Smt. Sarita Verma Vs Satish Kumar Chandrakar

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Page No.1

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2025:CGHC:16138

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 454 of 2020

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1 - Smt. Sarita Verma Wd/o Late Kamlesh Verma Aged About 48 Years R/o 14 - H, Street No. 3, Sector - 4, Ward No. 42 Bhilai , District Durg Chhattisgarh.

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2 - Ku. Mousami Verma D/o Late Kamlesh Verma Aged About 28 Years R/o 14 - H, Street No. 3, Sector - 4, Ward No. 42 Bhilai, District Durg Chhattisgarh.

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3 - Ku. Monika Verma D/o Late Kamlesh Verma Aged About 24 Years R/o 14 - H, Street No. 3, Sector - 4, Ward No. 42 Bhilai, District Durg Chhattisgarh.,

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4 - Latelu Ram Verma S/o Late Kalu Ram Verma Aged About 82 Years R/o 14 - H, Street No. 3, Sector - 4, Ward No. 42 Bhilai, District Durg Chhattisgarh

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5 - Smt. Mongara Bai W/o Latelu Ram Verma Aged About 75 Years R/o 14 - H, Street No. 3, Sector - 4, Ward No. 42 Bhilai, District Durg Chhattisgarh., District : Durg, Chhattisgarh

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... Appellant(s)

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versus

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1 - Satish Kumar Chandrakar S/o M. Chandrakar At Present R/o House No. 74, Village Gudhiyari , Baba Para , Police Station Ranchiarai , Tahsil Patan, District,Durg,Chhattisgarh.

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2 - Vinod Kumar Yadu S/o Ram Narayan Yadav R/o House No. 36, Village Gudhiyari , Darae Paras, Naharpar Murgi Faram , Tahsil Patan , District Durg Chhattisgarh.

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3 - Manager National Insurance Company Limited , Supela , Bhilai , District Durg Chhattisgarh..(Insurer), District : Durg, Chhattisgarh

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... Respondent(s)

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For Appellants : Mr. Vinod Kumar Sharma, Advocate. For Respondent No.1 & 2: None. For Respondent No.3 : Mr. Qamrul Aziz. , Advocate. -----------------------------------------------------------------------------------------------

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Page No.2

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Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board

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07/04/2025

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Learned counsel for the appellant submits that liability to satisfy the amount of compensation is upon respondent No.3, which is not disputed by the counsel for respondent No.3, therefore, service of notice upon respondents No.1 & 2 is dispensed with.

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Appellants-claimants have filed this appeal challenging the award dated 19.11.2019 passed by the learned First Additional Motor Accident Claims Tribunal, Durg, District- Durg (for short ‘the Claims Tribunal’) in Claim Case No.09/2018 whereby the Claims Tribunal allowed claim application of claimants in part and awarded compensation of Rs.31,97,500/- to claimants/appellants, after deducting 50% of the calculated amount of compensation towards contributory negligence on the part of driver of vehicle in which deceased was traveling.

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Facts of the case, in brief, are that on 17.06.2017, Kamlesh (since deceased) was going Gadadih market with his friend Loman Singh on motorcycle bearing registration No.C.G.07-L1805. At village Gadadih, police station Utai, district Durg, Sumo vehicle bearing registration number CG-07/MA-0839, driven rashly and negligently by non-applicant No.1, dashed their motorcycle and caused an accident. In the said accident, both riders of motorcycle suffered grievous injuries, they were admitted in Sector-9 hospital Bhilai. However, looking to critical

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condition of Kamlesh Verma, he was admitted in Yashoda hospital, Secunderabad (Telangana) where he died during treatment on 04.07.17. Accident was reported in concerned police station based on which Crime No.192/2017 for commission of alleged offence under Section 304A of the Indian Penal Code was registered against respondents.

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Claimants/appellants herein, who are wife, children and parents of the deceased, filed an application claiming compensation to the tune of Rs.66,03,000/- under various heads on the ground that on the date of accident, deceased was working as Mason, earning Rs.9,000/- per month and they were dependent on earning of deceased.

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Non-applicant No.1 & 2 submitted joint reply to claim application and denied the factum of accident with offending vehicle. It was pleaded that accident occurred on account of rash and negligent driving by driver of motorcycle. Accident did not occur from the offending vehicle. Report has been lodged on false ground. On the date of accident, their vehicle was duly insured with nonapplicant No.3, therefore, amount of compensation, if any, awarded will be paid by non-applicant No.3 Insurance Company.

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Non-applicant No.3 Insurance Company filed its separate reply and denied averments made in application except that on the date of accident the offending vehicle was insured with it. It was further pleaded that all the facts and aspects have to be proved for which documents have not been presented. The claim has

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Page No.4

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been presented on highly exaggerated and false grounds. Accident is the result of contributory negligence of both the drivers. The owner of vehicle and insurance company have not been made parties. The conditions of insurance policy have been violated, hence the insurance company is not liable for payment of compensation and deserves to be exonerated.

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The Claims Tribunal after appreciating the pleadings and evidence placed on record (oral and documentary both) has held that deceased died on account of motor accidental injuries suffered by him in road accident; driver of both vehicles involved in accident were equally responsible for accident and there was no breach of any condition of insurance policy. While assessing monthly income of deceased at Rs.55,536/-, the Claims Tribunal computed total compensation of Rs.63,95,008/-, out of which 50% was deducted towards contributory negligence on the part of driver of vehicle in which deceased was travelling and awarded Rs.31,97,500/- as compensation to claimants/appellants herein.

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Learned counsel for claimants/appellants submits that only because the two vehicles had a head on collusion would not by itself be sufficient to draw an inference that there was a contributory negligence in respect of the driver of the motorcycle (deceased) at the time of accident. He submits that the Claims Tribunal failed to consider the site map etc. in its proper perspective from which it is clear that the driver of the offending vehicle was solely liable for the accident. He further submits that

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the Claims Tribunal has not awarded anything towards spousal, parental and filial consortium. Thus, compensation awarded by the Claims Tribunal is also on lower side and deserves to be enhanced suitably.

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On the other hand, learned counsel for respondents has supported the impugned award and submits that the Claims Tribunal has rightly held the contributory negligence of the deceased to the extent of 50%. There is no illegality or error in the said finding of the Claims Tribunal warranting interference. The appeal has been filed on misconceived grounds, which is liable to be dismissed.

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Heard learned counsel for the parties and perused the record.

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As regards the contributory negligence, while deciding Issue No.3, this Court finds that the contributory negligence of the deceased has been held on the basis of statement of Loman Singh recorded under Section 161 CrPC and site plan (Ex.P-4), which is part and parcel of the record of criminal case registered against non-applicant No.1/respondent No.1 herein. As per site plan, the offending vehicle was going in right direction and the deceased on his motorcycle came from opposite direction on wrong side and collided with offending vehicle. As per statement of Loman Singh, pillion rider of motorcycle, the offending vehicle coming from opposite direction dashed their motorcycle. Thus, it is clear that the deceased was coming from opposite direction on wrong side and this very fact that he was on wrong side of road was

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demanding that he should have been more careful to give way to the traffic coming from the opposite direction on right side. Had he been careful he would have noticed the offending vehicle and would have accordingly slowed down or stopped the vehicle, but it appears that having entered into wrong side of road, he chose to go through which resulted into accident in question. Furthermore, the accident occurred in the day light at 5:30 p.m. in the month of June and thus the drivers of both the vehicles had the opportunity to avoid the collision which they could not. In these circumstances, this Court is of the considered view that the finding recorded by the Claims Tribunal regarding contributory negligence of the deceased to the extent of 50% is based on proper appreciation of material available in record, which does not warrant any interference, and accordingly it is hereby affirmed.

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So far as the submission made by counsel for the appellant with respect to the quantum of compensation awarded is concerned, there is no dispute regarding assessment of income of deceased, addition towards future prospects, deduction of amount towards personal expenses and the multiplier applied by the Claims Tribunal for assessing the loss of dependency. However, while computing loss of dependency, the Claims Tribunal added amount towards future prospects after deducting personal expenses and applying multiplier to the income of deceased, which is not as per the mode of calculation of loss of dependency fixed. To compute loss of dependency, the Claims Tribunal must consider (i) additions/ deductions to be made for arriving at the income; (ii)

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deductions to be made towards personal living expenses of the deceased; and (iii) multiplier to be applied with reference to the age of the deceased. Hence, the compensation under the head of ‘loss of dependency’ is to be recomputed.

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A glance of impugned award would show that the Claims Tribunal has awarded a lump sum compensation of Rs.70,000/- towards loss of estate, loss of consortium and funeral expenses, which in the opinion of this Court is not correct. The issue with respect to award of loss of consortium is considered and decided by Hon’ble Supreme Court in cases of National Insurance Co. Ltd. vs. Pranay Sethi reported in (2017) 16 SCC 680 , and Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuharu Ram reported in (2018) 8 SCC 130 wherein it was held that the spouse, children and parents of the victim of a road accident are entitled for Rs.40,000/- each under the head of loss of spousal consortium, parental consortium and filial consortium. As per decision in case of Pranay Sethi (supra) , the appellants are entitled for a sum of Rs.15,000/- for loss of estate and Rs.15,000/ towards funeral expenses. Hence, in light of decision of Hon’ble Supreme Court in case of Pranay Sethi (supra) and Nanu Ram @ Chuharu Ram (supra), it is ordered that appellant No.1 is entitled for Rs.40,000/- for spousal consortium, appellant No. 2 & 3 are entitled for Rs.40,000/- each for loss of parental consortium and appellant No. 4 & 5 are entitled for Rs.40,000/- each for loss of filial consortium. Appellants are also entitled for Rs.15,000/under the head of loss of estate and Rs.15,000/- towards funeral

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expenses.

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For the foregoing discussion and reasons, the compensation to be awarded requires recomputation.

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Accordingly, monthly income of deceased is taken as Rs.55,336/as assessed by the Claims Tribunal, and after adding 15% towards future prospects, as on the date of accident deceased was in the age group of 50 to 60 years, total income of deceased would come to Rs.63,866/- per month and annual income comes to Rs.7,66,392/- (63866x12). Out of this amount, one-fourth is to be deducted towards personal and living expenses of deceased and after deducting one-fourth, annual loss of dependency would come to Rs.5,74,794/-. As the deceased was 51 years, multiplier of 11 is applicable and therefore, applying the multiplier of 11, the loss of dependency would be Rs.63,22,734/-. Besides this, appellant No.1 is entitled for a sum of Rs.40,000/- towards spousal consortium; appellant No.2 & 3 for a sum of Rs.40,000/each towards parental consortium and appellant No.4 & 5 are entitled for a sum of Rs.40,000/- each towards filial consortium (total Rs.2,00,000/-). In addition to aforesaid amount, appellants are also entitled to get a sum of Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate. Apart from this, the appellants are also entitled for medical expenses of Rs.25,000/- as awarded by Claims Tribunal. Thus, total amount of compensation comes to Rs.65,77,734/- (6322734 + 25000+ 2,00,000 + 30,000). After deducting 50% amount towards contributory negligence on the

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part of the deceased, as fixed by the Claims Tribunal and affirmed by this Court, total amount of compensation payable to claimant comes to Rs.32,88,867/-. This amount of compensation shall carry interest @ 9% p.a. from the date of application till its realization. Any amount of compensation already paid to claimants/appellants shall be adjusted from the total amount of compensation which has now been calculated and awarded by this Court. Rest of the conditions mentioned in the impugned award shall remain intact.

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SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI

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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/- (Parth Prateem Sahu) Judge

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Nisha

Smt. Sarita Verma v. Satish Kumar Chandrakar

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Smt. Sarita Verma v. Satish Kumar Chandrakar

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