Smt. Preetilekha Pal Vs Dileshwar Kumar Nishad

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NAFR

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H IGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 271 of 2022

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Smt. Preetilekha Pal Wd/o Late Rabin Pal Aged About 37 Years Residence At Ambedkar Ward Near Highway Channel Jagdalpur District Bastar (C.G.)

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Master Tanishk Pal S/o Late Rabin Pal Aged About 3 Years Appellant No. 2 Is Minor Represented Through Natural Guardian Appellant No. 1 Smt. Preeti Lekha (Mother) Residence At Ambedkar Ward Near Highway Channel Jagdalpur District Bastar (C.G.)

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Smt. Sabita Pal Wd/o. Late Narayan Pal Aged About 60 Years R/o Gandhi Nagar Ward Dixit Colony Kosanagar Bhilai District Durg (C.G.)

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---- Appellants

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Versus

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Dileshwar Kumar Nishad S/o Kumaruram Nishad Aged About 30 Years Through Narendra Sharma S/o Tikmaram Sharma Nayapara Ward No. 12 Bhanupratappur Post Bhanupratappur District North Bastar Kanker (C.G.) Pin 494669 (Driver)

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Narendra Sharma S/o Tikmaram R/o Nayapara Ward No. 12 Bhanupratappur Post Bhanupratappur District North Bastar Kanker (C.G.) Pin 494669 (Owner)

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The New India Assurance Co. Ltd. Through Branch Manager, Branch Office Opposite Bhadouriya Bhawan Akaswani Road, Jagdalpur District Bastar (C.G.)

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---- Respondents

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For Appellants : Mr. Praveen Tulsyan, Advocate For respondent No.3 : Mr. B.N. Nande, Advocate

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Hon'ble Shri Justice Arvind Kumar Verma, Order on Board

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12.03.2024

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This appeal under Section 173(2) of Motor Vehicles Act, 1988 (for short “MV Act”) has been filed challenging the award dated 29.11.2021 passed by the Motor Accident Claims Tribunal Bastar at Jagdalpur District Bastar, (CG) in Claim Case No. 11/2021. By the

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impugned award, the learned tribunal has awarded Rs. 13,78,000/as compensation to the appellants/claimants with 9% interest per annum on account of death of deceased late Robin Pal.

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Brief facts of the case is that on 14.08.2020, while the deceased Robin Pal was coming to Jagdalpur from Narayanpur by his motorcycle when he reached near Bhandar Camp, the Respondent No.1 was driving the offending vehicle truck bearing Registration No. CG 07-BE 6088 in rash and negligent manner, and dashed to the motor of the deceased, due to which, he sustained grievous injury and during the treatment he died. The registered owner of the said truck was respondent No. 2 and the insurer was the respondent No. 3.

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As per the pleadings of the claim application filed under Section 166 of the MV Act, the deceased namely Robin Pal was 38 years old, who was a contractor / businessman and used to earn Rs 5,00,000/per annum. The appellants/claimants being, widow, children and parents of the deceased had filed the claim application claiming total compensation of Rs. 90,00,000/-.

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The claim application was resisted by respondents/driver, owner and insurance company of the offending vehicle on various grounds.

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The learned tribunal on the basis of pleadings of the parties framed issues and after appreciation of evidence and material available on record awarded the compensation as stated above.

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The counsel for the appellants/claimants submits that, it is a case where the claimants would have been entitled for much more

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compensation than what has been awarded by the Tribunal. The learned counsel for the appellants submits that the income assessed by the learned Claims Tribunal is Rs. 8,320/- per month as per minimum Wages Act, whereas he used to earn Rs. 4,57,492 per annum as is evident from the Income Tax Return i.e. Ex.P-10 to 12 and for proving the income of the deceased, the claimants have examined the Senior Assistant in the Income Tax Department namely Mr. Deepak Kumar Barnwal (PW-3) and he has produced the copy of the Income Tax Return of the deceased i.e. Ex A-17 to A-19. The learned Claims Tribunal ought to have assessed the future prospect to the extent of 40% instead of 25% as the age of the deceased was 38 years at the time of incident. Apart from this, the compensation awarded on other heads is also on the lower side. The impugned award by the claims Tribunal is bad in law, perverse, thus liable to be modified and enhanced.

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Learned counsel for respondents No. 1 & 2 filed their joint written statement, in which they denied the contents of the petition. They have stated that accident has taken place due to negligence of deceased himself as he collided with the other vehicle. The vehicle with which the deceased met with an accident had fled from the spot and their vehicle was involved in the case. They have further stated that the vehicle was insured with respondent No. 3 so they are not liable to pay any compensation.

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Learned counsel for respondent No. 3 opposes the prayer made by the learned counsel for the appellants and submits that if the

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deceased had actually worked as a contractor at the time of the accident, then the appellants would have definitely presented a license or other documents in this regard. Also from perusal of the Ex.A 16 to Ex. A-19 submitted by the Senior Assistant in Income Tax Department (PW-3), clearly shows that the only seal of the Income Tax Office is affixed on form. The said documents have not been verified and signed by the competent officer of the Income Tax Office. In such a situation, the documents from Ex.A -16 to Ex.A 19 are not valid. Thus, the income of the deceased does not prove that the deceased was working as a contractor at the time of the accident. He supported the award and submits that the compensation has rightly been awarded and does not require any interference by this Court.

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Heard learned counsel for the parties, considered their rival submissions and perused the record with utmost circumspection.

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On perusal of records, it transpires that the learned Tribunal has assessed the monthly income of the deceased as Rs. 8,320/- per month, as per minimum wages act, by holding that the documents available regarding the income of the deceased does not prove that the deceased was working as a contractor at time of the accident. However, the claimants have filed the copy of the Income Tax Return of the deceased i.e. Ex.P- 10 and Ex.P 12 which show that the deceased was paying income tax and his income was Rs. 4,57,492 per annum from business/contractor source, and to prove his case, the claimants have examined Senior Assistant in Income Tax

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Department namely Mr. Deepak Kumar Barnwal (PW-3) before the Claims Tribunal. The Senior Assistant has deposed before the trial Court that the copy of Income Tax Return of the Deceased i.e. Ex. A- 16 to Ex. A- 19 has been produced by him in which seal of the Income Tax Office is affixed wherein the taxable income of the deceased in the year 2016-2017 was Rs. 4,60,770/-, in the year 2017-2018 was Rs. 4,27,470/-, in the year 2018-2019 was Rs. 4,47,375/- and in the year 2019-2020 was Rs. 4,57,592/-. This Court is of the opinion that it clearly reflects from the documents that the deceased was paying Income Tax Return which has been proved by the authorized person of the Income Tax Department as well as wife of the deceased, therefore learned Tribunal has wrongly assessed the income of the deceased. Hence, the average annual income of the deceased would be enhanced to Rs. 4,48,301/- per annum, as per the Income Tax Return paid by the deceased.

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Further, the learned tribunal has awarded 25% of future prospect, however the claimants in the instant case would be entitled for 40% of his income towards future prospects in view of the Judgment of the Honb’ble Supreme Court in the matter of National Insurance Company Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680, wherein the Hon’ble Supreme Court has considered 40% towards loss of future prospects for the non-salaried person who are aged between 0-39 years. Further, looking to the age of the deceased which was 38 years at the time of incident, the Claims Tribunal has applied an appropriate multiplier of 15. As he was a married man left

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behind one children, wife and mother, therefore, 1/3rd deduction towards personal expenses is also on a correct side.

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Considering the facts and circumstance of the case, material available on record and in the light of judgment passed by the Hon’ble Supreme Court in the matter of National Insurance Company Ltd. Vs. Pranay Sethi reported in (2017) 16 SCC 680 , this Court is recomputing the compensation as below:-

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S.N.	Particular	Awarded by this Court
1.	Annual Income of the deceased	4,48,301/-
2.	Future prospects @ 40%	1,79,320/-
3.	Total yearly Income	6,27,621/-
4.	Personal Expenditure (1/3rd)	2,09,207/-
5.	Net Income	418,414/-
6.	Multiplier of 15 applied to assess total loss of dependency	418,414x15=62,76,210/-
7.	Loss of Spousal Consortium to appellant No. 1	40,000/-
8.	Loss of Parental Consortium to appellant No. 2	40,000/-
9.	Filial Loss of Consortium to appellant No. 3	40,000/-
10.	Funeral Expenses	15,000/-
11.	Loss of estate	15,000/-
12.	Total compensation	64,26,210/-

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For the forgoing reasons, the appeal is allowed in part. The amount

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of compensation of Rs.13,78,000/- awarded by the tribunal is enhanced to Rs. 64,26,210/-. Hence, after deducting the amount of Rs.13,78,000/-, the claimants are held entitled for an additional amount of Rs. 50,48,210/-, the additional amount shall carry interest

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@6% per annum from the date of claim application. The insurance Company is directed to deposit the enhanced amount of compensation within 60 days.

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The impugned award stands modified to the above extent. On deposit tribunal shall pass appropriate order with regard to apportionment, investment and disbursement of the enhance amount of compensation and rest of the conditions as ordered by the Claims Tribunal shall remain intact.

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Appeal thus partly allowed.

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Sd/- (Arvind Kumar Verma)

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Judge

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Jyoti .

Smt. Preetilekha Pal v. Dileshwar Kumar Nishad

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Smt. Preetilekha Pal v. Dileshwar Kumar Nishad

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