1 2025:CGHC:16580 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1894 of 2018 1 - Madhu Bai, Wd/o Balram Diwakar, Aged About 45 Years, R/o Aalesur, Post Office Girra, District - Balodabazar - Bhatapara Chhattisgarh 2 – Ajay, S/o Late Balram Diwakar, Aged About 23 Years, R/o Aalesur, Post Office Girra, District - Balodabazar - Bhatapara Chhattisgarh 3 – Sanjay, S/o Late Balram Diwakar, Aged About 20 Years, R/o Aalesur, Post Office Girra, District - Balodabazar - Bhatapara Chhattisgarh ... Appellants versus 1 – Jhangluram, S/o Girivar Kurre, R/o Urla, District - Raipur Chhattisgarh 2 - IFFCO Tokio General Insurance Company Ltd. Through Officer Incharge, Lalganga Complex Raipur, District - Raipur Chhattisgarh ---- Respondents For Appellants : Mr. Akash Shrivastava , Advocate on behalf of Mr. Anumeh Shrivastava, Advocate For Respondent No. 2 : Mr. Pravesh Sahu, Advocate on behalf of Mr. P.R. Patankar, Advocate For Respondent No.1 : None Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board (08.04.2025) 1. This appeal arises out of the award dated 31.08.2018 passed by Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.04.15 18:31:41 +0530 2 learned 1st Additional Motor Accident Claims Tribunal, Raipur (C.G.) of 4th Additional Claims Tribunal Raipur (C.G.), in Claim Case No. 107/2013 awarding a compensation of Rs.2,33,400/- with interest @ 6% per annum, in favour of the appellants/claimants for their irreparable loss. 2. The averment in the claim petition, is that on 10/03/2013, at around 12:30 PM, near Village Borsi, under Bhatapara police station, motorcycle bearing registration number CG-04-KF-1695 (hereinafter referred to as the “offending vehicle”) owned by Respondent no.1 was being driven by Kamlesh Kurre (son of Respondent No.1), who had seated Sanat Kumar Diwakar (deceased) as a pillion rider. Kamlesh Kurre was riding the motorcycle at a high speed and negligently, when suddenly, the front tire burst, causing the motorcycle to become unbalanced and collide with another motorcycle—bearing registration number CG-04-CU-0586, driven by Ashok Sahu coming from the opposite direction. As a result of this accident, both the riders, Kamlesh Kurre, and the pillion rider, Sanat Kumar Diwakar, sustained grievous injuries and died. A report of the incident was lodged, based on which offence was registered. It is stated that deceased Sanat Kumar Diwakar was unmarried and on the date of the accident, his age was 25 years, he was a labour and was earning Rs. 7,500/- per month. Due to the casual death of the deceased, there is irreparable loss to the appellants/claimants. Therefore, the appellants (mother & brothers of deceased Sanat Kumar Diwakar) preferred an application before the Tribunal claiming compensation to the 3 tune of Rs. 19,07,000/-. 3. Learned Tribunal, on a close scrutiny of the evidence brought on record, assessed monthly income of the deceased to Rs.4,000, given 40% future prospects, deducted 1/2 income towards personal and living expenses and applied multiplier of 13 and awarded Rs. 4,36,800/-. Furthermore, Rs.30,000/- has been awarded by the Tribunal in other heads. Thus, total Rs.4,66,800/- has been awarded in favour of the appellants/claimants. As the Claims Tribunal has found contributory negligence on the part of Ashok Sahu/driver of motorcycle CG-04-CU-0586 and driver of the offending vehicle, therefore, 50%-50% contributory negligence has been held by the Claims Tribunal and awarded 50% of Rs. 4,66,800/- i.e. Rs.2,33,400/- with interest @ 6 per annum, from the date of application till its realization in favour of the appellants/claimants. Furthermore, the Tribunal has exonerated the insurance company on the ground that though at the time of accident, the offending vehicle was insured with Respondent No.2 but, the vehicle was being driven by son of Respondent No.1 namely Kamlesh Kurre without being any valid and effective driving license, therefore, the Tribunal held that there was a breach of insurance policy conditions and hence exonerated the Insurance Company. However, an order of pay and recover has been passed by the Claims Tribunal. Hence, this appeal has been filed by the appellants/claimants for enhancement of compensation. 4. Learned counsel for the appellants/claimants submits that the 4 compensation awarded by the Tribunal is on the lower side and needs to be enhanced suitably. He further submits that the learned Claims Tribunal has wrongly held that the deceased has also contributed to the accident and has erred in holding the 50% negligence on the part of deceased Sanat. Furthermore, the claimants have pleaded the income of the deceased as Rs. 7500/- per month, but the learned Claims Tribunal has only assessed the income of the deceased as Rs. 4000/- per month and awarded the above compensation. The learned counsel urged that the Tribunal erred in not assessing the proper monthly income of the deceased. Learned Counsel further submits that the Tribunal has also awarded lesser amount on other heads, therefore, this appeal may be allowed and amount of compensation may be enhanced suitably. 5. None appeared on behalf of respondents No. 1. 6. On the other hand, it is submitted on behalf of counsel for respondent No.2/Insurance Company that in view of facts and circumstances of case, an order of pay and recover may be set aside. 7. Heard counsel for the parties and perused the documents on record. 8. Now this Court shall examine as to whether the compensation of Rs.2,33,400/- awarded by the Tribunal is just and proper compensation in the given facts and circumstances of the case. 9. As regards the income of the deceased, though the claimants have pleaded that the deceased was earning Rs.7500/-. per month from labouring, but no documentary evidence in support 5 thereof has been produced, but it cannot be said that the deceased was not earning anything from his work. Therefore, in absence of any reliable evidence regarding income of the deceased, keeping in mind the nature of occupation, date of accident, wage structure prevailing on the date of accident, price index and cost of living etc. specially notification by Labour Department for minimum wages. Upon considering the aforementioned factors, I find it appropriate to take income of deceased as Rs. 4646/- per month as minimum wages, at the relevant time of accident i.e. 10.03.2013. The annual income comes to Rs. 55,752/- per annum. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 after adding 40% towards future prospects i.e. Rs. 22,300/-, the annual income comes to Rs. 78,052/-. 10.The deceased was aged about 25 years and the claimants are the mother and brothers of the deceased so deduction towards personal expenses would be 1/2 i.e. Rs.39,026/- which dependency comes to Rs. 39,026/- (78052-39026). In view of judgment of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 considering the age of the deceased, after applying multiplier of 18, the total loss of dependency works out to Rs. 7,02,468/- (39026 x 18). The claimants are further entitled to get Rs. 15,000/- for loss of estate, Rs. 15,000/- for funeral expenses and as per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, they are further 6 entitled to get Rs. 40,000/- each for loss of love and affection. Therefore, the claimants would become entitled for total compensation of Rs. 8,52,468/-. Thus, the claimants are entitled for compensation in the following manner:- S.No. Heads Calculation 01 Towards loss of dependency Rs. 7,02,468/- 02 Towards loss of estate Rs. 15,000/- 03 Towards love and affection to each claimants @ Rs. 40,000/- Rs. 1,20,000/- 04 Funeral Expenses Rs. 15,000/- Total Rs. 8,52,468/- 11. On the basis of the facts and evidence available on record, the 50% contributory negligence of the driver of motorcycle CG-04- CU-0586 Ashok Sahu (not made party before the claims Tribunal) and the driver of offending vehicle in which the deceased was traveling as a pillion rider, determined by the Tribunal in paragraph 17 of its award, is just and proper and required no interference. 12. Accordingly, the total compensation is recomputed as Rs. 8,52,450/-. Considering 50% contributory negligence on the part of the driver of motorcycle CG-04-CU-0586 Ashok Sahu and the driver of offending vehicle in which the deceased was traveling as a pillion rider, the appellant/claimants shall be entitled for compensation of Rs.4,26,225/- (8,52,450 x 50% = 4,26,225) instead of Rs.2,33,400/-. After deducting Rs. 2,33,400/- as awarded by the Tribunal, the enhancement would be Rs. 1,92,825/-. The amount that has already been paid shall be adjusted. The claimants shall also be entitled for interest @ 6% per annum from the date of enhancement till the date of actual payment. 13. As far as the question of ‘pay and recover’ is concerned, in the case, the offending vehicle was found to be insured but the insurance company was exonerated from its responsibility due to 7 violation of insurance conditions. However, the order of pay and recover has been passed which was opposed by the insurance company. 14. Considering the principles laid down by the Hon’ble Supreme Court in the case of Amrit Paul Singh & another. Vs. Tata AIG General Insurance Company Limited & others reported in (2018) 7 SCC 558, ordering the insurance company to pay first and then recover. In light of the above, no interference is required with the order of ‘pay and recover’ passed by the Tribunal. 15. In the result, the appeal is partly allowed. The impugned award stands modified to the above extent and rest of the conditions shall remain intact. 16. The Registry is further directed to communicate the claimants in writing “the enhanced amount” in this appeal as against the amount awarded by the Tribunal. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a co-ordination of Secretary, Legal Aid of the concerned area wherein the claimants resides. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham