Chattisgarh High Court
Smt Anita Nand vs Virendra @ Virender on 17 September, 2010
Author: Rangnath Chandrakar
Bench: Rangnath Chandrakar
HIGH COURT OF CHATTISGARH AT BILASPUR
MA No 629 of 2004
1 Smt Anita Nand
2 Animesh Nand
3 Ku Harshita Nand
...Petitioners
Versus
1 Virendra @ Virender
2 K K Agrawal
3 The National Insurance Company of India Ltd
...Respondents
! Mr Indrasen Sahu counsel for the appellants
^ None for respondents No 1 and 2 Mr Raj Awasthy counsel for respondent No 3
CORAM: HONBLE SHRI T P SHARMA & HONBLE SHRI RANGNATH CHANDRAKAR J
Dated: 17/09/2010
: Judgement
ORDER
Passed on 17th September 2010 Appeal under Section 173 of the Motor Vehicle Act 1988 Per Rangnath Chandrakar, J.
1. This is claimants' appeal for enhancement of the compensation awarded by Additional Motor Accident Claims Tribunal, Korba (for short, "the Tribunal") vide award dated 23-2-2004 passed in claim case No. 125 of 2004.
2. The appellants/claimants, unfortunate widow and children of the deceased H.D. Nand, claimed compensation of Rs. 52,25,000/- by filing a claim petition under Section 166of the Motor Vehicles Act for his death in the motor accident on 12-06-2003.
3. The Tribunal on a close scrutiny of the entire evidence led before it held that deceased H.D. Nand died on account of the injuries sustained by him in the motor accident on 12-06-2003; the accident occurred due to rash and negligent driving of the driver of the offending vehicle Truck bearing registration No. CG-12 ZC 1781 ; as the offending vehicle Truck, on the date of the accident was insured with the national Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants.
4. The Tribunal assessed the income of the deceased at Rs. 1,26,000/- per annum. By deducting 1/3rd of Rs.1,26,000/- towards personal expenses of the deceased, the claimants' dependency was assessed at Rs. 84,000/- per annum. By multiplying the annual dependency of Rs.84,000/- with the multiplier of 12, the compensation was worked out to Rs.10,08,000/-. By awarding further sum of Rs.20,000/- under other heads, the Tribunal awarded a total sum of Rs.10,28,000/- as compensation to the claimants for the death of deceased H.D. Nand in the motor accident. The Tribunal further directed payment of interest on the above amount of compensation of Rs.10,28,000/- @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
5. Mr. Indrasen Sahu, learned counsel appearing for the appellants submits that the Tribunal has committed illegality by applying multiplier of 12 of the Second Schedule of the Motor Vehicles Act, 1988 whereas as per the findings of the Claims Tribunal, the deceased H.D. Nand was aged 39 years at the time of his death, therefore, the multiplier of 16 ought to have been applied to ascertain the compensation.
6. Per contra, Mr. Raj Awasthy, learned counsel appearing for respondent No.3 - National Insurance Company Limited, supported the award passed by the Tribunal.
7. We have heard learned counsel for the parties, perused the impugned award and record of the Tribunal.
8. In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunal should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza.
9. After going through the record and considering the age of the deceased, the multiplier of 12 selected by the Tribunal, in our, opinion is not appropriate and in view of the dictum of the Apex Court in the case of Sarla Verma (Smt) and others vs. Delhi Transport Corporation and another, reported in (2009) 6 SCC 121 wherein multiplier of 15 was prescribed for the age group between 36 - 40 years and in the present case, the age of the deceased determined by the Tribunal was 39 years, 3 months and 15 days at the time of his death, multiplier of 15 is an appropriate.
10. By multiplying the annual dependency of Rs.84,000/- with the multiplier of 15, the compensation works out to Rs. 12,60,000/-. The appellants/claimants have already been awarded Rs.10,000/- towards funeral expenses and Rs.10,000/- towards loss of love and affection. Thus, the claimants become entitled to receive a sum of Rs. 12,80,000/- as compensation for the death of deceased H.D. Nand in the motor accident.
11. Learned counsel appearing for the parties submit that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
12. Considering all the relevant factors, we quantify the amount of interest on the enhanced amount of compensation of Rs.12,80,000/- at Rs.15,000/-.
13. For the foregoing discussion, the appeal filed by the appellants /claimants for enhancement of the compensation is allowed in part. The compensation of Rs.10,28,000/- awarded by the Tribunal is enhanced to Rs.12,95,000/- with further quantified amount of interest of Rs.15,000/- on the enhanced amount of compensation of Rs.12,60,000/-.
14. Respondent No.3 - National Insurance Company ltd., is granted three months' time for depositing the total sum of Rs. 2,67,000/- (Rs. 2,52,000/- towards enhanced amount of compensation + Rs.15,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.2,52,000/-) before the concerning Claims Tribunal.
15. No order as to costs.
JUDGE JUDGE Raju
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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CORAM: HON'BLE SHRI T.P. SHARMA & HON'BLE SHRI RANGNATH CHANDRAKAR,JJ.
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------------------------------ M.A. No. 82 of 2004 Appellant Pushkar Singh Sidar, s/o. late Applicant Tularam Sidar, r/o. Post Banora, Tahsil and District Raigarh (CG). Versus Respondents 1. Abraham Tirkey, s/o. Pawlas Non-applicants. Tirkey, occupation Government Service, S.D.O. Forest Department, Chakradhar Nagar, Raigarh (CG).
2 Ajit Pal Tirkey, S/o. Shobha Tirkey, occupation driver, vehicle driver forest department, Raigarh (CG), r/o.
Dhimrapur Nayapara, Raigarh Tahsil and Distt. Raigarh (CG).
3. The Oriental Insurance Company Ltd., Registered Head Office, Oriental House, Post Box No. 70737 A-25/27, Aasaph Ali Road, New Delhi -2, through Branch Manager, the Oriental Insurance Company Ltd., Division Raigarh, Tahsil and District Raigarh (CG).
Appeal under Section 173 of the Motor Vehicle Act, 1988
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------------------------------Present :
Shri B.L. Dembra, counsel for the appellant. None for respondents No.1 and 2 though served. Shri A.K. Athaley, counsel for respondent No.3.
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------------------------------
ORDER (Passed on 17th September, 2010) Per T.P. Sharma, J.
16. By this appeal under Section 173 of the Motor Vehicle Act, 1988, the present appellant has challenged the legality and propriety of the award dated 12-11-2003 passed by First Additional Motor Accident Claims Tribunal (for short, the Tribunal) Raigarh, District Raigarh (CG)) in Claim Case No. 37 of 2002 whereby against the claim of Rs. 5,55,500/-, learned Tribunal has awarded compensation of Rs.63,000/- along with interest at the rate of 9% per annum on account of injury sustained by the appellant.
17. The award is challenged on the ground that while awarding compensation, the Tribunal has not considered permanent disability of the appellant and has awarded low compensation.
18. As per case of the parties, on 10-5-2002 at about 1.00 p.m. when the appellant was going to Chakradhar Nagar on his motor cycle, on the way the respondent No.1 while driving Maruti Car bearing CG 13/3200 owned by respondent No.2 and insured with respondent No.3, in a rash and negligent manner dashed the vehicle of the appellant and due to that the appellant sustained injuries. FIR was lodged and the appellant was examined by the doctor and he was hospitalized for some time for which he spent money.
The appellant was unable to perform his regular duty because of permanent disability as fracture on his right leg was detected. Because of the aforesaid accident, the appellant has claimed compensation of Rs. 5, 55,500/-. Against the aforesaid claim, learned Tribunal has awarded compensation of Rs. 63,000/- to the appellant against the compensation of Rs.5, 55,500/-.
19. We have heard learned counsel for the parties, perused the award impugned and record of the Claims Tribunal.
20. Learned counsel for the appellant vehemently argued that while awarding low compensation, the Tribunal has not considered actual expenses incurred by the appellant in medical treatment and has also not considered the disability of the appellant and thereby committed illegality.
21. Per contra, learned counsel appearing for the respondent No.3 supported the award and contended that the compensation of Rs.63,000/- awarded by the Tribunal is just and proper in the facts and circumstances of the present case.
22. In the present case, the appellant/claimant has filed disability certificate(Ex.A/7), but the tribunal has disbelieved the same on the ground that some correction was made in the certificate after issuance of the same which was admitted by the Doctor S.P. Ware (AW/3) who issued the same. The doctor further admitted that if proper treatment had been provided to the appellant immediately, the injuries sustained by him would have been cured and he might not have sustained the disability. Thus, disability certificate (Ex.A/7) appears to be suspicious. After considering the aforesaid facts, learned tribunal has discarded the disability certificate (Ex.A/7) and holding the factum of disability to be 25%, learned Tribunal has awarded total compensation of Rs. 63,000/- along with interest @ 9% per annum to the appellant on account of motor accident.
23. On due consideration of the entire evidence, especially in absence of medical evidence regarding the injuries and treatment, we do not find any scope for enhancement of compensation awarded by the Tribunal. Thus, the appeal being devoid of merit is liable to be dismissed and is accordingly dismissed. No order as to costs.
JUDGE JUDGE Raju
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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CORAM: HON'BLE SHRI T.P. SHARMA & HON'BLE SHRI RANGNATH CHANDRAKAR,JJ.
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------------------------------ Cr.M.P.No. 716 of 2010 Applicant. Saguna Bai Chandrakar, wife of late Rambilas Chandrakar, aged about 40 years, r/o. vikllage Kodwa, Post Dadhi, P.S. Dadhi, Tahsil Bemetara, District Durg (CG).
Versus Respondents 1. Sunil Chandrakar, son of Lachchhi Ram Chandrakar, aged about 22 years, r/o. Village Kodwa, P.S. Dadhi, District Durg (CG).
2 State of Chhattisgarh through Police Station Pipariya, District Kabirdham.
Application for leave to file appeal under Section 378(2) virtually with proviso to Section 372 of the Code of Civil Procedure, 1973
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------------------------------Present :
Shri Ajit Singh, counsel for the petitioner.
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------------------------------
ORDER (Passed on 16th September, 2010) Per T.P. Sharma, J.
24. Heard.
25. Shri Ajit Singh, learned counsel for the petitioner/complainant is heard on the question of grant of special leave to appeal under Section 378 (3) virtually with proviso to Section 372 of the Code of Criminal Procedure, 1973 (for short, "Code") against acquittal of the respondent No.1/accused person vide impugned judgment dated 31-7-2010 passed by Sessions judge, Kabirdham in Sessions Trial No. 53/2009, whereby the Sessions Judge has acquitted the respondent No.1 - Sunil Chandrakar son of Lachchhi Ram Chandrakar under Section 302 of the IPC.
26. Leave to appeal against the judgment of acquittal filed on behalf of private person is not maintainable in terms of Section 378 (3) of the Cr.P.C., but the order of acquittal may be challenged in appeal by the victim under proviso to Section 372 of the Cr.P.C.
27. We have heard learned counsel for the petitioner in accordance with proviso to Section 372 of the Cr.P.C.
28. Learned counsel appearing for the petitioner submits that the prosecution has adduced the evidence relating to last seen theory and recovery of weapon at the instance of the respondent No1/accused, recovery of blood stained clothes of the respondent No.1/accused from him, court below has ignored the aforesaid evidence which were sufficient to convict the respondent No.1/accused for commission of offence punishable under Section 302 of the IPC. Learned counsel further submits that the evidence of present appellant - Saguna Bai, wife of the deceased (PW/6 ) and evidence of PW/7 - Jeevanlal Chandrakar, son of the appellant are sufficient for drawing inference that the deceased was in the company of respondent No.1 just before his death and the respondent No.1/accused has not given any explanation that he parted the company of the deceased. In absence of any such explanation, the only inference could be possible that the respondent No.1 was the person who had committed murder of deceased Rambilas Chandrakar.
29. We have perused the copies of the statements of the witnesses recorded by the court below and the judgment impugned.
30. As per statement of PW/6 - the present appellant -
Saguna Bai, on the date of incident, her husband left his house but did not come back and she was informed by her daughter that the deceased was talking with the respondent No.1/accused near Markande Chabutra. PW/7 Jeevanlal Chandrakar, son of the deceased has clearly deposed that in paras 2 and 3 of his evidence that at about 6.30 his father was sitting with the respondent No.1/accused and was in the company of the respondent No.1/accused thereafter his father came to his house, stayed for an hour, took meals and thereafter he left his house for taking Gutka but did not come back. This statement clearly shows that accused/respondent No.1 was in the company of the deceased and thereafter he was in the company of PW/7 Jeevan Lal - son of the deceased and his other relatives in his house and thereafter he left his house for taking Gutka but he did not come back. At that time the deceased was not in the company of the accused/respondent No.1, therefore, the appellant has not offered any explanation that when he parted the company of the deceased. If the evidence available on record relating to recovery of weapon i.e., iron pipe at the instance of respondent No.1/accused and blood was found on the same is considered, then also it would not be sufficient for drawing an inference that the present accused/respondent No.1 used the same weapon for causing injury as it is not supported by the medical evidence and it has not been proved that the blood found on the weapon of offence was of the same group that of the deceased. Therefore, if we take the evidence together, even then the same would not be sufficient for drawing inference that the respondent No.1/accused has committed murder of Rambilas Chandrakar.
31. The trial Court on a close scrutiny of the evidence of the witnesses examined by the prosecution against the accused person found that their evidence fell short of establishing the above charge against the respondent No.1/accused person. After considering all the aspects of matter and in absence of clinching evidence, the court below acquitted the appellant/respondent No.1. On perusal of the impugned judgment and copies of the statements of the witnesses, we are of the opinion that the findings recorded by the trial Court leading to acquittal of the respondent No.1/accused, do not suffer from any infirmity whatsoever warranting any interference. We do not find any ground to interfere with appeal against acquittal of respondent No1/accused person. The petition filed by the petitioner/complainant fails and is hereby dismissed.
JUDGE JUDGE Raju HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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CORAM: HON'BLE SHRI T.P. SHARMA & HON'BLE SHRI RANGNATH CHANDRAKAR,JJ.
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------------------------------ M.A. No. 82 of 2004 Appellant Pushkar Singh Sidar, s/o. late Applicant Tularam Sidar, r/o. Post Banora, Tahsil and District Raigarh (CG). Versus Respondents 1. Abraham Tirkey, s/o. Pawlas Non-applicants. Tirkey, occupation Government Service, S.D.O. Forest Department, Chakradhar Nagar, Raigarh (CG).
2 Ajit Pal Tirkey, S/o. Shobha Tirkey, occupation driver, vehicle driver forest department, Raigarh (CG), r/o.
Dhimrapur Nayapara, Raigarh Tahsil and Distt. Raigarh (CG).
3. The Oriental Insurance Company Ltd., Registered Head Office, Oriental House, Post Box No. 70737 A-25/27, Aasaph Ali Road, New Delhi -2, through Branch Manager, the Oriental Insurance Company Ltd., Division Raigarh, Tahsil and District Raigarh (CG).
Appeal under Section 173 of the Motor Vehicle Act, 1988
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------------------------------Present :
Shri B.L. Dembra, counsel for the appellant. None for respondents No.1 and 2 though served. Shri A.K. Athaley, counsel for respondent No.3.
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------------------------------
ORDER (Passed on 17th September, 2010) Per T.P. Sharma, J.
32. By this appeal, the appellant/claimant has challenged legality and propriety of the award dated 2-1-2010 passed by learned 9th Additional Motor Accident Claims Tribunal (FTC), Raipur (for short, `the Tribunal') in Claim Case No. 71 of 2009 whereby against the claim of Rs.
21,79,000/- the Tribunal has awarded compensation of Rs. 20,000/- along with interest at the rate of 6% per annum on account of motor accident.
33. The award is challenged on the ground that while awarding compensation, the Tribunal has not considered permanent disability of the appellant and has awarded low compensation.
34. As per claim petition, on 28-11-2007 when the appellant was driving Swaraj Majda Truck bearing No. CG-4 ZA 1687 from Khairagarh, on the way the respondent No.1 while driving the TATA DI-207 bearing CG 08-B/1203 owned by respondent No.2 and insured with respondent No.3, in a rash and negligent manner dashed the vehicle of the appellant and due to that the appellant sustained injuries. FIR was lodged and the appellant was examined by the doctor and he was hospitalized for some time for which he spent money and was unable to perform his regular duty because of permanent disability. On account of the aforesaid accident, the appellant has claimed compensation of Rs. 21,79,000/-. After affording opportunity of hearing learned Tribunal arrived at a finding that the appellant was also equally responsible for the said accident on account of contributory negligence and without any proof of injury and producing the medical documents, the Tribunal awarded the compensation of Rs. 20,000/- to the appellant against the compensation of Rs.21,79,000/-.
35. We have heard learned counsel for the parties, perused the award impugned and record of the Claims Tribunal.
36. Learned counsel for the appellant vehemently argued that though the appellant has not examined the doctor and has not produced medical documents, the Tribunal awarded low compensation of Rs.20,000/- to the appellant. The Tribunal committed error in not appreciating the material documents and evidence available on record and further committed in fastening 50% contributory liability upon the appellant.
37. Per contra, learned counsel appearing for the respondents supported the award and contended that the compensation of Rs.20,000/- awarded by the Tribunal is just and proper in the facts and circumstances of the present case.
38. In the present case, the appellant/claimant has claimed the compensation on the ground of serious injury including fracture in his right leg and medical treatment, but the appellant has not examined the doctor who treated him to prove the injury and in absence of the medical documents, learned Tribunal has awarded total compensation of Rs. 20,000/- along with interest @ 6% per annum to the appellant on account of motor accident.
39. On due consideration of the entire evidence, especially in absence of medical evidence regarding the injuries and treatment, we do not find any scope for enhancement of compensation awarded by the Tribunal. Thus, the appeal being devoid of merit is liable to be dismissed and is accordingly dismissed. No order as to costs.
JUDGE JUDGE Raju
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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CORAM: HON'BLE SHRI T.P. SHARMA & HON'BLE SHRI RANGNATH CHANDRAKAR,JJ.
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------------------------------ Cr.M.P.No. 716 of 2010 Applicant. Saguna Bai Chandrakar, wife of late Rambilas Chandrakar, aged about 40 years, r/o. vikllage Kodwa, Post Dadhi, P.S. Dadhi, Tahsil Bemetara, District Durg (CG).
Versus Respondents 1. Sunil Chandrakar, son of Lachchhi Ram Chandrakar, aged about 22 years, r/o. Village Kodwa, P.S. Dadhi, District Durg (CG).
2 State of Chhattisgarh through Police Station Pipariya, District Kabirdham.
Application for leave to file appeal under Section 372 of Code of Criminal Procedure 1973
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------------------------------Present :
Shri Ajit Singh, counsel for the petitioner.
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------------------------------
ORDER (Passed on 16th September, 2010) Per T.P. Sharma, J.
40. Heard.
41. Shri Ajit Singh, learned counsel for the petitioner/complainant is heard on the question of grant of special leave to appeal under Section 372 of the Code of Criminal Procedure against acquittal of the respondent No.1/accused person vide impugned judgment dated 31-7-2010 passed by Sessions judge, Kabirdham in Sessions Trial No. 53/2009, whereby the Sessions Judge has acquitted the respondent No.1 - Sunil Chandrakar son of Lachchhi Ram Chandrakar under Section 302 of the IPC.
42. Leave to appeal against the judgment of acquittal filed on behalf of private person is not maintainable in terms of Section 378 (3) of the Cr.P.C., but the order of acquittal may be challenged in appeal by the victim under proviso to Section 372 of the Cr.P.C.
43. We have heard learned counsel for the petitioner in accordance with proviso to Section 372 of the Cr.P.C.
44. Learned counsel appearing for the petitioner submits that the prosecution has adduced the evidence relating to last seen theory and recovery of weapon at the instance of the respondent No1/accused, recovery of blood stained clothes of the respondent No.1/accused from him, court below ignored the aforesaid evidence which is sufficient for convicting the respondent No.1/accused for commission of offence punishable under Section 302 of the IPC.
Learned counsel further submits that the evidence of present appellant - Saguna Bai, wife of the deceased (PW/6 ) and evidence of PW/7 - Jeevanlal Chandrakar, son of the appellant are sufficient for drawing inference that the deceased was in the company of respondent No.1 just before his death and the respondent No.1/accused has not given any explanation that he was not in the company of the deceased. In absence of any such explanation, the only inference can be drawn that the respondent No.1 was a person who committed murder of deceased Rambilas Chandrakar.
45. We have perused the copies of the statements of the witnesses recorded by the court below and the judgment impugned.
46. As per statement of PW/6 - the present appellant - Saguna Bai, on the date of incident, her husband left his house but did not come back and she was informed about the incident by her daughter that the deceased was talking with the respondent No.1/accused near Markande Chabutra. PW/7 Jeevanlal Chandrakar, son of the deceased has clearly deposed that in paras 2 and 3 of his evidence that at about 6.30 his father was sitting with the respondent No.1/accused and was in the company of the respondent No.1/accused thereafter his father came to his house, stayed for an hour, took meals and thereafter he left his house for taking Gutka but did not come back. This statement clearly shows that accused/respondent No.1 was never in the company of the appellant and thereafter he was in the company of PW/7 Jeevan Lal - son of the deceased and his other relatives in his house and thereafter he went from his house for taking Gutka but he did not come back. At that time the deceased was not in the company of the accused/respondent No.1, therefore, the appellant has not offered any explanation that when he parted the company of the accused. If the evidence available on record relating to recovery of weapon i.e., iron pipe at the instance of respondent No.1/accused and blood was found on the same then also it would not be sufficient for drawing inference that the present accused/respondent No.1 used the same weapon for causing injury as it is not supported by the medical evidence and it has not been proved that the blood found on the weapon of offence was of the same group that of the deceased. Therefore, if we take the evidence together, even then the same would not be sufficient for drawing inference that the respondent No.1/accused has committed murder of Rambilas Chandrakar.
47. The trial Court on a close scrutiny of the evidence of the witnesses examined by the prosecution against the accused person found that their evidence fell short of establishing the above charge against the respondent No.1/accused person. After considering all the aspects of matter and in absence of clinching evidence, the court below acquitted the appellant/respondent No.1. On perusal of the impugned judgment and copies of the statements of the witnesses, we are of the opinion that the findings recorded by the trial Court leading to acquittal of the respondent No.1/accused, do not suffer from any infirmity whatsoever warranting any interference. We do not find any good ground to special leave to appeal against acquittal of respondent No1/accused person. The petition filed by the petitioner/complainant under Sections 372 of the Cr.P.C., fails and is hereby dismissed.
JUDGE JUDGE Raju
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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CORAM: HON'BLE SHRI T.P. SHARMA & HON'BLE SHRI RANGNATH CHANDRAKAR,JJ.
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------------------------------ M.A. (C) No. 931 of 2010 Appellant Mileshwar Nishad, aged about 35 Claimant years, s/o. Khilawan Prasad Nishad, r/o. village Parsada, P.S. Mandir Hasoud Post Palod, Tahsil and District Raipur (CG).
Versus Respondents 1. Rajesh Sharma, s/o. Shastish Non-applicant. Sharma, aged about 32 years, occupation - Driver Village Arang, P.S. & Post Arang, Tahsil and Distt. Raipur (CG).
Non-
applicant No.1.
2 Purshottam Prajapati, S/o.
Lochan Prajapati, r/o. near block office Arang, P.S. & Post Arang, Tahsil and District Raipur (CG).
Non-
applicant No.2.
3. The New India Insurance Company Ltd., through Divisional Manager, Divisional Office No.1, kachhari Chowk, Jel Road Raipur (CG), Policy No. 450301/31/07/01/0007382 Myad dated 2-2-2008 to 1-2-2008.
Appeal under Section 173 of the Motor Vehicle Act, 1988
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------------------------------Present :
Shri Pawan Kesharwani, counsel for the appellant.
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ORDER (Passed on 16th September, 2010) Per T.P. Sharma, J.
48. Heard.
49. Learned counsel appearing for the appellant seeks to withdraw this appeal with liberty to file cross appeal/cross objection, in case the appeal is filed on behalf of the Insurance Company or owner or driver of the motor vehicle.
50. Accordingly, this appeal is dismissed as withdrawn with the aforesaid liberty.
51. No order as to costs.
JUDGE JUDGE Raju
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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CORAM: HON'BLE SHRI T.P. SHARMA & HON'BLE SHRI RANGNATH CHANDRAKAR,JJ.
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------------------------------ M.A. (C) No. 500 of 2010 Appellant Ramkhilawan Dhruv, aged about 36 Claimant years, S/o. Darbari Ram Dhruv, r/o. through PUrshottam Sahu, S/o.Birelal Sahu, Ram Nagar, Shitlapara, Tahsil and District Raipur (CG).
Versus Respondents 1. Rajesh @ Bhagwat Yadav, S/o.
Tetku Yadav, r/o. village Diparapara, P.S. Chuhuikhadan, District Rajnandgaon (CG).
(Driver of Vehicle No. CG-8B 1202) 2 Netram Janghel, s/o. Sunder Lal Janghel, r/o. village Silpatti, P.S. Chhuikhadan, District Rajnandgaon (CG).
(Owner of vehicle No. CG-8B 1202)
3. The Oriental Insurance Company Limited, Divisional Office No.2, Madina Manjil, Jail Road, Tahsil and District Raipur (CG).
(Insurance Company of the vehicle No. CG 8B 1202).
Appeal under Section 173 of the Motor Vehicle Act, 1988
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------------------------------Present :
Shri Rakesh Antony, counsel for the appellant. Shri Abhishek Sharma, counsel for respondents No. 1 & 2.
Shri P. Dutta, counsel for respondent No.3.
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ORDER (Passed on 15th September, 2010) Per T.P. Sharma, J.
52. By this appeal, the appellant/claimant has challenged legality and propriety of the award dated 2-1-2010 passed by learned 9th Additional Motor Accident Claims Tribunal (FTC), Raipur (for short, `the Tribunal') in Claim Case No. 71 of 2009 whereby against the claim of Rs. 21,79,000/- the Tribunal has awarded compensation of Rs. 20,000/- along with interest at the rate of 6% per annum on account of motor accident.
53. The award is challenged on the ground that while awarding compensation, the Tribunal has not considered permanent disability of the appellant and has awarded low compensation.
54. As per claim petition, on 28-11-2007 when the appellant was driving Swaraj Majda Truck bearing No. CG-4 ZA 1687 from Khairagarh, on the way the respondent No.1 while driving the TATA DI-207 bearing CG 08-B/1203 owned by respondent No.2 and insured with respondent No.3, in a rash and negligent manner dashed the vehicle of the appellant and due to that the appellant sustained injuries. FIR was lodged and the appellant was examined by the doctor and he was hospitalized for some time for which he spent money and was unable to perform his regular duty because of permanent disability. On account of the aforesaid accident, the appellant has claimed compensation of Rs. 21,79,000/-. After affording opportunity of hearing learned Tribunal arrived at a finding that the appellant was also equally responsible for the said accident on account of contributory negligence and without any proof of injury and producing the medical documents, the Tribunal awarded the compensation of Rs. 20,000/- to the appellant against the compensation of Rs.21,79,000/-.
55. We have heard learned counsel for the parties, perused the award impugned and record of the Claims Tribunal.
56. Learned counsel for the appellant vehemently argued that though the appellant has not examined the doctor and has not produced medical documents, the Tribunal awarded low compensation of Rs.20,000/- to the appellant. The Tribunal committed error in not appreciating the material documents and evidence available on record and further committed in fastening 50% contributory liability upon the appellant.
57. Per contra, learned counsel appearing for the respondents supported the award and contended that the compensation of Rs.20,000/- awarded by the Tribunal is just and proper in the facts and circumstances of the present case.
58. In the present case, the appellant/claimant has claimed the compensation on the ground of serious injury including fracture in his right leg and medical treatment, but the appellant has not examined the doctor who treated him to prove the injury and in absence of the medical documents, learned Tribunal has awarded total compensation of Rs. 20,000/- along with interest @ 6% per annum to the appellant on account of motor accident.
59. On due consideration of the entire evidence, especially in absence of medical evidence regarding the injuries and treatment, we do not find any scope for enhancement of compensation awarded by the Tribunal. Thus, the appeal being devoid of merit is liable to be dismissed and is accordingly dismissed. No order as to costs.
JUDGE JUDGE Raju
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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CORAM: HON'BLE SHRI T.P. SHARMA & HON'BLE SHRI RANGNATH CHANDRAKAR,JJ.
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------------------------------ M.A. (C) No. 616 of 2010 Appellants 1. Smt. Triveni Mishra, w/o. late Claimants Roshan Prasad Mishra, aged about 32 years.
2. Lalit Mishra, s/o. late Roshan Prasad Mishra, aged about 1 + years.
3. Krishna Prasad Mishra, s/o.
Narayan Prasad Mishra, aged about 56 years.
Appellant No. 2 is minor through natural guardian mother Smt. Triveni Mishra, w/o. late Roshan Prasad Mishra, all r/o.
Harrapadav, Keshkal, P.S. & Tahsil Keshkal, Distt. Bastar (CG).
Versus Respondents 1. Sheetal s/o. Mehttar Yadav, aged (Driver) about 40 years, r/o. Santoshi Nagar, behind Durga Mandir, Tikarapara, Raipur, P.S. Tikarapara, Raipur, Distt.
Raipur (CG).
(Owner) 2 Director, M/s. Tirupati Cement Carriers, C/o. A.T. Associated Devendra Nagar, Raipur, Distt.
Raipur (CG).
(Insurer) 3. Divisional Manager, The New India Insurance Company Limited, Divisional Office, Raipur, Distt. Raipur (CG).
(Owner) 4. Shri Sukalu Ram Markam, S/o.
Shri Mansingh, r/o. Kondagaon, Distt. Bastar (CG).
(Insurer) 5. Manager, Reliance, General
Insurance Company Limited, 570
Rectifire House-2, Naigas Cross
Road, Vadala (West) Mumbai,
through Reliance General
Insurance Company Limited Shop
No. 412-413, Ravi Bhawan
Complex, Ringroad, Raipur,
Distt. Raipur (CG).
Appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present :
Shri D.N. Prajapati, counsel for the appellants. None for respondents No.1 and 5.
Shri Sourabh Sharma, counsel for respondent No.5.
-----------------------------------------------------------
------------------------------
ORDER (Passed on 14th September, 2010) Per T.P. Sharma, J.
By this appeal, the appellants/claimants have challenged legality and propriety of the award dated 18-1- 2010 passed by learned Additional Motor Accident Claims Tribunal (FTC), Kondagaon, District Bastar (CG) (for short, `the Tribunal') in Claim Case No. 16 of 2008.
2) As against the compensation of Rs.8,42,073/- claimed by the appellants / claimants, unfortunate wife, minor and father of deceased Roshan Prasad Mishra, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 20-1-2008, the Tribunal awarded a total sum of Rs. 3,37,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3) As per the case of the appellant, when the appellant was driving TATA 907 bearing No. CG 17-ZD/0230 owned by respondent No.4 and insured with respondent No.5, the respondent No.1 while driving the vehicle bearing No. CG 04/J/64737 owned by respondent No.2 and insured with respondent No.3, in a rash and negligent manner dashed the vehicle of the deceased and due to that the deceased died.
As per claim petition, the deceased was earning Rs.5000/- to Rs. 6000/- per month and his age was 35 years at the time of incident and total Rs.8,42,073/- was claimed as compensation on account of his death in a motor accident. By filing written statement, respondents No. 1 and 2 have denied the allegations made in the claim petition. Respondent No.3 has also filed written statement in which he has denied the accident and claim of the appellants. After affording opportunity of hearing learned Tribunal has awarded the compensation of Rs.3,37,000/- to the appellants against the compensation of Rs.8,42,073/-.
4) We have heard learned counsel for the parties, perused the award impugned and record of the Claims Tribunal.
5) Learned counsel for the appellants vehemently argued that while awarding the compensation, the Tribunal has not rightly considered the notional income of the deceased and the Tribunal has further committed an error by applying multiplier of 13 despite the deceased was aged about 35 years, therefore, higher multiplier should have been applied.
6) Shri Sourabh Sharma, learned counsel for respondent No.5 - Reliance General Insurance Company Ltd., on the other hand supported the award and contended that the compensation of Rs.3,37,000/- awarded by the Tribunal is just and proper in the facts and circumstances of the present case.
7) In the present case, the appellants/claimants have examined appellant No.3 Krishna Prasad who has deposed that income of his son was either Rs.5000/- or Rs.6000/- per month. His certificate is Ex.P/12 issued by Mokati Road Lines in which it has been mentioned that the deceased working as Munshi was drawing income of Rs.5000/- to Rs.6000/- on the basis of commission. As per document, the age of the deceased was 35 years. By placing reliance in the matter of Smt. Manjil Arora and others Vs. Rohni Prasad and others (2009) (1) CGLJ 479, the learned Tribunal applied the multiplier of 13 and has discussed the income of the deceased in para 12 and arrived at a finding that the appellants have not proved the income of the deceased between Rs.5000/ to Rs.6000/- per month and have not examined the person who has issued the certificate and in absence of any such document or evidence, the learned Tribunal has not committed any illegality in assessing the notional income of the deceased of Rs. 3000/- per month. Thus, in the light of Smt. Manjil Arora (supra), the learned Tribunal has not committed any illegality in applying multiplier of 13 and after assessing the income and applying multiplier of 13, the Tribunal has awarded total compensation of Rs. 3,37,000/- along with interest @ 6% per annum.
8) On close scrutiny of the evidence of single witness, we do not find any scope for enhancement of compensation awarded by the Tribunal. Thus, the appeal being devoid of merit is liable to be dismissed and is accordingly dismissed. No order as to costs.
JUDGE JUDGE Raju
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------
CORAM: HON'BLE SHRI T.P. SHARMA & HON'BLE SHRI RANGNATH CHANDRAKAR,JJ.
-----------------------------------------------------------
------------------------------ M.A. No. 565 of 2004 Appellants 1. Kailo Bai, w/o. Kulal, aged about CLAIMANTS 32 years.
2. Ratan Manjakri, w/o. Kulal, aged about 30 years.
3. Kunbhkaran, s/o. Kulal, aged about 14 years.
4. Satwani, D.o. Kulal, aged about 12 years.
5. Urmila, D/o. Kulal, aged about 10 years.
6. Pitar Singh, s/o. Kulai, aged about 8 years.
7. Mankunwar, D/o. Kulal, aged about 5 years.
8. Bifaiya, d/o. Kulal, aged about 3 years.
9. Mangal Singh, s/o. Kulal, aged about 1 + years.
Appellant No. 3 to 6 are minors through guardian mother Kailo bai, (Appellant No.1) & Appellant No.7 to 9 are minors through guardian mother Smt. Ratan Manjari, w/o. Kulal (Appelalnt No.2).
All are r/o. village Kaskela, P.S. Jaynagar, Tahsil Surajpur, District Surguja (CG).
Versus Respondents 1. Muneshwar Giri, S/o. Balram Non-applicants. Giri, aged about 21 years, occupation Agriculture, r/o.
village Raisra, P.S. Jhilmili @ Bhaiyathan, Tahsil Surajpur, District Surguja (CG).
(Driver) 2 Baliram, S/o. Vikram Ram, aged about 50 years, occupation Service, Bit Guard, r/o. village Raisra (Chandrameda) P.S. Jhilmili, Tahsil Surajpur, District Surguja (CG).
(Owner).
3. United India Insurance Company Lt d., through Branch Manager, Branch Office, Near Ram Mandir, Ambikapur, Dikstt. Surguja (CG). (Insurer).
Appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present :
Shri Atnu Ghosh, Advocate appears on behalf of Shri Ashok Kumar Shukla, counsel for the appellants.
None for respondents No.1 and 2.
Shri H.B. Agrawal, Senior Counsel with Shri Pankaj Agrawal, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (Passed on 14th September, 2010) Per T.P. Sharma, J.
By this appeal, the appellants/claimants have challenged legality and propriety of the award dated 5-4- 2004 passed by VI Additional Motor Accident Claims Tribunal, Surajpur, District Surguja (CG) (for short, `the Tribunal') in Claim Case No. 53 of 2002 whereby against the claim of Rs.20,00,000/- the learned Tribunal has awarded compensation of Rs.7,96,085/- along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment for his death in motor accident.
2) As per the case of the parties, Kulal who was working in S.E.C.L., Vishrampur, died on account of motor accident occurred on 28-11-2001 when respondent No.1 was driving the offending motor cycle bearing No. M.P. 27 -E/4028 owned by respondent No.2 and insured with respondent No.3.
After assessing the income of the deceased as Rs.5121/- on the basis of pay slip and fixation of 1/5 share of his income towards personal expenses and applying the multiplier of 16, learned Tribunal has awarded compensation of Rs.7,96,085/- along with 6% interest per annum to the appellants against respondents No. 1 and 2 while exonerating the respondent No.3.
3) We have heard learned counsel for the parties, perused the award impugned and record of the Claims Tribunal.
4) Shri Atnu Ghosh, learned counsel for the appellants vehemently argued that the Tribunal has not considered the gross income of the deceased and has not appreciated the evidence adduced by the appellants with respect to the funeral rites, mental agony, loss of love and affection.
5) On the other hand, learned counsel appearing for respondent No.3 opposed the appeal and submitted that the Claims Tribunal has rightly awarded the compensation.
6) In the present claim case, on the basis of pay slip of the deceased, learned Tribunal has assessed the monthly income of the deceased as Rs.5121/- and considering the age of the deceased to be 35 years, the Tribunal has applied multiplier of 16 and deducted only 1/5th share of income towards his personal expenses, the Tribunal awarded compensation of Rs.7,96,085/- to the appellants.
7) On close scrutiny of the evidence and pleadings of the parties, we do not find any ground for enhancement of compensation awarded by the Tribunal. Therefore, the appeal is liable to be dismissed and is accordingly dismissed. No order as to costs.
JUDGE JUDGE Raju
HIGH COURT OF CHHATTISGARH AT BILASPUR
-----------------------------------------------------------
------------------------------
SB: HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ Misc Appeal No. 931 of 2002 Appellant Bhoj Ram Sahu, aged about 38 Claimant years, S/o. Kisun Das Sahu, R/o.
Village Mohad, District
Rajnandgaon (CG).l
Versus
Respondents 1. Vijay Kumar, C/o. Ratanlal Non-applicants Bhattar, R/o. Brahmanpara, Rajnandgaon (CG).
2. National Insurance Company Ltd., through Branch Manager, National Insurance Company Ltd., Kamptee line Rajnandgaon (CG).
Miscellaneous appeal under Section 173 of the Motor Vehicle Act
-----------------------------------------------------------
---------------------------------------Present :
Shri Anand Kumar Shukla, counsel for the appellant.
None for respondent No.1 though served. Shri B.N. Nande, counsel for respondent No.2.
-----------------------------------------------------------
---------------------------------------
ORDER (Passed on 2-8-2010)
1. By this appeal, appellant - Bhoj Ram Sahu seeks enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Rajnandgaon (for short `the Tribunal') vide award dated 30-8-2002 passed in Claim Case No. 93 of 2001.
2. As against the compensation of Rs.1,22,500/-, claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 13-2-1998, the Tribunal awarded a total sum of Rs.3,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
3. Shri Anand Kumar Shukla, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.3,000/- only, though the appellant/claimant sustained serious injury. He also submits that the learned Tribunal erred in holding that the injury sustained by the appellant/claimant is simple in nature and the Tribunal ought to have relied on the medical certificate (Ex.P/5).
4. Per contra, Shri B.N. Nande, learned counsel appearing National Insurance Company Ltd., supported the award and contended that as the appellant could not establish the grievous injury on account of injury sustained by him in the motor accident, the compensation of Rs. 3,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
5. For the reasons best known to the appellant/claimant, no doctor was examined by the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/claimant in the motor accident and the fact that those injuries resulted in any grievous injury.
6. The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.S. R.T. C Vs P. Thirupal Reddy1 wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent - claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 percent. The High Court committed gross error in overlooking the fact that Dr Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr KM Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent- claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
7. The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another2 reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11:
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
8. In view of the above quoted dicta of the Apex Court in the cases of A.P.S.R.T.C Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medical certificate and the disability certificate produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued the those certificates, cannot be taken into consideration for enhancement of the compensation in the case.
9. Having considered all facts and circumstances of the case, I do not find any scope for enhancement of the compensation awarded by the Tribunal.
10. Accordingly, the appeal, filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
11. No order as to costs.
JUDGE Raju HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ M.A. No.806 of 2001 Appellants 1. Mr. Kishore Bhalekar, S/o Shri Dhannulal Bhalekar, aged about 28 years
2. Smt. Meena Bhalekar, W/o Kishore Kumar, aged about 26 years Both R/o Village Sondongary Road, Heerapur, Tahsil & District Raipur (CG) Versus Respondents 1. Shri Sanjeev Gandre, S/o Namalum, R/o Near Police Station, Gudiyaree, City and Distt. Raipur (CG) 2 Shri Herjain Singh, S/o Shri Rajnarayan Singh, R/o Near Police Station, Pahari Chowk, Gudiyaree City and Distt. Raipur (CG)
3. The Oriental Insurance Co. Ltd. Through: Manda Officer No.2, Raipur, Shyam Maret, Jeewan Beema Marg, Pandri, Raipur (CG) Appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri Manoj Paranjpe and Shri Vikram Dixit, counsel for the appellants.
None for respondents No.1 and 2.
Shri Prashant Jayaswal, Senior Counsel with Shri Shailendra Sharma, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (5th May, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
The appellants are seeking enhancement of the compensation awarded by 7th Additional Motor Accident Claims Tribunal, Raipur (for short, `the Tribunal') vide award dated 16.08.2001, passed in Claim Case No.03/2000.
2) As against the compensation of Rs.6,25,000/- claimed by the appellants / claimants, unfortunate parents of deceased child Vinay Kumar, aged about 7 years, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 24.10.1999, the Tribunal awarded a total sum of Rs.55,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
3) Shri Manoj Paranjpe and Shri Vikram Dixit, learned counsel for the appellants vehemently argued that the Tribunal has erred in awarding low compensation of Rs.55,000/- only as the appellants' son Vinay Kumar was a brilliant student and had bright future and he would have extended great support to the appellants in their old age.
4) Shri Prashant Jayaswal, learned Senior Counsel with Shri Shailendra Sharma, learned counsel for respondent No.3 Oriental Insurance Company Limited, on the other hand supported the award and contended that the compensation of Rs.55,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
5) The Apex Court while considering as to what would be the just and proper compensation for the death of a child aged about 7 years in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others reported in 2007 (4) T.A.C. 385 (S.C.) observed in paras 9 & 10 :
"9. This Court in Lata Wadhwa while computing compensation made distinction between the deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years.
10. In cases of young children of tender age, in view of uncertainties about, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither is the income of the deceased child capable of assessment on estimated basis nor is the financial loss suffered by the parents capable of mathematical computation."
The Apex Court in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others (supra), held that the compensation of Rs.51,500/- was just and proper compensation for the death of a child aged about seven years.
6) Now, reverting to the present case, admittedly the appellants' son Vinay Kumar was aged about 7 years only on the date of the accident. The compensation of Rs.55,000/- awarded by the Tribunal when examined in the context of the above quoted dictum of the Apex Court in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others (supra), we are satisfied, is just and proper compensation and does not call for any enhancement in this appeal.
7) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
8) The appeal filed by the appellants/claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
9) No order as to costs.
CHIEF JUSTICE JUDGE subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (C) No.1276 of 2007 Appellant CL Sharma, aged about 50 years, Applicant S/o Late Shri BP Sharma, R/o House No.13/B Street No.3, Ashish Nagar, West Bhilai, Tah & Distt Durg (CG) Versus Respondents 1. Akabar Ali S/o late Mohmmad Ali, Non-Applicants aged about 43 years, R/o Kasaridih, Near Deshmukh Traders, Tah & Distt Durg (Driver of Truck No.CG 04/J/1714) 2 Rajkumar Bhagat S/o Shri JM Bhagat, aged about 28 years, R/o Santoshipara, Raipur, Tah & Distt Raipur (CG) (Owner of Truck No.CG 04/J/1714)
3. The Oriental Insurance Company Ltd., C/o Branch Manager, Branch 16, Ravishankar Shukal Market, Bima Company of Truck No.CG 04/J/1714 Appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : None for the appellant.
-----------------------------------------------------------
------------------------------
ORDER (23rd April, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
None for the appellant.
2) As there is no representation on behalf of the appellant, we are left with no other option but to dismiss the appeal for want of prosecution.
3) The appeal, therefore, is dismissed for want of prosecution.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (C) No.1516 of 2009
Appellant Bajaj Allianz General Insurance
Company Limited, Shiv Mohan
Bhavan, Vidhan Sabha Road,
Pandri, Raipur (CG) (Insurer)
Versus
Respondents 1 Seemanchal Gond S/o Jagannath
Gond, aged about 44 years, R/o
Mother Teresa Nagar, Camp - 2,
Quarter No.46/15, Bhilai,
District Durg (CG) (Claimant)
2 Lallan Singh S/o Shri Guljar
Singh, R/o 25/A, Dakshin
Gangotri, Supela, Bhilai,
District Durg (CG) (Owner)
Memorandum of appeal under Section 30 of the Workmen's Compensation Act, 1923
-----------------------------------------------------------
------------------------------Present : Shri SS Rajput, counsel for the appellant.
-----------------------------------------------------------
------------------------------
ORDER (19th April, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri SS Rajput, learned counsel for the appellant is heard on IA No.1/2009, a petition for condonation of the delay in filing the appeal.
2) On due consideration of the submissions of learned counsel for the appellant and the grounds taken in the application, we are satisfied that the appellant/Insurance Company has succeeded in showing sufficient cause for the delay in filing the appeal.
3) IA No.1/2009, therefore, is allowed and the delay of five days in filing the appeal is hereby condoned.
4) Shri SS Rajput, learned counsel for the appellant is heard on admission.
5) This is insurer's appeal against the impugned award dated 27.08.2009, passed by the Commissioner for Workmen's Compensation/Labour Court, Durg in case No.05/WC Act/NF/2006.
6) Respondent No.1 Seemanchal Gond filed a claim petition under Section 22 of the Workmen's Compensation Act, 1923 seeking compensation of Rs.5,36,375/- with interest and penalty for the injuries sustained by him in the motor accident which occurred during the course of his employment with respondent No.2 Lallan Singh, the owner/employer, on 22.06.2005.
7) The Commissioner, on a close scrutiny of the entire evidence led before it held that, claimant/driver Seemanchal Gond sustained injuries in the motor accident which occurred during the course of him employment; those injuries resulted in permanent disability to the extent of 80%; as the vehicle Tavera Car was insured with appellant Bajaj Allianz General Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimant. The Commissioner assessed the compensation on the basis of the factor value of 172.52 at Rs.3,22,957/-. The Commissioner, further directed payment of interest on the above amount of compensation of Rs.3,22,957/- @ 9% per annum in the event of the insurer's failure to deposit the amount of compensation within a month of the passing of the award. The Commissioner further directed respondent No.2 Lallan Singh, the owner/employer to pay a sum of Rs.1,61,479/- as penalty to the claimant.
8) The appellant / Insurance Company has filed this appeal against the award on the following substantial questions of law :
"A/ Whether the learned Commissioner committed an error of law in awarding compensation to the claimant and holding the appellant liable to make payment of compensation even when under the insurance policy risk of the driver was not covered and no premium for driver was paid to the appellant Insurance Company ?
B/ Whether under the facts and circumstances of the case the learned Commissioner committed an error of law in coming to a conclusion that since additional premium of Rs.100/- was paid for personal accident of owner-driver hence the claimant was covered under the policy ? C/ Whether under the facts and circumstances of the case the learned Commissioner committed an error of law in holding that the claimant was the driver of the owner contrary to the evidence available on record and hence committed an error in awarding compensation against the appellant ? D/ Whether the learned Commissioner committed an error of law in holding appellant liable for compensation when the offending vehicle was being used for hire and reward in violation of the policy condition ?
E/ Whether the learned Commissioner committed an error of law in awarding Rs.3,22,957/- contrary to the evidence available on record ?"
9) Shri SS Rajput, learned counsel for the appellant / Insurance vehemently argued that the risk of the driver was not covered under the policy; the claimant in fact was not driver of respondent No.2 Lallan Singh; and the Commissioner has erred in awarding Rs.3,22,957/- as compensation.
10) So far as the first submission of learned counsel for the appellant is concerned, a bare look at the Insurance Policy filed as Annexure A/2 along with the memo of appeal reveals that premium of Rs.25/- was accepted by the Insurance Company for covering the legal liability to employee for 1%, thus, the risk of the driver being the employee of respondent No.2 Lallan Singh owner/employer is apparently covered by the Insurance Policy. The remaining grounds raised by the appellant / Insurance Company apparently are questions of fact. As these grounds are not even questions of law, the same cannot be termed as substantial questions of law.
11) As Section 30 of the Workmen's Compensation Act, 1923 mandates that the appeals filed under Section 30 of the Workmen's Compensation Act, 1923 would be entertained only on substantial questions of law and the present appeal filed by the appellant / Insurance Company does not involve any substantial question of law, the appeal is liable to be dismissed summarily.
12) The appeal, filed by the appellant / Insurance Company against the impugned award dated 27.08.2009, passed by the Commissioner for Workmen's Compensation/Labour Court in case No.05/WC Act/NF/2006, therefore, is hereby dismissed summarily.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (C) No.191 of 2010
Appellant Ku. Manisha D/o Jaleshwar Kashyap
aged 03 years minor guardian
Father Jaleshwar Kashyap S/o
Lilaram Kashyap aged about 32
years R/o Vilalge Chatona Thana
Jarhagaon Tah Mungeli Distt
Bilaspur (CG)
Versus
Respondents 1. Rajendra Singh @ Bhupat Singh S/o None Singh Lodhi aged about 33 years, Driver vehicle no.CG 10/C1317 R/o Basia Thana Batiyagarh Distt Damoh present R/o Devin agar Raipur naka Thana Civil line Bilaspur Distt Bilaspur (CG) 2 Smt Rshmit Singh W/o Baljit Singh Domar, aged about 35 years owner Truck no.CG.10/C/1317 R/o HIG 35 Arya Colony Tifra Bilaspur Distt Bilaspur (CG)
3. The Oriental Insurance Company Ltd., Divisinal Office Bilaspur (CG) Memorandum of appeal under Section 173 of the Motor Vehicle Act
-----------------------------------------------------------
------------------------------Present : None for the appellant.
-----------------------------------------------------------
------------------------------
ORDER (26th February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
None for the appellant.
2) As there is no representation on behalf of the appellant, we are left with no other option but to dismiss the appeal for want of prosecution.
3) The appeal, therefore, is dismissed for want of prosecution.
CHIEF JUSTICE JUDGE subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (C) No.191 of 2010
Appellant Ku. Manisha D/o Jaleshwar Kashyap
aged 03 years minor guardian
Father Jaleshwar Kashyap S/o
Lilaram Kashyap aged about 32
years R/o Vilalge Chatona Thana
Jarhagaon Tah Mungeli Distt
Bilaspur (CG)
Versus
Respondents 1. Rajendra Singh @ Bhupat Singh S/o None Singh Lodhi aged about 33 years, Driver vehicle no.CG 10/C1317 R/o Basia Thana Batiyagarh Distt Damoh present R/o Devin agar Raipur naka Thana Civil line Bilaspur Distt Bilaspur (CG) 2 Smt Rshmit Singh W/o Baljit Singh Domar, aged about 35 years owner Truck no.CG.10/C/1317 R/o HIG 35 Arya Colony Tifra Bilaspur Distt Bilaspur (CG)
3. The Oriental Insurance Company Ltd., Divisinal Office Bilaspur (CG) Memorandum of appeal under Section 173 of the Motor Vehicle Act
-----------------------------------------------------------
------------------------------Present : None for the appellant.
-----------------------------------------------------------
------------------------------
ORDER (26th February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
None for the appellant.
2) As there is no representation on behalf of the appellant, we are left with no other option but to dismiss the appeal for want of prosecution.
3) The appeal, therefore, is dismissed for want of prosecution.
CHIEF JUSTICE JUDGE subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ Misc Appeal No. 423 of 2002 Appellant Siddiqui Mohammad Khan, s/o. Claimant Mohammad Khan, 47 years, r/o.
Gule Sattar Khan Sama, Beside Ajanta Tiles Factory Mohalla Bochiya, REWA (MP) at present E.W.S/101, Padnabhpur, Durg (CG).
Versus Respondents 1. Santosh Kumar Verma, S/o. Chamru Non-applicants Ram, 25 years, R/o. Bijapur, P.S. Bijapur, Distt. Bastar, Now Distt. Dantewada.
2. Abdul Salam, s/o. Shri Majid Khan, R/o. Bijapur, P.S. Bijapur, Distt. Bastar Now Distt. Dantewada.
3. United India Insurance Co. Ltd., Raipur, through Branch Manager, United India Insurance Co. Ltd., Jagdalpur, Distt. Bastar.
Miscellaneous appeal under Section 173 of the Motor Vehicle Act
-----------------------------------------------------------
------------------------------Present : Shri Prafull Bharat and Shri Santosh Bharat, counsel for the appellant.
Shri Dasarath Gupta, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (25th February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant Siddiqui Mohammad Khan is seeking enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Jagdalpur, (for short `the Tribunal') vide award dated 27.02.2002 passed in Claim Case No.246/2001.
2) As against the compensation of Rs.6,64,000/-, claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 04.09.1997, the Tribunal awarded a total sum of Rs.70,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
3) Shri Prafull Bharat and Shri Santosh Bharat, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.70,000/- only, though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability.
4) Before the Tribunal though the claimant examined as many as three witnesses including himself (AW/1 Siddiqui Mohammad, AW/2 Narendra Kumar Jain and AW/3 Bichiya Rao, for the reasons best known to the appellant / claimant, no doctor was examined to establish the nature of the injuries said to have been sustained by the appellant/claimant in the motor accident and the fact that those injuries resulted in any permanent disability.
5) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.SRTC Vs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent - claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 percent. The High Court committed gross error in overlooking the fact that Dr Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr KM Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
6) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
7) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medical certificate and the disability certificate produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued the those certificates, cannot be taken into consideration for enhancement of the compensation in the case.
8) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
9) The appeal, filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
10) No order as to costs.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ Misc Appeal No. 423 of 2002 Appellant Siddiqui Mohammad Khan, s/o. Claimant Mohammad Khan, 47 years, r/o.
Gule Sattar Khan Sama, Beside Ajanta Tiles Factory Mohalla Bochiya, REWA (MP) at present E.W.S/101, Padnabhpur, Durg (CG).
Versus Respondents 1. Santosh Kumar Verma, S/o. Chamru Non-applicants Ram, 25 years, R/o. Bijapur, P.S. Bijapur, Distt. Bastar, Now Distt. Dantewada.
2. Abdul Salam, s/o. Shri Majid Khan, R/o. Bijapur, P.S. Bijapur, Distt. Bastar Now Distt. Dantewada.
3. United India Insurance Co. Ltd., Raipur, through Branch Manager, United India Insurance Co. Ltd., Jagdalpur, Distt. Bastar.
Miscellaneous appeal under Section 173 of the Motor Vehicle Act
-----------------------------------------------------------
------------------------------Present : Shri Aditya Khare, counsel for the appellant.
Shri Shreekumar Agrawal, Senior Advocate with Shri Anand Gupta, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (24th February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant Romigupta is seeking enhancement of the compensation awarded by the Second Additional Motor Accident Claims Tribunal, Raipur, (for short `the Tribunal') vide award dated 12.04.2002 passed in Claim Case No.50/2001.
2) As against the compensation of Rs.87,00,000/-, claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 08.05.2000, the Tribunal awarded a total sum of Rs.2,75,810/- along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3) Shri Aditya Khare, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.2,75,810/- only, though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability.
4) Shri Shreekumar Agrawal, learned Senior Advocate on the other hand contended that the Tribunal has erred in awarding excessive amount of Rs.2,75,810/-, though the appellant could not establish that the injuries sustained by him in the motor accident resulted in any permanent disability.
5) For the reasons best known to the appellant / claimant, no doctor was examined to establish the nature of the injuries said to have been sustained by the appellant/claimant in the motor accident and the fact that those injuries resulted in any permanent disability.
6) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.SRTC Vs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent - claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 percent. The High Court committed gross error in overlooking the fact that Dr Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr KM Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
7) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
8) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medical certificate and the disability certificate produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued the those certificates, cannot be taken into consideration for enhancement of the compensation in the case.
9) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
10) The appeal, filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
11) No order as to costs.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ Misc Appeal No.402 of 2002 Appellants 1. Asmani Wd/o Lt Dwarika Claimants Chandrakar, aged 27 years
2. Ankush S/o Lt Dwarika Chandrakar, aged 03 years minor through Guardian Mother Asmani Wd/o Lt Dwarika;
Both resident of village - Karhi, Tah & Distt Kawardha (CG) Versus Respondents 1. Ram Singh S/o Raja Ram, aged 36 Non-applicants years, Driver, Madhya Pradesh State Transport Corporation, Resident of Jabalpur (MP) 2 Madhya Pradesh State Transport Corporation, Through - General Manager, MP State Transport Corporation Bhopal (MP)
3. Anmol Prasad Jain, S/o Bhanwar lal Jain aged 36 years Resident of Village Thana Khamhariya, Tahsil Saja, Distt Durg (CG) 4 The Oriental Insurance Company Ltd., Through Branch Manager, PB No.51 Malwiya Nagar, Durg (CG) Memorandum of appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : None for the appellants.
Shri GS Patel, counsel for respondent No.4.
-----------------------------------------------------------
------------------------------
ORDER (25th February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
None for the appellants.
2) As there is no representation on behalf of the appellants, we are left with no other option but to dismiss the appeal for want of prosecution.
3) The appeal, therefore, is dismissed for want of prosecution.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ Misc Appeal No.850/2004 Appellants 1. Smt Geeta Singh, Widow of Late Claimants Shri Sanjay Singh, Aged about 21 years
2. Ku.Mona D/o Late Shri Sanjay Singh, Age about 2 + years
3. Ku Sona, D/o Late Shri Sanjay Singh, aged about 1 year Appellants No.2 & 3 are minor through their natural guardian Smt Geeta Singh (mother) Versus Respondents 1. Dhaneshwar Ram Nagesia, S/o Shri Non-applicants Dilbandhu Ram, aged about 25 years, Occupation Driver, R/o Vill Sasoli, PS Lundra, Dhourpur, Tahsil Lundra, Distt Surguja (CG) 2 Dinesh Soni, S/o Bhuneshwar Soni, Occupation - Jeep Owner, R/o Village Lundra, PS Dhourpur, Tahsil Lundra, District Surguja (CG)
3. Branch Manager, United India Insurance Company Limited, Branch Ambikapur, District Surguja (CG) Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : None for the appellants.
-----------------------------------------------------------
------------------------------
ORDER (25th February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
None for the appellants.
2) As there is no representation on behalf of the appellants, we are left with no other option but to dismiss the appeal for want of prosecution.
3) The appeal, therefore, is dismissed for want of prosecution.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (C) No. 1421 of 2007 Appellant Jivan Lal S/o. Naval Singh, aged Applicant about 50 years, R/o. village Ba5rr, P.S. Kota, District Bialspur (CG).
Versus Respondents 1. Malikram Shrivas, s/o. Non-applicants Ramkhilawn, aged about 22 years, r/o. village Lalkhadan (near Fatak) P.S. Torba, Tahsil & District Bilaspur (CG).
(Driver of Vehicle bearing No.CG- 10/ZD-0141).
2. Sanjay Kumar Ghore, S/o. Mevalal Ghore, aged about 33 years, R/o.
Village Theka (near Dr. Pandalwar) P.S. Torba, Tahsil & District Bilaspur (C.G.).
(Owner of Vehicle bearing No. C.G.10/ZD-0141).
3. Branch Manager, The Oriental Insurance Company Ltd., front of High Court Bilaspur C.G. Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri RK Jain, counsel for the appellant.
Shri GS Patel, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (23rd February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Learned counsel for the appellant seeks permission to withdraw the appeal filed by the appellant /claimant for enhancement of the compensation with liberty of filing cross-objections for enhancement of the compensation in the appeal of the insurer (MAC No.308/2009)
2) Permission granted.
3) With the above liberty, the appeal is dismissed as withdrawn.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (C) No. 1400 of 2007
Appellant Ashok Kumar, S/o Premdas
Claimant Satnami, Aged about 40 years,
Caste Satnami, Occupation
Driver, R/o Village - Bhomsara
Thana nandghat Tehsil Nawagarh,
District Durg, CG Present
Address - Village Chandkhuri,
Thana Hirri, Tehsil & District -
Bilaspur (CG)
Versus
Respondents 1. Suresh Kumar S/o Darshan Singh Non-applicants Chauhan, aged about 26 years, Caste Rajput, Occupation Driver, R/o village New Bus stand, Bemetara, Thana & Tehsil Bemetara, District Durg (CG)
2. Rekhraj Mundra, S/o Late Ranidan Mundra, aged about 32 years, Caste Baniya, Occupation owner of Vehicle, R/o Village ward No.9, Ganjpara, Bemetara, Thana & Tahsil Bemetara, District -
Durg (CG)
3. The National Insurance Co. Ltd., Durg Branch, Through its Branch Manager, Thana, Tehsil & District Durg (CG) Appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri Vimlesh Bajpai, counsel for the appellant.
Ms Morisha Chhatri, counsel for respondents No.1 & 2.
Shri Raj Awasthi, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (22nd February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Learned counsel for the parties are hard on IA No.1/2007, a petition for condonation of the delay in filing the appeal.
2) On due consideration, IA No.1/2007 is allowed and the delay of three days in filing the appeal is hereby condoned.
3) Learned counsel for the parties are heard on admission.
4) Appellant Ashok Kumar is seeking enhancement of the compensation awarded by the Additional Motor Accident Claims Tribunal, Bemetara, Distt Durg (for short `the Tribunal') vide award dated 29.08.2007 passed in Claim Case No.24/2006.
5) As against the compensation of Rs.9,30,000/-, claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 11.01.2006, the Tribunal awarded a total sum of Rs.38,659/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
6) Shri Vimlesh Bajpai, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.38,659/- only, though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability.
7) From para 13 of the award we gather that the claimants did not examine any doctor before the Tribunal to establish the nature of the injuries said to have been sustained by him in the motor accident and the fact that those injuries resulted in any permanent disability.
8) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.SRTC Vs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent - claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 percent. The High Court committed gross error in overlooking the fact that Dr Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr KM Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
9) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
10) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medical certificate produced by the appellant/claimant before the Tribunal without examining the Doctor who had issued the said certificate, cannot be taken into consideration for enhancement of the compensation in the case.
11) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
12) The appeal, filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ Misc Appeal No. 465 of 2002 Appellant Romigupta, aged about 22 years, Claimants S/o Anupgupta, Occupation :
Trainee of Unit Structure and Towers Ltd., R/o L-14, Awantibihar Colony, Sector - 1, Raipur Tah & Distt Raipur (CG) Versus Respondents 1. Lalit Akaram Bhagat, S/o Akaram Non-applicants Bhagat, R/o Lokpriya Transport KaKartanja, Distt Washim Maharashtra
2. Saiyad Arif Ali S/o Saiyad Khushird Ali, R/o Lokpriya Transport Karanja, PS Po & Tah Karanja Distt Washim (Maharashtra)
3. The National Insurance Co. Ltd., Branch Office Akila Maharashtra, Through : Divisional Manager, Divisional Office, Mobin Mahal GE Road, Raipur (CG) Miscellaneous appeal under Section 173 of the Motor Vehicle Act
-----------------------------------------------------------
------------------------------Present : Shri Aditya Khare, counsel for the appellant.
Shri Shreekumar Agrawal, Senior Advocate with Shri Anand Gupta, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (22nd February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant Romigupta is seeking enhancement of the compensation awarded by the Second Additional Motor Accident Claims Tribunal, Raipur, (for short `the Tribunal') vide award dated 12.04.2002 passed in Claim Case No.50/2001.
2) As against the compensation of Rs.87,00,000/-, claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 08.05.2000, the Tribunal awarded a total sum of Rs.2,75,810/- along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3) Shri Aditya Khare, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.2,75,810/- only, though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability.
4) Shri Shreekumar Agrawal, learned Senior Advocate on the other hand contended that the Tribunal has erred in awarding excessive amount of Rs.2,75,810/-, though the appellant could not establish that the injuries sustained by him in the motor accident resulted in any permanent disability.
5) For the reasons best known to the appellant / claimant, no doctor was examined to establish the nature of the injuries said to have been sustained by the appellant/claimant in the motor accident and the fact that those injuries resulted in any permanent disability.
6) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.SRTC Vs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent - claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 percent. The High Court committed gross error in overlooking the fact that Dr Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr KM Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
7) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
8) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medical certificate and the disability certificate produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued the those certificates, cannot be taken into consideration for enhancement of the compensation in the case.
9) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
10) The appeal, filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
11) No order as to costs.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ MCC No.64 of 2010 Applicants 1 Smt L Kantamma wd/o Late Shri Appellants Kuberu, aged about 52 years, 2 LPC Prakash s/o. Late Shri Kuberu, aged about 31 years.
3 L Bhaskar Rao S/o Late Shri Kuberu aged about 29 years, 4 L Gajanand s/o Late Kuberu, aged about 25 years.
All residents of 12-C /Street
10, Sector - 4 Post Office
Bhilai, Distt Durg,
Chhattisgarh.
Versus
Non-applicants 1 Shobit Das Manikpuri, Near
Respondents Potato Godown, Titurdih, Durg,
Post Office & Distt Durg,
Chhattisgarh.
2 Manager, Bhilai Conductor, Akash Ganga Complex, Supela Post Office, Bhilai, District Durg, Chhattisgarh.
3 National Insurance Company.
Ltd., through Branch Manager, Divisional Office, Post Office Supela (Bhilai) Distt Durg, Chhattisgarh.
4 Smt Jogamma, wife of Late Shri
Ramsingh, aged 72 years,
resident of 12 - C / Street -
10, Sector 4, Post Office
Bhilai, District Durg,
Chhattisgarh.
Application for restoration of MA No.324/2003
-----------------------------------------------------------
------------------------------Present : Shri Amrito Das, counsel for the petitioners.
Shri Anand Gupta, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (22nd February, 2010) The following order of the Court was passed by Rajeev Gupta, C.J.
Learned counsel for the parties are heard on the restoration petition.
2. The petitioners are seeking restoration of M.A.No.324 of 2003 which came to be dismissed for want of prosecution vide order dated 12.01.2010.
3. On due consideration of the submissions of learned counsel for the parties and the grounds taken in the restoration petition, we are satisfied that the absence of the petitioners'/appellants' counsel on 12.01.2010 when M.A.No.324 of 2003 was taken up for hearing, was based on bona fide grounds.
4. M.C.C. No. 64/2010, therefore, is allowed and M.A.No.324 of 2003 is restored to its original number.
CHIEF JUSTICE JUDGE subbu
This is claimants' appeal for enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Raipur (for short `the Tribunal') vide award dated 08.05.2003, passed in Claim Case No.169/2002.
2) As against the compensation of Rs.22,00,000/-, claimed by the appellants/claimants, unfortunate parents of deceased Sujit Kumar Dhada, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 04.10.2002, the Tribunal awarded a total sum of Rs.1,22,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal assessed the income of the deceased at Rs.1,500/- per month and Rs.18,000/- per annum. By deducting 1/3rd of the income of the deceased towards his personal expenses, the claimants' dependency was assessed at Rs.12,000/- per annum. By multiplying the annual dependency of Rs.12,000/- with the multiplier of 10, the compensation was worked out to Rs.1,20,000/-. By awarding further sum of Rs.2,000/- towards funeral expenses, the Tribunal awarded a total sum of Rs.1,22,000/- as compensation to the claimants for the death of their son Sujit Kumar Dhada in the motor accident.
4) Shri Aditya Khare, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.1,500/- per month and Rs.18,000/- per annum only; in selecting lower multiplier of 10; and in awarding low compensation of Rs.1,22,000/- only.
5) Shri AK Athaley, learned counsel for respondent No.3, The Oriental Insurance Company Limited on the other hand supported the award and contended that the compensation of Rs.1,22,000/- awarded by the Tribunal is just and proper compensation in the present case as the claimants could not establish the income of the deceased as pleaded by them.
6) As the respondents have not filed any appeal against the award, the findings recorded by the Tribunal that deceased Sujit Kumar Dhada died on account of the injuries sustained by him in the motor accident on 04.10.2002; the accident occurred due to rash and negligent driving of the driver of the offending vehicle minibus; as the offending vehicle minibus on the date of the accident was insured with the Oriental Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants, have now attained finality. That apart, these findings are not under challenge before us in this appeal. We, therefore, affirm the above findings recorded by the Tribunal.
7) True, the claimants pleaded that deceased Sujit Kumar Dhada used to earn Rs.3,000/- per month as cleaner on the minibus, but the evidence led in that behalf was not of clinching nature. We, therefore, do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased.
8) Nevertheless, the income of the deceased assessed by the Tribunal at Rs.1,500/- per month and Rs.18,000/- per annum is certainly on the lower side and requires re- consideration.
9) Claimants' son Sujit Kumar Dhada on the date of the accident was aged about 20 years. In the year 2002, he could have easily earned Rs.80 - 90/- per day even by working as an un-skilled labour. We, therefore, propose to re-compute the compensation taking the income of the deceased at Rs.2,500/- per month and Rs.30,000/- per annum.
10) As deceased Sujit Kumar Dhada was un-married on the date of the accident and after his marriage his contribution to the claimants would have been reduced substantially, we deem it proper to deduct 50% of the income of the deceased towards his personal expenses in view of the dictum of the Apex Court in the case of Syed Basheer Ahamed and Others Vs Mohammed Jameel and Another reported in (2009) 2 Supreme Court Cases 225. The claimants' dependency, therefore, is assessed at Rs.15,000/- per annum.
11) The multiplier of 10 selected by the Tribunal cannot be found fault with considering that the claimants are parents of the deceased and in view of the dictum of the Apex Court in the case of Municipal Corporation of Greater Bombay Vs Laxman Iyer and another, reported in (2003) 8 SCC- 731, wherein it was held that in those cases where the claimants are parents of the deceased, the multiplier should never exceed 10.
12) By multiplying the annual dependency of Rs.15,000/- with the multiplier of 10, the compensation works out to Rs.1,50,000/-. The claimants are further entitled to receive Rs.5,000/- towards funeral expenses; Rs.5,000/- for loss of estate. The claimants, thus, become entitled to receive a total sum of Rs.1,60,000/- as compensation for the death of their son Sujit Kumar Dhada in the motor accident.
13) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
14) Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal, and the fact that the Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.38,000/- at Rs.4,000/-.
15) For the foregoing reasons, the appeal filed by the claimants for enhancement of the compensation is allowed in part. The compensation of Rs.1,22,000/- awarded by the Tribunal is enhanced to Rs.1,60,000/- with further quantified amount of interest of Rs.4,000/- on the enhanced amount of compensation of Rs.38,000/-.
16) Respondent No.3 The Oriental Insurance Company Limited is granted three months' time for depositing the total sum of Rs.42,000/- (Rs.38,000/- towards enhanced amount of compensation + Rs.4,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.38,000/-) before the concerning Claims Tribunal.
17) No order as to costs.
CHIEF JUSTICE JUDGE
padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
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------------------------------
Misc Appeal No. 450 of 2002
Appellant Sunil Kumar Mahilange, aged
Claimant about 13 years, S/o Shiratri S/o
Dukaldas (minor) appellant
through : Shivratri S/o Dukaldas
R/o Village Bhagtaon PS Mana
Kemp, Raipur Tah & Distt Raipur
(CG)
Versus
Respondents 1. Mansingh Sonwani, aged about Non-applicants years, S/o Deshakram Sonwani R/o Village Abhanpurbasti, PS Abhanpur, District Raipur (CG)
2. Pravin Raj Rabart, aged about 40 years, S/o Shri Vimal Raj Isai, R/o Dakbanglaw Ward, Dhamtari, District Dhamtari (CG)
3. The New India Insurance Co.
Ltd., Through : Divisional Manager, Jail Road, Kachhari Chowk, Raipur (CG) Miscellaneous appeal under Section 173 of the Motor Vehicle Act
-----------------------------------------------------------
------------------------------Present : Shri SC Verma, counsel for the appellant.
Shri JSP Chandrasen, counsel for respondent No.1. Shri Pankaj Agrawal, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (9th December, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant Sunil Kumar Mahilange is seeking enhancement of the compensation awarded by the Fourth Additional Motor Accident Claims Tribunal, Raipur, (for short `the Tribunal') vide award dated 24.11.2001 passed in Claim Case No.59/2001.
2) As against the compensation of Rs.4,00,000/-, claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 30.10.99, the Tribunal awarded a total sum of Rs.35,000/- as compensation along with interest @ 9% per annum from the date of filing of the claim petition till the date of actual payment.
3) Shri SC Verma, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.35,000/- only, though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability.
4) Before the Tribunal the appellant / claimant though examined as many as two witnesses (AW/1 Shivratri, AW/2 Rajesh Kumar), in support of his claim, for the reasons best known to the appellant / claimant, no doctor was examined to establish the nature of the injuries said to have been sustained by the appellant/claimant in the motor accident and the fact that those injuries resulted in any permanent disability.
5) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.SRTC Vs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent - claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 percent. The High Court committed gross error in overlooking the fact that Dr Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr KM Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
6) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
7) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medical certificate and the disability certificate produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued the those certificates, cannot be taken into consideration for enhancement of the compensation in the case.
8) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
9) The appeal, filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed.
10) No order as to costs.
CHIEF JUSTICE JUDGE subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR, J.
-----------------------------------------------------------
------------------------------
Misc. Appeal (C) No.1464/2009 Appellants 1 Mohammad Yasin Meman, S/o Haji Abdul Ajij Meman, aged about 43 years 2 Smt Nasim Meman, W/o Mohammad Yasin Meman, aged about 40 years 3 Smt Hajiyani Aman Begum Meman, W/o Haji Abdul Ajij Meman, aged about 70 years All r/o Ward No.19 Manendragarh, Police Station and Tahsil Manendragarh, District Koriya (CG) VERSUS Non-applicants 1 Shahid Khan, S/o late Najri Khan, aged about 42 years, Driver, R/o Dharola Mohalla, Budhar Road, Shahdol (MP) 2 Mahesh Kumar Singh, S/o late Ramnath Singh, aged about 60 years, Owner Prayag Travels, Development Area Shahdol (MP) 3 Branch Manager, New India Insurance Company Limited, Branch Office Budhar Road Shahdol, District Shahdol (MP) 4 Chief General Manager, SECL Hasdev Area Post South Jhagrakhan, Tahsil Manendragarh, District Koriya (CG) Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri SP Sahu, counsel for the appellants.
-----------------------------------------------------------
------------------------------
ORDER (8th December, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Learned counsel for the appellants is heard on admission.
2) The appellants are seeking enhancement of the compensation awarded by the Second Additional Motor Accident Claims Tribunal, Manendragarh (for short, `the Tribunal') vide award dated 29.06.2009, passed in Claim Case No.30/2008.
3) As against the compensation of Rs.76,53,300/- claimed by the appellants / claimants, unfortunate parents and grandmother of deceased Yayaha Memon by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 27.10.2007, the Tribunal awarded a total sum of Rs.2,80,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
4) 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.39,000/- per annum; in selecting lower multiplier of 10; and in awarding low compensation of Rs.2,80,000/- only.
5) True, the claimants pleaded that deceased Yayaha Memon used to earn Rs.20,000/- per month from battery and radiator repair shop, the evidence led in that behalf was not of clinching nature. In fact, it has come in the evidence of AW/1 Md Yasin, father of the deceased that the shop in question was registered in his name. In this state of evidence, we do not find any infirmity in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased.
6) The Tribunal has been quite liberal in deducting only 1/3rd of Rs.39,000/- towards the personal expenses of the deceased, though the deduction in that behalf could have been to the extent of 50% of the income of the deceased, in view of the dictum of the Apex Court in the case of Syed Basheer Ahamed and others Vs Mohammed Jameel and another reported in (2009) 2 Supreme Court Cases 225.
7) The multiplier of 10 selected by the Tribunal too cannot be found fault with considering that the claimants are parents of the deceased and in view of the dictum of the Apex Court in the case of Municipal Corporation of Greater Bombay Vs Laxman Iyer and another, reported in (2003) 8 SCC-731, wherein it was held that in those cases where the claimants are parents of the deceased, the multiplier should never exceed 10.
8) For the foregoing reasons, we do not find any scope for enhancement of the compensation either on account of the assessment of the income of the deceased, or the claimants' dependency by the Tribunal or the multiplier selected.
9) The appeal filed by the appellants / claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE
padma
(17th November, 2009)
The following order of the Court was passed by Rajeev Gupta, C.J.
Learned counsel for the parties are heard on MCP.No.1907/2006, an application for condonation of the delay in filing the appeal.
2) On due consideration of the submissions of learned counsel for the parties and the grounds taken in the application, we are satisfied that the appellants have succeeded in showing sufficient cause for the delay in filing the appeal.
3) MCP No.1907/2006, therefore, is allowed and the delay in filing the appeal is hereby condoned.
4) Learned counsel for the appellants are heard on admission.
5) The appellants are seeking enhancement of the compensation awarded by Motor Accident Claims Tribunal, Korba (for short, `the Tribunal') vide award dated 16.12.2004, passed in Claim Case No.8/2004.
6) As against the compensation of Rs.4,15,000/- claimed by the appellants / claimants, unfortunate grandmother and brother of deceased child Himanshu, aged about five months by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 23.01.2003, the Tribunal awarded a total sum of Rs.50,000/- as compensation along with interest @ 9% per annum on the insurer's failure to pay the amount of compensation within two months of the passing of the award.
7) Learned counsel for the appellants vehemently argued that the Tribunal has erred in awarding low compensation of Rs.50,000/- only though deceased child Himanshu would have extended great support to his grandmother in her old age.
8) The Apex Court while considering as to what would be the just and proper compensation for the death of a child aged about 7 years in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others reported in 2007 (4) T.A.C. 385 (S.C.) observed in paras 9 & 10 :
"9. This Court in Lata Wadhwa while computing compensation made distinction between the deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years.
10. In cases of young children of tender age, in view of uncertainties about, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither is the income of the deceased child capable of assessment on estimated basis nor is the financial loss suffered by the parents capable of mathematical computation."
The Apex Court in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others (supra), held that the compensation of Rs.51,500/- was just and proper compensation for the death of a child aged about seven years.
9) Now, reverting to the present case, admittedly, deceased child Himanshu was aged about five months on the date of the accident. The compensation of Rs.50,000/- awarded by the Tribunal when examined in the context of the above quoted dictum of the Apex Court in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others (supra), we are satisfied, is just and proper compensation, and does not call for any enhancement in this appeal.
10) The appeal filed by the appellants/claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR, J.
-----------------------------------------------------------
------------------------------
Misc. Appeal (C)(PR) No.1820 of 2009 Appellants 1 Satruhan Yadav, S/o Horilal Yadav, aged about 32 years, 2 Shakun Bai, W/o Satruhan Yadav, aged about 30 years Both R/o New Bus Stand Kopebhatha, PS Gandai, District Rajnandgaon (CG) At present R/o Village Rewadih, Tahsil and District Rajnandgaon (CG) VERSUS Respondents 1 Rohit Kumar, S/o Tulsiram Nirmalkar, aged about 33 years, Caste - Dhobi, R/o Kachandur, PS Gunderdehi, District Durg (CG) 2 Gopal Khandelwal, S/o Punamchand Khandelwal, R/o Ambagarh Chowki, Tahsil Ambagarh Chowki, District Rajnandgaon (CG) 3 Branch Manager, Oriental Insurance Company Limited, Branch Office, Kamthi Line, Rajnandgaon, District Rajnandgaon (CG) Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri Goutam Khetrapal, counsel for the appellants.
-----------------------------------------------------------
------------------------------
ORDER (17th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri Goutam Khetrapal, learned counsel for the appellants is heard on I.A.No.01/2009, an application for condonation of the delay in filing the appeal.
2) On due consideration of the submissions of learned counsel for the appellants and the grounds taken in the application, we are satisfied that the appellants have succeeded in showing sufficient cause for the delay in filing the appeal.
3) I.A.No.01/2009, therefore, is allowed and the delay of 20 days in filing the appeal is hereby condoned.
4) Learned counsel for the appellants is heard on admission.
5) The appellants are seeking enhancement of the compensation awarded by First Additional Motor Accident Claims Tribunal, Rajnandgaon (for short, `the Tribunal') vide award dated 28.02.2009, passed in Claim Case No.24/2008.
6) As against the compensation of Rs.9,20,000/- claimed by the appellants / claimants, unfortunate parents of deceased Amit Kumar, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 27.11.2007, the Tribunal awarded a total sum of Rs.1,04,500/- 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 Goutam Khetrapal, learned counsel for the appellants vehemently argued that the Tribunal has erred in awarding low compensation of Rs.1,04,500/- only though deceased boy Amit Kumar would have extended great support to the appellants in their old age.
8) The Apex Court while considering as to what would be the just and proper compensation for the death of a child aged about 7 years in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others reported in 2007 (4) T.A.C. 385 (S.C.) observed in paras 9 & 10 :
"9. This Court in Lata Wadhwa while computing compensation made distinction between the deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years.
10. In cases of young children of tender age, in view of uncertainties about, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither is the income of the deceased child capable of assessment on estimated basis nor is the financial loss suffered by the parents capable of mathematical computation."
The Apex Court in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others (supra), held that the compensation of Rs.51,500/- was just and proper compensation for the death of a child aged about seven years.
9) Now, reverting to the present case, the compensation of Rs.1,04,500/- awarded by the Tribunal when examined in the context of the above quoted dictum of the Apex Court in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others (supra) and the fact that deceased boy Amit Kumar was aged about 6 years only on the date of the accident, we are satisfied, does not call for any enhancement in this appeal.
10) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
11) The appeal filed by the appellants/claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR, J.
-----------------------------------------------------------
------------------------------
Misc. Appeal (C) No.21 of 2008
Appellants 1 Arun Jain, Son of Amolak Jain,
Claimants aged about 30 years
2 Smt Mamta Jain, Wife of Arun
Jain, aged about 23 years
Both resident of village-
Panduka, P.S. Rajim, District
Raipur (CG)
VERSUS
Respondents 1 Vishnu Prasad Chaturvedi, Son of
Chaitram, R/o Village Khokhali,
P.S. Bhatapara, Gramin, District Raipur (CG) Driver of Truck No. CG 04/G-
9215.
2 Paramjeet Kaur, D/o Shamsher Singh, Caste Punjabi, R/o Tatibandh, P.S. Raipur (CG) Owner of Truck No. CG 04/G-9215.
3 The Oriental Insurance Company Limited, Branch No.2, Madina Manjil, Insurer of Truck No. CG 04/G-9215.
Misc. Appeal under Section 173 of the Motor Vehicles Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri A.P. Sharma, counsel for the appellants.
-----------------------------------------------------------
------------------------------
ORDER (16th of November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri A.P. Sharma, learned counsel for the appellants is heard on admission.
2) The appellants, unfortunate parents of deceased Tushar Jain, are seeking enhancement of the compensation awarded by the Additional Motor Accident Claims Tribunal, Gariaband, District Raipur (for short, `the Tribunal') vide award dated 16.10.2007, passed in Claim Case No.1/2007.
3) As against the compensation of Rs.10,18,000/- claimed by the appellants / claimants, unfortunate parents of deceased Tushar Jain, a minor boy aged about 3 years, by filing a claim petition under Section 163-A of the Motor Vehicles Act, for his death in the motor accident on 17.10.2006, the Tribunal awarded a total sum of Rs.60,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
4) Shri A.P. Sharma, learned counsel for the appellants vehemently argued that the Tribunal has erred in awarding low compensation of Rs.60,000/- only as deceased child Tushar Jain would have extended great support to the appellants in their old age.
5) The Apex Court while considering as to what would be the just and proper compensation for the death of a child aged about 7 years in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others reported in 2007 (4) T.A.C. 385 (S.C.) observed in paras 9 & 10 :
"9. This Court in Lata Wadhwa while computing compensation made distinction between the deceased children falling within the age group of 5 to 10 years and age group of 10 to 15 years.
10. In cases of young children of tender age, in view of uncertainties about, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither is the income of the deceased child capable of assessment on estimated basis nor is the financial loss suffered by the parents capable of mathematical computation."
The Apex Court in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others (supra), held that the compensation of Rs.51,500/- was just and proper compensation for the death of a child aged about seven years.
6) Now, reverting to the present case, the compensation of Rs.60,000/- awarded by the Tribunal when examined in the context of the above quoted dictum of the Apex Court in the case of Oriental Insurance Co. Ltd. V. Syed Ibrahim and others (supra) and the fact that deceased child Tushar Jain was aged about 3 years only on the date of the accident, we are satisfied, does not call for any enhancement in this appeal.
7) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
8) The appeal filed by the appellants/claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ Misc Appeal No.684 of 2003 Appellants 1 Smt Bharti Dhada W/o Shanti Claimants Dhada Aged about 40 years, house wife 2 Shanti Dhada S/o Sharat Dhada Aged 45 years, both are R/o 18, Block, House No.9 Mana Camp PS & Post Mana Tah & Distt Raipur (CG) Versus Respondents 1 Tapas @ Rampad Malik S/o Non-Applicants Nagendra Mallik Aged 32 years, Occupation - minibus Driver R/o New Market Mana Camp, PS & Post Mana Camp, Tah & Distt Raipur (CG) 2 Haradhan Chandra Day, S/o Narayan Chandra Day (Mini bus owner) R/o New Market Mana Camp, PS & Post Mana Camp, Tah & Distt Raipur (CG) 3 The Oriental Insurance Co. Ltd., Through Divisional Manager, Divisional Office No Chawla Complex, Devendra Nagar Raipur (CG) Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri Aditya Khare, counsel for the appellants.
None for respondents No.1 & 2 though served. Shri AK Athaley, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (13th November, 2009) 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 First Additional Motor Accident Claims Tribunal, Raipur (for short `the Tribunal') vide award dated 08.05.2003, passed in Claim Case No.169/2002.
2) As against the compensation of Rs.22,00,000/-, claimed by the appellants/claimants, unfortunate parents of deceased Sujit Kumar Dhada, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 04.10.2002, the Tribunal awarded a total sum of Rs.1,22,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3) The Tribunal assessed the income of the deceased at Rs.1,500/- per month and Rs.18,000/- per annum. By deducting 1/3rd of the income of the deceased towards his personal expenses, the claimants' dependency was assessed at Rs.12,000/- per annum. By multiplying the annual dependency of Rs.12,000/- with the multiplier of 10, the compensation was worked out to Rs.1,20,000/-. By awarding further sum of Rs.2,000/- towards funeral expenses, the Tribunal awarded a total sum of Rs.1,22,000/- as compensation to the claimants for the death of their son Sujit Kumar Dhada in the motor accident.
4) Shri Aditya Khare, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.1,500/- per month and Rs.18,000/- per annum only; in selecting lower multiplier of 10; and in awarding low compensation of Rs.1,22,000/- only.
5) Shri AK Athaley, learned counsel for respondent No.3, The Oriental Insurance Company Limited on the other hand supported the award and contended that the compensation of Rs.1,22,000/- awarded by the Tribunal is just and proper compensation in the present case as the claimants could not establish the income of the deceased as pleaded by them.
6) As the respondents have not filed any appeal against the award, the findings recorded by the Tribunal that deceased Sujit Kumar Dhada died on account of the injuries sustained by him in the motor accident on 04.10.2002; the accident occurred due to rash and negligent driving of the driver of the offending vehicle minibus; as the offending vehicle minibus on the date of the accident was insured with the Oriental Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants, have now attained finality. That apart, these findings are not under challenge before us in this appeal. We, therefore, affirm the above findings recorded by the Tribunal.
7) True, the claimants pleaded that deceased Sujit Kumar Dhada used to earn Rs.3,000/- per month as cleaner on the minibus, but the evidence led in that behalf was not of clinching nature. We, therefore, do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased.
8) Nevertheless, the income of the deceased assessed by the Tribunal at Rs.1,500/- per month and Rs.18,000/- per annum is certainly on the lower side and requires re- consideration.
9) Claimants' son Sujit Kumar Dhada on the date of the accident was aged about 20 years. In the year 2002, he could have easily earned Rs.80 - 90/- per day even by working as an un-skilled labour. We, therefore, propose to re-compute the compensation taking the income of the deceased at Rs.2,500/- per month and Rs.30,000/- per annum.
10) As deceased Sujit Kumar Dhada was un-married on the date of the accident and after his marriage his contribution to the claimants would have been reduced substantially, we deem it proper to deduct 50% of the income of the deceased towards his personal expenses in view of the dictum of the Apex Court in the case of Syed Basheer Ahamed and Others Vs Mohammed Jameel and Another reported in (2009) 2 Supreme Court Cases 225. The claimants' dependency, therefore, is assessed at Rs.15,000/- per annum.
11) The multiplier of 10 selected by the Tribunal cannot be found fault with considering that the claimants are parents of the deceased and in view of the dictum of the Apex Court in the case of Municipal Corporation of Greater Bombay Vs Laxman Iyer and another, reported in (2003) 8 SCC- 731, wherein it was held that in those cases where the claimants are parents of the deceased, the multiplier should never exceed 10.
12) By multiplying the annual dependency of Rs.15,000/- with the multiplier of 10, the compensation works out to Rs.1,50,000/-. The claimants are further entitled to receive Rs.5,000/- towards funeral expenses; Rs.5,000/- for loss of estate. The claimants, thus, become entitled to receive a total sum of Rs.1,60,000/- as compensation for the death of their son Sujit Kumar Dhada in the motor accident.
13) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
14) Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal, and the fact that the Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.38,000/- at Rs.4,000/-.
15) For the foregoing reasons, the appeal filed by the claimants for enhancement of the compensation is allowed in part. The compensation of Rs.1,22,000/- awarded by the Tribunal is enhanced to Rs.1,60,000/- with further quantified amount of interest of Rs.4,000/- on the enhanced amount of compensation of Rs.38,000/-.
16) Respondent No.3 The Oriental Insurance Company Limited is granted three months' time for depositing the total sum of Rs.42,000/- (Rs.38,000/- towards enhanced amount of compensation + Rs.4,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.38,000/-) before the concerning Claims Tribunal.
17) No order as to costs.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
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------------------------------ Misc Appeal (C) No. 444 of 2006 Appellants 1 Shyama Bai Wd/o Late Parmeshwar Sahu aged 30 years 2 Praveen Kumar Sahu W/o Late Parmeshwar aged 15 years 3 Kumari Lokeshwari S/o Late Parmeshwar aged 13 years 4 Hemraj S/o Late Parmeshwar aged 11 years 5 Lalit Kumar S/o Late Parmeshwar aged 9 years 6 Amar Singh S/o Bhisambhar Sahu aged 65 years 7 Gaindi Bai W/o Amar Singh aged 60 years All residents of village Machandur, Tahsil Charama, District Kanker (CG) Versus Respondents 1. Sheikh Farukh S/o Hanif Khan, resident of Risaipara, Ward Dhamtari (CG)
2. Murad Khan S/o Easthar Mohammad, resident of Ramsagarpara, Dhamtari (CG)
3. The Oriental Insurance Company Limited, behind Amar Talkies, Dhamtari (CG) Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri Wasim Miya, counsel for the appellants.
None for respondent No.1 though served. Shri AK Athaley, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (12th November, 2009) 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 30.07.2005, passed in Claim Case No.451/2004.
2) As against the compensation of Rs.39,50,000/-, claimed by the appellants/claimants, unfortunate widow, minor children and parents of deceased Parmeshwar Sahu, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 19.12.2002, the Tribunal awarded a total sum of Rs.1,70,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3) Shri Wasim Miya, learned counsel for the appellants submitted that the Tribunal has erred in not accepting the claimants' evidence about the income of the deceased and in assessing his income at Rs.15,000/- per annum only; and in awarding low compensation of Rs.1,70,000/- only.
4) Shri AK Athaley, learned counsel for respondent No.3, The Oriental Insurance Company Limited on the other hand supported the award and contended that as the claimants could not establish the income of the deceased as pleaded by them, the compensation of Rs.1,70,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
5) As the respondents have not filed any appeal against the award, the findings recorded by the Tribunal that deceased Parmeshwar Sahu died on account of the injuries sustained by him in the motor accident on 19.12.2002; the accident occurred due to rash and negligent driving of the driver of the offending vehicle jeep; as the offending vehicle jeep on the date of the accident was insured with the Oriental Insurance Company Limited, the Insurance Company was liable to pay compensation to the claimants, have now attained finality. That apart, these findings are not under challenge before us in this appeal. We, therefore, affirm the above findings recorded by the Tribunal.
6) In a motor accident claim case what is important is that the compensation to be awarded by the Courts / Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a bonanza.
7) Now, we shall examine as to whether the compensation of Rs.1,70,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case.
8) True, the claimants pleaded that deceased Parmeshwar Sahu used to earn Rs.4,000/- per month from his dairy, but the evidence led in that behalf was not of clinching nature. We, therefore, do not find any fault in the approach of the Tribunal in discarding the claimants' evidence about the income of the deceased.
9) Nevertheless, the income of the deceased assessed by the Tribunal at Rs.15,000/- per annum is certainly on the lower side and requires re-consideration.
10) Deceased Parmeshwar Sahu on the date of the accident was aged about 34 years. The deceased thus, could have easily earned Rs.2,500/- per month and Rs.30,000/- per annum even by working as an un-skilled labour. We, therefore, propose to re-compute the compensation taking the income of the deceased at Rs.2,500/- per month and Rs.30,000/- per annum.
11) By deducting the usual 1/3rd of Rs.30,000/- towards personal expenses of the deceased, the claimants' dependency is assessed at Rs.20,000/- per annum.
12) Considering the age of the deceased, his widow, their children and parents, we are of the opinion that multiplier of 15 would be appropriate in the case.
13) By multiplying the annual dependency of Rs.20,000/- with the multiplier of 15, the compensation works out to Rs.3,00,000/-. The claimants are further entitled to get Rs.5,000/- towards funeral expenses; Rs.5,000/- for loss of estate; and Rs.5,000/- for loss of consortium to the widow. The claimants, thus, become entitled to receive a total sum of Rs.3,15,000/- as compensation for the death of deceased Parmeshwar Sahu in the motor accident.
14) Learned counsel for the parties submitted that with a view to avoid any possible dispute between the parties about the period for which the claimants are entitled to receive interest on the enhanced amount of compensation, the amount of interest on the enhanced amount of compensation may be quantified in this appeal itself.
15) The accident in the present case wherein deceased Parmeshwar Sahu lost his life took place in the year 2002; the claim petition was filed by the claimants before the Tribunal in the year 2003; the impugned award came to be passed in the year 2005; the present appeal was filed by the claimants for enhancement of the compensation in the year 2006; and the appeal is being finally decided in the year 2009.
16) Considering all the relevant factors including the delay in disposal of the claim petition and the present appeal, and the fact that the Insurance Company alone is not to be blamed for the entire delay in the matter, we quantify the amount of interest on the enhanced amount of compensation of Rs.1,45,000/- 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.1,70,000/- awarded by the Tribunal is enhanced to Rs.3,15,000/- with further quantified amount of interest of Rs.15,000/- on the enhanced amount of compensation of Rs.1,45,000/-.
18) Respondent No.3 The Oriental Insurance Company Limited is granted three months' time for depositing the total sum of Rs.1,60,000/- (Rs.1,45,000/- towards enhanced amount of compensation + Rs.15,000/- towards quantified amount of interest on the enhanced amount of compensation of Rs.1,45,000/-) before the concerning Claims Tribunal.
19) No order as to costs.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
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------------------------------ Misc Appeal (C) No.636 of 2009 Appellant Santosh Kumar, S/o Bindeshwari, aged about 25 years, R/o Bhilai 03, Bazar Chowk, Police Station Bhilai - 3, Tahsil Patan, District Durg (CG) Versus Respondents 1. Rajesh Kumar Thakur, R/o Darshan Singh Thakur, aged about 26 years, R/o Nanhada, Police Station Gunderdehi, Distt Durg, presently address Bhilai, Bazar Chowk, Police Station -3, Tahsil Patan, District Durg (CG)
2. Smt Adarsh Kamta Soni, Wd /o late JK Soni, R/o MIG/C 166 Vaishali Nagar, Bhilai, Police Station Supela, District Durg (CG)
3. National Insurance Company Limited, Branch No.1, Bhutani Complex GE Road, Power House Bhilai, District Durg (CG) Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri Jitendra Gupta, counsel for the appellant.
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------------------------------
ORDER (12th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri Jitendra Gupta, learned counsel for the appellant seeks permission to withdraw the appeal filed by the appellant / claimant for enhancement of the compensation awarded by the Second Additional Motor Accident Claims Tribunal, Durg vide award dated 17.12.2008, passed in claim case No.106/2008 with liberty of filing cross-objections for enhancement of the compensation in the appeal of the insurer of the offending vehicle MAC 533/2009.
2) Permission granted.
3) With the above liberty, the appeal is dismissed as withdrawn.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
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------------------------------ Misc Appeal (C) No.1240/2009 Appellants 1 Shashikant Tiwari, S/o Late Shri Claimants Rameshwar Prasad Tiwari, aged about 29 years 2 Smt SB Tiwari, W/o Late Shri RP Tiwari, aged about 44 years Both residents of Model Town Bhilai, Tahsil and District Durg (Chhattisgarh) Versus Respondents 1. Roopchand, S/o Tukaram Kurmi, aged about 27 years, Resident of Chijtola, Police Station -
Salekasa, District Gondiya (Maharashtra) (Driver of the vehicle Truck No.CG 07/C/3087)
2. Smt Satvindar Kaur, S/o Manjit Singh Chawla, R/o HIG 97 Hudco, Bhilai, Tahsil and District Durg (CG) (Owner of the vehicle Truck No.CG 07/C/3087)
3. The Oriental Insurance Company Ltd., Through Zone Manager, Parmanand Building, Rajendra Park Chowk, Durg, Tahsil & District Durg (CG) (Insurance Company of the vehicle Truck No.CG 07/C/3087) Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri Jitendra Gupta, counsel for the appellants.
-----------------------------------------------------------
------------------------------
ORDER (11th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri Jitendra Gupta, learned counsel for the appellants is heard on admission.
2) The appellants are seeking enhancement of the compensation awarded by the Eighth Additional Motor Accident Claims Tribunal, Durg (for short `the Tribunal') vide award dated 19.03.09 passed in Claim Case No.183/2008.
3) As against the compensation of Rs.82,00,000/-, claimed by the appellants/claimants, unfortunate son and widow of deceased Rameshwar Prasad Tiwari, by filing a claim petition under Section 166 of the Motor Vehicles Act, for his death in the motor accident on 06.04.2007, the Tribunal awarded a total sum of Rs.4,54,500/-as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
4) Shri Jitendra Gupta, 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.5,000/- per month only; and in awarding low compensation of Rs.4,54,500/- only.
5) True, the claimants pleaded that deceased Rameshwar Prasad Tiwari used to earn Rs.30,000/- per month by plying two minibuses between Durg and Rajnandgaon, the evidence led in that behalf was not of clinching nature. No income tax return disclosing the income of the deceased to the extent of Rs.30,000/- was produced before the Tribunal by the claimants. In this state of evidence, we do not find any fault in the assessment of the income of the deceased by the Tribunal at Rs.5,000/- per month.
6) The Tribunal has been quite liberal in deducting only 1/3rd of the income of the deceased towards his personal expenses though the deduction in that behalf could have been to the extent of 50% as there were only two dependents on the income of the deceased i.e. deceased and his wife Smt SB Tiwari as claimant No.1 Shashikant Tiwari, son of deceased Rameshwar Prasad Tiwari was aged about 29 years and admittedly had sufficient income of his own.
7) The multiplier of 11 selected by the Tribunal considering the age of the deceased and his widow cannot be said to be on the lower side.
8) For the foregoing reasons, we do not find any scope for enhancement of the compensation awarded by the Tribunal.
9) The appeal filed by the appellants/claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
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------------------------------
Criminal Revision No.552 of 2004 Applicant Pradeep Koushik, S/o Ram Complainant Khilavan Koushik, aged about 30 years, Village Parsada, Bodri, Distt Bilaspur (CG) Versus Respondents 1. State of Chhattisgarh, through Accused PS Civil Lines, Distt Bilaspur (CG)
2. Lakshmi Chand Koushik S/o Dhelauram Koushik, aged about 28 years, R/o Kasturba Nagar, near Jatia talab, Jarabhata, PS Civil Lines, Distt Bilaspur (CG)
3. Arun Pandey, S/o Damodar Prasad Pandey, aged 33 years, R/o Sarkanda, Near Public Health & Family Welfare Training Institute, PS Sarkanda, Bilaspur (CG) Memo of Revision under Section 397 read with Section 401 of the Cr.P.C.
-----------------------------------------------------------
------------------------------Present : Shri NK Mehta, counsel for the petitioner..
Shri Sudhir Bajpai, Deputy Government Advocate for the State / respondent No.1.
Shri YC Sharma, counsel for respondent No.2. None for respondent No.3.
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------------------------------
ORDER (9th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri NK Mehta, learned counsel for the petitioner is heard on admission.
2) Petitioner Pradeep Koushik, brother-in-law of deceased Raju @ Rajkumar Koushik has filed this revision petition against the impugned judgment of acquittal dated 08.09.2004 passed by the Ninth Additional Sessions Judge, Bilaspur in Sessions Trial No.371/2003, whereby respondents/accused persons Lakshmi Chand Kaushik and Arun Pandey were acquitted of the charge under Section 302 read with Section 34 of the IPC.
3) Police, Civil Lines, Bilaspur after completion of the investigation of the case registered on the report of petitioner Pradeep Koushik, charge-sheeted respondents/accused persons Lakshmi Chand Kaushik and Arun Pandey for the alleged commission of offence punishable under Section 302 read with Section 34 of the IPC on the accusation of their having committed murder of Raju @ Rajkumar Koushik by causing injuries on him in the intervening night of 25th and 26th of June, 2003.
4) The accused persons abjured their guilt and pleaded false implication to the charge framed by the trial Court under Section 302 read with Section 34 of the IPC.
5) At the trial, the above charge against the accused persons was sought to be proved by the prosecution on the evidence of PW-1 Sikander Tambey, PW-2 Rajesh Verma, PW-3 Ramswaroop, PW-4 Leeladhar, PW-5 Smt. Rashmi Pandey, PW-6 Sita Bai, PW-7 Krishna Pandey, PW-8 Pradeep Koushik, PW-9 Dr. A.S. Khan, PW-10 Ramkumar Sahu, PW-11 Lakhan Lal Koushik, PW-12 Kejuram, PW-13 R.P.S. Parihar, PW-14 A.K. Mitra and PW-15 Dr. P.C. Sahu.
6) Of the above-named 15 witnesses examined by the prosecution before the trial Court, PW-1 Sikander Tambey was examined as the solitary eyewitness of the alleged incident of murder of deceased Raju @ Rajkumar Koushik. PW- 4 Leeladhar was examined to establish the alleged incriminating circumstance that deceased Raju @ Rajkumar Koushik was last seen alive in the company of the accused persons. PW-6 Sita Bai, widow of deceased Raju @ Rajkumar Koushik was examined to establish the motive of the accused persons. Petitioner - Pradeep Koushik was examined as PW- 8 to establish that the accused persons had made an extra judicial confession before him on 28.06.2003 admitting their guilt.
7) The trial Court on a close scrutiny of the entire evidence of the above-named prosecution witnesses in general and that of PW-1 Sikander Tambey, PW-4 Leeladhar, PW-6 Sita Bai and PW-8 Pradeep Koushik in particular found that the evidence of these prosecution witnesses suffered from serious infirmities and the evidence of the other prosecution witnesses fell short of establishing the charge punishable under Section 302 read with Section 34 of the I.P.C. against the accused persons. The trial Court, therefore, acquitted respondents / accused persons Lakshmi Chand Kaushik and Arun Pandey vide impugned judgment dated 08.09.2004.
8) Shri N.K. Mehta, learned counsel for the petitioner vehemently argued that the evidence of PW-1 Sikander Tambey, PW-4 Leeladhar, PW-6 Sita Bai and PW-8 Pradeep Koushik taken together is more than sufficient to establish the charge of murder against accused persons Lakshmi Chand Kaushik and Arun Pandey. Learned counsel for the petitioner further submitted that the trial Court has erred in discarding the evidence of the above named prosecution witnesses on flimsy and untenable grounds.
9) The Apex Court while considering the scope of interference in a complainant's revision petition against the acquittal in the case of Ram Briksh Singh and Others Vs Ambika Yadav and Another (Supra) relied upon by the petitioner / complainant himself observed in paras 3 to 7 :
"3. The principles on which a revisional court can set aside a judgment and order of acquittal passed in favour of the accused are well settled by a catena of judgments. The difficulty, however, arises at times about the application of the said principles. It is true that there is a statutory prohibition contained in sub-section (3) of Section 401 of the Criminal Procedure Code on converting a finding of acquittal into one of conviction and what is prohibited cannot be done indirectly as well. The question, however, is, has the High Court indirectly done what is prohibited.
4. Sections 397 to 401 of the Code are a group of sections conferring higher and superior courts a sort of supervisory jurisdiction. These powers are required to be exercised sparingly. Though the jurisdiction under Section 401 cannot be invoked to only correct wrong appreciation of evidence and the High Court is not required to act as a court of appeal but at the same time, it is the duty of the court to correct manifest illegality resulting in gross miscarriage of justice.
5. More than half a century ago, in D Stephens Vs Nosibolla (AIR 1951 SC 196 : 1951 SCR 284: 52 Cri LJ 510) this Court held that revisional jurisdiction when it is invoked against an order of acquittal by a private complainant is not to be lightly exercised, it could be exercised only in exceptional cases to correct a manifest illegality or to prevent gross miscarriage of justice and not to be ordinarily used merely for the reason that the trial court has misappreciated the evidence on record.
6. In K Chinnaswamy Reddy Vs State of AP (AIR 1962 SC 1788 : (1963) 1 Cri LJ 8) a note of caution was appended so that the High Court does not convert a finding of acquittal into one of conviction by the indirect method of ordering retrial when it cannot directly convert a finding of acquittal into a finding of conviction in view of specific statutoty prohibitiohn. While noticing that it is not possible to lay down the criteria for determining exceptional cases which would cover all contingencies for exercise of revisional power, some cases by way of illustration were mentioned wherein the high Court would be justified in interfering with the finding of acquittal in revision. The High Court would be justified to interfere where material evidence is overlooked by the trial Court.
7. In a recent decision in Bindeshwari Prasad Singh Vs State of Bihar (now Jharkhand) (2002) 6 SCC 650 : 2002 SCC (Cri) 1448 noticing principles laid down in Stephens1 and Chinnaswamy Reddy2 it was held that the High Court was not justified in reappreciating the evidence on record and coming to a different conclusion in a revision preferred by the informant under Section 401 of the Code since it was well settled that the order of acquittal cannot be interfered with in revision merely on the ground of errors in appreciation of evidence. Relying upon these decisions, Mr Mishra contends that the High Court while interfering with the judgment and order of the Court of Session has not kept in view the parameters of exercise of revisional jurisdiction."
10) Mere alleged mis-appreciation of the evidence of the prosecution witnesses by the trial Court in view of the above quoted dictum of the Apex Court in the case of Ram Briksh Singh and Others Vs Ambika Yadav and Another (Supra) will not by itself be a sufficient ground to warrant interference in a complainant's revision petition against the judgment of acquittal.
11) The alleged incident of murder of deceased Raju @ Rajkumar Koushik took place in the intervening night of 25th & 26th June,2003. In the F.I.R. lodged by petitioner Pradeep Koushik, in the form of merg intimation, no one much less accused persons Lakshmi Chand Kaushik and Arun Pandey were named as the assailants of deceased Raju @ Rajkumar Koushik. The solitary eyewitness examined by the prosecution at the trial i.e PW-1 Sikander Tambey for the first time came forward as an eyewitness after more than two months of the incident on 05.09.2003. PW-4 Leeladhar though claimed to have seen deceased Raju @ Rajkumar Koushik in the night of the incident with a person bearing a cap, could not identify accused persons Lakshmi Chand Kaushik and Arun Pandey as the person with whom he saw the deceased. PW-8 Pradeep Koushik, did not disclose about the fact of an extra judicial confession having made by the accused persons to him for a period of about two months. He for the first time disclosed about it on 04.09.2003, when his case diary statement was recorded by the police.
12) On due consideration of the submissions of learned counsel for the petitioner; the findings recorded by the trial Court leading to acquittal of the accused persons; the evidence led by the prosecution at the trial in general and that of PW-1 Sikander Tambey, PW-4 Leeladhar and PW-8 Pradeep Koushik, in particular; and the above mentioned broad features of the case, we are satisfied that the findings recorded by the trial Court leading to acquittal of accused persons Lakshmi Chand Kaushik and Arun Pandey do not suffer from any such infirmity which may warrant interference by this Court in this complainant's revision petition against acquittal.
13) The revision petition, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
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------------------------------
Misc Appeal (C) No. 423 of 2008 Appellants 1 Banshilal Verma, S/o Fundaru Ram Claimants Verma, aged 50 years 2 Smt Ganga Bai, W/o Banshilal Verma, aged 45 years Both are R/o Vill - Lavan, Police Chowki - Lavan, Thana -
Kasdol, Distt - Raipur (CG) Versus Respondents 1. Bhuneshwar Prasad, S/o Samaru Pal, aged about 23 years, R/o Vill - Sonpuri, Tah - Baloda Bazar, Distt Raipur (CG) Driver
2. Smt Chanda Bai Pradhan, W/o Dauram Pradhan, aged about 55 years, R/o Vill Kumari, Tah -
Kasdol, Distt Raipur (CG) Owner
3. Bajaj Allianze General Insurance Company Ltd., Shivmohan Bhawan, Vidhan Sabha Road, Pandari, Raipur Distt - Raipur (CG) Insurance Company Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri SK Guha, counsel for the appellants.
-----------------------------------------------------------
------------------------------
ORDER (9th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri SK Guha, learned counsel for the appellants seeks permission to withdraw the appeal filed by the appellants for enhancement of the compensation awarded by the First Additional Motor Accident Claims Tribunal, Baloda Bazar, Raipur vide award dated 26.12.2007, passed in claim case No.251/2006 with the liberty of filing cross-objections for enhancement of the compensation in the appeal filed by the insurer of the offending vehicle (MAC No.273/2008).
2) Permission granted.
3) With the above liberty, the appeal is dismissed as withdrawn.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
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------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
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------------------------------
Misc Appeal (C) No. 1325 of 2009 Appellants 1 Mus Shanta Singh, aged about 38 Claimants years, widow of late Jainath Singh 2 Ku. Neha Singh, Aged about 16 years (Minor) D/o Late Jainath Singh 3 Nikhil Pratap Singh, Aged about 12 years (Minor), S/o Late Jainath Singh Appellants No.2 and 3 (Minors) through their natural guardian -
mother, Mus Shanta Singh, aged about 38 years, widow of late Jainath Singh All R/o Gudi, Tah Seepat, Distt Bilaspur (CG) Versus Respondents 1. Karmu Singh, S/o Daseen Ram Aged
- not known to appellants R/o Vill Shivnandanpur, Ward No.13, Vishrampur Distt Sarguja (CG) (Owner of offending vehicle)
2. Branch Manager, Reliance General Ins Co Ltd., Raipur, through -
Branch Manager Reliance General Ins. Co Ltd., Bilaspur, Tah & Distt Bilaspur (CG) (Insurer of offending vehicle)
3. Mohan Singh, Aged about 81 years Son of Late Bholaram R/o Vill & PO Tivra Buti, Tah Surajpur, Distt Sarguja (CG)
4. Anand Shandilya, Aged about 23 years, S/o Late Ramsharan Shandilya PS Shivnandanpur, Mahavir Colony, Vishrampr, Distt Sarguja (CG) (Driver of offending vehicle) Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri Sudhir Kashyap, counsel for the appellants.
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------------------------------
ORDER (7th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
By allowing IA Nos.1/2009 and 2/2009, the documents filed along with these applications are taken on record.
2) Shri Sudhir Kashyap, learned counsel for the appellants is heard on admission.
3) Appellants are seeking enhancement of the compensation awarded by the First Motor Accident Claims Tribunal, Bilaspur (for short `the Tribunal') vide award dated 19.08.09 passed in Claim Case No.330/2007.
4) As against the compensation of Rs.36,29,040/-, claimed by the appellants/claimants by filing a claim petition under Section 166 of the Motor Vehicles Act, the Tribunal awarded a compensation of Rs.20,95,000/- along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
5) Learned counsel for the appellants vehemently argued that the Tribunal has erred in awarding low compensation of Rs.20,95,000/- only.
6) Deceased Jainath Singh was aged about 43 years on the date of the accident which took place on 10.11.2007. According to the claimants he was getting salary of Rs.19,242/- as Head Master of Darripara Government School. The Tribunal assessed the income of the deceased at Rs.19,242/- which was shown as his salary in the salary certificate Ex.P/7. The Tribunal deducted the usual 1/3rd towards the personal expenditure of the deceased and by multiplying the annual dependency with the multiplier of 16, the compensation was worked out to Rs.20,75,000/-. By awarding further sum of Rs.20,000/- under other heads, the Tribunal awarded a total sum of Rs.20,95,000/- as compensation to the claimants.
7) In a motor accident claim case what is important is that the compensation to be awarded by the Courts / Tribunal should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a bonanza.
8) On due consideration of the submissions of the learned counsel for the appellants; the reasonings given by the Tribunal in the impugned award; the salary of the deceased proved by the claimants; the number of dependents on the income of the deceased; the age of the deceased; his widow and their children, we are of the opinion that the compensation of Rs.20,95,000/- awarded by the Tribunal cannot by any stretch of imagination be termed as inadequate so as to warrant enhancement in this appeal.
9) The appeal filed by the appellants/claimants for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (C) No. 838 of 2008
Appellant Suresh Kumar Samant @ Vijay
Claimant Bihari Samant, S/o Late Shri
Premchand Samant, aged about 40
years, by Caste Bhuinya, R/o
Village Pamshala, Thana-
Farsabahar, Tahsil-Kunkuri,
Distt.-Jashpur (CG)
Versus
Respondents 1. Parveet Say, S/o Ramsay, By Caste Kanwar, aged about 28 years, R/o Village-Godamba, Thana-Tapkara, Tahsil-Kunkuri, Distt.-Jashpur (CG)
2. National Insurance Company Ltd., Branch Office, Korba 13 Minu Complex, Main Road Kosabadi, Korba, Distt-Korba (CG) Miscellaneous appeal under Section 173 of the Motor Vehicle Act
-----------------------------------------------------------
------------------------------Present : Shri Awadh Tripathi and Shri Sarfaraj Khan, counsel for the appellant.
-----------------------------------------------------------
------------------------------
ORDER (6th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Appellant Suresh Kumar Samant @ Vijay Bihari Samant is seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Jashpur Nagar, district Jashpur (for short `the Tribunal') vide award dated 30.04.2008 passed in Claim Case No.03/2008.
2) As against the compensation of Rs.13,09,544/-, claimed by the appellant/claimant by filing a claim petition under Section 166 of the Motor Vehicles Act for the injuries sustained by him in the motor accident on 10.12.2005, the Tribunal awarded a total sum of Rs.1,26,000/- as compensation along with interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment.
3) Shri Awadh Tripathi and Shri Sarfaraj Khan, learned counsel for the appellant vehemently argued that the Tribunal has erred in awarding low compensation of Rs.1,26,000/- only, though the appellant/claimant sustained multiple serious injuries including fractures in the motor accident resulting in permanent disability to the extent of 35%.
4) Before the Tribunal the appellant / claimant examined as many as four witnesses including himself (AW/1 Suresh Kumar Samant @ Vijay Bihari Samant, AW/2 N Khan, AW/3 Manik Chand Sai, and AW/4 Parameshwar Sai), in support of his claim. For the reasons best known to the appellant / claimant, no doctor was examined before the Tribunal to establish the nature of the injuries said to have been sustained by the appellant/claimant in the motor accident and the fact that those injuries resulted in any permanent disability.
5) The question whether the medical certificate produced by the claimant before the Tribunal without examining the Doctor who issued the certificate can be relied upon as substantive evidence for the assessment of the compensation came up for consideration before the Apex Court in the case of A.P.SRTC Vs P. Thirupal Reddy reported in (2005) 12 SCC 189, wherein it was observed in para 6 as under :
"6. After hearing learned counsel for the respondent - claimant who made an attempt to support the order of the High Court, we find that there was no justification for the High Court to rely on the disability certificate issued by Dr Sudhakar Reddy and enhance the compensation by treating the injury as permanent disability to be 45 percent. The High Court committed gross error in overlooking the fact that Dr Sudhakar Reddy's medical certificate was rejected by the Tribunal for non-examination of that doctor. The Tribunal has determined the physical disability at 15 per cent on the basis of the deposition of Dr KM Mitra and awarded a just and fair compensation. The High Court erred in disturbing the same and enhancing the compensation. Consequently, we allow this appeal, set aside the impugned order and restore the award of the Claims Tribunal. The respondent-claimant is allowed to withdraw the amount of compensation awarded by the Tribunal, if it has not already been withdrawn."
6) The Apex Court in a recent dictum in the case of Rajesh Kumar alias Raju Vs Yudhvir Singh and another, reported in (2008) 7 SCC 305, reiterated the same view with the following observations in para 11 :
"11. The certificate in question in this case was obtained after two years. It is not known as to whether the Civil Surgeon of the hospital treated the appellant. On what basis, such a certificate was issued two years after the accident took place is not known. The author of the said certificate had not been examined. Unless the author of the certificate examined himself, it was not admissible in evidence. Whether the disability at 60% was calculated on the basis of the provisions of the Workmen's Compensation Act or otherwise is not known. It is also not known as to whether he was competent to issue such a certificate. It even does not appear that the contentions raised before us had either been raised before the Tribunal or the High Court. The Tribunal as also the High Court, therefore, proceeded on the materials brought on record by the parties. In absence of any contention having been raised in regard to the applicability of the Workmen's Compensation Act which, in our opinion, ex facie has no application, the same, in our opinion, cannot be permitted to be raised for the first time."
7) In view of the above quoted dicta of the Apex Court in the cases of A.P.SRTC Vs P. Thirupal Reddy (supra) Rajesh Kumar alias Raju Vs Yudhvir Singh and another (supra), the medical certificate and the disability certificate produced by the appellant/claimant before the Tribunal without examining the Doctors who had issued the those certificates, cannot be taken into consideration for enhancement of the compensation in the case.
8) We, therefore, do not find any scope for enhancement of the compensation awarded by the Tribunal.
9) The appeal, filed by the appellant/claimant for enhancement of the compensation, therefore, is liable to be dismissed and is hereby dismissed summarily.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ Misc Appeal (C) No. 857 of 2007 Appellant Dallu @ Dalli Bai, Widow of Late Applicant Hiralal Chauhan, aged about 33 years, R/o Village Puraina, Bhilai-3, District Durg (CG) Versus Respondents 1. Ram Aasre Yadav, Bijay Bahadur Non-applicants Yadav, aged about 35 years, R/o Bairamji Town, Aadiwasi Nagar Khadan, Nagpur, P.S. Sadar (Maharashtra) (Driver)
2. Mr. Shailendra Singh Jassal, G.E. Road, Telibandha, Raipur, District Raipur (CG) (Owner)
3. The National Insurance Company Limited, Vardhman Nagar, Bhandara Road, Nagpur, Through -
Divisional Manager, The National Insurance Company Limited, Akash Ganga Parisar, Supela, Bhilai, District Durg (CG) (Insurer) Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : Shri Atanu Ghosh, counsel for the appellant.
Shri Raj Awasthi, counsel for respondent No.3.
-----------------------------------------------------------
------------------------------
ORDER (6th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri Atanu Ghosh, learned counsel for the appellants seeks permission to withdraw the appeal filed by the appellant for enhancement of the compensation awarded by the 7th Additional Motor Vehicles Accident Claims Tribunal, Durg, vide award dated 31.01.2007 passed in Claim case No.32/2005.
2) Permission granted.
3) The appeal, therefore, is dismissed as withdrawn.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ MCC No.476 of 2009 Applicants 1. Ramadheen Rajwar Son of Late Appellants Chainsal Rajwar, aged about 50 years
2. Ramnath Rajwar Son of Late Chainsal Rajwar, aged about 45 years Both are cultivators and residents of Village Rakeya, Tahsil Baikunthpur, District Koriya (CG)
3. Vijay Singh Son of Late Shri Thakur Prasad Singh, aged about 29 years, Occupation Driver, Resident of Village Bade Jhumarpara Patna, Tahsil Baikunthpur, District Koriya (CG) Versus Non - applicants 1. Smt Krishna Kumari Widow of Respondents Late Shri Omprakash, aged about 28 years, Occupation Housewife
2. Kumari Jyoti D/o Late Shri Omprakash, aged about 10 years
3. Anil Kumar Son of Late Shri Omprakash, aged about 09 years
4. Sunil Kumar Son of Late Shri Omprakash, aged about 07 years Respondent No.2 to 4 are minors, through their natural guardian mother Smt Krishna Kumari and all are resident of Village Kochila, Tahsil Baikunthpur, District Koriya (CG)
5. Branch Manager, The Oriental Insurance Company Limited, Branch Office Ambikapur, District Surguja (CG) (Insurer)
6. Bhagirathi Son of Shri Devman Kenwat, aged about 60 years, Resident of Village Kochila, District Koriya (CG) Application for restoration of MA (C) No.1354/2009
-----------------------------------------------------------
------------------------------Present : Shri Atanu Ghosh, counsel for the petitioners.
-----------------------------------------------------------
------------------------------
ORDER (5th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
Shri Atanu Ghosh, learned counsel for the petitioners is heard on the restoration petition.
2. The petitioners are seeking restoration of M.A.C. No.1354 of 2009 which was dismissed for want of prosecution vide order dated 27.10.2009.
3. On due consideration of the submissions of learned counsel for the petitioners and the grounds taken in the restoration petition, we are satisfied that the absence of the petitioners'/appellants' counsel on 27.10.2009 when M.A.(C) No. 1354 of 2009 was taken up for hearing, was based on bona fide grounds.
4. M.C.C. No. 476/2009, therefore, is allowed and M.A.(C)No.1354 of 2009 is restored to its original number.
CHIEF JUSTICE J U D G E subbu
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (C) No. 1260 of 2008 Appellants 1. Jagela Sahu, S/o Ramadhar Sahu, aged about 56 years,
2. Rajesh Sahu, S/o Jagela Sahu, aged about 28 years
3. Santosh Sahu, S/o Jagela Sahu, aged about 26 years
4. Santu Sahu, S/o Jagela Sahu, aged about 24 years All R/o Dipupara, Tarbahar, Tahsil & District Bilaspur (CG) Versus Non-applicants 1. Samim Ullah, S/o Ashad Ali, aged about 45 years, R/o Katala, P.S. Mandhara, District Pratapgarh (U.P), presently residing at Mahadev Bus Service, Champa, C/o Rajesh Shukla, S/o Heeralal Shukla, Barpali Chowk, Champa, P.S. Champa, District Janjgir-
Champa (CG)
2. Rajesh Shukla, S/o Heeralal Shukla, Barpali Chowk, Champa, P.S. Champa, District Janjgir-
Champa (CG)
3. The National Insurance Company Limited - through - The Branch Manager, Taha Complex, Vyapar Vihar Road, Bilaspur (CG) Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : None for the appellants.
-----------------------------------------------------------
------------------------------
ORDER (4th of November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
None for the appellants.
2) As there is no representation on behalf of the appellants, we are left with no other option but to dismiss the appeal for want of prosecution.
3) The appeal, therefore, is dismissed for want of prosecution.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (C) No. 1032 of 2007 Appellant Ku. Nikita Jain, D/o Late Shri Rajkumar Jain, aged about 10 years (Minor) Through:- Mother Smt. Anju Jain, R/o Satti Chowra, Ganjpara, Durg, Tah. & Distt. Durg (CG) Versus Respondents 1. Munshi Khan, S/o Aziz Khan, aged 40 years, R/o 204 Sanod Delhi 1100040 (Driver of Maruti Car bearing No.D.L./08/CH/2316)
2. Rashid Ahmad, S/o Aziz Khan, aged 42 years, R/o 204 Sanod Delhi 110040 (Owner of Maruti Car bearing No. D.L./08/CH/2316)
3. The Oriental Insurance Co. Ltd., Through: Divisional Manager, Divisonal Office, Nahar Building, Malviya Nagar, Durg Distt. Durg (CG) (Insurance Company where Maruti Car bearing No. D.L./08/CH/2316 is insured) Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : None for the appellant.
-----------------------------------------------------------
------------------------------
ORDER (4th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
None for the appellant.
2) As there is no representation on behalf of the appellant, we are left with no other option but to dismiss the appeal for want of prosecution.
3) The appeal, therefore, is dismissed for want of prosecution.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------ Misc Appeal (C) No. 902 of 2007 Appellants 1. Smt Anju Jain, W/o Late Shri Rajkumar Jain, aged about 38 years.
2. Ku. Shikha Jain, D/o Late Shri Rajkumar Jain, aged about 15 years (Minor)
3. Chandresh Jain, S/o Late Shri Rajkumar Jain, aged about 12 years (Minor)
4. Ku. Nikita Jain, D/o Late Shri Rajkumar Jain, aged about 10 years (Minor) (Appellant No.2 to 4 are minor while Smt. Anju Jain who is mother of appellant No.2 to 4 is their caretaker also) All the above are R/o Satti Chowk Ganjpara, Durg Tah. & Distt. Durg (CG) Versus Respondents 1. Munshi Khan, S/o Aziz Khan, aged 40 years, R/o 204 Sanod Delhi 1100040 (Driver of Maruti Car bearing No.D.L./08/CH/2316)
2. Rashid Ahmad, S/o Aziz Khan, aged 42 years, R/o Sanod Delhi 110040 (Owner of Maruti Car bearing No.D.L./08/CH/2316)
3. The National Insurance Company Limited - through - The Divisional Manager, Divisional Office, Nahar Building, Malviya Nagar, Durg, Distt.
Durg (CG)
(Insurance Company where
Maruti Car bearing
No.D.L./08/CH/2316 is insured)
Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : None for the appellants.
-----------------------------------------------------------
------------------------------
ORDER (4th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
None for the appellants.
2) As there is no representation on behalf of the appellants, we are left with no other option but to dismiss the appeal for want of prosecution.
3) The appeal, therefore, is dismissed for want of prosecution.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (C) No. 1031 of 2007
Appellant Smt. Anju Jain, W/o Late Shri
Rajkumar Jain, aged about 38
years, R/o Satti Chowra
Ganjpara, Durg, Tah. & Distt.
Durg (CG)
Versus
Respondents 1. Munshi Khan, S/o Azia Khan, aged 40 years, R/o 204, Sanod Delhi 110040 (Driver of Maruti Car bearing No.D.L./08/CH/2316)
2. Rashid Ahmad, S/o Aziz Khan, aged 42 years, R/o 204 Sanod Delhi 110040 (Owner of Maruti Car bearing No. D.L./08/CH/2316)
3. The Oriental Insurance Co. Ltd., Through: Divisional Manager, Nahar Building, Malviya Nagar, Durg Distt. Durg (CG) (Insurance Company where Maruti Car bearing No. D.L./08/CH/2316 is insured) (Against order in Motor Accident claim case No.10/2006) Miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : None for the appellant.
-----------------------------------------------------------
------------------------------
ORDER (4th November, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
None for the appellant.
2) As there is no representation on behalf of the appellant, we are left with no other option but to dismiss the appeal for want of prosecution.
3) The appeal, therefore, is dismissed for want of prosecution.
CHIEF JUSTICE JUDGE padma
HIGH COURT OF CHHATTISGARH AT BILASPUR DIVISION BENCH
-----------------------------------------------------------
------------------------------ CORAM: HON'BLE SHRI RAJEEV GUPTA, C.J.
HON'BLE SHRI RANGNATH CHANDRAKAR,J
-----------------------------------------------------------
------------------------------
Misc Appeal (c) P.R.No. 2544 of 2009 Appellant Jhulbai D/o. Kishun Claimant Kashyap, aged 41 years R/o.
village Chatana Thana Jarhagaon, Tahsil Mungeli, Distt. Bilaspur (C.G.).
Versus Respondents 1. Rajendra Singh @ Bhupat Non - Applicants Singh, S/o. None Singh Lodhi, aged 33 years, Driver Vehicle No. C.G. 10/C/1317 r/o. Basia Thana Batiyagarh, Distt. Datiya Present R/o. Devi Nagar Raipur naka thana Civil line Bilaspur, Distt.
Bilaspur (C.G.).
2. Smt. Rshmit Singh, W/o.
Baljit Singh Domar, aged 33 years, owner of Truck No. C.G.10/C/1317 R/o. H.I.G. 35 Arya Colony Tifra Bilaspur, Distt. Bilaspur (C.G.).
3. The Oriental Insurance Co.
Ltd., Divisional Office Bilaspur (C.G.).
Appeal under Section 173 of the Motor Vehicle Act, 1988
-----------------------------------------------------------
------------------------------Present : None for the appellant.
-----------------------------------------------------------
------------------------------
ORDER (29th October, 2009) The following order of the Court was passed by Rajeev Gupta, C.J.
None for the appellant.
2) As there is no representation on behalf of the appellant, we are left with no other option but to dismiss the appeal for want of prosecution.
3) The appeal, therefore, is dismissed for want of prosecution.
JUDGE