1 2025:CGHC:27666 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1279 of 2019 1. Ahilya Bai Wd/o Radhelal Shrivas Aged About 33 Years 2. Aniket Shrivas S/o Radhelal Shrivas Aged About 16 Years 3. Abhishekh Shrivas S/o Radhelal Shrivas Aged About 13 Years 4. Mamta Shrivas S/o Radhelal Shrivas Aged About 11 Years 5. Mansi Shrivas D/o Radhelal Shrivas Aged About 9 Years Appellants No.2 to 5 are minor hence being represented by their Mother A-1, 6. Ratanlal S/o Mukutram Shrivas Aged About 58 Years W/o Ratanlal, All are R/o Syahimudi, Tehsil- Katghora, District- Korba, Chhattisgarh., District : Korba, Chhattisgarh 7. Dhaminbai W/o Ratanlal Aged About 58 Years R/o Syahimudi, Tehsil- Katghora, District- Korba, Chhattisgarh.....................(Claimants), District : Korba, Chhattisgarh ... Appellants-claimants versus 1. Saddam Hussain Hasmi S/o Md. Murtuza Hasmi R/o Dahezwar, Police Station- Balrampur, District- Balrampur, Chhattisgarh.......Vehical Driver. 2. Mahendra Pratap Singh S/o Shreenath Singh R/o Hig- 277, Cghb Colony, Tatibandh, Raipur, District- Raipur, Chhattisgarh.........Vehicle Owner. 3. The New India Insurance Company Ltd. through its Branch Manager, SADA Complex, T.P. Nagar, Korba, District- Korba (CG) 2 ... Respondents For Appellants : Mr. Pallav Mishra, Advocate For Respondent No.1 : Mr. Shubham Tiwari, Advocate For Respondent No.3 : Mr. P. Dutta, Advocate Hon'ble Shri Justice Parth Prateem Sahu Order On Board 25/6/2025 1. Appellants-claimants have filed this appeal seeking enhancement of compensation awarded by the learned Additional Motor Accident Claims Tribunal, Katghora, District Korba (for short ‘the Claims Tribunal’) vide award dated 28.1.2019 passed in Claim Case No.69/2017. 2. Facts of the case, in brief, are that claimants-appellants filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking compensation to the tune of Rs.21,05,000/- under various heads, for death of Radhelal in a motor vehicular accident. According to claimants, who are widow, children and parents of deceased, on 21.7.2017 at about 4:40 p.m. Radhelal was returning in pick-up from Bhanwartank, when he reached near Puraina Talab, Village Jali, one truck bearing registration mark CG04-HY- 2174, driven in a rash and negligent manner by its driver (non- applicant No.1), dashed the pick-up vehicle and caused accident. In the said accident, Radhelal sustained grievous injuries and died on spot. It was further pleaded that deceased 3 was 34 years, working as Conveyor Belt Mistry and earning Rs.12,000/- per month. 3. Non-applicant No.2-owner of offending truck filed reply to claim application pleading that the driver of pick-up vehicle was also responsible for the accident, hence the principle of contributory negligence attracts in the present case. At the time of accident non-applicant No.1-driver was having valid and effective driving license, the offending vehicle was insured with non- applicant No.3, therefore, if any compensation is awarded then same is payable by non-applicant No.3. 4. Non-applicant No.3-Insurance Company also filed a separate reply and took a stand that driver of offending vehicle was not holding a valid and effective driving licence at the time of the accident and, therefore, insurance company is not liable to pay the compensation 5. The Claims Tribunal after appreciating the pleadings and evidence placed on record (oral and documentary both) by the respective parties had arrived at a conclusion that accident was the result of rash and negligent driving of non-applicant No.1-driver; there was no violation of any condition of insurance policy. Accordingly, the Claims Tribunal partly allowed claim application and awarded compensation of Rs.12,27,000/- along with interest @ 7% p.a. by taking monthly income of deceased as Rs.5,000/- on notional basis. 4 6. Learned counsel for the claimants/appellants submits that the appellants in their application as also evidence have specifically stated that deceased was earning Rs.12,000/- per month by working Conveyor Belt Mistry, however, the Claims Tribunal disbelieved version of claimants for want of documentary evidence and assessed monthly income of deceased at Rs.5,000/- on notional basis, which is on lower side. He submits that in absence of documentary proof, income of deceased should have been assessed based on price index, cost of living, wage rate prevailing at that point of time or the wage notified under the Minimum Wages Act 1948. He further submits that the Claims Tribunal has assessed income of deceased without any addition on loss of future prospects. He further submits that in case of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuhru Ram & ors reported in (2018) 18 SCC 130, the concept of consortium has been categorized as spousal consortium for husband or wife of victim, parental consortium for the victim's son and daughter as well as filial consortium for mother and father of the deceased. Here, the Claims Tribunal has awarded lump sum compensation of Rs.50,000/- for loss of consortium, instead of Rs.40,000/- each to the claimants who are widow, children and parents of the deceased. The Claims Tribunal has also not awarded compensation under the head ‘loss of estate’. Hence, he prays that the amount of compensation awarded to 5 appellants be enhanced suitably. 7. On the other hand, learned counsel for respective respondents opposes submissions of learned counsel for appellants and submit that the award passed by the Claims Tribunal is just and proper, which does not call for any interference. 8. Heard learned counsel for the parties and perused the record of the Claims Tribunal. 9. As regards the income of deceased, according to appellants, the deceased was working as Conveyor Belt Mistry and earning Rs.12,000/- per month, but no clinching evidence has been led on behalf of appellants to substantiate the claim that deceased was earning much more amount from doing said work. In absence of any evidence, the Claims Tribunal has assessed income of deceased at Rs.5,000/- on notional basis. The reason assigned by the Claims Tribunal for fixing income of deceased on notional basis appears to be justified, which does not call for interference. However, the notional income so fixed by the Claims Tribunal appears to be on lower side. It is well settled that where claimants failed to produce documentary evidence to prove income of the deceased, the Claims Tribunal should determine his income on the basis of wages prevailing in area, price index, cost of living or can take help of the wage rate notified under the Minimum Wages Act. In case at hand, the Claims Tribunal, on guess work assessed income of 6 deceased as Rs.5,000/- per month but did not resort to circulars/ notifications issued by the Competent Authority under the Minimum Wages Act, 1948 notifying wage rate for skilled, unskilled and high skilled workers and therefore, fixation of income of deceased at Rs.5,000/- per month by learned Claims Tribunal is not proper. 10. Accident in question occurred on 21.7.2017 and at that moment, deceased was residing in District Bilaspur. On the date of accident, wage rate fixed for a unskilled labourer of the area falling within ‘B’ Zone by the Competent Authority under the Minimum Wages Act, 1948 was Rs.7,930/- per month. Thus it is clear that the Claims Tribunal has taken lesser notional income of deceased. Hence, this Court finds it appropriate to re-assess notional income of the deceased at Rs.7,930/- p.m. instead of Rs.5,000/- as assessed by the Claims Tribunal. It is ordered accordingly. 11. The Claims Tribunal has provided future prospects to the extent of 50%, which is not correct. In case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680, future prospects in case of self-employed or fixed wages have been provided to the extent of 40% for a person below 40 years. In case at hand, as per pleadings in claim application, deceased was 34 years of age at the time of accident and was self-employed. Hence, appellants are entitled 7 for addition of 40% towards future prospects. It is ordered accordingly. 12. Impugned award further reveals that while computing the compensation, the Claims Tribunal has awarded only Rs.40,000/- for loss of consortium to the claimants. 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 the matter of National Insurance Company Ltd. vs. Pranay Sethi and others, reported in (2017) 16 SCC 680, and Magma General Insurance Company Ltd. vs. Nanu Ram alias Chuhru Ram & others, (2018) 18 SCC 130, according to which each claimant is entitled to consortium under spousal, filial and parental respectively in case claimants are wife/husband, parents and children at the rate of Rs.40,000/- each. Hence, I deem it appropriate to award an amount of Rs 40,000/- each to appellants, who are widow, children and parents of deceased, for loss of spousal consortium, parental and filial consortium respectively. It is ordered accordingly. 13. Further, the Claims Tribunal awarded lump sum amount of Rs.50,000/- towards ‘loss of love and affection’. In the case of United India Insurance Co. Ltd. vs. Satinder Kaur @ Satwinder Kaur, reported in AIR 2020 SC 3076, the Hon’ble Supreme Court has observed that Loss of Consortium 8 subsumes Loss of Love and Affection. Therefore, in the considered opinion of this Court, the Claims Tribunal was not justified in awarding compensation towards ‘loss of love and affection’ to the claimants. Once the spouse of the deceased is compensated under head 'loss of consortium', which includes loss of love and affection, there cannot be any separate award under the head 'loss of love and affection'. Hence, amount awarded by Claims Tribunal for loss of love and affection requires to be deducted from the total awarded compensation. It is ordered accordingly. 14. It can be seen that the compensation on account of "funeral expenses" has been awarded as Rs.25,000/- but no compensation on account of "loss of estate" has been awarded. Whereas, in terms of decision of Hon’ble Supreme Court in Pranay Sethi (supra), Rs.15,000/- each is required to be awarded as compensation for "funeral expenses" and "loss of estate". Accordingly, it is ordered that appellants are entitled for Rs.15,000/- each for funeral expenses and loss of estate. 15.For the foregoing, this Court proposes to recalculate amount of compensation payable to the claimants/appellant. 16.Accordingly, income of deceased is taken as Rs.7,930/- per month and after adding 40% towards future prospects, the monthly income of deceased would come to Rs.11,102/- and annual income would be Rs.1,33,224/-. Out of this amount, 9 one-fifth is to be deducted towards personal and living expenses of deceased and after deducting one-fifth, annual dependency would come to Rs.1,06,579/-. Applying multiplier of 16, as applied by Claims Tribunal on the basis of age of deceased mentioned in the postmortem report, the loss of dependency would be Rs.17,05,264/- (99918x16). Besides this, appellant No.1 is entitled for a sum of Rs.40,000/- towards spousal consortium; appellant No.2 to 5 are entitled for Rs.40,000/- each for loss of parental consortium and appellant No.6 & 7 are entitled for Rs.40,000/- each for loss of filial consortium. In addition to aforesaid amount, appellants are 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.20,15,264/-. This amount of compensation shall carry interest @ 7% p.a. from the date of application till actual payment is made. Rest of the conditions mentioned in the impugned award shall remain intact. Any amount disbursed to appellant pursuant to impugned award will be adjusted. 17.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