PR COMMISSIONER OF INCOME TAX JAIPUR-II vs. M/S VAIBHAV GLOBAL LTD

1 NAFR H IGH COURT OF CHHATTISGARH, BILASPUR

MAC No. 291 of 2017 1 - Hemant Kumar Dahariya S/o Late Dhansai Dahariya, Aged About 45 Years R/o Village Chachhanpairi, P.S. Sejbahar, District Raipur, Chhattisgarh, 2 - Smt. Kanti Dahariya W/o Shri Hemant Kumar Dahariya, Aged About 42 Years R/o Village Chachhanpairi, P.S. Sejbahar, District Raipur, Chhattisgarh, 3 - Mithlesh Kumar Dahariya S/o Shri Hemant Kumar Dahariya, Aged About 25 Years R/o Village Chachhanpairi, P.S. Sejbahar, District Raipur, Chhattisgarh, 4 - Ku. Nileshwari Dahariya D/o Shri Hemant Kumar Dahariya, Aged About 19 Years R/o Village Chachhanpairi, P.S. Sejbahar, District Raipur, Chhattisgarh ---- Appellants Versus 1 - Purno Kashyap S/o Baisakhu Kashyap, R/o Betrkhuti Para, Jagdalpur, P.S. Bodhghat, District Bastar,Chhattisgarh (Driver Of Vehicle

Truck

No.

C.G.17

1583) 2 - Smt. Anita Jain W/o Nikunj Jain, Through Rikhal Golchha S/o Jaiswal Golchha, R/o Indrawati Ward Jail Road Jagdalpur, District Bastar, Chhattisgarh (Owner Of Vehicle Truck No. C.G.17 G A 1583)

3 - Chola Mandalam M.S. General Insurance Company Limited, Through Office Of Department Chola Mandalam M.S. General Insurance Company Limited Hinduja Complex, Paras Nagar Chowk, Near Railway Line Devendra Nagar Marg Raipur, Chhattisgarh.(Insurer Of Vehicle Truck No. C.G.17 G A 1583)

---- Respondents

For the Appellants : Mr. Amiyankant Tiwari, Adv. For respondents No. 1 & 2 : Mr. Pravin Kumar Tulsyan, Adv. For respondent No.3 : Mr. Sangeet Kumar Kushwaha, Adv. ________________________________________________________

Hon'ble Shri Justice Sachin Singh Rajput, Order on Board 22.11.2023 1) This appeal under Section 173 of Motor Vehicles Act, 1988 (for short “ MV Act”) has been filed challenging the award dated 27.10.2016 passed by 4th Additional Motor Accident Claims Tribunal, Raipur (CG) in Claim Case No.523/2015. By the impugned award, the learned tribunal has awarded Rs.15,72,360/- as compensation to the appellants/claimants with 9% interest per

2 annum on account of death of deceased Kamlesh Dahariya in an unfortunate accident which took place on 16.05.2015 by rash and negligent driving of respondent No.1/driver by offending vehicle i.e. Truck bearing Registration No. CG 17 G.A. 1583 owned by respondent No.2/owner and insured with respondent No.3/insurance company. 2) As per the pleadings of the claim application filed under Section 166 of the MV Act, the deceased was aged about 28 years and working as a Constable in the Police Department, posted in Police Station Dugli, District Dhamtari and was getting salary of Rs.19,279/- per month. The appellants/claimants being parents and siblings of the deceased had filed the claim application claiming total compensation of Rs.46,64,264/-. 3) Respondents No.1 & 2/driver and owner of the offending vehicle remained ex-parte before the learned tribunal and did not file their written statement. 4) Respondent No.3/Insurance company filed its written statement and in usual manner denied the averments of the claim application and pleaded that the driver of motorcycle was driving it in a rash and negligent manner, due to which the accident had occurred and the driver, owner and insurer of the said motorcycle are necessary party. There is non-joinder of parties, the application may be rejected. It was further pleaded that the amount received after compassionate appointment, pension and ex gratia will be adjusted while determining the compensation. Though the insurance policy was admitted however it was pleaded that offending vehicle was driven by driver without valid and effective driving license, permit and fitness, which is a violation of the

3 provisions of the MV Act and terms and conditions of the insurance policy. Hence, respondent No.3 is not liable for the compensation. 5) The learned tribunal on the basis of pleadings of the parties framed issues and after appreciation of evidence and material available on record awarded the compensation as stated above. 6) Mr. Tiwari, learned counsel for appellants/claimants vehemently argued that the learned tribunal has committed an error of law in not awarding any future prospects, multiplier has also wrongly been applied and the compensation awarded on other admissible head is also on the lower side, therefore, the compensation may be suitably enhanced. 7) Mr. Tulsyan, learned counsel for respondent No. 1 & 2 supported the award and submits that the compensation has rightly been awarded and does not require any interference by this Court. 8) Mr. Kushwaha, learned counsel for respondent No.3/Insurance Company submits that just compensation has been awarded and necessary deduction with regard to income tax ought to have been considered. 9) Heard learned counsel for the parties, considered their rival submissions and perused the record with utmost circumspection. 10) It is well settled preposition of law that the Court and tribunal are required to award just compensation. The amount of compensation should not be a meagre one or bonanza. In view of judgment of Hon’ble the Supreme Court in case of Sebastiani Lakra & Ors. Vs. National Insurance Company Limited and Anr. reported in (2019) 17 SCC 465, the compensation is required to be just. Para 4 of the said judgment is quoted below:-

4 “4. Section 168 of the Motor Vehicles Act, 1988 ( for short “ the Act”) mandates that “ just compensation” should be paid to the claimants. Any method of calculation of compensation which does not result in the award of “just compensation” would not be in accordance with the Act. The word “ just” is of a very wide amplitude. The courts must interpret the word in a manner which meets the object of the Act, which is to give adequate and just compensation to the dependents of the deceased. One must also remember that compensation can be paid only once and not time and again.” 11) The learned tribunal found that the monthly income of deceased to Rs.19,279/- which is in the opinion of this Court is based on proper appreciation of evidence, this finding is hereby maintained. In light of the judgments of the Hon’ble Supreme Court in the matter of Pranay Sethi (Supra), Sarla Verma & Ors. Vs. Delhi Transport Corporation & Ors; (2009) 6 SCC 121 and Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram & Ors; (2018) 18 SCC 130, this Court is computing the compensation as below:- S.N. Particular Awarded by this Court 1. Monthly Income of the deceased 19,279/- 2. Future prospects @ 50% 9639/- 3. Total yearly Income 28,918x12= 3,47,016/- 4. Income Tax 10,000/- 5. After deducting Income Tax prevailing on that point of time yearly income would comes to 3,37,016/- (3,47,016-10,000) 6. Personal expenditure (1/2) 1,68,508/- 7. Multiplier of 17 applied to assess total loss of dependency 28,64,636/- 8. Funeral Expenses 15,000/- 9. Loss of estate 15,000/- 10. Filial consortium 1,60,000/-(40,000 each) 11. Total compensation 30,54,636/- 12) For the forgoing reasons, the appeal is allowed in part. The amount of compensation of Rs.15,72,360/- awarded by the tribunal is enhanced to Rs.30,54,636/-. Hence, after deducting the

5 amount of Rs.15,72,360/-, the claimants are held entitled for an additional amount of Rs.14,82,276/-. Normally this Court would grant the interest from the date of claim application, but from the perusal of award, it appears that learned tribunal has granted 9% interest from the date of claim application. The claim application remained pending for more than one year, the appeal was filed in the year 2017 and remained pending for more than 6 years. The evidence on record suggest that the appellant No.3/ Mithilesh has been granted compassionate appointment on account of death of deceased Kamlesh Dahriya. Considering the peculiar facts and circumstances of the case and also considering that respondent No.3/Insurance Company may not be held responsible for delayed disposal, this Court feels to award interest @ 6% from the date of filing of appeal i.e. 15.02.2017 till its realization. The respondent No.3 is directed to deposit the same within 60 days. On deposit being made, Rs.6,00,000/- each shall be invested as fixed deposit in a nationalized bank for a period of 2 years in the name of appellants/claimants No.1 & 2; Rs.50,000/-each shall be paid to appellants/claimants No. 3 & 4 and remaining amount shall be paid to appellants/claimants No.1 & 2 through bank transaction/account payee cheque. 13) Appeal thus partly allowed.

Sd/- (Sachin Singh Rajput)

Judge Parul