Chattisgarh High Court
Smt Najmun Bai vs Sanjay Dewangan on 5 February, 2008
Author: Rajeev Gupta
Bench: Rajeev Gupta
HIGH COURT OF CHATTISGARH AT BILASPUR
Misc Appeal No 38 of 1998
1 Smt Najmun Bai
2 Salamuddin
3 Mohd Jafar
4 Ku. Rukhsat
5. Smt Sugara Bai
...Petitioners
Versus
1 Sanjay Dewangan
2 Kamlesh Chandrakar
3 The Oriental Insurance Company
...Respondents
APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLE ACT,
1988
! Shri S C Verma, learned counsel for the appellants
^ Shri VR Tiwari, learned counsel for respondent No 3
None for respondents No 1 & 2
HONBLE SHRI RAJEEV GUPTA, J,HONBLE SHRI SUNIL KUMAR SINHA
Dated:05/02/2008
: Judgment
ORDER
(Passed on 05th February, 2008) This is claimants' appeal filed under Section 173 of the Motor Vehicles Act for enhancement of the compensation awarded by Seventh Motor Accidents Claims Tribunal, Raipur in Claim case No.145/95.
2) The claimants who were widow, minor children and mother of the deceased Mainuddin claimed compensation of Rs.7,50,000/- by filing a claim petition under Section 166 of the Motor Vehicles Act for his death in the motor accident on 19.03.1995 when the jeep bearing registration No. MP 23 - D/2641 in which he was travelling met with an accident with an unknown truck due to rash and negligent driving of the jeep driver resulting in instantaneous death of Mainuddin at the spot. The claimants further pleaded that deceased Mainuddin used to earn Rs.80/- per day.
3) The owner, Driver and insurer of the jeep contested the claim and denied their liability to pay compensation to the claimants. The owner and driver of the jeep took the plea that the accident occurred due to the negligence of the truck driver. The Insurance Company also pleaded that the accident occurred due to rash and negligent driving of the truck driver. It was further pleaded that the jeep was being plied in breach of the policy conditions.
4) The claimants examined PW/1 Najmunbai and PW/2 Mohd Akram whereas, the owner, driver and insurer of the jeep did not examine any witness in rebuttal.
5) The Tribunal on a close scrutiny of the evidence led by the parties held that deceased Mainuddin died on account of injuries sustained by him in the motor accident on 19.03.1995; the accident occurred due to the rash negligent driving of the driver of the jeep; and as the jeep was insured with respondent - Insurance Company i.e. Oriental Insurance Company Limited, it was liable to pay compensation to the claimants.
6) As the evidence led by the claimants about the income of the deceased was not found reliable, the Tribunal assessed the income of the deceased at Rs.1,250/- per month and the claimants' dependency was assessed at Rs.1,000/- per month and Rs.12,000/- per annum.
7) Considering that the deceased was aged about 35- 40 years on the date of accident, the Tribunal selected the multiplier of 15. By multiplying the annual dependency of Rs.12,000/- with the multiplier of 15 the compensation was worked out to Rs.1,80,000/-. By awarding further sum of Rs.7,500/- under other permissible heads the Tribunal awarded a total sum of Rs.1,87,500/- as compensation to the claimants for the death of Mainuddin. The Tribunal further awarded interest @ 12% per annum from the date of application till the date of actual payment.
8) Shri S.C. Verma, learned counsel for the appellants vehemently argued that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased; in assessing the income of the deceased at Rs.1,250/- per month; and in awarding low compensation of Rs.1,87,500/- only.
9) Shri V.R. Tiwari, learned counsel for respondent No.3 - Oriental Insurance Company Limited, on the other hand supported the award and contended that the compensation of Rs.1,87,500/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
10) The findings recorded by the Tribunal that deceased Mainuddin died on account of injuries sustained by him in the motor accident on 19.03.1995; the accident occurred due to rash and negligent driving of the driver of the jeep; and that the Insurance Company was liable to pay compensation to the claimants, have now attained finality as the respondents have not filed any appeal against the award. That apart, there is overwhelming evidence on record to establish the above facts. We, therefore, affirm the findings recorded by the Tribunal in that behalf.
11) True, the claimants pleaded that deceased Mainuddin used to earn Rs.80/- per day, but, the evidence led in support of the said plea was not of clinching nature. In this state of evidence, we do not find any infirmity in the assessment of the income of the deceased by the Tribunal at Rs. 1,250/- per month.
12) The Tribunal has been quite liberal in deducting only Rs.250/- per month towards personal expenses of the deceased and in assessing the claimants' dependency at Rs.1,000/- per month and Rs.12,000/- per annum.
13) The multiplier of 15 selected by the Tribunal considering that the deceased was aged about 35-40 years and claimant No.1 - Smt Najmunbai was shown to be 30 years of age, in our opinion, is appropriate and does not call for any interference.
14) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal either on account of assessment of the income of the deceased or claimants' dependency or the multiplier selected.
15) In this view of the matter, the appeal filed by the claimants under Section 173 of the Motor Vehicle Act for enhancement of the compensation is liable to be dismissed and is hereby dismissed.
16) No order as to costs.
CHIEF JUSTICE JUDGE Kamde
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
----------------------------------------------------
----------------------------------- CORAM:
HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI DHIRENDRA MISHRA, J.
----------------------------------------------------
-----------------------------------
MISCELLANEOUS APPEAL No. 149 of 2000 APPELLANT Oriental Insurance Co. Ltd.
NON-APPLICANT through the Divisional
NO. 3 Manager, P.B. No. 17,
Gitanjali Bhawan, Main
Road, Korba.
Versus
RESPONDENT No.1 Nathaniyal, aged about 60
CLAIMANT years, S/o Patras Minj,
R/o. village, PS & Tahsil
Kunkuri, District Jashpur
Nagar,
RESPONDENT No.2 Deendayal, age 54 years,
NON-APPLICANT NO. S/o S.M. Agrawal
1
RESPONDENT No. 3 Raj Kumar alias Raju, age
NON-APPLICANT No. 27 years, S/o Deendayal
2 Agrawal
Both R/o village, PS &
Tahsil Bagicha, District
Jashpur Nagar
Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988
----------------------------------------------------
-----------------------------------
Present : Shri Ali Asgar, learned counsel
for the appellant.
Shri Rajendra Tripathi, learned counsel for the respondent no.1.
Shri Dashrath Prajapti, learned counsel for respondent No.2 & 3.
----------------------------------------------------
-----------------------------------
ORDER (20TH February, 2008) The following order of the Court was passed by Rajeev Gupta, C.J.
Heard learned counsel for the parties on I.A. No.1012/2000 (application for condonation of delay in filing the appeal).
2) On due consideration of the submissions of learned counsel for the parties, we are satisfied that the appellant/insurance company has succeeded in showing sufficient cause for the delay in filing the appeal.
3) Therefore, I.A. No.1012/2000 is allowed and the delay in filing the appeal is hereby condoned.
4) Learned counsel for the parties are heard on admission.
5) This is insurer's appeal against the award dated 17.9.1999 passed by the Motor Accidents Claims Tribunal, Jashpurnagar (for short "the Tribunal") in Motor Accident Claim Case No.13/97.
6) As against the compensation of Rs.12,30,000/-
claimed by the claimant-Nathaniyal for the death of his son Kuldeep Minj in the motor accident on 11.12.1997, the Tribunal awarded compensation of Rs.4,27,500/- to the claimant.
7). In this appeal the appellant -Insurance Company is mainly challenging the quantum of compensation awarded by the Tribunal.
8) Shri Ali Asgar, learned counsel for the appellant fairly and frankly conceded that the appellant-insurance company did not file any application before the Tribunal for grant of permission under Section 170 of the Motor Vehicles Act (for short `the Act') to contest the claim on all available defences. Learned counsel, however, submitted that such an application for grant of permission has been filed by the appellant-insurance company along with the appeal in the High Court and the same has been registered as I.A. No.153/2001.
9) In the absence of permission under Section 170 of the Act granted by the Tribunal to the appellant
-insurance company to contest the claim on all available defences, the appellant-insurance company cannot be permitted to challenge the quantum of compensation or the finding about the negligence in this appeal in view of the dictum of the Apex Court in the case of National Insurance Co. Ltd. Vs. Nicolletta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC) wherein it was categorically held 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.
10) In view of the above quoted dictum of the Apex Court in the case of National Insurance Co. Ltd.
(supra) the appeal filed by the appellant-insurance company is liable to be dismissed.
11) The filing of an application by the appellant
-insurance company under Section 170 of the Act in the High Court is of no help to the appellant-
insurance company as the permission under Section 170 of the Act has to be sought in the proceedings pending before the Tribunal and not in the appeal against the award.
12) The appeal, therefore, fails and is hereby dismissed summarily.
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.
----------------------------------------------------
-----------------------------------
Misc. Appeal No. 789 of 1997
APPELLANT : Tatiya Gond aged about 45
APPLICANT years, S/o Beha Gond,
resident of Village Garka
(Singanpur) tahsil Keskal
(Kodagaon) district Bastar
(M.P.)
Versus
RESPONDENTS/ 1. Shivpujan aged 30 years S/o NON-APPLICANTS Dharishchandra Rai by caste Jurmi, r/o Onkar Roadways Mohdapara, Raipur district Raipur (M.P.)
2. Sardar Satnam Singh aged 45 years, S/o Darbar Singh by caste Sikh, r/o Onkar Roadways, Mohdapara, Raipur, district Raipur (M.P.)
3. Surendra Prasad Dewangan aged 26 years, s/o Suhdev Pd. Dewangan, r/o Narayanpur at present r/o Commissioner Office, Jagdalpur district Bastar (M.P.)
4. State of Madhya Pradesh through Collector, Bastar, district Jagdalpur.
5. Beema Company, Sambhagiya Prabandhak, Oriental Insurance Company Limited, Sambhagiya Karyalay Raipur (MP).
Memorandum Appeal Under Section 173 of Motor Vehicles Act
----------------------------------------------------
----------------------------------- Present: Shri N.P. Koshta, learned counsel for the appellant.
None for respondents No. 1 to 4.
Shri Sudhir Agrawal, learned counsel for respondent No.5.
----------------------------------------------------
-----------------------------------
O R D E R (17th March, 2008) 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, Kanker, District Bastar, vide award dated 26-02-1997 in Claim Case No. 33/1993.
2. The claimant, unfortunate, husband of deceased Somari Bai claimed compensation of Rs.3,90,000/- for her death in the motor accident when she became the victim of the accident between the two vehicles, namely, Truck bearing Registration No. MP-23-B-3873 and Jeep bearing Registration No. CPZ-6045, due to rash and negligent driving of the driver of the offending vehicle Truck, resulting in her death on the spot itself. The claimant pleaded that his wife
- Somari Bai used to earn Rs.100/- per day.
3. The Tribunal on the evidence led by the parties held that Somari Bai died on account of injuries sustained by her in the motor accident on 15-06-1993; the accident occurred due to rash and negligent driving of the driver of the offending vehicle - Truck; and as the offending vehicle Truck was insured, on the date of the accident, with Oriental Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimant. The Tribunal assessed the claimant's dependency at Rs.20/- per day and Rs.400/- per month assuming that the deceased would have been getting work only for 20 days in a month and by applying the multiplier of 11 assessed the compensation at Rs.52,800/-. By awarding a further sum of Rs.3,000/- towards loss of consortium to the claimant - husband, the Tribunal awarded a total sum of Rs.55,800/- as compensation to the claimant for the death of his wife - Somari Bai in the motor accident. The Tribunal awarded interest @12% per annum on the above amount of compensation of Rs.55,800/- from the date of filing of the claim petition till the date of actual payment.
4. Shri N.P. Koshta, learned counsel for the appellant submitted that the Tribunal has erred in assessing the claimant's dependency at Rs.400/- per month only; in selecting the lower multiplier of 11; and in awarding low compensation of Rs.55,800/- only.
5. Shri Sudhir Agrawal, learned counsel for respondent No.5 - Oriental Insurance Company Limited, on the other hand supported the award and submitted that the Tribunal has been quite liberal in awarding compensation of Rs.55,800/- though the claimant could not establish that the deceased had any income of her own.
6. The findings recorded by the Tribunal that claimant's wife - Somari Bai, died on account of the injuries sustained by her in the motor accident; the accident occurred due to rash and negligent driving of the driver of the offending vehicle - Truck and the insurer of the offending vehicle - Truck was liable to pay compensation to the claimant have now attained finality as the respondents have not filed any appeal against the award. That apart, these findings are not under challenge before us in this appeal. We, therefore, affirm the findings recorded by the Tribunal in that behalf.
7. The claimant pleaded that his wife - Somari Bai, used to earn Rs.100/- per day. The Tribunal has assessed the claimant's dependency at Rs.400/- per month only. In our considered view, the income of the deceased - Somari Bai ought to have been assessed by the Tribunal at Rs.18,000/- per annum. We, therefore, propose to recompute the compensation taking the income of the deceased at Rs.18,000/- per annum.
8. As there were only two members in the family i.e. the claimant - husband & deceased wife - Somari Bai, we deem it appropriate to deduct 50% of the income of the deceased towards her personal expenses. The claimant's dependency as such is assessed at Rs.9,000/- per annum.
9. The multiplier of 11 selected by the Tribunal, considering the age of the deceased and the claimant, in our considered view, is appropriate.
10. By multiplying the annual dependency of Rs.9,000/- with the multiplier of 11, the compensation works out to Rs.99,000/-.
11. By adding a further sum of Rs.10,000/- towards loss of consortium to the husband; loss of estate and funeral expenses, the claimant becomes entitled to receive a total sum of Rs.1,09,000/- as compensation for the death of his wife - Somari Bai in the motor accident.
12. For the foregoing reasons, the appeal filed by the claimant is allowed in part. The compensation of Rs.55,800/- awarded by the Tribunal is enhanced to Rs.1,09,000/-.
13. The claimant/appellant is further awarded interest @6% per annum on the enhanced amount of compensation.
14. Respondent No.5 - Oriental Insurance Company Limited is granted three months time for depositing the enhanced amount of compensation with interest due thereon before the concerning Claims Tribunal.
15. No order as to costs.
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 SUNIL KUMAR SINHA, J.
----------------------------------------------------
-----------------------------------Writ Appeal No. 41 of 2008
APPELLANT/ : Bharti Sonkar, W/o Ashwani Petitioner Sonkar, aged about 32 years, President, Nagar Panchayat :
Gunderdehi District : Durg, Chhattisgarh.
Versus RESPONDENTS 1. State of Chhattisgarh, Through the Secretary, Department of Environment and Urban Administration, Mantralaya, D.K.S. Bhawan, Raipur, Chhattisgarh.
2. Collector, Durg, District :
Durg, Chhattisgarh.
3. P. Tirkey, Deputy Collector, Durg, District : Durg, Chhattisgarh.
4. State Election Commission, Through the Chief Electoral Officer, State Election Commission, Raipur, Chhattisgarh.
5. Nagar Panchayat :
Gunderdehi, Through the Chief Municipal Officer, Nagar Panchayat :
Gunderdehi, District : Durg, Chhattisgarh.
6. Pramod Kumar Jain, S/o Kanwarlal Jain, Vice President / Councillor, Ward No. 12, Nagar Panchayat :
Gunderdehi, District : Durg, Chhattisgarh.
7. Smt. Vidya Devi, Councillor, Ward No. 14, Nagar Panchayat : Gunderdehi, District :
Durg, Chhattisgarh.
8. Ramchand Kosaria, Councillor, Ward No. 3, Nagar Panchayat :
Gunderdehi, District : Durg, Chhattisgarh.
9. Desh Kumar Sonkar, Councillor, Ward No. 7, Nagar Panchayat :
Gunderdehi, District : Durg, Chhattisgarh.
10 Jain Kumar Bhandekar, . Councillor, Ward No. 10, Nagar Panchayat :
Gunderdehi, District : Durg, Chhattisgarh.
11 Faheem Qureshi, Councillor, . Ward No. 11, Nagar Panchayat : Gunderdehi, District :
Durg, Chhattisgarh.
12 Rasida Tigala, Councillor, . Ward No. 8, Nagar Panchayat : Gunderdehi, District :
Durg, Chhattisgarh.
13 Umadevi Yadav, Councillor, . Ward No. 5, Nagar Panchayat : Gunderdehi, District :
Durg, Chhattisgarh.
14 Rajesh Namdeo, Councillor, . Ward No. 9, Nagar Panchayat : Gunderdehi, District :
Durg, Chhattisgarh.
15 Keshav Ram Sahu, Councillor, . Ward No. 13, Nagar Panchayat : Gunderdehi, District :
Durg, Chhattisgarh.
16 Jeewan Lal Sonkar, . Councillor, Ward No. 6, Nagar Panchayat :
Gunderdehi, District : Durg, Chhattisgarh.
17 Sewak Mahipal, Councillor, . Ward No. 15, Nagar Panchayat : Gunderdehi, District :
Durg, Chhattisgarh.
18 Smt. Ramshila Sahu, W/o Dr. . Dayaram Sahu, aged about 45 years, M.L.A., Gunderdehi Constituency, Gunderdehi, District : Durg, Chhattisgarh.
Writ Appeal Under Section 2 Sub-Section (1) of the Chhattisgarh High Court (Appeal to Division Bench) Act, 2006
----------------------------------------------------
----------------------------------- Present : Shri Sanjay K. Agrawal, learned counsel for the appellant.
Shri Yashwant Singh Thakur, learned Deputy Advocate General for respondents No. 1 & 2.
Shri V.R. Tiwari, learned counsel for respondent No.4.
Shri Prateek Sharma, learned counsel for respondents No. 6 to 18.
----------------------------------------------------
-----------------------------------
J U D G M E N T ( 26th of March, 2008 ) The following judgment of the Court was passed by Rajeev Gupta, C.J.
Heard learned counsel for the parties on admission.
2. Appellant - Bharti Sonkar, has filed this writ appeal against the impugned order dated 04-03-2008, passed in W.P.(C) No. 2284/2007.
3. Appellant / petitioner filed the writ petition for the following reliefs :-
"7.1) The Hon'ble Court may kindly be pleased to call for the entire records leading to passing of the impugned memo dated 26-03-2007 (Annexure P-10) before this Hon'ble Court, for its kind perusal.
7.2) The Hon'ble Court may kindly be pleased to issue a writ of certiorari quashing the entire proceedings culminating into memo dated 26-03-2007 (Annexure P-10) and declare the same as void and inoperative, and the further proceedings consequent to memo dated 26-03-2007 be also quashed.
7.3) Cost of the petition may also be granted to the petitioner.
7.4) Any other relief which this Hon'ble Court deems fit and proper may also kindly be granted to the petitioner, in the interest of justice."
4. The petitioner, thus, in substance was seeking quashing of the proceedings arising out of the memo dated 26-03-2007 (Annexure P-10).
5. Appellant / petitioner was elected as President of Nagar Panchayat, Gunderdehi sometime in November-
December, 2004. On 15-03-2007, respondent No.6 - Pramod Kumar Jain, a Councillor of Nagar Panchayat, Gunderdehi moved an application (Annexure P-5) before the Collector, Durg for recalling the appellant / petitioner from the post of the President, Nagar Panchayat, Gunderdehi. The said motion to recall the petitioner was signed by 12 other Councillors. The Collector, Durg after satisfying himself as required under Section 47 of the C.G. Municipalities Act, 1961 (for short "the Act") prepared the memo (Annexure P-10) forwarding the proposal to recall the appellant / petitioner to the State Government for being further forwarded to the State Election Commission.
6. The petitioner in the writ petition challenged the process of recall and the memo prepared by the Collector, Durg on the grounds that the motion of recall was not validly presented by 3/4th of total number of the elected Councillors; proposal was never placed before the Collector for verification and recording his satisfaction, as required under Section 47(2) of the Act; statements were recorded by the Deputy Collector without any authority and that too before the time fixed i.e. at 11.00 A.M. on 22-03-2007; whole exercise of verification was done at the behest of respondent No. 18 - Smt. Ramshila Sahu, M.L.A. of Gunderdehi Constituency; objection of the petitioner with regard to the genuineness & correctness of the proposal to recall has not been considered; the whole exercise was held without any notice to the petitioner and she was not given opportunity to be present during the course of verification; and the Collector was duty bound to verify the genuineness of the proposal and he could not have entrusted the job of verification to the Deputy Collector, as Section 47(2) of the Act does not empower the Collector to delegate his powers to the Deputy Collector.
7. Learned Single Judge on a thorough consideration of the submissions of learned counsel for the parties and following the Full Bench judgment of the High Court of Madhya Pradesh in the case of State of M.P. Vs. Mahendra Kumar Saraf reported in 2005(3) JLJ 251, did not find any substance in the above mentioned submissions advanced on behalf of the appellant/ petitioner. Learned Single Judge, therefore, passed the impugned order dated 04-03-2008 whereby the appellant's writ petition was dismissed.
8. Shri Sanjay K. Agrawal, learned counsel for the appellant confined his submissions to the following two grounds only - (i) that the satisfaction of the Collector recorded in the memo dated 26-03- 2007 (Annexure P-10 in the writ petition) was about "Motion of No-Confidence" and not about "Motion to Recall"; (ii) and that the Collector himself did not verify and satisfy as contemplated under Section 47(2) of the Act, as in the present case, the verification and satisfaction was of the Deputy Collector, which is evident from the note-sheet prepared by the Deputy Collector (Annexure P-11 in the writ petition).
9. So far as the first submission of learned counsel for the appellant is concerned, the learned Single Judge has dealt with the same in detail in para 15 of the impugned order, which reads as follows :-
"15. So far as the last submission of learned counsel for the petitioner that memo of Annexure P-10, wherein the Collector has mentioned that he is satisfied that the proposal of no confidence against the petitioner has been properly placed, refers to "no confidence motion" and not to "recall of the petitioner" from the post of President of Nagar Panchayat and as such, the same is not a proposal within the meaning of Section 47(2) of the Act and therefore, the State Government could not refer the proposal to the State Election Commission for voting on proposal of recall, is concerned, the Madhya Pradesh Nagar Palik Vidhi (Sanshodhan) Adhiniyam, 1999 (No.11 of 1999) was enacted and came into force w.e.f. 23-4-1999. Prior to the amendment there was a provision of "no confidence motion" against the President under Section 47 of the Act, which was substituted by the above amendment. The proposal submitted by 12 Councillors out of 15 clearly mentions that the signatories of the memo have no confidence in the petitioner, they want to remove her and therefore, they are tabling this no confidence motion for removing her and for recalling her. Thus, the proposal before the Collector was for recalling of the petitioner and only duty cast on the Collector under Section 47 of the Act is to verify the genuineness of the contents of the proposal and the Collector after due verification recorded his satisfaction and forwarded the proposal to the State Government for further action. In these circumstances, mentioning of "no confidence motion" in place of "recall of the petitioner" would not invalidate the whole exercise of recall and proceeding for recall cannot be quashed."
10. Learned counsel for the appellant could not dispute that the motion submitted by respondent No.6
- Pramod Kumar Jain (Annexure P-5, page 73) is described as "motion of no confidence and to recall". The contents of Annexure P-5 further indicate that what was intended by the 13 Councillors of the Nagar Panchayat through Annexure P-5 was to recall the appellant/petitioner who was the President of Nagar Panchayat, Gunderdehi. In the note-sheet prepared by the Deputy Collector, Durg (Annexure P-11) also the motion has been mentioned as "Motion of No-Confidence and to recall". It was only in the memo of the Collector, Durg, dated 26-03-2007 (Annexure-P/10) that the motion came to be mentioned only as "Motion of No Confidence".
11. On a cumulative consideration of the above mentioned broad features of the case, we have no manner of doubt that on the mere mention of the motion as "Motion of No Confidence" in place of "Motion to Recall" by the Collector in the memo dated 26.03.2007, it cannot be held that the mandatory provisions contained in Section 47 (2) of the Act have not been complied with by the Collector, Durg. We, therefore, do not find any substance in the first submission of learned counsel for the appellant and the same is liable to be rejected and is hereby rejected.
12. So far as the appellant's other contention about the verification having been done and satisfaction recorded by the Deputy Collector and not by the Collector as required under Section 47 (2) of the Act, is concerned, a bare comparative perusal of the memo prepared by the Collector - Annexure-P/10 and the note-sheet of the Deputy Collector - Annexure P/11 reveals that the Collector has noticed and recorded certain features in the motion which were neither noticed by the Deputy Collector nor recorded in the note-sheet prepared by him. Thus, it is apparent that the Collector, Durg has independently verified the motion; the contents thereof; the number of the signatories on the motion and other relevant aspects himself and thereafter prepared the memo dated 26.03.2007 recording his satisfaction as is contemplated under Section 47 (2) of the Act.
13. For the foregoing reasons, we do not find any good ground for interference in this writ appeal. 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
----------------------------------------------------
----------------------------------- CORAM:
HON'BLE SHRI RAJEEV GUPTA, CJ.
HON'BLE SHRI SUNIL KUMAR SINHA, J.
----------------------------------------------------
-----------------------------------M.A.(C) No. 346 of 2008
APPELLANT : The Oriental Insurance Co.
Ltd., Main Road, Jagdalpur, Distt. Bastar.
Versus RESPONDENTS/ 1. Kalingram S/o Jhitaku, Age CLAIMANTS 40 Yrs.
2. Mangani W/o Kalingram, Age 38 Yrs.
Both Resident of Village Batrali, District Bastar (C.G.) RESPONDENTS/NON- 3. Shekh Rakib S/o Shekh APPLICANTS Habib, Resident of Shubhash Chowk, Keshkal (Driver & Owner), Distt.
Bastar Appeal under Section 173 of Motor Vehicle Act, 1988
----------------------------------------------------
-----------------------------------
Present: Shri Sudhir Agrawal, learned counsel for the appellant.
----------------------------------------------------
-----------------------------------
O R D E R (17th March, 2008) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri Sudhir Agrawal, learned counsel for the appellant is heard on admission.
2. This is insurer's appeal against the award dated 22-11-2007, passed by Additional Motor Accident Claims Tribunal (F.T.C.), Kondagaon, Distt. Bastar in Claim Case No. 90/2007.
3. As against the compensation of Rs.25,00,000/- claimed by the claimants for the death of their only son - Raghu aged about 19 years in the motor accident on 04-12-2006 when he was dashed by the offending vehicle - Car bearing Registration No. C.G. 07/Z.G./6298 resulting in multiple serious injuries to claimants' son - Raghu, who succumbed to those injuries the same day, the Tribunal awarded a sum of Rs.3,39,800/- as compensation with interest @6% per annum from the date of filing of the claim petition till the date of actual payment.
4. Shri Sudhir Agrawal, learned counsel for the appellant submitted that appellant - Insurance Company is challenging only the quantum of compensation awarded by the Tribunal in this appeal as permission under Section 170 of the Motor Vehicles Act was granted. Learned counsel further submitted that the Tribunal has erred in deducting only 1/3rd of the income of the deceased towards his personal expenses, whereas in view of the dictum of the Apex Court in the case of Donat Louis Machado & Ors. Vs. L. Ravindra And Others, reported in 2000(1) T.A.C.208(SC), 2/3rd of the income of the deceased ought to have been deducted towards the personal expenses. The learned counsel further submitted that the multiplier of 16 is also on the higher side as the claimants were the parents of the deceased and in view of the dictum of the Apex Court in the case of Municipal Corporation of Greater Bombay Vs. Iyer and another, reported in (2003) 8 SCC-731, the multiplier should not have exceeded 10.
5. It has come in the evidence that deceased - Raghu was the only son of the claimants. Deceased - Raghu was aged about 19 years and used to work as a labourer. In our opinion, the assessment of the income of the deceased by the Tribunal at Rs.100/- per day and Rs.2,600/- per month on the assumption that he would be getting work only for 26 days in a month and Rs.31,200/- per annum, does not call for any interference in this appeal. In fact, the appellant - Insurance Company is not challenging the assessment of the income of the deceased by the Tribunal.
6. What amount should be deducted from the income of the deceased towards his personal expenses will depend on the facts of each case and no straight jacket formula can be evolved in that behalf. In the facts of the present case, we are fully satisfied that the Tribunal has rightly deducted 1/3rd of the income of the deceased towards his personal expenses as there were three members in the family i.e. the deceased and his parents. Learned counsel for the appellant could not point out any such peculiar factor prevailing in the present case which would have justified deduction of more than 1/3rd towards the personal expenses of the deceased.
7. As deceased - Raghu was the only son of the claimants, the dictum of the Apex Court in the case of Donat Louis Machado & Ors. Vs. L. Ravindra And Others (Supra) being distinguishable on facts is of no help to the appellant - Insurance Company.
8. True, the Apex Court in the case of Municipal Corporation of Greater Bombay Vs. Laxman Iyer and another (Supra) taking note of the fact that the parents in the said case had their own income held that multiplier of 10 was appropriate in the said case. In the present case, the income of the father of the deceased has not been established by the appellant - Insurance Company. In the absence of any positive evidence about the income of the father of the deceased, the selection of the multiplier of 16 by the Tribunal cannot be found fault with on the basis of the dictum of the Apex Court in the case of Municipal Corporation of Greater Bombay Vs. Laxman Iyer and another (Supra).
9. That apart, in a motor 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.
10. The compensation of Rs.3,39,800/-, awarded by the Tribunal to the claimants for the death of their only son Raghu in the motor accident, when examined in the context of the fact that in the case of Municipal Corporation of Greater Bombay Vs. Laxman Iyer and another(Supra) also the Apex Court found the compensation of Rs.3,00,000/-, in the year 2003, to be just and proper compensation to be awarded to the parents of the deceased in the said case, we are satisfied that the compensation of Rs.3,39,800/- awarded by the Tribunal in the year 2007 cannot be termed as excessive or bonanza so as to warrant interference in this appeal filed by the appellant - Insurance Company challenging the quantum of the compensation awarded by the Tribunal.
11. 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
----------------------------------------------------
----------------------------------- CORAM:
HON'BLE SHRI RAJEEV GUPTA, CJ. & HON'BLE SHRI SUNIL KUMAR SINHA, J.
----------------------------------------------------
-----------------------------------
Writ Petition (PIL) No.2071 of 2008 PETITIONER : Radhe Shyam Thavait, S/o Late Rampyare Thavait, Aged about 46 years, Occupation Sarpanch, Gram Panchayat Khokhra, Block Janjgir, District Janjgir-Champa, R/o Village Khokhra, Block Janjgir, District Janjgir-
Champa Chhattisgarh.
Versus
RESPONDENTS 1. State of Chhattisgarh,
Through the Secretary,
Panchayat and Urban
Development Department,
Government of Chhattisgarh,
Mantralaya, Shastri Chowk,
D.K.S. Bhawan, Raipur
Chhattisgarh.
2. Collector, Distt. Janjgir-
Champa, Chhattisgarh.
3. Chief Executive Officer, Zila Panchayat, Janjgir-Champa, District Janjgir-Champa, Chhattisgarh.
4. Chief Executive Officer, Janpad Panchayat, Navagarh, District Janjgir-Champa, Chhattisgarh.
Writ Petition Under Article 226 of the Constitution of India
----------------------------------------------------
-----------------------------------
Present: Shri Rajeev Shrivastava, learned counsel for the petitioner.
Shri Sumesh Bajaj, learned Govt. Advocate for respondents No.1 &2/State.
----------------------------------------------------
-----------------------------------
O R D E R (8th April, 2008) The following order of the Court was passed by Rajeev Gupta, C.J.
Learned counsel for the parties are heard on admission.
2. Petitioner - Radhe Shyam Thavait has filed this writ petition styled as "Public Interest Litigation"
for the following reliefs :
"10.1) The Hon'ble Court may kindly be pleased to call for the entire records leading to the impugned notification dated 25th January, 2008 published in the Chhattisgarh State Gazette (Extraordinary), for the kind perusal of this Hon'ble Court.
10.2) The Hon'ble Court may kindly be pleased to issue a writ of certiorari quashing the notification dated 25th January,2008 published in the Chhattisgarh State Gazette (Extraordinary), and declare the same as void and inoperative. 10.3) The Hon'ble Court may kindly be pleased to direct the respondents not to shift the headquarter of Block Janjgir to any other place.
10.4) Cost of the petition may also be granted to the petitioner. 10.5) Any other relief which this Hon'ble Court deems fit and proper may also kindly be granted to the petitioner, in the interest of justice."
3. The petitioner, thus in substance is seeking quashing of the Notification dated 25-01-2008 (Annexure P/10) whereby the headquarter of Block Navagarh has been changed from Janjgir to Navagarh.
4. Shri Rajeev Shrivastava, learned counsel for the petitioner referring to the first proviso to Sub- section (1) of Section 127 of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (for short "the Adhiniyam") vehemently argued that the Notification is bad in law as objections were not invited before issuance of the Notification. Learned counsel further submitted that in the Notification issued in the year 2004 under Section 3 of the Adhiniyam, Navagarh was shown as one of the villages in Janjgir Block.
5. Section 127 of the Adhiniyam reads as follows :
"127. Alteration in limits of Block and Zila Panchayat.-
(1) The (Governor) may, by notification change the headquarters of a block or alter the limits of a block by including therein any local area in the vicinity thereof or by excluding therefrom any local area comprised therein:
Provided that no such notification shall be issued unless a notice signifying such intention and inviting objections from persons likely to be affected by the alteration in the limits of the blocks by the date to be specified therein has been published in the prescribed manner and the objections received have been considered:
[Provided further that no such notification to change the headquarters of a block shall be issued except to change such headquarters which exist outside the limits of the block to a place within that block.] (2) On the issuance of the notification under sub-section (1) the (Governor) or the authority authorized by him may pass such consequential orders as may be necessary.
(3) On the alteration of the limits of a district, the State Government may pass such consequential orders in respect of Zila Panchayat as may be necessary."
6. From the above quoted Section 127 of the Adhiniyam, it is apparent that Sub-section (1) provides for alteration of the limits and change of the headquarters of a Block. The First proviso to Sub-section (1) mandates that where the limits of Block are sought to be altered, objections are to be invited and considered before issuance of Notification to that effect. The second proviso to Sub-section (1) prohibits issuance of Notification to change the headquarters of a Block. The only exception carved out is when the existing headquarters of the Block are situated outside the Block the proposed change is to shift the headquarters to a place within that Block.
7. According to the Notification of the year 1999 (Annexure P-2) Entry No.40, Item No.3, the Block shown in column No.3 is Navagarh and the headquarter of Block Navagarh as shown in column No.4 was Janjgir. As in the present case alteration of the limits of the Block was not contemplated, the first proviso to Sub-section (1) has no application. The second proviso to Sub-section (1), permits issuance of Notification to change the headquarter of a Block from outside the Block to a place within the Block. As the Notification dated 25- 01-2008 contemplates shifting of the headquarters of Block Navagarh from Janjgir to Block Navagarh itself, it is fully covered by the second proviso to sub-section (1).
8. As the first proviso to sub-section (1) is not attracted in the present case, we do not find any substance in the above submission of the learned counsel for the petitioner.
9. The writ petition, therefore, is liable to be dismissed and is hereby dismissed summarily.
10. The security amount of Rs.5,000/- deposited by the petitioner be refunded to the petitioner.
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 DHIRENDRA MISHRA, J.
----------------------------------------------------
-----------------------------------
Miscellaneous Appeal No.1063 of 1997 APPELLANT/ : Oriental Insurance Co. Ltd.
NON-APPLICANT Through: Divisional Manager,
NO.3 Kachheri Chowk, Medical
College Road, Raipur.
Versus
RESPONDENT 1. Smt. Madhu Gupta, Age about NO.1/CLAIMANT 29 years, Wd/o Late Ashok Gupta & now W/o Shri Ajay Deshpande, 66, Anand Nagar, Tah. & Distt. Raipur RESPONDENT 2. Janardhan S/o Ram Chandra 1/B NO.2/NON- Street No.11, Sector No.11, APPLICANT NO.1 Zone No.1, Kursipara, Bhilai (Owner Jeep No. MP-24-G/0843) RESPONDENT 3. Mohan Rao, Age 25 Years, S/o NO.3/NON- Shri Raja Rao, R/o 1/F, APPLICANT NO.2 Street No.11, Sector 11, Kursipara, Bhilai, Distt.
Durg (Jeep Driver) Appeal Under Section 173 of the Motor Vehicles Act,1988
----------------------------------------------------
-----------------------------------Present: Shri B.D. Guru with Shri Rajendra Tripathi, learned counsel for the appellant.
Shri Malay Kumar Bhaduri, learned counsel for respondent No.1.
None for respondents No. 2 and 3.
----------------------------------------------------
-----------------------------------
O R D E R (24th April, 2008) The following order of the Court was passed by Rajeev Gupta, C.J.
This is insurer's appeal against the award dated 09.05.1997, passed by the Third Additional Motor Accident Claims Tribunal, Raipur (for short "the Tribunal") in Claim Case No.98/96.
2). Respondent No.1/ claimant Smt. Madhu Gupta claimed compensation of Rs.50,00,000/- (Rupees Fifty Lacs) for the death of her husband- deceased Ashok Gupta in the motor accident on 22.01.1996 when his Scooter was dashed by the offending vehicle Jeep bearing registration No. MP-24G/0843, resulting in his death on the spot itself. The claimant further pleaded that her husband Ashok Gupta used to earn Rs.10,000/- per month from his business.
3). The owner, driver and insurer of the offending vehicle - Jeep contested the claim and denied their liability to pay compensation to the claimant. The owner and driver took the plea that the deceased himself was responsible for the accident. The insurer, on the other hand, pleaded that the driver of the Jeep was not holding a valid driving licence and the Jeep was being plied in breach of the policy conditions.
4). The claimant examined AW-1 Madhu Gupta and AW-2 Ratan Kumar in support of her claim, whereas the owner, driver and insurer did not examine any witness in rebuttal.
5). The Tribunal on a close scrutiny of the evidence led before it held that claimant's husband
- Ashok Gupta died on account of the injuries sustained by him in the motor accident on 22.01.1996; the accident occurred due to rash and negligent driving of the driver of the offending vehicle -Jeep; and as the offending vehicle- Jeep, on the date of the accident, was insured with Oriental Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimant.
6). The Tribunal assessed the income of the deceased at Rs.7,430/- per month. After deducting 50% of the above income of the deceased towards his personal expenses, the claimant's dependency was assessed at Rs.3,715/- per month and Rs.44,580/- per annum. By multiplying the annual dependency of Rs.44,580/- with the multiplier of 15, the compensation was worked out to Rs.6,68,700/-. By awarding further sum of Rs.10,000/- under other permissible heads, the Tribunal awarded a total sum of Rs.6,78,700/- as compensation to the claimant for the death of her husband in the motor accident. The Tribunal directed payment of interest @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
7). Shri B.D. Guru and Shri Rajendra Tripathi, learned counsel for the appellant - Insurance Company vehemently argued that the Tribunal has erred in awarding excessive amount of Rs.6,78,700/- as compensation to the claimant.
8). Shri Malay Kumar Bhaduri, learned counsel for respondent No.1/claimant placing reliance on the dictum of the Apex Court in the case of National Insurance Company Ltd. Vs. Nicolletta Rohtagi and others, reported in 2003 (3) T.A.C. 293 (SC), submitted that as permission under Section 170 of the Motor Vehicles Act, 1988 (for short "the Act") was not granted to the appellant - Insurance Company by the Tribunal to contest the claim on all available defences, it is not open to the appellant
- Insurance Company to challenge the quantum of compensation awarded by the Tribunal in this appeal.
9). It is not in dispute that permission under Section 170 of the Act was neither sought by the appellant - Insurance Company nor it was so granted by the Tribunal. In the absence of the permission under Section 170 of the Act, whether the insurer of the offending vehicle can challenge the quantum of compensation in the appeal filed by the Insurance Company against the award was considered by the Apex Court in the case of National Insurance Company Ltd. Vs. Nicolletta Rohtagi and others (Supra), wherein it was categorically held 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."
10). Now reverting to the present case, permission under Section 170 of the Act was not granted to the appellant - Insurance Company. As such quantum of compensation, awarded by the Tribunal, cannot be challenged by the appellant - Insurance Company in this appeal in view of the above quoted dictum of the Apex Court in the case of National Insurance Company Ltd. Vs. Nicolletta Rohtagi and others (Supra).
11). The appeal, therefore, is liable to be dismissed and is hereby dismissed.
12). Consequently, the interim order dated 10.09.1997 stands vacated automatically.
13). 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 DHIRENDRA MISHRA, J.
----------------------------------------------------
-----------------------------------
Misc. Appeal (C) No. 695 of 2008 APPELLANT National Insurance Company NON-APPLICANT Limited Through, its NO.2 Divisional Manager, Divisional Office, Mobin Mahal, G.E. Road, Raipur (C.G.) Versus RESPONDENTS 1. Smt. Duraiya Hussain, W/o Late CLAIMANTS Javed Hussain, Age - 35 years, Occupation House Wife,
2. Ku. Alphiya, D/o of Late Javed Hussain, Age - 12 years, (Un-
adult)
3. Ku. Munira Bano, D/o Late Javed Hussain, Age - 8 years, (Un-adult) On behalf of Un-adult Applicant No.2 and 3, mother of her would be Applicant.
All R/o Kukurbeda, Amanaka, District Raipur (C.G.) Applicants
4. Smt. Tasin, W/o Shri Rashida Hussain, R/o Hakimi Apartment, Asgar Bada, Amanaka, Raipur, Tahsil & District Raipur (C.G.) Non-
applicant No.1 Appeal Under Section 173 of the Motor Vehicles Act,1988
----------------------------------------------------
----------------------------------- Present:
Shri U.N.S. Deo, learned counsel for the appellant.
----------------------------------------------------
-----------------------------------
O R D E R (16th June, 2008) The following order of the Court was passed by Rajeev Gupta, C.J.
By allowing I.A. No. 02/2008, the document filed along with this application is taken on record.
2. Shri U.N.S. Deo, learned counsel for the appellant is heard on I.A. No.01/2008, an application for condonation of delay in filing the appeal.
3. On due consideration, 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. 01/2008, therefore, is allowed and the delay in filing the appeal is hereby condoned.
5. Shri U.N.S. Deo, learned counsel for the appellant is heard on admission.
6. This is insurer's appeal against the award dated 07-08-2007, passed by the Seventh Motor Accident Claims Tribunal, Raipur (for short `the Tribunal') in Motor Claim Case No. 98/2006.
7. As against the compensation of Rs.16,50,000/-
claimed by the claimants, by filing a claim petition under Section 163-A of the Motor Vehicles Act, for the death of deceased - Javed Hussain, husband of claimant No.1 - Smt. Duraiya Hussain and father of claimants No. 2 & 3, Ku. Alphiya & Ku. Munira Bano, the Tribunal awarded a sum of Rs.3,06,880/- as compensation along with the interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
8. Shri U.N.S. Deo, learned counsel for the appellant submitted that as the appellant - Insurance Company was granted permission under Section 170 of the Motor Vehicles Act to contest the claim on all available defences, quantum of compensation awarded by the Tribunal is being challenged in this appeal filed by the Insurer of the offending vehicle.
9. The Tribunal on a close scrutiny of the evidence led by the parties assessed the income of deceased - Javed Hussain 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.1,666/- per month and Rs.19,992/- per annum. By multiplying the annual dependency of Rs.19,992/- with the multiplier of 15, the compensation was worked out to Rs.2,99,880/-. By awarding a further sum of Rs.2,000/- towards funeral expenses and Rs.5,000/- for loss of estate, the Tribunal awarded a total sum of Rs.3,06,880/- as compensation to the claimants for the death of deceased - Javed Hussain in the motor accident.
10. Shri U.N.S. Deo, learned counsel for the appellant vehemently argued that the Tribunal has erred in assessing the income of the deceased at Rs.2,500/- per month and selecting the multiplier of
15.
11. Deceased - Javed Hussain, at the relevant time, was working as Coolie in the offending vehicle Minidor. Even an unskilled labour can easily earn Rs.80 -100/- per day. As such, the assessment of the income of the deceased by the Tribunal at Rs.2,500/- per month cannot be held to be on the higher side.
12. The claimants' dependency has been rightly assessed by deducting 1/3rd of the income of the deceased towards his personal expenses.
13. The multiplier of 15 selected by the Tribunal considering the age of the deceased, his widow - claimant No.1 Smt. Duraiya Hussain and his two minor daughters Ku. Alphiya & Ku. Munira Bano also cannot be found fault with.
14. For the foregoing reasons, we do not find any good ground for reduction of the compensation assessed by the Tribunal at Rs.3,06,880/-. The appeal filed by the Insurance Company challenging only the quantum of compensation awarded by the Tribunal, 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
----------------------------------------------------
----------------------------------- CORAM:
HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J.
----------------------------------------------------
-----------------------------------M.A. No. 528 of 2002
APPELLANTS 1. Smt. Seeta Devi, W/o Late Claimants Jaykaransingh, aged about 55 years.
2. Smt. Shashi Bala, W/o Late Chandradev Singh @ Chandranath Singh, 22 years,
3. Ku. Anjali Singh, D/o Late Chandradeo Singh @ Chandranath Singh, aged about 6 months, minor through natural Guardian mother Shashi Bala Wd/o Chandradeo Singh
4. Chandrashekhar Singh, S/o Late Jaykaransingh aged about 28 years.
5. Ku. Suman Singh D/o Late Jaykaran Singh, aged about 18 years.
All are R/o Qtr. No.11F, Road 30, Sector-5, Bhilai, Distt.
Durg (C.G.) Versus RESPONDENTS 1. Jayant Rai, S/o R.C. Rai, Non-claimants Bengali, aged about 32 years, R/o E.W.S. 670, Vaishali Nagar, Thana Supela, Distt.
Durg (CG)
2. Kedia Kestal Delan Industries Ltd. Kumhari, Distt. Durg (CG)
3. The Oriental Insurance Co.
Ltd., 10 Ravishankar Shukla Market, Power House, Bhilai, Distt. Durg (CG).
Appeal Under Section 173 of the Motor Vehicles Act, 1988
----------------------------------------------------
-----------------------------------Present: Shri Awadh Tripathi, counsel for the appellants.
None for respondents No. 1 & 2.
Shri Sudhir Agrawal, counsel for respondent No.3
----------------------------------------------------
-----------------------------------
O R D E R (1st July, 2008) 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 Fourth Additional Motor Accident Claims Tribunal, Durg (for short `the Tribunal') vide award dated 29-04-2002, passed in Claim Case No.181/98.
2. The claimants, unfortunate widow, minor daughter, mother, brother and sister of deceased - Chandradev Singh claimed compensation of Rs.47,85,000/- by filing a claim petition under Section 166 of the Motor Vehicles Act (for short `the Act') for his death in the motor accident when on 21-05-98 the Maruti Van bearing registration No. MP 24 GC/0716 in which he was travelling dashed against a tree due to rash and negligent driving of its driver, resulting in multiple serious injuries to Chandradev Singh, who succumbed to those injuries during the course of his treatment in the hospital on 22-05-98. The claimants further pleaded that deceased Chandradev Singh was earning Rs.5,000/- per month by working as Supervisor in Kedia Company.
3. The owner, driver and the insurer of Maruti Van contested the claim and denied their liability to pay compensation to the claimants. The owner and driver pleaded that the accident did not occur due to rash and negligent driving of the driver. They further pleaded that the liability to pay compensation to the claimants, if any, would be that of the Insurance Company as the Maruti Van on the date of the accident was insured with the Oriental Insurance Company Limited. The insurer, on the other hand, denied the fact of the accident and pleaded that the driver of the Maruti Van was not holding a valid driving licence and Maruti Van was being plied in breach of the policy conditions.
4. The claimants examined AW/1 - Smt. Seeta Devi, AW/2 - Dalvir Singh @ Bora Singh and AW/3 - Sapan in support of their claim, whereas the owner, driver and insurer of Maruti Van did not examine any witness in rebuttal.
5. The Tribunal on a close scrutiny of the evidence led before it held that deceased - Chandradev Singh died on account of the injuries sustained by him in the motor accident; the accident occurred due to rash and negligent driving of the driver of Maruti Van; as Maruti Van was insured on the date of the accident with the Oriental Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
6. The Tribunal found that the evidence led by the claimants about the income of the deceased was not reliable. The Tribunal, therefore, assessed the income of the deceased on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Act 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 16, the compensation was worked out to Rs.1,60,000/-. By awarding Rs.2,000/- towards the funeral expenses; Rs.5,000/- for loss of consortium to the widow; and Rs.2,500/- for loss of estate, the Tribunal awarded a total sum of Rs.1,69,500/- as compensation to the claimants for the death of deceased - Chandradev Singh in the motor accident. The Tribunal further directed payment of interest @ 9% per annum on the above amount of compensation of Rs.1,69,500/- from the date of filing of the claim petition till the date of actual payment.
7. Shri Awadh Tripathi, 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 awarding low compensation of Rs.1,69,500/- only.
8. Shri Sudhir Agrawal, learned counsel for respondent No.3 - Oriental Insurance Company, on the other hand, supported the award and submitted that the Tribunal has been quite liberal in awarding substantial compensation of Rs.1,69,500/- to the claimants.
9. The findings recorded by the Tribunal that deceased - Chandradev Singh died on account of the injuries sustained by him in the motor accident; the accident occurred due to rash and negligent driving of the driver of Maruti Van; and the Insurance Company was liable to pay compensation to the claimants have now attained finality as the respondents have not filed any appeal against the award. That apart, there is overwhelming evidence available on record to prove the above facts beyond any shadow of doubt. We, therefore, affirm the above findings recorded by the Tribunal.
10. True, the claimants pleaded that deceased - Chandradev Singh was appointed as Supervisor in Kedia Company ten days before the accident at the salary of Rs.5,000/- per month. The evidence led by the claimants 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. Nevertheless, the income of the deceased assessed by the Tribunal on the basis of the notional income at Rs.15,000/- per annum requires reconsideration.
11. The notional income of Rs.15,000/- was prescribed in the Second Schedule under Section 163- A of the Act in the year 1994. The accident in which deceased - Chandradev Singh 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 years 1994 and 1998 is taken into consideration, the notional income of Rs.15,000/- prescribed in the year 1994 would 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.
12. By deducting 1/3rd of Rs.21,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.14,000/- per annum.
13. Considering the age of the deceased and the claimants, we are of the opinion that the multiplier of 15 would be appropriate in the present case.
14. By multiplying the annual dependency of Rs.14,000/- with the multiplier of 15 the compensation works out to Rs.2,10,000/-. By adding the sum of Rs.9,500/- awarded by the Tribunal towards the funeral expenses; loss of consortium to the widow; and loss of estate, the claimants become entitled to receive a total sum of Rs.2,19,500/-.
15. 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 delay in disposal of the matter, we quantify the amount of interest payable on the enhanced amount of compensation of Rs.50,000/- at Rs.15,000/-.
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.1,69,500/- awarded by the Tribunal is enhanced to Rs.2,19,500/- with further quantified amount of interest of Rs.15,000/- on the enhanced amount of compensation of Rs.50,000/-.
17. Respondent No.3 - Oriental Insurance Company Limited is granted two months' time for depositing the total sum of Rs.65,000/- (Rs. 50,000/- towards enhanced amount of the compensation + Rs.15,000/- towards quantified amount of interest on the enhanced amount of compensation) 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, C.J. & HON'BLE SHRI SATISH K. AGNIHOTRI, J.
----------------------------------------------------
-----------------------------------Misc. Appeal No. 492/1999
APPELLANT 1. Ramnu S/o Sitaram, Aged 45 Claimant years, Occupation - Service & Farming.
2. Smt. Hira Bai W/o Ramnu aged 41 years, Both R/o Umariya, P.S. Bilha, Distt. Bilaspur (M.P.) Versus RESPONDENTS 1. Jhumaklal S/o Krishna Kumar Non-applicants Gupta, aged 30 years, Driver of Motor No. MP-26-C-5605 R/o Tilakpur, P.S. Lormi, Distt.
Bilaspur (M.P.)
2. Shiv Kumar Singh S/o Shri B.S. Thakur, Owner of Motor Vehicle, R/o Motor Stand (New), Distt. Bilaspur (M.P.)
3. The New India Insurance Co.
Ltd., Rajendra Nagar, Bilaspur (M.P.) Misc. Appeal Under Section 173 of Motor Vehicles Act
----------------------------------------------------
-----------------------------------Present: Shri Sanjay K. Agrawal & Shri Sudeep Agrawal, learned counsel for the appellants.
None for respondents No. 1 & 2.
Shri N.K. Agrawal, learned Senior Advocate with Shri Q.Aziz, learned counsel for respondent No.3.
----------------------------------------------------
-----------------------------------
O R D E R (4th July, 2008) 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 Fifth Additional Motor Accident Claims Tribunal, Bilaspur (for short `the Tribunal') vide award dated 23-01-1999, passed in Motor Claim Case No.20/1998.
2. The claimants, unfortunate parents of deceased
- Subhash claimed compensation of Rs.4,70,000/- by filing a claim petition under Section 166 of the Motor Vehicles Act (for short `the Act') for his death in the motor accident on 01-11-1996, when he was crushed under the rear-wheel of the Bus bearing registration No.MP26 C/5605, due to rash and negligent driving of its driver, resulting in his instantaneous death on the spot itself. The claimants further pleaded that their son Subhash was aged about 22 years and used to earn Rs.1,500/- per month.
3. The owner and driver of the offending vehicle - Bus did not contest the claim and were proceeded ex parte before the Tribunal.
4. The insurer of the offending vehicle - Bus contested the claim and denied its liability to pay compensation to the claimants on the plea that the driver of the Bus was not holding a valid driving licence and the Bus was being plied in breach of the policy conditions.
5. The claimants examined AW-1 - Ramnu in support of their claim, whereas the insurer of the Bus did not examine any witness in rebuttal.
6. The Tribunal on a close scrutiny of the evidence led before it held that claimants' son Subhash died on account of the injuries sustained by him in the motor accident; the accident occurred due to rash and negligent driving of the driver of the offending vehicle - Bus; as the Bus was insured on the date of the accident with the New India Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
7. The Tribunal though assessed the income of the deceased at Rs.1,500/- per month, did not award any compensation to the claimants on the basis of the multiplier system. The Tribunal instead awarded a lump-sum of Rs.60,000/- as compensation to the claimants for the death of their son Subhash in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation @ 12% per annum from the date of filing of the claim petition till the date of the actual payment.
8. Shri Sanjay K. Agrawal, learned counsel for the appellants submitted that the Tribunal has erred in not assessing the compensation on the basis of the multiplier system and in awarding low compensation of Rs.60,000/- only.
9. Shri N.K. Agrawal, learned Senior Counsel for respondent No.3, insurer of the Bus, on the other hand, supported the award and contended that the compensation awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
10. The findings recorded by the Tribunal that the claimants' son - Subhash died on account of the injuries sustained by him in the motor accident; the accident occurred due to rash and negligent driving of the driver of the offending vehicle - Bus; and the Insurance Company was liable to pay compensation to the claimants have now attained finality as respondents have not filed any appeal against the award. That apart, there is overwhelming evidence available on record to establish the above facts beyond any shadow of doubt. We, therefore, affirm the above findings recorded by the Tribunal.
11. The claimants pleaded that their son - Subhash used to earn Rs.1,500/- per month by serving in Sahara India as a Labour. The Tribunal in para 12 of the award has accepted the claimants' evidence about the income of the deceased. As the Tribunal has not assessed the compensation payable to the claimants on the basis of widely accepted multiplier system, we propose to recompute the compensation taking the income of the deceased at Rs.1,500/- per month and Rs.18,000/- per annum.
12. Deceased - Subhash was aged about 20-22 years and was unmarried at the time of the accident. The deceased would have been married in due course. After his marriage, his contribution to the parents would have been substantially reduced. We, therefore, deem it proper to deduct 50% of the income of the deceased towards his personal expenses. By deducting 50% of Rs.18,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.9,000/- per annum.
13. As the claimants are parents of the deceased, the appropriate multiplier would be 10, 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.
14. By multiplying the annual dependency of Rs.9,000/- with the multiplier of 10, the compensation works out to Rs.90,000/-. The claimants are further entitled to Rs.2,000/- towards funeral expenses and Rs.3,000/- for loss of estate. The claimants, thus, become entitled to receive a total sum of Rs.95,000/- as compensation for the death of their son - Subhash in the motor accident.
15. 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 delay, we quantify the amount of interest payable on the above enhanced amount of compensation of Rs.35,000/- at Rs.10,000/-.
16. For the foregoing reasons, the appeal filed by the claimants for enhancement of the compensation is allowed in part. The compensation of Rs.60,000/- awarded by the Tribunal is enhanced to Rs.95,000/- with further quantified amount of interest of Rs.10,000/- on the enhanced amount of compensation of Rs.35,000/-.
17. Respondent No.3 - The New India Insurance Company Limited is granted three months' time for depositing the total sum of Rs.45,000/- (Rs.35,000/- towards the enhanced amount of compensation + Rs.10,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.35,000/-) 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, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J.
----------------------------------------------------
-----------------------------------M.A. No. 1222 of 1998
APPELLANTS 1. Smt. Chitra Chandrakar, Aged Claimants about 24 years, Wd/o Late Dogendra Kumar
2. Gaurav Chandrakar, Aged about 03 years, S/o Late Dogendra Kumar (Minor)
3. Devesh Chandrakar, Aged about 03 months, S/o Late Dogendra Kumar (Minor)
4. Smt. Pushpanjali Chandrakar, Aged about 48 years, W/o Shri Shishu Pal Singh
5. Shishu Pal Singh Chandrakar, Aged about 51 years, S/o Har Lal Prasad Minor Appellant No. 2 and 3 through their natural guardian mother Smt. Chitra Chandrakar - Appellant No. 1 All residents of Gaya Nagar, Durg, Tahsil & Distt. Durg (MP) Versus RESPONDENTS 1. Rishpal Singh S/o Teja Singh, Opposite Party Aged about 26 years, Tempo Driver R/o Sector 4/8/7 D Bhilai District Durg (MP)
2. Abdul Rahman S/o Abdul Gafur, Aged about 35 years, Tempo Owner, R/o Bajaj Auto Armeture G.E. Road, Bhilai District Durg (MP)
3. National Insurance Company Ltd. Through Divisional Manager, Divisional Office, Akash Ganga Complex, Supela Bhilai, District Durg (MP) Memorandum of Appeal under Section 173 of the Motor Vehicles Act, 1988.
----------------------------------------------------
-----------------------------------Present: Shri Rajendra Tripathi, learned counsel for the appellants.
None for respondents No. 1 and
2. Shri B.N. Nande, learned counsel for respondent No.3.
----------------------------------------------------
-----------------------------------
O R D E R (22nd July, 2008) The following order of the Court was passed by Rajeev Gupta, C.J.
The appellants have preferred this appeal under Section 173 of the Motor Vehicles Act for enhancement of the compensation awarded by the Third Additional Motor Accident Claims Tribunal, Durg (for short `the Tribunal') vide award dated 09-07-1998, passed in Motor Claim Case No.41/94.
2. The unfortunate widow, minor children and parents of deceased - Dogendra Kumar claimed compensation of Rs.11,35,000/- for his death in the motor accident on 14-02-1994 when his motorcycle was dashed by the offending vehicle - Tempo, bearing registration No. MKR 786, resulting in his instantaneous death on the spot itself. The claimants further pleaded that deceased - Dogendra Kumar used to earn Rs.3,840/- per month as Planning Assistant in Bhilai Steel Plant.
3. The driver of the offending vehicle - Tempo did not contest the claim and was proceeded ex parte before the Tribunal.
4. The owner and insurer of the offending vehicle
- Tempo contested the claim and denied their liability to pay compensation to the claimants on the plea that the deceased himself was responsible for the accident. The insurer further pleaded that the driver of the Tempo was not holding a valid driving license and the Tempo was being plied in breach of the policy conditions.
5. The claimants examined AW/1 - Smt. Chitra Chandrakar, AW/2 - Smt. Pushpanjali Chandrakar and AW/3 - Chaitram Sahu in support of their claim whereas the owner and insurer of the offending vehicle - Tempo examined A.K. Saxena and Rishpal Singh in rebuttal.
6. The Tribunal on a close scrutiny of the evidence led by the parties held that deceased - Dogendra Kumar died on account of the injuries sustained by him in the motor accident; the accident occurred due to rash and negligent driving of the driver of the offending vehicle - Tempo; as the offending vehicle - Tempo on the date of the accident was insured with National Insurance Company Ltd., the Insurance Company was liable to pay compensation to the claimants.
7. The Tribunal assessed the income of the deceased at Rs.1,936/- per month. By deducting a sum of Rs.300/- per month towards the personal expenses of the deceased, the claimants' dependency was assessed at Rs.1,636/- per month and Rs.19,632/- per annum. By multiplying the annual dependency of Rs.19,632/- with the multiplier of 18, the compensation was worked out to Rs.3,53,376/-. By awarding further sums under other heads, the Tribunal awarded a total sum of Rs.3,66,376/- as compensation to the claimants for the death of deceased - Dogendra Kumar in the motor accident. The Tribunal further directed payment of interest @ 12% per annum on the above amount of compensation of Rs.3,66,376/- from the date of filing of the claim petition till the date of actual payment.
8. Shri Rajendra Tripathi, learned counsel for the appellants submitted that the Tribunal has erred in assessing the income of the deceased at Rs.1,936/- per month on the basis of his net pay; and in awarding low compensation of Rs.3,66,376/- to the claimants.
9. Shri B.N. Nande, learned counsel for respondent No.3 - National Insurance Company Ltd., on the other hand, supported the award and submitted that the Tribunal has been quite liberal in awarding substantial amount of Rs.3,66,376/- as compensation to the claimants.
10. As the respondents have not filed any appeal against the award, the findings recorded by the Tribunal that deceased - Dogendra Kumar died on account of the injuries sustained by him in the motor accident; the accident occurred due to rash and negligent driving of the driver of the offending vehicle - Tempo; and the insurer of the Tempo 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 findings recorded by the Tribunal in that behalf.
11. Deceased - Dogendra Kumar was working as Planning Assistant in Bhilai Steel Plant. The claimants adduced the salary slip of deceased - Dogendra Kumar in evidence before the Tribunal. The salary slips Ex. P-10 & P-11 reveal that the gross pay of deceased - Dogendra Kumar for the month of December, 1993 was Rs.3,660.79, whereas for the month of January, 1994 it was Rs.3,840.35. The break-up in the salary slip reveals that the basic pay of the deceased was Rs.1,659/-, whereas the dearness allowance payable was Rs.1,157/-. The salary slip further discloses certain deductions made from the salary of the deceased towards repayment of Provident Fund Loan, contribution to the Co-operative Society etc. The net pay of deceased - Dogendra Kumar for the month of December, 1993 was Rs.1,449/- whereas for the month of January, 1994 it was Rs.1,936/-. In our considered view, the Tribunal has fallen into error in assessing the income of the deceased on the basis of the net pay only. The income of the deceased ought to have been assessed on the basis of the gross pay shown in the salary slip after deducting only the allowable deductions. In our considered view, the income of the deceased ought to have been assessed at Rs.3,000/- per month and Rs.36,000/- per annum. We, therefore, propose to recompute the compensation taking the income of the deceased at Rs.3,000/- per month and Rs.36,000/- per annum.
12. By deducting 1/3rd of Rs.36,000/- towards the personal expenses of the deceased, the claimants' dependency is assessed at Rs.24,000/- per annum.
13. Considering that deceased - Dogendra Kumar was 29 years of age on the date of the accident and his widow appellant No. 1 - Smt. Chitra Chandrakar was shown to be 24 years of age in the claim petition, we are of the opinion that the multiplier of 16 would be appropriate in the present case.
14. By multiplying the annual dependency of Rs.24,000/- with the multiplier of 16, the compensation works out to Rs.3,84,000/-. The claimants are further entitled to receive Rs.5,000/- towards funeral expenses; Rs.5,000/- towards loss of consortium to the widow; Rs.5,000/- for loss estate. The claimants, thus, become entitled to receive a total sum of Rs.3,99,000/- as compensation for the death of deceased - Dogendra Kumar in the motor accident.
15. 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 delay in the matter, we quantify the amount of interest payable on the enhanced amount of compensation of Rs.32,624/- at Rs.12,376/-.
16. For the foregoing reasons, the appeal filed by the claimants for enhancement of the compensation is allowed in part. The compensation of Rs.3,66,376/- awarded by the Tribunal is enhanced to Rs.3,99,000/- with further quantified amount of interest of Rs.12,376/-.
17. Respondent No. 3 - National Insurance Company Ltd. is granted three months time for depositing the total sum of Rs.45,000/- (Rs.32,624/- towards enhanced amount of compensation + Rs. 12,376/- towards quantified amount of interest on the enhanced amount of compensation) 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, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J.
----------------------------------------------------
---------------------------------- M.A.(C) No.1261 of 2008 APPELLANTS 1. Sandhya Bai, Wd/o Jagdish Gond, aged about 30 years,
2. Dhananjay Kumar Gond, S/o Jagdish Gond, aged about 12 years,
3. Kumari Sunaina, D/o Jagdish Gond, aged about 6 years,
4. Dhiraj Kumar, S/o Jagdish Gond, aged about 2 years,
5. Subhadra Bai, W/o Late Kalaram Gond, aged about 60 years, Appellant No.2 to 4 through natural guardian appellant No.1 All R/o Village Krishnabandh, Tahsil Kota, District Bilaspur (C.G.) Versus NON-APPLICANTS 1 Chandram S/o Bahoran Ram, aged . about 37 years, R/o Sondeeh, P.S. Akaltara, District Janjgir-
Champa, Presently resident at Near Electric Sub-station, Ashok Nagar, P.S. Sarkanda, Tahsil and District Bilaspur (C.G.) 2 Bisheshwar Singh, S/o Jodhan . Singh, aged about 50 years, R/o Seepat Chowk Sarkanda, Tahsil and District Bilaspur (C.G.) 3 The New India Insurance Company . Limited - Through - The Branch Manager, Opposite Rajeev Plaza, Bus Stand Road, Bilaspur (C.G.) Miscellaneous Appeal U/S 173 of the Motor Vehicles Act, 1988
----------------------------------------------------
---------------------------------- Present : Shri A.V. Shridhar, learned counsel for the appellants.
----------------------------------------------------
----------------------------------
O R D E R (18th September, 2008) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri A.V. Shridhar, learned counsel for the appellants is heard on I.A. No.01/2008, an application for condonation of delay in filing the appeal.
2. On due consideration of the submissions of the learned counsel for the appellants, we are satisfied that the appellants have succeeded in showing sufficient cause for the delay in filing the appeal.
3. I.A. No.01/2008, therefore, is allowed and the delay in filing the appeal is hereby condoned.
4. Shri A.V. Shridhar, learned counsel for the appellants is heard on admission.
5. The appellants are seeking enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Bilaspur (for short `the Tribunal') vide award dated 09-05-2008, passed in Claim Case No. 249/2007.
6. As against the compensation of Rs.10,86,000/- claimed by the claimants, unfortunate widow, minor children and mother of deceased Jagdish Gond for his death in the motor accident on 07-05-2007, the Tribunal awarded a total sum of Rs.3,54,500/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
7. Shri A.V. Shridhar, 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.2,500/- per month and Rs.30,000/- per annum; and in awarding low compensation of Rs.3,54,500/- only.
8. Though the claimants pleaded that deceased Jagdish Gond used to earn Rs.150 - 200/- per day as labour, the evidence of his employer before the Tribunal was to the effect that the deceased was getting monthly salary of Rs.2,000/- and Rs.60 - 70/- per trip. The Tribunal on a thorough consideration of the entire evidence led by the claimants about the income of the deceased, assessed his income at Rs.2,500/- per month and Rs.30,000/- per annum.
9. On due consideration of the submissions of the learned counsel for the appellants and the reasonings given by the Tribunal in the impugned award, we are satisfied that the Tribunal has rightly assessed the income of the deceased at Rs.2,500/- per month and Rs.30,000/- per annum.
10. The claimants' dependency also has been rightly assessed by the Tribunal by deducting only the usual 1/3rd of the income of the deceased towards his personal expenses.
11. The multiplier of 17 selected by the Tribunal is rather on the higher side in view of the dictum of the Apex Court in the case of New India Assurance Co. Ltd. Vs. Kalpana and others, reported in 2007 ACJ 825, wherein the multiplier of 13 was found appropriate for the deceased who was aged about 33 years.
12. For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Tribunal either on account of the assessment of the income of the deceased or the claimants' dependency by the Tribunal or the multiplier selected.
13. 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
----------------------------------------------------
----------------------------------- CORAM:
HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J.
----------------------------------------------------
-----------------------------------
Criminal Appeal No.933 of 2002 APPELLANT : Tulsi Ram Son of Sukul Yadao, (In Jail) aged 22 years, resident of Village Renga Kathera, P.S. Dongargarh, Distt. Rajnandgaon, C.G. Versus RESPONDENT : State of Chhattisgarh Through Police Station Dongargarh, District Rajnandgaon (C.G.) Criminal Appeal Under Sec. 374(2) of the Code of Criminal Procedure,1973
----------------------------------------------------
----------------------------------- Present : Shri Sandeep Dubey, counsel for the appellant.
Shri U.N.S. Deo, Government Advocate for the State.
----------------------------------------------------
-----------------------------------
JUDGMENT (9th September, 2008) The following Judgment of the Court was passed by Rajeev Gupta, C.J.
Appellant Tulsi Ram stands convicted under Section 302 of the Indian Penal Code (for short `I.P.C.') with sentence of imprisonment for life vide impugned judgment dated 9-4-2002, passed by the Sessions Judge, Rajnandgaon in Sessions Trial No.148/2001.
2. Appellant Tulsi Ram has been found guilty of commission of murder of one Dev Singh Lodhi in the noon of 13-8-2001 by causing multiple injuries on him by means of Tangia, resulting in his instantaneous death on the spot itself.
3. The appellant's conviction is founded on the eyewitness account of PW-5 Tumman @ Chumman and PW-6 Ashwini, whose evidence was found corroborated by the trial Court by the medical evidence of PW-13 Dr. N. Sachdev.
4. The Autopsy Surgeon PW-13 Dr. N. Sachdev on postmortem examination found as many as six incised wounds on the body of deceased Dev Singh with corresponding fractures of his skull bones as detailed in the postmortem report Ex. P-19. In the opinion of the Autopsy Surgeon, the deceased died on account of the shock resulting from the multiple fractures of his skull bones.
5. At the trial, the capital charge of murder was sought to be proved against accused Tulsi Ram on the evidence of PW-1 Bhav Singh, PW-2 Hariram, PW-3 Nakul Singh, PW-4 Angaram, PW-5 Chumman @ Tumman, PW-
6 Ashwini, PW-7 Mukesh, PW-8 Kirti Bai, PW-9 Sukhdev, PW-10 S.R. Diwan, PW-11 Virendra Kumar, PW-
12 Rooplal Thakur & PW-13 Dr. N. Sachdev.
6. Accused Tulsi Ram abjured his guilt and pleaded false implication on account of enmity. The accused, however, did not examine any witness in his defence.
7. The trial Court on a close scrutiny of the evidence led by the prosecution at the trial in general and that of PW-5 Chumman @ Tumman, PW-6 Ashwini & PW-13 Dr. N. Sachdev in particular, held appellant Tulsi Ram guilty of causing those injuries on deceased Dev Singh by means of Tangia, which resulted in his instantaneous death. The trial Court further found that the appellant while causing those injuries on deceased Dev Singh had intended to cause his death. On the above findings, the trial Court convicted appellant Tulsi Ram under Section 302 of the I.P.C. and sentenced him to imprisonment for life.
8. Shri Sandeep Dubey, learned counsel for the appellant placing reliance on the dictum of the Apex Court in the case of State of Madhya Pradesh Vs. Surbhan, reported in AIR 1996 SC 3345 vehemently argued that as the evidence of the two eyewitnesses is inconsistent with the medical evidence, the trial Court has erred in recording the appellant's conviction.
9. Shri U.N.S. Deo, learned Government Advocate, on the other hand, supported the impugned judgment of appellant's conviction and contended that the evidence of PW-5 Chumman @ Tumman and PW-6 Ashwini has been rightly believed by the trial Court in holding appellant Tulsi Ram guilty under Section 302 of the I.P.C.
10. It is not in dispute before us that deceased Dev Singh died a homicidal death on account of the injuries sustained by him on 13-8-2001. That apart, the ocular evidence of PW-5 Chumman @ Tumman & PW-6 Ashwini and the medical evidence of PW-13 Dr. N. Sachdev amply establish the above fact that deceased Dev Singh died a homicidal death on account of the injuries sustained by him on 13-8-2001.
11. PW-5 Chumman @ Tumman who was aged about 12 years on the date of the incident was grazing goats along with PW-6 Ashwini and appellant Tulsi Ram. He has deposed that in the noon at about 1.00 when he was cutting some branches of a mango tree, deceased Dev Singh came from his village to his agricultural field at a nearby place. Dev Singh found that some goats had strayed into his field. This led to exchange of abuses between accused Tulsi Ram and deceased Dev Singh. Accused Tulsi Ram thereupon dealt Tangia blow on the head region of Dev Singh.
This witness thereafter fled away from the place of occurrence. Nothing could be elicited by the defence in his cross-examination which may render his evidence unworthy of credence. In fact, there is virtually no cross-examination of this witness about the main incident of assault on the deceased.
12. Other eyewitness PW-6 Ashwini deposing in line with the evidence PW-5 Chumman @ Tumman, stated that on the fateful day when deceased Dev Singh came to his field, exchange of abuses took place between Dev Singh and accused Tulsi Ram. Accused Tulsi Ram thereupon, dealt a Tangia blow on the deceased, as a result whereof the deceased fell on the ground. Thereafter, this witness fled away from the place of occurrence. In para 3 of his cross-examination, he categorically stated that he witnessed dealing of one blow by the accused by means of Tangia on the deceased and thereafter, he ran away from the place of occurrence.
13. On a close scrutiny of the evidence of these two eyewitnesses, namely, PW-5 Chumman @ Tumman and PW-6 Ashwini, we are satisfied that both these witnesses are truthful and reliable witnesses and their evidence can safely be acted upon. There is not even a suggestion to these witnesses that they are in any manner related to the deceased or are inimical to accused Tulsi Ram. We, therefore, do not find any earthly reason for these two eyewitnesses to depose falsely against the appellant.
14. The ocular evidence of PW-5 Chumman @ Tumman and PW-6 Ashwini stands amply corroborated by the medical evidence of PW-13 Dr. N. Sachdev, who on postmortem examination found incised wounds on the body of the deceased, which could have been caused by means of a sharp edged weapon like Tangia.
15. The learned counsel for the appellant submitted that the evidence of PW-5 Chumman @ Tumman and PW-6 Ashwini is belied by the medical evidence of PW-13 Dr. N. Sachdev as these eyewitnesses have deposed about dealing of one Tangia blow by the accused, whereas the Autopsy Surgeon found as many as six incised wounds on the body of the deceased.
16. In view of the categoric evidence of the two eyewitnesses that both of them had run away from the place of occurrence after dealing of first blow by the accused on the deceased, the above submission deserves an outright rejection. In this fact situation, the two eyewitnesses obviously could not have seen the further assault of the deceased by the accused. In our opinion, these two eyewitnesses in not deposing about the further assault have only proved that they are truthful and innocent eyewitnesses as they have deposed only about that part of the incident which they actually witnessed.
17. The dictum of the Apex Court in the Case of State of Madhya Pradesh Vs. Surbhan (Supra), in the fact situation of the present case is of no help to the appellant.
18. For the foregoing reasons, we do not find any infirmity in the finding recorded by the trial Court holding appellant Tulsi Ram guilty of causing those injuries on deceased Dev Singh, which resulted in his instantaneous death on the spot itself.
19. The number and nature of the injuries found on the deceased and the corresponding multiple fractures of his skull bones coupled with the fact that the injuries sustained by the deceased resulted in his instantaneous death on the spot itself and that the injuries were caused by means of a sharp edged weapon Tangia, do not leave any room for doubt that appellant Tulsi Ram while causing those injuries on deceased Dev Singh had intended to cause his death.
20. The proved act of appellant Tulsi Ram of causing as many as six incised wounds by means of a Tangia on deceased Dev Singh, in our opinion, therefore, would not amount to anything short of `Murder' and would be punishable under Section 302 of the I.P.C. only.
21. The appeal filed by appellant Tulsi Ram against his conviction under Section 302 of the I.P.C. and sentence of imprisonment for life, 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
----------------------------------------------------
----------------------------------- CORAM:
HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J.
----------------------------------------------------
----------------------------------- Miscellaneous Appeal (C) (PR) No.2527 of 2007 Appellants 1. Ishwar Sahu S/o Radheshyam Sahu, Claimants Occupation-agriculture, aged about 30 years,
2. Smt. Uma Sahu, W/o Ishwar Sahu, Occupation - House Wife, aged about 26 years, Both R/o Village - Paterapali, Post - B.K. Bahara, Police Station - Bagbahara, Tehsil & Distt. Mahasamund (C.G.) Versus RESPONDENTS 1 Arun Kumar Pandey S/o Sonadhar NON CLAIMANTS . Pandey, aged about 30 years, Occupation - driver, R/o Village
- Chhata, Police Station -
Rajakhariyar (Orissa), Present Address - Sector-9, B.K.D. No.22, Bhilai, District -
Durg (C.G.) (Driver of Vehicle Bus bearing registration No.CG 04/E 3388) 2 Chandra Shekhar Kumar Singh S/o . S.P. Singh, occupation - vehicle owner, R/o- Prince Colony Laxmi Nagar Raipur, District - Raipur (C.G.) (Registered owner of Vehicle Bus bearing registration No.C.G. 04/E 3388) 3 The New India Insurance Company . Limited through Divisional Manager, Divisional Office, Kutchery Chowk, Raipur, Tehsil & District - Raipur (C.G.) (Insurer of Vehicle Bus bearing registration No. C.G. 04/E 3388) Memorandum of Appeal Under Section 173 of the Motor Vehicles Act, 1988
----------------------------------------------------
----------------------------------- Present : Shri Dharmesh Shrivastava, learned counsel for the appellants.
----------------------------------------------------
-----------------------------------
O R D E R (4th September, 2008) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri Dharmesh Shrivastava, learned counsel for the appellants is heard on I.A.No.01/2008, an application for condonation of delay in filing the appeal.
2) On due consideration, I.A. No.01/2008 is allowed and the delay in filing the appeal is hereby condoned.
3) Learned counsel for the appellant is heard on admission.
4) The appellants, unfortunate parents of deceased girl Ku. Manju Sahu, aged about 5 years claimed compensation of Rs.6,00,000/- for her death in the motor accident on 11.9.2006.
5) The Tribunal considering the age of the deceased and the other relevant factors awarded a total sum of Rs.1,02,000/- as compensation along with interest @ 6% per annum from the date of the filing of the claim petition till the date of actual payment.
6) The compensation of Rs.1,02,000/- awarded by the Tribunal when examined in the context of the dictum of the Apex Court in the case of Oriental Insurance Company Limited vs Syed Ibrahim and others, reported in 2007 (4) TAC 385 SC, wherein the amount of Rs.1,52,000/- enhanced by the High Court was reduced by the Apex Court to Rs.51,500/- (awarded by the Tribunal) for the death of a child aged about 7 years, we are satisfied, does not call for any enhancement in this appeal.
7) The appeal, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE J U D G E padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
----------------------------------------------------
----------------------------------- CORAM:
HON'BLE SHRI RAJEEV GUPTA, C.J. & HON'BLE SHRI SUNIL KUMAR SINHA, J.
----------------------------------------------------
----------------------------------- Misc. Appeal No.206 of 2000 APPLICANTS 1. Shivlal Sahu, aged about 60 yrs. CLAIMANTS S/o Late Shri Budhram Sahu, Headmaster
2. Smt. Godawari Bai, aged about 45 years, W/o Shri Shivlal Sahu Both resident of village Lakundel, Tah. & Distt.
Dhamtari.
Versus RESPONDENTS 1 Chandra Shekhar S/o Shri Udholal . Caste Soni aged about 45 years R/o Tikrapara, Raipur (M.P.) (Bus Driver) 2 Israr Ahmed @ Bachhuram, aged . about 29 years S/o Shri Isthar Ahmed, R/o Maudhapara, Raipur (M.P.) (Bus Owner) 3 The New India Insurance Co.Ltd.
. Divisional Office, Madina Building, Jail Road, Raipur (M.P.) (Bus Insurance Co.) 4 Navneet Kumar, aged about 31 . yrs. S/o Shri Subhash Kumar Dubey R/o Janta Colony - 335 Gudiyari Raipur, Distt. Raipur (M.P.) (Jeep Owner) 5 The Oriental Insurance Co. Ltd.
. Branch Office, Backside of Amar Talkies, Dhamtari, Distt.
Dhamtari (M.P.) Appeal Under Section 173 of the Motor Vehicles Act, 1988
----------------------------------------------------
-----------------------------------
Present : Shri Vishnu Koshta & Shri N.P.
Koshta, learned counsel for the
appellants.
None for respondents No. 1,2 & 4.
Shri Ali Asgar, learned counsel for respondent No.3.
Shri B.D. Guru & Shri Rajendra Tripathi, learned counsel for respondent No.5.
----------------------------------------------------
-----------------------------------
O R D E R (4th September, 2008) 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 Accident Claims Tribunal, Dhamtari (for short `the Tribunal') vide award dated 14-12-1999, passed in Claim Case No. 71/98.
2. The claimants, unfortunate parents of deceased Piteshwar claimed compensation of Rs.20,25,000/- by filing a claim petition under Section 166 of the Motor Vehicles Act (for short `the Act') for his death in the motor accident when on 14-06-1998, the Jeep bearing registration No.M.P.-23/T-845, in which he was travelling was dashed by the Bus bearing registration No. MP23-J/296, resulting in his instantaneous death on the spot itself. The claimants further pleaded that their son Piteshwar used to earn Rs.3,00,000/- per annum by cultivating agricultural land to the extent of 12 acres.
3. The owner and driver of the Bus did not contest the claim and remained ex parte before the Tribunal. The insurer of the Bus and the owner and insurer of the Jeep contested the claim and denied their liability to pay compensation to the claimants. The insurers of the Bus and Jeep took the plea that the drivers of these vehicles were not holding valid driving licence and these vehicles were being plied in breach of the policy conditions.
4. The claimants examined AW1 Shivlal Sahu in support of their claim, whereas the owners and insurers of the Bus and Jeep did not examine any witness in rebuttal.
5. The Tribunal on a close scrutiny of the evidence led before it held that the claimants' son Piteshwar died on account of the injuries sustained by him in the motor accident on 14-06-1998; the drivers of both the vehicles i.e. Bus and Jeep were equally responsible for the accident; as the Bus and Jeep on the date of the accident were insured with the New India Insurance Company Limited and Oriental Insurance Company Limited, respectively, the Insurance Companies were liable to pay compensation to the claimants to the extent of 50% each.
6. The Tribunal considering all the aspects of the matter, awarded a lump-sum of Rs.65,000/- as compensation including Rs.5,000/- towards funeral expenses and Rs.10,000/- for physical pain and mental agony. The Tribunal further directed payment of interest on the above amount of compensation of Rs.65,000/- @ 12% per annum from the date of filing of the claim petition till the date of actual payment.
7. Shri Vishnu Koshta and Shri N.P. Koshta learned counsel for the appellants submitted that the Tribunal has erred in not assessing the compensation payable to the claimants on the basis of the accepted formula of first assessing the income of the deceased and the claimants' dependency and then multiplying the same with the appropriate multiplier. Learned counsel further submitted that the compensation of Rs.65,000/- awarded by the Tribunal is too low considering the fact that the appellants' son deceased Piteshwar would have extended support to the claimants in their old age.
8. Shri B.D. Guru, Shri Rajendra Tripathi and Shri Ali Asgar learned counsel for the insurers of the Bus and Jeep, on the other hand, supported the award and contended that the compensation of Rs.65,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
9. The findings recorded by the Tribunal that the claimants' son Piteshwar died on account of the injuries sustained by him in the motor accident on 14-06-1998; the drivers of the Bus and Jeep equally contributed to the accident; and the insurers of the Bus and Jeep were liable to pay compensation to the extent of 50% each, have now attained finality as the respondents have not filed any appeal against the award. That apart, these findings are not under challenge before us in this appeal. We, therefore, affirm the above findings recorded by the Tribunal.
10. The Tribunal, in our opinion, has fallen into error in not assessing the compensation payable to the claimants on the basis of the prescribed method of first assessing the income of the deceased and the claimants' dependency and then multiplying the same with the appropriate multiplier; and in awarding a lump-sum of Rs.65,000/- on its own estimate. We, therefore, propose to recompute the compensation by first assessing the income of the deceased and the claimants' dependency and thereafter multiplying the same with the appropriate multiplier.
11. Deceased Piteshwar was aged about 18 years and student of 10th standard on the date of the accident. Even assuming that deceased Piteshwar was not an earning member on the date of the accident, his income can safely be assessed on the basis of the notional income prescribed in the Second Schedule under Section 163-A of the Act.
12. The notional income of Rs.15,000/- was prescribed in the Second Schedule in the year 1994. The unfortunate accident wherein deceased Piteshwar 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 years 1994 and 1998 is taken into consideration, the notional income of Rs.15,000/- prescribed in the year 1994, in our opinion, can be safely taken at Rs.20,000/- per annum in the year 1998. We, therefore, assess the income of the deceased at Rs.20,000/- per annum.
13. As deceased Piteshwar was unmarried on the date of the accident and would have been married in due course, his contribution towards his parents after his marriage would have been substantially reduced. We, therefore, deem it appropriate to deduct 50% of Rs.20,000/- towards the personal expenses of the deceased. The claimants' dependency, therefore, is assessed at Rs.10,000/- per annum.
14. As the claimants were parents of the deceased, the appropriate multiplier, 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, would be 10 in the present case.
15. By multiplying the annual dependency of Rs.10,000/- with the multiplier of 10, the compensation works out to Rs.1,00,000/-. The claimants are further entitled to receive Rs.5,000/- towards funeral expenses and Rs.5,000/- towards loss of estate. The claimants, thus, become entitled to receive a total sum of Rs.1,10,000/- as compensation for the death of their son Piteshwar in the motor accident.
16. Taking all the relevant factors into account including the delay in disposal of the claim petition and the present appeal and the fact that the Insurance Companies alone are not to be blamed for the delay in disposal of the matter, we quantify the amount of interest payable on the enhanced amount of compensation of Rs.45,000/- at Rs.15,000/- .
17. For the foregoing reasons, the appeal filed by the claimants for enhancement of the compensation is allowed in part. The compensation of Rs.65,000/- awarded by the Tribunal is enhanced to Rs.1,10,000/- with further quantified amount of interest of Rs.15,000/- on the enhanced amount of compensation of Rs.45,000/-.
18. Respondent No.3, the New India Insurance Company Limited and respondent No.5 Oriental Insurance Company Limited are granted three months' time for depositing the sum of Rs.30,000/- each (enhanced amount of compensation of Rs.45,000/- + Rs.15,000/- towards the quantified amount of interest on the enhanced amount of compensation, divided by two in accordance with their liability determined by the Tribunal) before the concerning Claims Tribunal.
19. No order as to costs.
CHIEF JUSTICE J U D G E