Jaiky Jhariya Vs Siddhu @ Sadaram Nishad

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2025:CGHC:29754

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 637 of 2020

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1 - Jaiky Jhariya Son Of Late Dhannelal Jhariya Aged About 29 Years R/o Block 75, Bambey Niwas, Kelo Sadan, Urla, District Durg Chhattisgarh., District : Durg, Chhattisgarh

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2 - Jitu Jhariya Son Of Late Dhannelal Jhariya Aged About 28 Years R/o Block 75, Bambey Niwas, Kelo Sadan, Urla, District Durg Chhattisgarh., District : Durg, Chhattisgarh

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3 - Sarika Wife Of Kiran Aged About 30 Years R/o Block 75, Bambey Niwas, Kelo Sadan, Urla, District Durg Chhattisgarh., District : Durg, Chhattisgarh

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... Appellants

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Versus

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1 - Siddhu @ Sadaram Nishad Son Of Jagdish Nishad Aged About 26 Years R/o Village Kokdi, Post Pauwara, District Durg Chhattisgarh, (Driver Of Indigo Car No. Cg-08-1199), District : Durg, Chhattisgarh

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2 - Samresh Ashish Banerjee Son Of Late A.K. Banerjee Aged About 42 Years R/o Gandhi Nagar, Bhilai-3, District Durg Chhattisgarh, (Owner Of Indigo Car No. Cg08-1199), District : Durg, Chhattisgarh

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3 - Manager New India Insurance Company Limited, Chouhan Estate, Supela, Bhilai, District Durg Chhattisgarh, (Insurer Of Indigo Car No. Cg-08-1199), District : Durg, Chhattisgarh

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... Respondents
For Appellants : Mr. Vinod Kumar Sharma, Advocate For Respondents No. 1 & 2 : None, though served.
For RespondentNo.3 : Mr. DashrathGupta,Advocate
S.B.: Hon'ble Shri Parth Prateem Sahu, Judge

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SHUBHAM DEY Digitally signed by SHUBHAM DEY

Order On Board

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02/07/2025

None for the Respondents No. 1 & 2, though served.

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Learned counsel for the appellants submits that the liability to satisfy the amount of compensation is joint and severally upon the NonApplicants i.e. the driver, owner and the Insurance Company. The offending vehicle on the date of accident was insured with the Nonapplicant No. 3, therefore, the first liability to satisfy the amount of compensation is upon the Non-Applicant No. 3/Insurance Company. Hence, this appeal may be heard finally at motion stage.

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Submission of the counsel for the appellants is not opposed by the counsel for the Respondent No. 3/Insurance Company.

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In view of the above, this case is heard finally at the motion stage.

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This appeal is filed by the appellants seeking enhancement of the amount of compensation awarded by the learned Claims Tribunal in its award dated 04.12.2019 passed by the Motor Accident Claims Tribunal, Durg, District – Durg (C.G.) in Claim Case No. 145/2016.

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Facts of the case in brief are that, on 29.05.2016 at about 05:00 A.M., when Madhu Jhariya (since deceased) was going walking on the road and reached near Wambe house, at that time, the vehicle bearing registration no. CG 08 1199 (hereinafter referred to as the offending vehicle) driven by the Respondent No. 1 in a rash and negligent manner, dashed Madhu Jhariya from behind and caused accident. In the said accident, Madhu Jhariya suffered serious injuries and she succumbed to her injuries on the spot. Subsequent to the said accident, an FIR was registered bearing Crime No. 284/2016, P.S. Pulgaon, District - Durg for the offence punishable under Sections 304A of the Indian Penal Code, 1860.

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The appellants/claimants in the claim application have pleaded that the deceased was aged about 50 years, was doing the work of Mason and earning Rs. 12,000/- per month. Due to said accident, the appellants/claimants sought compensation of Rs. 11,86,000/- .

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Non-applicant No.3 also filed its reply to claim application opposing the pleadings made therein. Age, income and occupation of deceased was denied for want of documentary evidence. Involvement of offending vehicle as also negligence on the part of its driver, which resulted into death of deceased, was denied on the ground that Merg and FIR was registered against unknown vehicle. It was also pleaded that driver of offending vehicle was not possessing valid and effective driving license, as such, there was violation of conditions of insurance policy and therefore, insurance company is not liable for payment of any amount of compensation.

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The Claims Tribunal upon appreciation of oral and documentary evidence placed on record by respective parties, held that accident occurred due to rash and negligent driving of offending vehicle by nonapplicant No.1; breach of the conditions of insurance policy was not found proved and consequently, allowed the claim application in part, awarded total compensation of Rs.2,01,531/- and fastened liability upon non-applicants, jointly and severally, to satisfy the impugned award.

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10.Learned counsel for the appellants submits that the learned Claims Tribunal erred in assessing income of the deceased as Rs. 6,017/- only without considering the age of the deceased and her occupation on the date of accident. He contended that the application of multiplier of 11 is erroneous. In the facts of the case, there should be multiplier of 13

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because on the date of accident, deceased was aged about 50 years as mentioned in the post-mortem report Ex. P/4. He lastly contended that the award of compensation under other conventional heads is also on lower side.

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11.On the other hand, learned counsels for the Non-applicant No. 3/Insurance Company opposes the submission of counsel for the appellants/claimants and would submit that the learned Claims Tribunal upon appreciation of the evidence and facts available on record has awarded just and proper amount of compensation which does not call for any interference. He lastly contended that in absence of any admissible piece of evidence with respect to the age of the deceased, learned Claims Tribunal has rightly held the deceased to be above 50 years of age.

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I have heard learned counsel for the parties and perused the record of the claim case.

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The first ground as pleaded in the memo of appeal of assessment of less income of the deceased is concerned, the appellants/claimants failed to prove the nature of occupation and income of the deceased by placing cogent and reliable piece of evidence. In the aforementioned facts of the case, learned Claims Tribunal justified in assessing income of the deceased on notional basis taking help of the minimum wages as fixed by the competent authority under the Minimum Wages Act, 1948. The accident occurred on 29.05.2016 and as per the notification issued by the competent authority for a period from 01.04.2016 to 30.09.2016, the minimum wages fixed for Unskilled Labourer was Rs.6,107/- per month. Learned Claims Tribunal has assessed the

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income of the deceased as Rs. 6,107/- per month which is correctly assessed, hence, it does not call for any interference.

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Further, the deceased on the date of accident i.e. 29.05.2016 was aged about 50 years, however, learned Claims Tribunal has not awarded any compensation under the head of future prospects. According to the decision of the Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi , reported in (2017) 16 SCC 680, there shall be addition of 25% of the assessed income towards the loss of future prospects for computing total earning of the deceased. Therefore, this Court finds it appropriate to add 25% of the assessed income towards the future prospects. It is ordered accordingly.

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The Claims Tribunal considering the evidence of Claimant No.2 that claimant No.1 is having independent source of income and claimant No.3 is married and residing with her husband in her matrimonial home, did not consider them to be dependent on the deceased. The Claims Tribunal considered bachelor son of deceased i.e. claimant No.2, as dependent on the deceased, deducted three-fourth towards personal expenses of deceased.

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In case of National Insurance Co. Ltd. vs. Birender and others, reported in (2020) 11 SCC 356 , the question for consideration was whether major sons of deceased who are married and gainfully employed or earning can claim compensation and Hon’ble Supreme Court has decided that the major children of deceased are also entitled for compensation under the head loss of dependency. Relevant part of the said decision is extracted below for ready reference:-

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“14. It is thus settled by now that the legal representatives

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of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the legal representative concerned was fully dependent on the deceased and not to limit the claim towards conventional heads only. The evidence on record in the present case would suggest that the claimants were working as agricultural labourers on contract basis and were earning meagre income between Rs 1,00,000 and Rs 1,50,000 per annum. In that sense, they were largely dependent on the earning of their mother and in fact, were staying with her, who met with an accident at the young age of 48 years.”

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A bare reading of above would make it clear that even the major married and earning children of the deceased being legal representatives have a right to apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the legal representative concerned was fully dependent on the deceased and not to limit the claim towards conventional heads only. In case at hand, as per pleadings and evidence on record, it is clear that the claimants No.1 & 3 are working as labourer and earning meager income between Rs.1,00,000 to 1,50,000/- per annum. Deceased was stated to be engaged in the business of catering. Thus, it can safely be presumed that appellantclaimants were financially dependent on the earnings of their mother. As the claimants No.1 and 3 are also held to be legal representative of deceased and entitled to receive compensation under the head of loss of dependency, then total number of claimants would come to ‘three’ and as such, the standard deduction towards personal expenses of deceased in terms of decision of Hon’ble Supreme Court in case of

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Sarla Verma vs. Delhi Transport Corporation , reported in (2009) 6 SCC 121 , would be one-third and not 3/4th as deducted by the Claims Tribunal. It is ordered accordingly.

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The learned Claims Tribunal has taken into consideration age of the deceased to be more than 50 years and has applied the multiplier of 11 which in the facts of the case, is also erroneous. There is no document to show the date of birth of the deceased or her age except the postmortem report Ex. P/4 wherein, the age of the deceased is mentioned as 50 years. In the aforementioned facts of the case and evidence available on record, the age of the deceased can be considered as 50 years only and not above 50 years. Hence, taking note of the evidence available on record of the age of the deceased, the age of the deceased is taken as 50 years and accordingly, the multiplier of 13 is to be applied as held by the Hon’ble Supreme Court in the case of Sarla Verma (Supra) .

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The learned Claims Tribunal has not awarded any amount of compensation under the head of loss of estate, loss of consortium and funeral expenses as held by the Hon’ble Supreme Court in case of Pranay Sethi (Supra) . The award of consortium is further clarified by the Hon’ble Surpeme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuharu Ram , reported in (2018) 8 SCC. In the said case, the Hon’ble Supreme Court has explained the types of consortium and held that the there are three types of consortium i.e. spousal consortium for widow/widower, parental consortium to children and filial consortium to parents. In the case at hand, the appellants/claimants are children of the deceased and therefore, they are entitled for Rs. 40,000/- each towards loss of parental consortium

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(total Rs. 1,20,000/-) respectively. Apart from the above, the appellants/claimants would also be entitled for Rs. 15,000/- towards loss of estate, Rs. 15,000/- towards funeral expenses. It is ordered accordingly.

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For the foregoing reason, this Court proposes to recalculate the amount of compensation payable to the appellants:-

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S. No.	Heads		Compensation
1.	(A)Loss of Income/Dependency 6107 X 12 =73,284	:	Rs. 7,93,910/-
	(B) Addition towards future prospects @ 25% (73,284 X 25% = 18,321) (73,284 + 18,321 =91,605) (C)Deduction of 1/3rd towards personal and living expenses (91,605 X 1/3 = 30,535) (91,605 – 30,535 =61,070/-) (D)Multiplier of 13 (61,070 X 13 =7,93,910/-)
2.	Funeral Expenses	:	(+)Rs. 15,000/-
3.	Loss of Estate	:	(+)Rs. 15,000/-
4.	Loss of parental consortium to Claimant/Appellants @ Rs. 40,000/- each(40,000 X 3)	:	(+) Rs. 1,20,000/-
	Total Compensation	:	Rs. 9,43,910/-

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Now, the Appellants/Claimants is awarded total compensation of Rs. 9,43,910/- . This enhanced amount of compensation shall carry interest @ 8% 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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Any amount already paid to Claimants/Appellants No. 1 to 3 as compensation shall be adjusted from the total amount of compensation as calculated above.

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In the result, appeal is allowed in part and the impugned award stands

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modified to the extent indicated above.

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Certified copy as per rules.

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Sd/-/-- /-/--------/--/- (Parth Prateem Sahu) Judge

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Dey

Jaiky Jhariya v. Siddhu @ Sadaram Nishad

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Jaiky Jhariya v. Siddhu @ Sadaram Nishad

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