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IN THE BBGH COURT OF JUDICATURE AT BD..ASPUR CHHATTJSGABH MISELLANEOUS APPEAL (C) N0. - ">^--> OF 2011 VjVSSJ (MEMORANDUM OF APPEAL UNDER SECTION 173 OF THE MOTOR VEHICLES ACT, 19S8) APPELLANTS _ 1. '"Smt. Neelema Kashyap, W/o Late Amit Kashyap CLAIMANTS aged about 28 years, ^Saksham Chandrakar, S/o Late Amit Kashyap, aged about 02 years.' r^Sayam Chandrakar, S/o Late Amit Kashyap, aged about 03 Month. [Appellant No. 2 & 3 being minor on behalf of through their legal guardian mother appellant No. 1 Smt. Neelema KashyapJ y f\ y ^y//y 4. 5. 'Chintaram Chandrakar, S/o Kejuram Chandrakar aged about 59 years. t. Nanda Chandrakar, W/o- Chintaram Chandrakar aged about 51 years. 6. /Futeniya Bai Chandrakar, W/o- Kejuram Chandrakar, aged about 80 years, 7. "TCeju Ram Chandrakar, S/o- Late Brijlal Chaadrakar aged about 82 years. All R/o- Village- Sirsakala, Bhilai- 3 Tahsil- Patan, District - Durg (C.G. ) VE^SU^ 1. 'Thandrakumar Sahu, S/o Siyaram Sahu, aged about 55 years, R/o -Dr. Rajendra Prasad Nagar, Telhanala, Khurshipar, Bhilai, District - Durg (C.G.) [Driver of vehicle Truck/ Trailer bearing registration No. C.G. 07/ZC/4329] 2. 'Vimlesh Jain S/o U.C.Jain, R/o- M.I.G./C/482, Padnabh pur, Durg. District- Durg (C.G.) [Registered Owner of vehicle Truck/ Trailer bearing registration No. C.G. 07/ZC/4329] 3. •Th.e Unite.d India Insurance Company Limited, through Branch Manager, Branch Office - Parakh Complex, Gumdwara Road, Infomt ofHeroHonda * Sho^w&om, Durg, Tahsil & District - Durg (C.G.) [Insurer ofvehicle Truck/ Trailer bearing registration No. C.G. /ZC/4329] MEMORANDUM^)FAPPEAI^IMDER SECTION<l73^0ILTHE MOTOR VEmCLES RESPONDENTS NON-CLAIMANTS
,<^ .yf':' ...^ Paae No. 1 HIGH COURT OF CHHATTISGARH AT BILASPUR M.A.fClNo. 523 of 2011 APPELLANTS RESPQNDENTS Smt. Neelema Kashyap and others VERSUS Chandrakumar Sahu and others SB: Hon'ble Shri Goutam Bhaduri. J. 4;^¥& SSi. W£S^''^s.iSi S Si i .eJfiii.l^ft-'ti.B.Agrawal, Sr. Advocate with NM^gjgya Jaiswal, yy counsel fbr resp9nG|^F%ijQ;3?-\ ' 1. (P|is|%pmyn May, 2015) SS-r^^^i Challenge in |fli^|gp@P||Tt9 the award dated 21.09.2010, passed in Cla]SR!B^SSK02/2010, by the 9th Additional Motor Accident Claims Tribunal (F.T.C.), Durg, whereby as against the claim made for Rs.38,17,000/-, an award of Rs.8,55,500/- was passed. 2. The appeal is by the claimants. 3. Briefly -stated facts of the case as was pleaded by the claimants are that on 31.10.2009, the deceased Amit Kashyap alpjigwith Jais friend Mukesh Chandrakar were traveling in the motor cycle bearing registration No.C.G.-07- L-7121 and was going to Chhawani Power House to bring a
a. 5. Paoe No. 2 medicine for medical store. At that time, the vehicle Truck trailor bearing registration No.C.G.-07-ZC-4329, being driven by non-applicant No.1, Chandrakumar Sahu in a rash and negligent manner, dashed the deceased, Amit Kashyap from behind, whereby he sustained severe injuries and he was admitted to the hospital and subsequently succumbed to the injuries. The{ef^eiBsar]|1he digerent heads, the claim petition ,iNaI|fi'la®jy»stFie"wife,~twoa'W^MJ^''f^|pr& mother and jgrand-father and grand-mother, ofthe dec^Sllfr. In reply to th&;)3lai (Si('Snffie|is, the driver and cnrflfer of the vehicle i.e. Ch(3|||3g||jg|iiiB Sahu, non-applicant No.1 and Vimlesh Jain, npn-aRNicantNo.2 contended that at the relevant time ,,t|yvje|jj8|etpas being driven by non-applicant '^jjy-^iiyy k^v ...... '. No.1, driver, v?f®t|t^sA!g||Br1ga valid driving licence. It was further stated ttiat the vehicle was further insured with the respondent No.3, consequently, the liability is that of the insurance company. The insurance company admitted the fact that the vehicle was insured but the rest of the averments were denied. It was further stated that the driver, the non-applicant No.1 had committed breach of policy of the insurance and disowned the liability. 6. The learned Claims Tribunal after evaluating the entire <I-°
M. 7. 8. Paae No. 3 evidence on record, passed an award of Rs.8,55,500/-, therefore, the instant appeal by the claimants for enhancement. Learned counsel for the appellants v?ould submit that without any rhyme and reason, despite the fact that the income tax return is placed on record, the Tribunal has assessed the income,^!8fi||'giq|d|sieHet|UI)IIEI%5,000/- per month. The 'a,yi%6!l'p1aced his reliance on thg'Uffci^ieQtevhich is placed on record alongwil;M|iis appeal under OrTef^^ute 27 of C.RC. to shoiiMlHaBiejlesteased was running<C^medical shop for whichs.t^elf^lgyas granted by Ex.P/20 and after the death, the s|]^^j^|lo be closed down. Consequently, the entire incot^^^gcWtfe^o an end. Therefore, he prays •forenhancemiliH|gg|^@gjrt'd. ' Per contra, learned counsel appearing for the insurance company vehemently opposes the argument and supported the order passed by the learned Claims Tribunal and would submit that the order is well merited which do not call for any interference. 9. I have heard the learned-counsel for the parties at length, perused the documepts and the evidence on record. 10. The Tribunal after examining the witnesses has recorded the finding that at the relevant time, the truck trailer bearing
Paoe Wo. 4 No.C.G.-07-ZC-4329 being driven by the respondent No.1 in a rash and negligent manner dashed the deceased from behind, whereby he sustained severe injuries and eventually died. In absence of any challenge io such finding, the same are affirmed. Now coming to the quantum of compensation, the Tribunal has as?j&s^M l|g|^|^e ,g;E|t]teji^eceased, Amit Kashyap to <%.%)BOJ':: per month as againsnffiC ifil( datement of the wife of the deceasecl-.4s examined, she hasi^flW that her husband was^ijrjroftig^^^Jeal shop. Licence ot'Food and Drug AdministralliEUigtgJII' is marked as Ex.P/20, which ^is:i-"SSi'"Si<i.<i" fortifies the facl||tfl||fr^ deceased, Amit Kashyap was /i/^T/-yj;"is|s."^;^\^: running a me^jp1:^g|:STfte documents filed in the appeal 'purports that ^®g|^(BggiBg said shop bearing the same number is closed. The wife has further stated that the deceased used to pay income tax and income tax return is marked as Ex.P/21. In the said income tax return, the income is shown as Rs.1,47.645/-, which bears the seal of the Income Tax Department, therefore, the authenticity of the same is not in doubt. The income taxlevy in such return is shown to be nill and it wasfor the assessment year 2009-10. ^- It is reasonably correct to assess the entry since Court can take notice of the fact that the Income tax limit slab in the year 2009-IOwas exempted to the income of Rs.1,60,000/-.
.^•r~ f. A ^--y Paae No. 5 Further more, the income tax return, which is placed on record is of 31.07.2009, the tax was exempted. The return which is placed on record dated 31.07.2009 bears the signature of the deceased and the date of accident is 31.10.2009,consequently l have no doubt to raise any suspicion of such return. More so in order to establish and show the ]'afioisBei|!haAestijaMgilable evidence would be that scc^ngly held that the irrie tax retumfN ?Ttriding arrived at by the Tribunal that thfi^^^sised had a ..^^A^ income of R&s:5t,( ?~ST' evidence on recei^8'3a|iB|s^)|ordingly, the income of deceased is held to be rodqdeaHJS .1,47,000/-. i@feJiBiy''without proper appf^giation of ?^M •"/:!li'>f'i'"e' slf :t .'••ju^-iss'KyTiy •has not addgaffaSetetttHB 12. Reading of tl]i?g|m^|^ffl^reflect that the Claims Tribunal ts. The deceased was admittedly self employed and he is shown to be 32 years of age, as would be evident from Ex.P/16, the postmortem report. Taking into fact that the deceased was self employed person and his age on the date of accidentwas below 40 years and as per the law laid down in case of Rajesh & Others Vs. Rajbir Singh & Others reported in (2013) 9 SCC 54, I think it proper to add the future prospects of 50% «I«-~' over and above the income of Rs.1,47,000/- towards future .prospects and thereby the 50% of amount comes to Rs.73,500/- and the amount comes to Rs.2,20,500/-.
y J" ^ 13. 15. Paoe <Vo. 6 The income tax as was payable for the financial year 2009-10 and assessment year 2010-11, up till Rs.1,60,000/- no tax was payable and further exceeding Rs.1,60,000/-, 10% income tax was payable. Therefore, after dedyction of Rs.1,60,000/-, the taxable income works out to Rs.60.500/-, wherein on addition of imposing income tax of 10%, it works out to Rs.6,050/-, therefore after deduction of income tax from the income i.e. Rs. works out to ^.2?14,450/- The claim p^ti3S^>igi|4|i|g1^Ted by 7 persons ^p.^fe, two ,y^."%.' children, fatheri^j|iflSi^gttd grand-father and grand-mother, therefore, as pej"V6sld%)t^id down incase of Saria Verma Vs. Delhi TranAfifflA (/W!1: 121, 1/5 wotil^RSS reported in 2009 6 SCC towards personal expenses, which comes taMB5at25S8€y- and the dependency works out to Rs.1,71.560/-. Theage of the deceased was shown to be 32 years, as such multiplier of 16 would be applicable and thereby the total dependency works out to Rs.27,44,960/- On the conventional head, the Tribunal has awarded Rs.35,000/- to all the applicants and Rs.2,500/- for loss of estate and for funeral "expenses Rs.2,000/- is awarded. •c-~ Taking into the age and the number ofthe dependents, in the opinion of this Court, the compensation awarded on the aforesaid heads appears to be too meager, therefore, for
w Paoe No. 7 loss of consortium Rs.1,00,000/- is awarded to wife. Further more for loss of care and guidance for minor children, Rs.50.000/- is awarded. For love and affection towards mother & father and grand^ther & grand-mother Rs.50,000/- is further awarded. Further the amount awarded towards loss of estate i.e. Rs.2,500/- is enhanced to Rs.10,000/-.,,anfil iteral ^xpenses Rs.25,000/- is further 'Therefore, the con^peRsation is recomputeff's ;r:- '^•s'y/y''':^ S.No (i) (ii) (iii) (iv) (V) (vi) wiw Loss of de%|{9enG% For loss o< towife For lossj|S(^^srttfBh)jdance for minUI1 For lo\®BBBB3BSS%fection towards rn»i8ffSjSher and grand-father & grand-mother Loss of estate For funeral expenses Grand Total Calculation Rs.27,44,960/- Rs. 1,00,0007- Rs. 50,000/- Rs. 50,000/- Rs. 10,000/- Rs. 25,000/- Rs. 29,79,960/- 17. Thus - the total compensation is recomputed as Rs.29,79,960/-. After dedticting Rs.8,55,500/- as awarded by theTribunal, the enhancement would be Rs.21,24.460/-. •f- 18. In the result, the appeal is allowed in part. The appellants will be entitled to the said sum of Rs.21,24,4607- in addition to
Balram Paoe Wo. S what is already awarded by the Claims Tribunal with interest at the rate of 9% per annum on the enhanced claim amount from the date ofenhancement till the date of its realization. 19. The Registry is further directed to communicate the claimants inwriting the "amount enhanced in this appeal" as against the award made by the Tribunal below. The said comm,4|vpattpi|fe^-|ifls|| ii^^||igCTanagari language. 20, dWer as to costs. j '^ j^ ll' ^t^iSf^SS^^ Sd^: Goutam,Bnaduri Judge . ^"