Kamta Prasad Gupta And Another v. Rajendra Kumar Dewangan And Others
3W NAFR HIGH COURT OF CHHATTISGARH. BILASPUR Misc. Appeal No. 562 of 205 Kumar Dewangan, S/o Hagruram Dewangan, aged about 34 years, Occupation Tailor, R/o.
Village Kaudikasa, District Rajnandgaon (C.G.)
Versus
1.
Kamta Prasad Gupta S/o Vanshgopal Gupta, aged about years, Occupation Cloth Merchant, 2.
Smt. Janki Devi Gupta W/o Kamta Prasad Gupta, aged about 44 years, Both resident Village Kaudikasa, P.S.
Ambagarh Chowki, District Rajnandgaon (C.G.) 3.
The Oriental Insurance Company through Branch N'anager, Branch Kamthi Line, District Rajnandgaon (CG) Shri Basant Dewangan, Advocate For Appellant For Respondents 'l & 2 Shri Abhishek Sharma, Advocate Shri H. P. Agrawal, Advocate For respondent no.3 Misc. Appeal No. 473 of 2005 1.
Kamta Prasad Gupta, aged about years, >S/o Shri Vansh Gopai 'Gupta, occupation Cloth Merchant.
2.
Smt. Janki Devi Gupta W/o Kamta Prasad, aged about 44 years, Both are resident of Village Kaurikasa, Police Station Ambagarh Chowki, District Rajnandgaon (CG) ........... Appellants
Versus
1.
Kumar Dewangan, aged about years, S/o Hagruram Dewangan, Vehicle driver/owner, R/o Dhangaon, PS.
Dongargaon, District Rajnandgaon (C.G.) Presently residing at village Kaurikasa, Police Station Ambagarh Chowki, Distt. Rajnandgaon (CG) 2.
Oriental Insurance Company through Branch Manager, Kamthi Line, Rajnandgaon (C.G.) ..... Respondents Shri Abhishek Sharma, Advocate For Appellants Shri Basant Dewangan, Advocate For Respondent no.1 For Respondent no,2 Shri H. P. Agrawal, Advocate
Misc. Appeal No. 628 of 2005 Kumar Dewangan S/o Hagruram Dewangan, aged about 34 years, Occupation Taiior, R/o Village Kaudikasa, District Rajnandgaon (C.G.)
Versus
The Oriental Insurance Company through Branch Manager, Branch Kamthi Line' District Rajnandgaon (C.Gr) '
:
Shri Basant Dewangan, Advocate For Appellant For Respondent :
Shri H. P. Agrawal, Advocate Hon'ble Shri Justice P. Sam Koshy Order On Board 11/08/2017 These are three appeals assailing dated 18.02.2005 passed oyrthe 1st Additional Motor Accident Claims Tribunal,- Rajnandgaon Claim Case Nos.130/2003 138/2003.
MA.
No.
562/05 an appeal preferred by owner of the vehicle where the liability has been fastened upon the owner exonerating liability from insurance Company has been 6;;
challenged.
M.A. No. 473/05 is an appeal preferred by the claimants seeking for enhancement compensation awarded by Tribunal.
MA.
No.
628/05 is an appeal preferred by the owner challenging the impugned award where his claim for personal injuries has been rejected by the Tribunal. 2.
Since the facts involved in these three appeals are identical arising out of the same accident, this Court proceeds to decide the three appeals by this Common order.
For convenient sake, Rajendra Kumar Dewangan who is the "appellant in.MA Nos.
562/05 & 628/05 respondent n91 473/05 referred as 'the owner' and Kamta Prasad Gupta and Smt. Janki Devi Gupta who are the respondents 1 & 2 in MA No. 562/05 and appellants in MA No.
473/05 are referred as 'the claimants'.
/ b
2% 3.
Before dealing with the contents of the case it would be necessary narrate the facts of the case brief.
On 14.09.2003, the owner Rajendra Kumar Dewangan was riding the offending motorcycle LML Freedom bearing registration N0. CG08 E/3350 as a pillion rider and Kamlesh Gupta and Girdhari Sahu were sitting behind rajendra Kumar.
While the owner was driving the said motor-cycle, because of rain, the motorcycle got slipped causing accident as a result of which Kamlesh Gupta received grievous injuries he later succumbed.
Girdhari Sahu also received injuries so also the owner Rajendra Kumar.
Criminal Case was also registered against the, owner Kumar at Police Station Ambagarh, District Rajnandgaon in Crime No.139/03 where the owner was prosecuted for the offence punishable under Sections 273, 337, 338 and 304A and also SectiOn 3/181 of the MV Act.
The legal representatives of deceased Kamlesh i.e. the claimants herein and the injured Girdhari .Sahu filed their claim applications under Section 1'66 Motor Vehicles Act which were registered as Claim Case Nos.
130/03 138/03 respectively.
The owner Rajendra Kumar also filed a claim case under Section 163A of the MV Act.
What is relevant at this juncture is that the entire case was proceeded before with stand that owner Kumar was not having a licence to drive the motorcycle at the relevantpoint of time.
4.
After conclusion pleadings recording evidences, Court below vide impugned dated 18.02.2005 rejected claim application of the owner Rajendra Kumar filed under Section 163A of the MV Act on the ground that the accident occurred because of the negligence of the "owner himself addition his not having driving liceace drive motorcycle.
So far as application claimants i.e.
legal representatives deceased Kamlesh concerned, awarded .
compensation of Rs.86,000/~ with interest @ 6% per annum from the date of
application to the claimants.
Likewise, the Tribunal awarded compensation Rs.10,000/- with interest @ 6% per annum to the injured Girdhari Sahu while allowing claim application.
Since owner/driver motorcycle Kumar did not have driving licence at the time accident, exonerated insurance Company from liability making compensation fastened liability of payment of compensation claimants upon the owner of the motorcycle Rajendra Kumar Dewangan.
5.
lt is this award which is under challenge in the present three appeals. 6.
Counsel for the owner Rajendra Kumar Dewangan submits that the Court below did not grant sufficient opportunity to the owner to produce the licence that he had for driving the alleged LML Freedom motorcycle and therefore this Court may consider to remit the matter back to the Tribunal so that the owner may adducesufficient evidence to substantiate his contention with which the liability could be shifted upon the insurance Company, He furthersubmits the owner has also moved an application under Order 4irule 27 of CPC for taking the licence which was issued in favour of the owner in the year 1994 on record with which he may be permitted to lead additional evidence.
7.
Counsel appearing for the insurance Company Opposing appeals submits that there ample evidence had been adduced before Tribunal with which it has been established that the owner Rajendra Kumar was not having a valid licence at the time of accident. He drew the attention of this Court to the evidence of the RTO, Rajnandgaon Shri Suresh Ku. Yadu who had deposed before the Tribunal that in fact the owner had for the first time applied for grant of- licence only on 26.09.2003 whereas accident took place on 14.09.2003 which shows that the application for licence was applied much after the accident.
This also proves that on the relevant date the owner did not have .
licence at all drive motorcycle.
Thus, counsel for insurance Company prayed for rejection of the appeal of the owner.
't l 8.
Having considered of the rival contentions put forth on either side and on perusal record what giaring at this stage that against the award passed in favour of injured Girdhari Sahu, the appeiiant/owner Rajendra Kumar had aiso preferred an appeal before this High Court which was registered as MA No. 561/05.
The said appeal stood dismissed by the High Court vide order dated 16.09.2009.
As a result of the dismissal of the said appeal, the finding of the Tribunal to the extent of exonerating the Insurance Company and fastening liability upon the owner of the motorcycle has attained finality. The owner Rajendra Kumar has moved an application under Order 41 Rule 27 of CPC for taking additional evidence on record supporting his contention ie.
licence which was issued in the year 1994.
But what is also pertinent to take note that though he had licence 1994, he had never taken such defence during the proceedings before the Tribunai fact that he had a licence, neither did he cross-examine the RTO in respect of his having a licence issued much earlier from the date of accident This fact creates a great element doubt in the mind of the Court so far as the bonafide of moving an application under Order 41 Rule 27 of CPC which thus deserves to be and is accordingly rejected.
9.
Given the aforesaid factual matrix of the case, this Court is of the opinion that the owner Rajendra Kumar has not been able to establish his case by any substantive or strong material hold that finding was incorrect, calling for an interference.
Thus, the appeal of the owner Rajendra Ku.
Dewangan challenging dated 18.02.2005 in MA No.
562/05 deserves to be and is accordingly dismissed.
10.
Keeping the aforesaid factual matrix in mind when we look into the order passed by the Tribunal rejecting the claim of the owner Rajendra under Section 163A of MV Act, this Court has no hesitation in reaching to the conclusion that in the aforesaid factual matrix once when'it has been established that the owner s
LIL, Rajendra was not having a licence at the time of accident, the same would have definitely amounted as to negligence on the part of the owner to have driven the motorcycle on the said date without a licence. Thus, the appeal of owner Kumar MA No.628/O5 also deserves be accordingly rejected.
11.
So far as the claim of the claimants i.e. the appellants in MA. No.473/05 who are the legal representatives of deceased Kamlesh Gupta is concerned, counsel appearing for the claimants submits that the Tribunal has not applied x the proper multiplier for quantifying the compensation. According to the counsel .
for the claimants, multiplier applied by the Tribunal is that of 10 whereas considering the fact that the deceased at the time of accident was aged around years, multiplier ought have been as per the judgment Hon'ble Supreme Court in the case of Sarla Verma (Smt) and others v. Delhi Transport'Corporation and another reported (2009) 6 SCC 121 and the subsequent decisions.
12.
The contention of the counsel for the claimants has merit as the law this regard by now is well settled and therefore, the multiplier in the instant case has to be instead of 1O as has been taken by the Tribunal.
lt is ordered accordingly.
13.
lt is further contended by the counsel for the claimants that the income of the deceased which has been taken by the Tribunal is also on the lower side as the Tribunal has taken only Rs.1,000/- as the monthly income of the deceased is even much less than the minimum wages.
According to the counsel for the claimants, the Tribunal ought to have taken at least Rs.3,000/- as the monthly income of the deceased taking Rs.100/- a day to be the minimum wage of an unskilled labour at the relevant point of time. He further submits that the has also not considered future prospects while quantifying .
compensation.
14.
However, from the record it reflects that the claimants have not been abie to show any sod of employment which the deceased had at the time of accident therefore, for all practical purpose, this Court opinion that the ought have taken income deceased Rs.
2,000/- month instead Rs.1,000/- would make yearly income deceased at Rs.24,000/-.
If 50% income added towards future prospects, amount would be Rs.36,000/- if 50% deducted towards personal income, the amount comes to Rs.18,000/-. If the said amount '4 multiplied by applying multiplier, 18, amount would be Rs.3,24,000/-.
Thus, claimants would be entitled for compensation Rs.3,24,000/- towards loss of dependency in stead of Rs.84,000/' as awarded by the Tribunal.
Rest of the Claim Case No.
130/03 as has been awarded by the Tribunal including the interest part shall remain intact. 15.
Asa'consequence, the appeals of the owner Rajendra Kumar in MA Nos. 562/05 and 628/05 stand dismissed and appeal claimants i.e.
legal representatives of deceased Kamlesh Guptajn MA No.4Z3/O5 stands allowed.
, , Sty:
(P. Sam Koshyt JUDGE Bhola