed under the Workmen's Compensation Act, taking into account the age of the deceased and his income. The assessment of compensation under Workmen's Compensation Act does not leave any room for discretion either with the Commissioner or the Appellate Court. As such, the appellant's challenge to the quantum of compensation cannot be treated as a question of law much less a substantial question of law.
13) So far as the question relating to the date from which the interest is payable, Shri Amrito Das, learned counsel for the appellant placing reliance on the dicta of the Apex Court in the case of National Insurance Company Limited vs. Mubasir Ahmed and another, reported in (2007) 2 SCC 349 and in the case of Kamla Chaturvedi vs. National Insurance Company and others, reported in (2009) 1 SCC 487, submitted that the Commissioner has erred in directing payment of interest from the date of filing of the claim petition. The learned counsel further submitted that interest ought to have been made payable from the date of award.
14) We are not required to dilate much on the above issue in view of the recent dictum of the Apex Court in the case of Oriental Insurance Company Limited vs. Mohd. Nasir and another, reported in (2009) 6 SCC 280 wherein after considering the decision of the Apex Court in the case of National Insurance Company Limited vs. Mubasir Ahmed and another, it was held in para 47:
"47. The second question which arises for consideration is with regard to the payment of interest. There cannot be any doubt whatsoever that interest would be from the date of default and not from the date of award of compensation."
15) In view of the above quoted dictum of the Apex Court in the case of Oriental Insurance Company Limited vs. Mohd. Nasir and another (supra), the question relating to the date from which the interest would be payable also does not survive for decision as substantial question of law.
16) For the foregoing reasons, the appeal filed by the Insurer is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE J U D G E Subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
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----------------------------------
Criminal Revision No. 465 of 2002 PETITIONER Shantilal D/o Bhimsai, aged COMPLAINANT about 19 years, R/o Village Golabuda PS Kapoo, District Raigarh (CG) VERSUS RESPONDENT 1. The State of Chhattisgarh, Police Station - Kapoo, Distt Raigarh (Chhattisgarh)
2. Mandil Sai, S/o Kelheram Uraon, aged about 26 years, R/o Village Golabuda PS Kapoo District Raigarh (CG) CRIMINAL REVISION UNDER SECTION 397 READ WITH SECTION 401 OF THE CODE OF CRIMINAL PROCEDURE
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---------------------------------- Present : Shri SC Verma, Counsel for the petitioner.
Shri Alok Bakshi, Government Advocate for the State/Respondent No.1 Shri Wasim Miya, Counsel for respondent No.2
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----------------------------------
ORDER (05th January, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
The petitioner/complainant has filed this revision petition against the impugned judgment of acquittal dated 27.08.2002, passed by the Second Additional Sessions Judge, Raigarh, in Sessions Trial No.39/2000, whereby respondent / accused Mandil Sai was acquitted of the charges under Sections 376, 417 and 506 Part - II of the Indian Penal Code.
2) Police Kapoo, District Raigarh after completion of the investigation of the case registered on the report of the prosecutrix, charge-sheeted respondent/ accused Mandil Sai for the alleged commission of offences punishable under Sections 376, 415 and 506- B of the Indian Penal Code on the accusation of his having committed sexual intercourse with the prosecutrix without her consent and against her will during the period of about three years.
3) Respondent/ accused Mandil Sai abjured his guilt and pleaded false implication to the charges framed by the trial Court under Sections 376, 417 and 506-B of the Indian Penal Code.
4) At the trial, the above charges against the respondent / accused were sought to be proved on the evidence of PW-1 Dr Bindu Singhal, PW-2 Shanti Bai, PW-3 Kamal Sai, PW-4 Sonkunwar, PW-5 Dr.DS Pekra, PW- 6 Bholsai, PW-7 Ramsai, PW-8 Amarsai and PW-9 RK Bhoi.
5) The trial Court, on a close scrutiny of the evidence of the above named prosecution witnesses in general and that of the prosecutrix in particular found that the prosecution evidence fell short of establishing the above charges against respondent / accused Mandil Sai. The trial Court, therefore, acquitted respondent/ accused Mandil Sai vide impugned judgment dated 27.08.2002.
6) Shri SC Verma, learned counsel for the petitioner/complainant vehemently argued that the trial Court has erred in discarding the evidence of the prosecution witnesses including the prosecutrix on flimsy and untenable grounds. Learned counsel further submitted that the evidence of the prosecutrix alone is more than sufficient to establish the charges under Sections 376, 417 and 506
- B of the Indian Penal Code against the accused.
7) Shri Wasim Miya, learned counsel for respondent / accused Mandil Sai, on the other hand, supported the impugned judgment of acquittal and submitted that as the evidence of the prosecutrix suffered from serious infirmities, the trial Court was left with no other option, but to acquit the respondent / accused.
8) Shri Alok Bakshi, learned Government Advocate supported the submissions of Shri SC Verma, learned counsel for the petitioner.
9) The Apex Court while considering the scope of interference in a complainant's revision petition against the judgment of acquittal in the case of Ram Briksh Singh And Others Vs. Ambika Yadav And Another, reported in (2004) 7 SCC - 665, observed in paras 3 to 7 :
"3. The principles on which a revisional court can set aside a judgment and order of acquittal passed in favour of the accused are well settled by a catena of judgments. The difficulty, however, arises at times about the application of the said principles. It is true that there is a statutory prohibition contained in sub- section (3) of Section 401 of the Criminal Procedure Code on converting a finding of acquittal into one of conviction and what is prohibited cannot be done indirectly as well. The question, however, is, has the High Court indirectly done what is prohibited.
4. Sections 397 to 401 of the Code are a group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.
5. More than half a century ago, in D. Stephens v. Nosibolla (AIR 1951 SC 196 :
1951 SCR 284 : 52 Cri LJ 510) this Court held that revisional jurisdiction when it is invoked against an order of acquittal by a private complainant is not to be lightly exercised, it could be exercised only in exceptional cases to correct a manifest illegality or to prevent gross miscarriage of justice and not to be ordinarily used merely for the reason that the trial court has misappreciated the evidence on record.
6. In K. Chinnaswamy Reddy v. State of A.P. (AIR 1962 SC 1788 : (1963) 3 SCR 412 : (1963) 1 Cri LJ 8) a note of caution was appended so that the High Court does not convert a finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot directly convert a finding of acquittal into a finding of conviction in view of specific statutory prohibition. While noticing that it is not possible to lay down the criteria for determining exceptional cases which would cover all contingencies for exercise of revisional power, some cases by way of illustration were mentioned wherein the high Court would be justified in interfering with the finding of acquittal in revision. The High Court would be justified to interfere where material evidence is overlooked by the trial court.
7. In a recent decision in Bindeshwari Prasad Singh v. State of Bihar (now Jharkhand) ((2002) 6 SCC 650 : 2002 SCC (Cri) 1448 noticing principles laid down in Stephens1 and Chinnaswamy Reddy2 it was held that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code since it was well settled that the order of acquittal cannot be interfered with in revision merely on the ground of errors in appreciation of evidence. Relying upon these decisions, Mr Mishra contends that the High Court while interfering with the judgment and order of the Court of Session has not kept in view the parameters of exercise of revisional jurisdiction."
10) Mere alleged mis-appreciation of the evidence of the prosecution witnesses by the trial Court in view of the above quoted dictum of the Apex Court in the case of Ram Briksh Singh And Others Vs. Ambika Yadav And Another (Supra) will not by itself be a sufficient ground to warrant interference in a complainant's revision petition against the judgment of acquittal.
11) The prosecutrix in the present case is a grown- up woman aged about 20-22 years. The First Information Report against the accused came to be lodged after more than three years of the first alleged act of sexual intercourse by the accused with the prosecutrix. Though, in the First Information Report it was alleged that the accused committed sexual intercourse with the prosecutrix on the assurance of marrying her, in her evidence before the Court, no such allegations have been made by the prosecutrix against the accused. In her evidence in the Court, the prosecutrix has not given any explanation at all about the inordinate delay of about three years in reporting the matter to the police. On the contrary, in her cross-examination, she has stated that the First Information Report was lodged at the Police Station immediately after the incident. No such First Information Report was produced by the prosecution before the trial Court which purports have been lodged by the prosecutrix immediately after the incident. The only First Information Report produced before the trial Court and available in the records was lodged after three years of the alleged incident. For the reasons best known to the prosecution, the parents of the prosecutrix were not examined at the trial. Of the nine prosecution witnesses examined by the prosecution at the trial, PW-3 Kamal Sai, PW-4 Smt Sonkunwar, PW-7 Ramsai and PW-8 Amarsai did not support the prosecution case and were declared hostile.
12) On due consideration of the submissions of learned counsel for the parties; the findings recorded by the trial court leading to acquittal of respondent/ accused Mandil Sai; the evidence led by the prosecution at the trial in general and that of the prosecutrix in particular; and the above- mentioned broad features of the case, in the context of the above quoted dictum of the Apex Court in the case of Ram Briksh Singh And Others Vs. Ambika Yadav And Another (Supra), we are satisfied that the findings recorded by the trial Court leading to acquittal of the respondent / accused do not suffer from any such infirmity, which may warrant interference by this Court in this complainant's revision petition against the impugned judgment of acquittal.
13) The revision petition filed by the petitioner/ complainant against the impugned judgment of acquittal, therefore, is liable to be dismissed and is hereby dismissed.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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---------------------------------- CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI RANGNATH CHANDRAKAR, J.
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----------------------------------Misc. Appeal No.786 of 2005 Appellant Narendra kumar Pal, aged 16 Claimant years, S/o Ramkishan Pal, through legal guardian father Ramkishan, S/o Mansharam, age 41 years, Resident: Devendra Nagar, Raipur, Tah. & Distt. Raipur (CG) VERSUS Respondents 1. Santosh Kumar Chakradhari, Non-Applicants aged 35, S/o Dashrath Chakradhari, Occupation Driver of Truck, Resident:
Kumhari, P.S. Urla, Tahsil & Distt. Raipur (CG)
2. Smt Priti Devi Badvani, W/o Late Jhamumal Badvani, Occupation - Owner of Truck, Resident: Fafadiha, Street No.3 Raipur, Tah & Distt.
Raipur (CG) 3 The National Insurance Company Limited, through Divisional Manager, Divisional Office, Mobin Mahal, G.E. Road, Raipur (CG) Miscellaneous appeal U/s 173 of the Motor Vehicles Act 1988 --------------------------------------------
------------------------------------------- Present : Shri Aditya Khare, counsel for the appellant.
None for respondents No.1 & 2 though served.
Shri GVK Rao, counsel for respondent No.3.
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ORDER (04th January, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant - Narendra Kumar Pal, a minor boy aged about 16 years has filed this appeal through his father for enhancement of the compensation awarded by the 14th Additional Motor Accidents Claims Tribunal, Raipur (for short `the Tribunal') vide award dated 26.04.2005, passed in Claim Case No.22/2004.
2. As against the compensation of Rs.21,00,000/- claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 27.08.2002, the Tribunal awarded a total sum of Rs.25,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3. Shri Aditya Khare, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.25,000/- only though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability.
4. Before the Tribunal, the appellant/claimant examined two witnesses including himself (AW/1 Narendra Kumar Pal and AW/2 Ramkishan Pal) in support of his claim. For the reasons best known to the appellant/ claimant and his father, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/ claimant in the motor accident and the fact that those injuries resulted in any permanent disability.
5. The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P. SRTC v. P. Thirupal Reddy, reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent-claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr. Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 per cent. The High Court committed gross error in overlooking the fact that Dr. Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr. K.M. Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
6. The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju v. Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
7. In view of the above quoted dicta of the Apex Court in the cases of A.P. SRTC v. P. Thirupal Reddy (Supra) and Rajesh Kumar alias Raju v. Yudhvir Singh and another (Supra), the medical certificate and the disability certificate produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued the said certificates, cannot be taken into consideration for enhancement of the compensation in the case.
8. We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
9. The appeal filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
10. No order as to costs.
J U D G E