Page No.1 2025:CGHC:13526 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 709 of 2020 1. Chhedilal Mirjha S/o Lt. Devcharan Mirjha Aged About 55 Years. 2. Smt. Sonmat Bai W/o Chhedilal Mirjha Aged About 54 Years. 3. Ku. Jaya D/o Late Ramavtar Mirjha Aged About 16 Years 4. Ravi Kumar S/o Lt. Ramavtar Mirjha Aged About 14 Years 5. Ku. Khusbu D/o Lt. Ramavtar Mirjha Aged About 12 Years 6. Ku. Digeshweri D/o Lt. Ramavtar Mirjha Aged About 10 Years Appellant No.3 to 6 are minors through guardian and their grandfather Appellant No.1 Chhedilal Mirjha S/o Lt. Devcharan Mirjha, All the appellants are R/o Village Tikuliya, Post Office Tarenga, PS Bhatapara, District Balodabazar Bhatapara Chhattisgarh. ... Appellants/Applicants versus 1. Rupesh Kumar S/o Budhram Markandey R/o Village Dhekuna (Deepak Kirana Stores) Post Office Vishrampur, Police Station Simga , District Balodabazar Bhatapara Chhattisgarh. (Driver Of Bullet Motor Cycle No. C.G. 04 L.G. 3041), 2. Vikash S/o Chandrashekhar Pal R/o Vishrampur , Post Office Vishrampur , Police Station Simga, District Balodabazar Bhatapara Chhattisgarh. (Owner Of Bullet Motor Cycle No. C.G. - 04 L.G. - 3041). 3. The United India Insurance Co. Ltd. Through Division Manager (Division No. 01) The United India Insurance Co. Ltd. Kachahari Chowk , Raipur , Tahsil And District Raipur Chhattisgarh. (Insurer Of Bullet Motor Cycle No. C.G. - 04 L.G. 3401) .. Respondent(s) _________________________________________________________ For Appellants : Mr. Rakesh Thakur, Advocate For Respondent No.3 : Mr. P. Dutta, Advocate ----------------------------------------------------------------------------------------------- Hon'ble Shri Justice Parth Prateem Sahu Order On Board 21/03/2025 Page No.2 1. Heard on I.A. No.1/2020, which is an application for condonation of delay of 288 days in filing this appeal. 2. For the reasons assigned in the application, it is allowed. Delay in preferring this appeal is hereby condoned. 3. As there is no dispute regarding the accident, the cause of accident as also liability to indemnify the insured owner of offending vehicle, the sole question involves in this appeal for consideration is whether or not the Claims Tribunal has awarded adequate compensation to the claimants. In such circumstance, issuance of notice to respondent Nos.1 & 2, who are registered owner and driver of offending vehicle, is dispensed with, and with the consent of the parties, the appeal is being heard finally at the admission stage itself. 4. Appellants-claimants have filed this appeal seeking enhancement of compensation awarded by the learned Additional Motor Accidental Claims Tribunal, Bhatapara District Balodabazar Bhatapara (for short ‘the Claims Tribunal’) vide award dated 6.5.2019 passed in Claim Case No.H-26/2017. 5. Facts of the case, in brief, are that on 19.3.2017 deceased Ramavtar Mirjha along with others was returning on motorcycle to village Tikuliya from village Nawagarh and when they reached near village Rohra, motorcycle bearing registration mark CG04- LG-3041, which was being driven by its driver in high speed and negligent manner, dashed the motorcycle of deceased as a result Ramavtar Mirjha suffered grievous injuries and died. Report of Page No.3 incident was lodged in concerned police station based on which case under Section 279, 337, 304A of IPC was registered. Claimants/appellants herein, who parents and children of deceased, filed claim application claiming compensation to the tune of Rs.26,44,000/- under various heads on the ground that on the date of accident, deceased was hale & hearty person, he was working as Mason, earning Rs.8100/- per month and they were dependent on earning of deceased. 6. Non-applicant No.1 & 2 i.e. driver and registered owner of offending vehicle respectively, filed their reply to claim application denying averments made therein. It was pleaded that non- applicant No.1 was carefully riding the motorcycle at low speed, deceased came rashly driving motorcycle at high speed and dashed with his motorcycle. Deceased was not doing any work and not filed any documentary evidence showing his income. Claimants have filed exaggerated claim. Non-applicant No.1 is having valid license and even the motorcycle was duly insured on the date of accident, therefore, in case any liability to pay compensation is fastened, then the insurance company is liable to indemnify the same. 7. Non-applicant No.3- Insurance Company also submitted its written statement denying the averments made in claim application. It was pleaded that at the time of accident, persons beyond the capacity were travelling on the motorcycle; deceased was not having valid license to drive motorcycle and thus there is Page No.4 violation of conditions of insurance policy and therefore, insurer cannot be held liable to indemnify the insured. It was further pleaded that in the said accident, two motorcycles dashed each other in a head-on collusion, thus, the accident was the result of contributory negligence of drivers of both motorcycles. 8. The Claims Tribunal after appreciating the pleadings and evidence placed on record (oral and documentary both) by the respective parties has partly allowed claim application and awarded compensation Rs.10,38,000/- along with interest @ 9% p.a. by taking monthly income of deceased as Rs.5000/- on notional basis treating the deceased as labourer. The Claims Tribunal has arrived at a conclusion that accident was the result of rash and negligent driving of respondent No.1. The Claims Tribunal also found that the deceased could not be held liable for contributory negligence. 9. 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 Mason and earning Rs.8,100/- per month, therefore, the Claims Tribunal erred in assessing the income of deceased at Rs.5000/- per month. He submits that in absence of documentary proof of income of deceased, the income of deceased should have been assessed as per Circular under the Minimum Wages Act. He further argued that the Claims Tribunal has not awarded any amount towards filial and parental consortium. The compensation awarded by the Page No.5 Claims Tribunal is on the lower side and therefore, he prays for enhancement of the same. 10. On the other hand, learned counsel for respondent has supported the impugned award and contended 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. He submits that in case the amount of compensation is enhanced, interest for the period of delay may not be awarded. 11. Heard learned counsel for the parties and perused the record 12.As regards the income of deceased, perusal of the impugned award would show that the Claims Tribunal disbelieved the version of claimants that deceased was working as Mason, earning Rs.8,100/- per month and assessed his income on the basis of price index prevalent in rural area of Bhatapara in the year 2017. However, in cases where no documentary evidence has come on record to prove the income of the deceased, the thumb rule is that the Claims Tribunal should determine income of the deceased on the basis of the minimum wages notified under the Minimum Wages Act. A glance of the Schedule ‘B’ issued by the Labour Commissioner-cum-Competent Authority under the Minimum Wages Act, 1948, Raipur prescribing minimum wage for the unskilled, semi-skilled, skilled and high skilled workers for the period from 1.10.2017 to 31.3.2017, would show that minimum wage notified for a unskilled worker is Page No.6 Rs.6,206/- per month. Thus, considering the pleadings in claim application and statement of appellants that the deceased was earning by working as Mason and further considering minimum wage rate prevailing on the date of accident in District Balodabazar, I am of the view that income of deceased can be fixed at Rs.6,206/- per month. 13.In Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram and Others, reported in (2018) 18 SCC 130, Hon'ble Apex Court in para No.21 to 25 has held as under: 21.A Constitution Bench of this Court in Pranay Sethi (supra) dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium. In legal parlance, "consortium" is a compendious term which encompasses „spousal consortium‟, „parental consortium‟, and „filial consortium‟. The right to consortium would include the company care help comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse. 21.1.Spousal consortium is generally defined as rights pertaining to the relationship of a husband wife which allows compensation to the surviving spouse for loss of "company, society, co- operation,affection, and aid of the other in every conjugal relation." 21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss Page No.7 of"parental aid, protection, affection, society, discipline, guidance and training." 21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. 24.The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in Pranay Sethi². In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium.” 14. From perusal of the above it is apparent that parental Consortium is awarded to children who lose their parents in motor vehicle accidents for loss of 'parental aid, protection, affection, society, discipline, guidance and training'. Whereas, filial consortium is awarded to the parents who lose their child during their lifetime in a motor accident. In the case at hand, perusal of the award would show that the learned Claims Tribunal has not awarded any amount towards parental and filial consortium to the minor child of the deceased, for which they are otherwise entitled as per decision of Hon’ble Supreme Court in case of Magma Insurance (supra). Page No.8 15.For the foregoing, this Court proposes to recalculate amount of compensation payable to the claimants/appellants. 16.Accordingly, income of deceased is taken as Rs.6,206/- per month and after adding 40% towards future prospects because on the date of accident, age of deceased was 35 years, as held by the Claims Tribunal based on postmortem report, the monthly income of deceased would come to Rs.8,688/- and annual income would be Rs.1,04,256/-. 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.78,192/-. As the deceased was 35 years, multiplier of 16 is applicable and therefore, applying the multiplier of 16, the loss of dependency would be Rs.12,51,072/- (78192). Besides this, appellants No.1 and 2 are entitled for a sum of Rs.40,000/- each towards filial consortium being parents of the deceased and appellants No.3 to 6 are entitled for Rs.40,000/-each towards parental consortium, 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. 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. Thus, total amount of compensation comes to Rs.15,21,072/- (12,51,074 + 2,40,000 + 30,000) recoverable from the respondents, jointly and severally. Rest of the conditions Page No.9 mentioned in the impugned award shall remain intact. 17.In view of decision of Hon’ble Supreme Court in the matter of Lakkamma vs. United India Insurance Co. Ltd. reported in (2021) 20 SCC 797, it is directed that the appellant will not be entitled for the interest on the additional amount of compensation for the delayed period, which is of 288 days. 18.In the result, the appeal is allowed in part and the impugned award stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge roshan/- SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI Date: 2025.03.24 16:34:35 +0530