1. Since both the aforesaid appeals arise out of same impugned award dated 12.05.2015, they are being disposed of by this common judgment.
2. Both the aforesaid appeals have been filed by the claimants & Insurance Company respectively being aggrieved by the impugned award dated 12.05.2015 passed by the Motor Accident Claims Tribunal, Mahasamund, C.G. (for short, 'the Tribunal) in Claim Case No. H-128/2014, whereby the Tribunal has allowed the claim petition in part, preferred by the claimants, by awarding total compensation of Rs.32,05,500/- along with interest at 6% per annum from the date of filing of claim petition till its realisation, while fastening liability upon the Non-applicants jointly and severally. For the sake of convenience, the parties shall hereinafter be referred to as per their description before the Tribunal.
3. As per claim petition, on 21.06.2014, deceased- Satyendra Tiwari, aged about 38 years, earning Rs.17,000/- per month by working as Supervisor in Transport Company, died in the motor vehicular accident caused due to rash and negligent driving of Truck bearing registration No.CG06-B-9257 (hereinafter referred as 'offending vehicle') by non-applicant no.1/driver. At the time of accident, the offending vehicle was owned by non-applicant no.2 and duly insured with non-applicant no.3.
4. On claim petition being filed by the claimants under Section 166 of the Motor Vehicles Act seeking compensation to the tune of Rs.40,00,000/-, the Tribunal considering the evidence led by both the parties passed an award as mentioned in para 2 of this judgment.
5. The only ground urged by learned counsel for the appellants/claimants in MAC No.1408/2015 is that the monthly income of the deceased has wrongly been assessed by the Tribunal at Rs.15,000/- per month, whereas it should be Rs.17,000/- per month, looking to the job of the deceased, which needs to be reassessed suitably.
6. Per Contra, learned counsel for the Insurance Company in both the appeals, would submit that the Tribunal has wrongly considered the monthly income of the deceased at Rs.15,000/- whereas as per the evidence available on record, at the time of unfortunate motor vehicular accident, deceased was not under the employment of Chopra Transport, Mahasamund because the entries made in the attendance register did not support in that behalf. He would also submit that according to such entries as has been deposed by witness Vikas Jain, attendance of Satyendra Tiwari was endorsed from June, 2012 to March, 2014 and there is nothing on record which would show that after March, 2014, deceased had worked there. Therefore, it is not proved that at the time of accident, deceased was under the employment of Chopra Transport and was earning Rs.15,000/- per month. Thus, it is prayed that the income of the deceased should be reassessed suitably. He would further submit that the Tribunal has wrongly applied the multiplier of 16, whereas it should be 15, looking to the age of the deceased i.e. 38 years. He would also submit that the amount awarded by the Tribunal under the conventional heads is also on higher side, which needs to be modified suitably. He would also submit that Tribunal has wrongly fastened the liability upon the Insurance Company as on the date of incident, the motorcycle which was being driven by deceased himself in a rash and negligent manner was collided from the back side of the offending vehicle, resulting into the deceased died. Therefore, there is contributory negligence on the part of the deceased and the evidence in this regard ought to have been appreciated by the Tribunal. Reliance has been placed on the decisions of Hon'ble Supreme Court in the matters of Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram, (2018) 18 SCC 130, Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121, National Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC 680 and A.P.S.R.T.C and another vs. K. Hemalatha and others reported in 2008 (4) T.A.C. 769 (S.C.).
7. Counsel for the owner in both the appeals has supported the submission made by learned counsel for the Insurance Company.
8. I have heard learned counsel for the respective parties and perused the record of the Tribunal including the evidence adduced by the claimants minutely.
9. So far as the consideration of income of the deceased by the Tribunal is concerned, a perusal of Ex.P-5, which is a certificate issued by Chopra Transport, showing the salary of deceased as Rs.15,000/- per month by working as Supervisor, it would reveal that although the said certificate was issued by Chopra Transport showing the monthly salary of the deceased as Rs.15,000/-, but it does not bear any authorised signature nor does have any seal of the company nor does bear any date. It also appears that as on the date of accident, the deceased had no longer part of the said company. It is pertinent to mention here that although the said Kishor Chopra, who has alleged to have issued the document (Ex.P-5), has also not been examined before the Tribunal by the claimants, but one Vikas Jain, who has been examined as AW-2 by the claimants, has not issued the said certificate, whereas AW-3 Pawan Kumar Sahu, Munshi of J.K. Traders, has stated that the deceased approached Juraj Chandrakar to work as Supervisor on the salary of Rs.17,000/- per month and he was about to join the said company from 1st July, 2014, but because of vehicular accident, he died. On the other hand, the claimants in their claim petition only averred that the deceased used to earn Rs.17,000/-per month, but did not mention the name of transport company in which the deceased was working nor made any pleading with respect to J.K. Traders. Had the deceased told his wife (AW-1) that he would join J.K. Traders from 1st July, 2014, definitely the wife (AW-1) would have averred this fact in the claim petition. When the evidence of AW-2 Vikas Jain & AW-3 Pawan Kumar Sahu is examined in the light of averments made in the claim petition, it does not transpire that before the accident deceased used to earn Rs.17,000/- per month. Therefore, in the considered opinion of this Court, the claimants could not have proved that the deceased used to earn such income, despite that the Tribunal considered the income of the deceased as Rs.15,000/- by taking into account the document (Ex.P-5), which in the considered opinion of this Court is not appropriate and, therefore, needs to be reconsidered. Thus, by taking into consideration the facts and circumstances of the case and the age of deceased at the time of accident i.e. 38 yeas as assessed by the Tribunal, I, propose to reassess the income of the deceased at Rs.10,000/- per month i.e. Rs.1,20,000/- per annum in place of Rs.15,000/- per month.
10. As regards the multiplier 16 used by the Tribunal, in the matter of Sarla Verma (supra), the Hon’ble Supreme Court has prescribed the multiplier of 15 for the age group between 36-40 years. Therefore, in the present case, the appropriate multiplier 15 would be applicable instead of 16 as used by the Tribunal.
11. So far as the contention of the learned counsel for the Insurance Company to the effect that the amounts awarded by the Tribunal under the conventional heads are on higher side, is concerned, the Tribunal has erred in awarding huge amount under conventional heads i.e. Rs.3,25,000/- to the claimants, whereas the Supreme Court in the matter of Magma General Insurance Company Limited (supra) restricted the amount to be payable to the claimants under loss of consortium to Rs.40,000/-. In the present case, the Tribunal exceeded its jurisdiction in awarding Rs.1,00,000/- each under loss of consortium, which cannot be sustainable in law. Therefore, while taking into consideration the principles of law laid down by the Supreme Court in the matter Magma General Insurance Company Limited (supra), the claimants who are three in number, are entitled to be awarded Rs.1,20,000/- i.e. 40,000/- each under loss of spousal consortium to wife and parental consortium to children of the deceased respectively. Further, as per the law laid down by the Supreme Court in the matter of Pranay Sethi (supra), the claimants are also entitled to be awarded a sum of Rs.15,000/- towards funeral expenses and Rs.15,000/- towards loss of estate in place of Rs.25,000/- as awarded by the Tribunal. Thus, the claimants are entitled to get as sum of Rs.1,50,000/- under conventional heads in place of Rs.3,25,000/- as awarded by the Tribunal.
12. So far as the contributory negligence on the part of the deceased is concerned, one Meghram, who has been cited as eye-witness to the incident, has been examined before the Tribunal. Although in his examination-in-chief, he has stated that because of rash and negligent driving of the offending vehicle by its driver/non-applicant No.1, the deceased met with an accident, however, in his cross-examination, he has specifically denied that he did not see the accident, although in criminal case, this witness has been cited as prosecution witness to the incident as per Final Report (Ex.P-1). Moreover, the driver of the offending vehicle has not been examined before the Tribunal so as to hold that there is a contributory negligence on the part of the deceased. Therefore, I am of the considered opinion that the Tribunal was justified in not holding the deceased responsible for cause of accident and it is held that there was no contributory negligence on the part of the deceased. Having gone through the judgment relied upon by learned counsel for the Insurance Company in the matter of A.P.S.R.T.C. and another (supra) with respect to contributory negligence on the part of the deceased, in the given facts and circumstances of the present case, the aforesaid judgment being distinguishable on facts, is of no help to the Insurance Company. Hence, the contention raised by the learned counsel for the Insurance Company with respect to contributory negligence on the part of the deceased is rejected.
13. Now, I shall deal with the assessment of compensation to be payable to the claimants by taking into account the monthly income of the deceased as Rs.10,000/- per month as held by this Court. Thus, the annual income of the deceased is assessed at Rs.1,20,000/-. If 50% (Rs.60,000/-) of the income is added towards future prospects on the annual income, as considered by the Tribunal, then the total annual income would come to Rs.1,80,000/-(Rs.1,20,000/- + Rs.60,000/-). The Tribunal, looking to the dependency upon the deceased i.e. 3 has deducted 1/3 towards his personal and living expenses and if 1/3 amount i.e. Rs.60,000/- is deducted from the total annual income, then the annual loss of dependency would come to Rs.1,20,000/-. If the annual loss of dependency of Rs.1,20,000/- is multiplied by 15 as held by this Court, then the total loss of dependency would come to Rs.18,00,000/-. In this way, the claimants are entitled to be awarded a sum of Rs.18,00,000/- towards loss of dependency. Further, the claimants are also entitled to be awarded a sum of Rs.1,50,000/-towards conventional as held by this Court, in addition to Rs.18,00,000/-. Accordingly, the claimants are held entitled to get a sum of Rs.19,50,000/- as total compensation in place of Rs.32,05,000/- as awarded by the Tribunal.
14. In view of above, the impugned award as passed by the learned Claims Tribunal is modified to the effect that the claimants are entitled to get a sum of Rs.19,50,000/- as total compensation in place of Rs.32,05,000/- as awarded by the Tribunal, along with interest as awarded by the Tribunal. However, rest of the conditions of the impugned award shall remain intact.
15. In the result, the appeal filed by the claimants i.e. MAC No.1408/2015 is hereby dismissed, whereas the appeal filed by the Insurance Company i.e. MAC No.1092/2015 is allowed in part to the extent indicated herein-above.
