Chattisgarh High Court
Smt. Bhuri vs Vijay Kumar Nagtode on 19 June, 2025
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2025:CGHC:25571
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1148 of 2019
1 - Smt. Bhuri W/o Shamshad Hussain Aged About 48 Years R/o Amapara, Mohan
Nagar, Police Station Mohan Nagar, Tahsil And District Durg Chhattisgarh.
2 - Shamshad Hussain S/o Late Chhote Khan Aged About 50 Years R/o Amapara,
Mohan Nagar, Police Station Mohan Nagar, Tahsil And District Durg Chhattisgarh.
3 - Ku. Gulnaj D/o Shamshad Hussain Aged About 12 Years Minor, Represented
Through Father And Legal Guardian Shamshad Hussain, R/o Amapara, Mohan
Nagar, Police Station Mohan Nagar, Tahsil And District Durg Chhattisgarh.
4 - Ku. Farhan D/o Shamshad Hussain Aged About 10 Years Minor, Represented
Through Father And Legal Guardian Shamshad Hussain, R/o Amapara, Mohan
Nagar, Police Station Mohan Nagar, Tahsil And District Durg Chhattisgarh.
5 - Ku. Ujma D/o Shamshad Hussain Aged About 8 Years Minor, Represented
Through Father And Legal Guardian Shamshad Hussain, R/o Amapara, Mohan
Nagar, Police Station Mohan Nagar, Tahsil And District Durg Chhattisgarh.
... Appellants
Versus
1 - Vijay Kumar Nagtode S/o Khemraj Nagtode Aged About 60 Years R/o D-1anand
Vihar, Near Gulmohar Vatika, Mahaveer Nagar, Telibandha, Raipur
Chhattisgarh........(Driver And Owner Of Vehicle Car No. C. G. -04-Hb- 8502),
District : Balod, Chhattisgarh
2 - National Insurance Company Limited Mobin Mahal, G. E. Road, Raipur Through
Branch Manager, Akashganga, Supela, Bhilai, District Durg Chhattisgarh.........
(Insurer), District : Durg, Chhattisgarh
... Non-Appellants
SHUBHAM
DEY
Digitally
signed by
SHUBHAM
DEY
2
For Appellants : Mr. Syed Majid Ali, Advocate
For Non-Appellant No. 2 : Mr. Anil Gulati, Advocate
S.B.: Hon'ble Shri Parth Prateem Sahu, Judge
Order On Board
19/06/2025
1. This appeal is filed by the appellants seeking enhancement of the
amount of compensation awarded by the learned Claims Tribunal in its
award dated 28.01.2019 passed by the First Additional Motor Accident
Claims Tribunal, Durg, District - Durg (C.G.) in Claim Case No.
184/2017.
2. Facts of the case in brief are that, on 07.02.2017 at about 08:30 A.M.,
Md. Mumtaz (since deceased) along with his friend namely Manish was
traveling towards Rajnandgaon from G.E. Road, Dug on his motor
cycle bearing registration no. CG 07 LR 9070 and reached near Village
Bhanbhedi, G.E. Road No. 6, at that time, the offending car bearing
registration no. CG 04 HB 8502 which was being driven by the
Respondent No. 1 in a rash and negligent manner, dashed the
motorcycle of Md. Mumtaz from behind and caused accident. In the
said accident, deceased Md. Mumtaz suffered serious injuries and he
was taken to District Medical College, Rajnandgaon, from there, he
was referred to B.S.R. Apollo Hospital, Bhilai and thereafter to
Mekahara Hospital, Raipur. Subsequent to the said accident, an FIR
was registered against the Respondent No. 1 bearing Crime No.
55/2017, P.S. Lalbagh, District – Rajnandgaon for the offence
punishable under Sections 279, 337, 304A of the Indian Penal Code,
1860.
3. Learned counsel for the appellants submits that the learned Claims
Tribunal though had allowed the claim application in part and awarded
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a total sum of Rs. 12,50,100/-, however, the learned Claims Tribunal
had assessed the income of the deceased on lower side overlooking
the nature of occupation with which the deceased was engaged in, on
the date of accident i.e. the selling of garments/clothes, not awarding
the sufficient amount of compensation under the other conventional
heads including the compensation under the loss of consortium. He
submits that the deceased met with an accident on 07.02.2017 and
from the said date, he was under continuous treatment as impatient in
the B.S.R. Apollo Hospital, Bhilai and thereafter, in Mekahara Hospital,
Raipur, and died on 16.03.2017, however, the learned Claims Tribunal
has not awarded the amount of compensation towards the expenses
incurred by the claimants towards special diet, conveyance expenses
and attendant. On above grounds, he prayed for enhancement of the
amount of compensation suitably. He also contended that as the
liability to satisfy the amount of compensation is joint and several upon
the Non-Appellant No. 1 & 2 and the counsel for the Non-Appellant No.
2/Insurance Company has caused his appearance, this case may be
heard finally at the motion stage.
4. On the other hand, learned counsels for the Non-appellants No. 2
/Insurance Company opposes the submission of counsel for the
appellant/claimant with regard to, the less amount of compensation
awarded by the learned Claims Tribunal and would submit that the
quantum of compensation awarded by the learned Claims Tribunal is
just and proper in the facts of the case and does not call for any
interference. He however, do not dispute the submission of the counsel
for the applicant with respect to the fastening of joint and several
liability upon the Respondents No. 1 & 2 and the first liability to satisfy
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the amount of compensation upon the Respondent No. 2/Insurance
Company as on the date of accident, the offending vehicle was insured.
5. I have heard learned counsel for the parties and perused the record of
the claim case and the copy of the award passed.
6. So far as the submission of counsel for the appellant with respect to
the assessment of income of the deceased is concerned, the claimants
have not filed any document to show the nature of business with which
the claimant as stated to be doing at the time of accident i.e. the
purchase and sale of cloths. They have only filed one typed certificate
on a plain paper under the signature of one Md. Nazir @ Nazir (AW- 3)
with a seal mentioning him as a proprietor of a cloth shop and
mentioning the income of the deceased as Rs. 12,000/- per month.
7. The claimant to prove the pleadings made in the claim application has
examined Shamshad Hussain i.e. the Appellant No. 2 who is stated to
be the father of the deceased. The claimants though have examined
Md. Shamshad Hussain before the learned Claims Tribunal at the time
of registration of the claim case, however, this witnesses was not
examined thereafter before the learned Claims Tribunal at the time of
deciding of the claim case on merits. One Manish Kumar Kaushal is
examined as AW-1. In examination-in-chief, he submitted an affidavit
under Order 18 Rule 4 of the Code of Civil Procedure,1908. From the
contents of the affidavit, it is appearing that the he is the witness to the
incident. In the examination-in-chief, he has not stated anything with
regard to the nature of business and income of the deceased.
8. Further, Smt. Bhuri Bai i.e. the Appellant No. 1/Claimant No. 1 (mother
of the deceased) is examined as AW-2. Though, this witness has
pleaded about the nature of the engagement of deceased as ‘in
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business of cloth selling and earning Rs. 12,000/- per month’, however,
no admissible piece of evidence or documentary evidence has been
placed on record. The claimants have further examined Md. Nazir @
Nazir (AW- 3) to prove the nature of occupation with which the
deceased was engaged in and the earning of Rs. 12,000/- per month.
This witness has stated that the deceased was engaged by him as
worker/employee and he was being paid Rs. 400/- per day. The
pleadings made in the claim application, the evidence of Appellant No.
1/Claimant No. 1 mother of the deceased is that her son was doing the
business by purchasing clothes and selling it in the market. The
evidence of Md. Nazir @ Nazir (AW- 3) is that deceased was working
as Salesman under him. In view of the aforementioned evidence
available on record is non-reliable an accordingly, the learned Claims
Tribunal has rightly disbelieved the evidence of Md. Nazir @ Nazir
(AW- 3).
9. From the aforementioned discussion, it is apparent that the claimants
failed to prove the nature of occupation and the income of the
deceased by placing admissible piece of evidence. The learned Claims
Tribunal has rightly decided to assess the income of the deceased on
notional basis. However, the learned Claims Tribunal has assessed the
income as Rs. 6000/- which is on lower side. For the purpose of
assessing the income of a claimant/deceased on notional basis, the
learned Claims Tribunal/Courts are required to take into consideration
the factors like age of the claimant/deceased, date of accident, price
index, cost of living, wage structure prevailing within the place in which,
the deceased was residing and can also take the help of the minimum-
wages fixed by the competent authority and prevailing within the period
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of accident. The deceased was a resident of Durg City of Chhattisgarh.
It is also an industrial city according to the notification issued by the
competent authority under the Minimum Wages Act, 1948 for the year
2017-18. The minimum wages fixed for the Unskilled Labourer for ‘B’
Zone cities is Rs. 8060/- per month. As the occupation of the deceased
could not be proved, therefore, I find it appropriate to consider the
occupation of the deceased to be of the Unskilled Labourer and hold
the income of the deceased as Rs. 8,060/- per month. It is ordered
accordingly.
10. The learned Claims Tribunal considering the age of the
deceased as 30 years has rightly added 40% of the assessed income
towards the loss of future prospects, made deduction of ½ towards the
personal and living expenses and further, applied multiplier of 17 which
is in consonance with the decision of the Hon’ble Supreme Court in the
case of National Insurance Company Ltd. vs. Pranay Sethi ,
reported in (2017) 16 SCC 680 and in the case of Sarla Verma & Ors.
Vs. Delhi Transport Corporation & Anr. reported in 2009 (6) SCC
121.
11.The learned Claims Tribunal has further awarded Rs. 40,000/- towards
the loss of love and affection to the claimants/appellants, Rs. 15,000/-
each towards the funeral expenses and loss of estate. The award of
compensation under the head of loss of consortium was considered by
Hon’ble Supreme Court in the case of Pranay Sethi (Supra) and
thereafter, the types of consortium is explained by Hon’ble Supreme
Court in the case of Magma General Insurance Co. Ltd. vs. Nanu
Ram @ Chuharu Ram, reported in (2018) 8 SCC and held that the
there are three types of consortium i.e. spousal consortium for
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wife/husband, parental consortium to children and filial consortium to
parents. In the case at hand, the Appellants No. 1 & 2 are parents of
the deceased and therefore, they are entitled for Rs. 40,000/- each
towards loss of filial consortium (total Rs. 80,000/-). it is ordered
accordingly.
12. Now, the claimants are being awarded the loss of filial consortium,
therefore, they will not be entitled for compensation under the head of
loss of love and affection as awarded by the learned Claims Tribunal.
The learned Claims Tribunal has awarded compensation under the
head of medical expenses of Rs. 2,73,300/- considering the medical
bills placed on record and exhibited by the claimants and further
considering that the deceased during the period of his treatment was
shifted from B.S.R. Apollo Hospital, Bhilai to Mekahara Hospital,
Raipur on 24.02.2017 and remained there as impatient till 16.03.2017.
The Claims Tribunal though recorded a finding that the claimants have
not produced any bills of the medical expenses, however, considering
the period of treatment have awarded Rs. 50,000/- in lump sum
towards the further medical expenses at Raipur. From the facts, date of
accident and the date of death, it is appearing that the claimants from
the date of accident i.e. 07.02.2017 till his death i.e. 16.03.2017
remained admitted in the hospital i.e. for about 01 month and 09 days
and during that period, he was attended by the family members, some
special diet was also required and claimants might have also expended
money for shifting of the deceased from hospital at Bhilai to the
Mekahara Hospital, Raipur and they might have expended money
towards the conveyance expenses also. Therefore, in the
aforementioned facts of the case, I find it appropriate to award Rs.
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10,000/- towards the attendant, Rs. 10,000/- towards the special diet
and Rs. 15,000/- towards the conveyance expenses, as after the death
of deceased, he might have also been carried from hospital to the
place of his residence.
13. For the foregoing reason, this Court proposes to recalculate the
amount of compensation payable to the appellants.
14. Accordingly, the monthly income of the deceased is taken as
Rs.8,060/- and since at the time of death, the deceased was 30 years
old, therefore, in view of decision of Hon’ble Supreme Court in case of
Pranay Sethi (Supra), the income of deceased is required to be
enhanced by 40% towards future prospects, which comes to
Rs.11,284/- (8,060 + 3224). Thus annual income of the deceased for
the purpose of calculating the compensation comes to Rs.1,35,408/-
(8,060 x 12). Out of this amount, 1/2 is to be deducted towards
personal and living expenses of the deceased and after deducting 1/2
of the annual income, annual loss of dependency would come to
Rs.67,704/- (1,35,408 – 67,704). By applying multiplier of 17, as
applied by the Claims Tribunal, to annual loss of dependency, the total
loss of dependency would come to Rs.11,50,968/- (67,704 x 17).
Besides this, Appellants No. 1 & 2 are entitled for a sum of Rs. 40,000/-
each towards filial consortium, as held by the Hon’ble Supreme Court
in the matter of Magma General Insurance (Supra). Further, they are
also entitled for Rs. 15,000 for funeral expenses and Rs. 15,000 for
loss of estate as awarded by the learned Claims Tribunal. They will
also be entitled for Rs. 2,73,300/- towards medical expenses, Rs.
10,000/- towards attendant, Rs. 10,000/- towards special diet and Rs.
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15,000/- towards conveyance expenses and Rs. 50,000/- towards
future medical expenses.
15. Thus, total amount of compensation comes to Rs.16,19,268/-
[11,50,968 (loss of dependency) + 80,000 (loss of filial consortium) +
15,000 (funeral expenses) + 15,000 (loss of estate) + 2,73,300
(medical expenses) + 50,000 (future medical expenses) + 10,000
(attendant) + 10,000 (special diet) + 15,000 (conveyance expenses)].
This amount of compensation shall carry interest @ 7% from the date
of filing of claim application till its realization. Rest of the conditions
mentioned in the impugned award shall remain intact.
16. Any amount already paid to Claimants/Appellants No. 1 to 5 as
compensation shall be adjusted from the total amount of compensation
as calculated above.
17. In the result, the appeal is allowed in part and the impugned award
stands modified to the extent indicated above.
18. Certified copy as per rules.
Sd/- /--/-
(Parth Prateem Sahu)
Judge
Dey