Resham Bai Nayak Vs Rathram Paikra

Rathram Paikra S/o Dharmu Aged About 47 Years R/o House No. 45, Dadarkala, 3 Village Dadarkala, Kartala, Tahsil And District Korba Chhattisgarh..(Driver Of Offending Vehicle Trailer Bearing Registration No. C.G. 11 - Al- 7600),

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Anand Kumar Modi S/o Pawan Kumar Modi R/o House No. 13, /5 Modi Chowk , Naya Baradwar Nagar Panchayat Baradwar, Tahsil And District Janjgir Champa Chhattisgarh...(Owner Of Offending Vehicle Trailer Bearing Registration No. C.G.11-Al-7600),

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The New India Insurance Company Limited Through Divisional Manager , Divisional Office, Second Floor, Rama Trade Center, In Front Of Rajiv Plaza , Old Bus Stand , Bilaspur , Tahsil And District Bilaspur Chhattisgarh...(Insurer Of Offending Vehicle Trailer Bearing Registration No. C.G. 11 - Al- 7600).

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... Respondent(s)

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Digitally signed by NISHA NISHA DUBEYDate: DUBEY 2025.04.0916:31:53 +0530

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------------------------------------------------------------------------------------------- For Appellants : Mr. Om Prakash Sahu, Advocate. For Respondent No.3 : Mr. Azad Siddiqui, Advocate.

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Page No.2

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Hon'ble Shri Justice Parth Prateem Sahu Order On Board

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03/04/2025

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Appellants-claimants have filed this appeal challenging the award dated 07.11.2019 passed by the learned 7^th Additional Motor Accident Claims Tribunal, Bilaspur, District- Bilaspur (for short ‘the Claims Tribunal’) in Claim Case No.20/2019 whereby the Claims Tribunal allowed claim application of claimants in part and awarded compensation of Rs.10,37,200/- to claimants/appellants herein along with interest @ 8% p.a. from the date of filing of claim application, in a fatal accident case.

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Facts of the case, in brief, are that on 10.12.2018 Kamlesh Nayak (since deceased) along with his friend Uttam Kumar was returning on motorcycle from Akaltara to his home. Motorcycle was driven by Kamlesh Nayak carefully following the rules of Traffic. When they reached near liquor shop, at that time Trailer vehicle bearing registration No.CG11-AL7600, which was coming from opposite direction and driven in a rash and negligent manner by respondent No.1 herein, dashed their motorcycle and caused accident. In the said accident, Kamlesh Nayak and Uttam Nayak both suffered grievous injuries as a result of which both died on spot. Accident was reported to concerned police station based on which Crime No.354/2018 for commission of alleged offence under Sections 279, 337 & 304A of the Indian Penal Code was registered against respondent No.1.

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Page No.3

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Claimants/appellants herein, who are parents of deceased, filed an application claiming compensation to the tune of Rs.29,55,000/- under various heads on the ground that on the date of accident, deceased was working as Mechanic, earning Rs.15,000/- per month and they were dependent on earning of deceased.

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Non-Applicants No.1, driver of offending vehicle, filed his reply to application denying averments made therein. It was pleaded that accident took place due to negligence of deceased and therefore Non-Applicant No.1 cannot be held liable for accident. On the date of accident, the driver of offending vehicle was having valid & effective driving license and as the offending vehicle was fully insured with nonapplicant No.3-insurance company, therefore, the insurance company is liable to indemnify the owner in case any compensation is awarded by the Claims Tribunal.

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Non-applicant No.2/respondent No.2 herein did not appear before the Claims Tribunal and therefore, he was proceeded ex-parte.

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Non-applicant No.3 Insurance Company filed its separate reply and denied averments made in claim application except that on the date of accident the offending motorcycle was insured with it. Driver of offending vehicle was not having valid and effective driving license and other documents relating to offending vehicle were also not valid and effective. As the vehicle was being plied in violation of conditions of insurance

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Page No.4

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policy, therefore, insurance company is not liable to indemnify the insured.

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The Claims Tribunal after appreciating the pleadings and evidence placed on record (oral and documentary both) by respective parties has arrived at a conclusion that accident was the result of rash and negligent driving of respondent No.1; disbelieved the employment of deceased and therefore assessed monthly income of deceased at Rs.6,000/- on notional basis. Accordingly, the Claims Tribunal partly allowed claim application and awarded compensation Rs.10,37,200/along with interest @ 8% p.a.

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Learned counsel for the claimants/appellants submits that the claimants in their evidence have specifically stated that on the date of accident, deceased was working as Mechanic and earning Rs.15,000/- per month. However, the Claims Tribunal had not assessed income of deceased accordingly. He submits that even if they failed to prove the nature of employment of deceased and his engagement ought to be taken as labourer and the income of deceased could have been assessed on the minimum wages fixed by the Competent Authority. He further argued that the Claims Tribunal has awarded less amount towards future prospects and even the amount awarded under other conventional head are also on lower side and not awarded any amount towards love and affection. In addition to the allowances allowed by the Claims Tribunal to the claimants, the claimants would be

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Page No.5

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also entitled to additional compensation towards filial consortium i.e. Rs.40,000/- to each of the claimants being the parents of the deceased who was bachelor on the date of accident, and the interest awarded by the Claims Tribunal is also on the lower side, He prayed for enhancement of the amount of compensation suitably.

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On the other hand, learned counsel for respondent supported the impugned award. He submits that the claimants failed to bring on record any documentary evidence establishing income of deceased as pleaded and stated by them. In absence thereof, the Claims Tribunal justified in assessing income of deceased on notional basis. He further submits that amount of compensation awarded by the Claims Tribunal in the given facts and circumstances of case is just and proper and it does not call for any interference.

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Heard learned counsel for the parties and perused the record.

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As regards the income of deceased, according to appellants, the deceased was working as Mechanic and earning Rs.15,000/- per month, but no evidence has been led on behalf of appellants to substantiate the claim that deceased was engaged as Mechanic and earning that much of amount. In absence of any evidence with reference to employment and income of deceased, the Claims Tribunal has assessed the income of deceased at Rs.6,000/- per month on notional basis. In such circumstances, this Court is of the view that the Claims Tribunal cannot be said to have committed an error in fixing the

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Page No.6

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monthly income of deceased notionally. But, at the same time, the question is whether monthly income fixed notionally invites interference? It is well settled that upon claimants/appellants failure to prove the occupation and income of deceased, it is for the Claims Tribunal to consider income of deceased taking into account the price index, wage structure prevailing on the date of accident and also wage rate fixed by the Competent Authority under the Minimum Wages Act,1948 for the District/place of residence of the deceased. However, from the impugned award it does not appear that the Claims Tribunal has taken recourse to wage rate as fixed by the Competent Authority and prevalent at the relevant point of time. Hence, the monthly income of deceased is required to be assessed.

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Considering the date of accident i.e. 10.12.2018 and taking into account the wage rate fixed by the Competent Authority under the Minimum Wages Act, 1948 for unskilled Labourer residing in ‘A’ Category cities, and prevalent on the date of accident, which was Rs.8,320/- per month, I find it appropriate to fix income of the deceased at Rs.8,320/- per month, who was resident of Sirgitti, Bilaspur, which falls within the category of ‘A’ Class city and died in the year 2018. Accordingly, the monthly income of the deceased is assessed at Rs.8,320/-.

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Addition of income towards future prospects; standard deduction towards personal expenses of deceased; multiplier applied by the Claims Tribunal for assessing the amount of compensation and amount awarded under the head of loss of

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Page No.7

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estate, funeral expenses and transportation conveyance is correct and need no interference. However, award of Rs.1,00,000/- to the claimants/ appellants towards loss of consortium is not as per law settled in this regard. In case of National Insurance Co. Ltd. vs. Pranay Sethi, reported in (2016) 17 SCC 680, Hon’ble Supreme Court has held that a sum of Rs.40,000/- each is to be awarded as filial consortium to the parents of a deceased who died in a road accident. Thus, the Claims Tribunal should have awarded Rs.40,000/each to claimants / appellants under the head of filial consortium and not lump sum amount of Rs.1,00,000/-. Therefore, it is ordered that appellants are entitled for Rs.40,000/- each for filial consortium and not for Rs.1,00,000/as awarded by the Claims Tribunal for loss of consortium.

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14.For the foregoing, this Court proposes to recalculate amount of compensation payable to the claimants/appellants.

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15.Accordingly, income of deceased is taken as Rs.8,320/- per month and since at the time of accident the deceased was 24 years old and working as labourer, therefore, in view of the law laid down in the matter of Pranay Sethi (supra) , the income of deceased is required to be enhanced by 40% towards future prospects, which comes to Rs.11,648/(8320+3328). Thus, annual income of deceased for the purpose of calculating compensation comes to Rs.1,39,776/(11648x12). Out of this amount, half is to be deducted towards personal and living expenses of deceased being bachelor and

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Page No.8

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after deducting half, annual loss of dependency would come to Rs.69,888/-. By applying multiplier of 18 as applied by Claims Tribunal, to annual loss of dependency, total loss of dependency would come to Rs.12,57,984/- (69888x18). Besides this, appellants are entitled for a sum of Rs.40,000/each towards filial consortium being parents of the deceased, as held by Hon’ble Supreme Court in the matters of Pranay Sethi (supra) and Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuharu Ram reported in (2018) 8 SCC 130 . Apart from this, appellants are also entitled for Rs.15000/- for funeral expenses and Rs.15000/- for loss of estate. Thus, total amount of compensation comes to Rs.13,67,984/- (1257984 + 40,000+ 40,000+ 15000 + 15000) recoverable from the respondent. This amount of compensation shall carry interest @ 8% p.a. from the date of filing of claim application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact.

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16.Any amount already paid to claimants/ appellants as compensation shall be adjusted from the total amount of compensation as calculated above.

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17.In the result, the appeal is allowed in part and the impugned award stands modified to the extent indicated above.

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Sd/-

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(Parth Prateem Sahu) Judge

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Nisha

Resham Bai Nayak v. Rathram Paikra

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Resham Bai Nayak v. Rathram Paikra

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