1 - Bajaj Allianz General Insurance Company Limited Shivmohan Bhawan, Vidhan Sabha Road, Pandri v. 1 - Bismatbai Wd/o Late Gurudayal Sahu, Aged About 35 Years 2 - Ku
Case Details
1 2025:CGHC:21335 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Judgment reserved on : 28-02-2025 Judgment delivered on : 08-05-2025 MAC No. 68 of 2017 1 - Bajaj Allianz General Insurance Company Limited Shivmohan Bhawan, Vidhan Sabha Road, Pandri, Police Station Pandri, Tahsil And District Raipur, Chhattisgarh ..............As Per Claim Application- Insurer Of Vehicle Bus No. C.G.04-E-1536, --- Appellant versus 1 - Bismatbai Wd/o Late Gurudayal Sahu, Aged About 35 Years 2 - Ku. Rukhmani Sahu D/o Late Gurudayal Sahu, Aged About 17 Years 3 - Mukesh Sahu S/o Late Gurudayal Sahu, Aged About 6 Years Resp. no. 2 and 3 is minor and hence representing through their mother respondent no.1 Bismatbai, All R/o At present – Akash Nagar, Rawan Bhatha, Raipur (CG) 4 - Dindayal Sahu S/o Late Baisakhu Ram Sahu, Aged About 60 Years 5 - Smt. Susheela Bai W/o Dindayal Sahu, Aged About 56 Years Both R/o Village Aurethi Police Station Simga, Distt. Raipur, Chhattisgarh .................Claimants 2 6 - Khursheed Khan S/o Mahboob Khan, R/o Masjid Para, Lakhanpur, Police Station Lakhanpur, Distt. Sarguja, Chhattisgarh ...............Driver Of Vehicle Bus No. C.G.-04-E-1536.
Legal Reasoning
7 - M/s Vijay Ingole And Sons, Shri Sai Baba Travels, Pandri, Police Station Pandri, Raipur, Chhattisgarh ................Owner Of Vehicle Bus No.C.G.-04-E- 1536. --- Respondents MAC No. 1656 of 2016 1 - Bismat Bai W/o Late Gurdayal Sahu, Aged About 35 Years 2 - Ku. Rukhmani Sahu D/o Late Gurudyal Sahu, Aged About 17 Years, minor 3 - Mukesh Sahu S/o Late Gurudayal Sahu, Aged About 6 Years, minor Appellant No. 2 & 3 are minor, through : natural guardian mother Bismat Bai (Appellant No.1) All are R/o Akash Nagar, Rawanbhantha, Raipur, District Raipur (CG) 4 - Deendayal Sahu S/o Late Baisakhu Ram Sahu, Aged About 60 Years 5 - Smt. Sushila Bai W/o Deendayal Sahu, Aged About 56 Years Appellant no. 4 & 5 are R/o Village Aurethi, Police Station Simga, District Raipur, Chhattisgarh (Now Balodabazaar-Bhatapara) ---Appellants/claimants Versus 1 - Khurshid Khan S/o Mahbub Khan, Aged About 52 Years R/o Masjid Para, Lakhanpur, Police Station Lakhanpur, District Surguja, Chhattisgarh ................Driver Of The Offending Vehicle. 3 2 - M/s Vijay Ingole And Sons, Shri Sai Baba Travels, Pandri, Raipur, Chhattisgarh ................Owner Of The Offending Vehicle. 3 - Bajaj Allianz General Insurance Company Limited, Shiv Mohan Bhawan, Vidhan Sabha Road, Pandri Raipur, District- Raipur, Chhattisgarh ................Insurer Of The Offending Vehicle. --- Respondents : Mr. Sangeet Ku. Kushwaha, Advocate For Appellant in MAC No.68/2017 & Respondent No.3 in MAC No.1656/2016. For Appellants in MAC : Mr. Pushpendra Kumar Patel, Advocate No.1656/2016 & Respondents No. 1 to 5 in MAC No.68/2017. For others respondents : None though served. Hon’ble Smt. Justice Rajani Dubey, J CAV Judgment Since both these appeals arise out of the award dated 21.10.2016 passed by Additional Motor Accident Claims Tribunal, Raipur (in short “the
Decision
Tribunal”) in MACT No. 56/2012, they are being disposed of by this common judgment. By the impugned award, the Tribunal awarded a total compensation of Rs.15,92,424/- with interest @ 7.5% per annum from the date of application till realization, fastening liability on the non-applicant No.3/insurance company jointly and severally along with non-applicant No.1/driver and non-applicant No.2/owner. 02. As per claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (in short “the Act of 1988”), on 13.11.2008 at about 5.30 am Gurudayal Sahu was going from Village-Aaurethi to SKS Steel Pvt. Ltd. Company, 4 Siltara on a motorcycle in connection with his work. However, near village Bhumiya main road, non-applicant No.1 Khurshid Khan driving the vehicle Bus bearing registration No. CG 04 E 1536 (hereinafter referred to as “the offending vehicle”) in a rash and negligent manner dashed his motorcycle from behind as a result of which Gurudayal Sahu suffered grievous injuries and succumbed to the same on the spot. On information being received, the police registered offence under Section 304A of IPC against non-applicant No.1. The claimants, who are widow, children and parents of the deceased, pleaded that at the time of accident, the deceased was 40 years of age, working as Senior Chemist and drawing salary of Rs.10,000/-. Hence they being totally dependent upon the income of the deceased claimed compensation of Rs.41.50 lacs under various heads. 03. Non-applicants No.1 & 2 in their joint written statement contended that on 3.11.2008 no accident was caused by the offending vehicle. The police filed a forged and fabricated charge sheet against non-applicant No.1. The offending vehicle was duly insured with non-applicant No.3, therefore, liability, if any, of paying compensation is of non-applicant No.3. 04. Non-applicant No.3/insurance company in its written statement pleaded that at the time of accident, the offending vehicle was not insured with it. The offending vehicle was not involved in this accident. The deceased was not having any driving licence and the accident occurred due to negligence on the part of the deceased. The claimants are not dependent upon the deceased. It was further pleaded that non-applicant No.1 was driving the offending vehicle with passengers beyond the prescribed sitting 5 capacity without fitness certificate and permit. Therefore, there being breach of policy conditions also the insurance company is not liable to pay any compensation. 05. Based on the pleadings of the respective parties, the learned Tribunal framed 05 issues and after appreciation of oral and documentary evidence on record passed the impugned award as mentioned above. Hence these appeals by the insurance company and the claimants. 06. Learned counsel for the appellant/insurance company in MAC No.68/2017 would contend that learned Tribunal ought to have conducted proper enquiry under Section 168/169 of the Act of 1988. It appears that the deceased himself was liable for the accident. The FIR was lodged against unknown vehicle and that the offending vehicle was not insured with the appellant/insurance company on the date of accident. He would submit that no notice regarding the accident was sent to the appellant under the provision of Sections 158(6) and 134C of the Act of 1988 and hence it was not within the knowledge of the appellant that the offending vehicle was involved in the said accident. The insurance company sent a notice to the owner for cancellation of insurance policy and it was cancelled due to dishonour of cheque. This apart, the Tribunal has awarded excessive compensation in absence of any cogent and reliable evidence, therefore, the same is liable to be reduced suitably. 07. Learned counsel for the appellants/claimants in MAC No.1656/2016 supporting the impugned award to the extent of fixing liability on the non- applicant No.3/insurance company, would argue that the learned Tribunal has committed illegality in not allowing the entire claim of the claimants in 6 view of unrebutted evidence adduced by not properly assessing the income of the deceased and granting a meager amount under the conventional heads. Therefore, the impugned award is liable to be modified and the compensation be enhanced suitably. 08. Heard learned counsel for the parties and perused the material available on record. 09. On the basis of pleadings of the respective parties, learned Tribunal framed five issues for adjudication. Issue No.1 reads as under: dza वा(cid:2)द्ቚ् नि(cid:7)ष्क्ቧ(cid:11) 1. क्या(cid:2) घट(cid:7)(cid:2) दिद(cid:7)(cid:2)(cid:17)क 03.11.2008 क(cid:18) सु(cid:20)बह 05:45 बजे(cid:24) ቇኋ(cid:2)म- भू(cid:28)मिमया(cid:2) म(cid:24)(cid:7) रो(cid:18)ड "्ቚम(cid:2)णि8त" क(cid:24) पा(cid:2)सु अ(cid:7)(cid:2)वा(cid:24)दक क-1 (cid:7)(cid:24) अ(cid:7)(cid:2)वा(cid:24)दक क-2 क(cid:24) स्वा(cid:2)मिमत्वा एवा(cid:17) अ(cid:7)(cid:2)वा(cid:24)दक क-3 क(cid:24) पा्ቌ ब&मिमत वा(cid:2)ह(cid:7) क. सु&.जे&. 04 ई. 1536 क(cid:18) त(cid:24)जे& एवा(cid:17) ला(cid:2)पारोवा(cid:2)ह& पा(cid:28)वा(cid:11)क चला(cid:2)करो गु(cid:20)रुदया(cid:2)ला सु(cid:2)हू क(cid:24) म(cid:18)टरोसु(cid:2)याकला क(cid:18) ठो(cid:18)करो म(cid:2)रो दिदया(cid:2), जिजेसुक(cid:24) फलास्वारूपा गु(cid:20)रुदया(cid:2)ला सु(cid:2)हू क(cid:18) गु(cid:17)भू&रो च(cid:18)ट आई. जिजेसुसु(cid:24) घट(cid:7)(cid:2) ्ቝला पारो ह& उसुक5 म6त्या(cid:20) ह(cid:18) गुई? 10. It is clear from the records that claimant Bismat Bai (AW-1) exhibited all the documents of criminal case in her evidence and stated that she filed certified copy of criminal case, final report Ex.P/1, FIR (Ex.P/2), Merg Intimation Ex.P/3, Inquest Ex.P/4, Postmortem report Ex.P/5, Seizure Memo Ex.P/6, Arrest Memo Ex.P/7, driving licence of Gurudayal etc. AW-2 Akshay Kumar, who is eyewitness to the incident, states that driver of bus bearing registration No. CG 04 E 1536 of Saibaba Travels by driving the vehicle in a rash and negligent manner dashed the motorcycle of 7 Gurudayal Sahu. He remained firm in his cross-examination. It is also clear that driver and owner did not adduce oral or documentary evidence before the learned Tribunal. Hence in view of the specific pleadings of the claimants and the evidence adduced in support thereof, learned Tribunal rightly decided Issue No.1 in favour of the claimants and held that it is driver Khurshid Khan, Non-applicant No.1, who was responsible for the accident resulting in death of Gurudayal Sahu. 11. Learned counsel for the appellant/insurance company also objected that the offending vehicle was not insured with the insurance company. In this regard, insurance company examined its Law Officer namely Pankaj Kumar as NAW-1 who states that vehicle bearing No. CG 04 E 1536 was insured with his office and the insurance policy bearing No.OG-09-2303- 1812-00000186 was issued which was valid from 28th September, 2008 to 27th September, 2009. He states that cheque deposited by Rajesh Kumar Agrawal of District Cooperative Bank got dishonoured due to insufficiency of amount in the account of the drawer and information regarding dishonour of cheque was received by the company from the Central Bank. Cheque Return Memo is Ex.D/1 and copy of the information regarding dishonour of cheque given by the insurance company to the RTO and financial company is Ex.D/2. In cross-examination this witness admits that he cannot tell as to when the cheque given by non-applicant No.2 towards premium was deposited by the insurance company and no such acknowledgment is filed in this case. He only filed cheque dishonour letter sent by the insurance company to non-applicant No.2 as Ex.D/4. 12. Bhagvendra Singh NAW-2, Assistant Accountant in Renuka Nagarik Cooperative Bank Ltd. Ambikapur, examined on behalf of non-applicant 8 No.2, filed certified copy of bank account statement of Rajesh Agrawal as Ex.D/6 for a period from 1.9.2008 to 30.11.2008. He states that cheque No.18605 issued by Rajesh Agrawal was never produced before his bank and as such, no question of its dishonour arises. 13. NAW-3 Chandrashekhar Reddy, Manager in Standard Charted Bank, Bandra-Kurla, Mumbai, examined on behalf of the insurance company also states that the cheque deposited by the insurance company got dishnoured due to insufficiency of amount in the account of the drawer. NAW-4 Sandeep Kumar, Sr. Manager of Central Bank of India states in examination-in-chief that the cheque got dishonoured at the bank but in cross-examination admits that the Cheque Return Memo of Ex.D/8 was issued by his branch office. 14. Learned Tribunal also minutely appreciated all the documents filed by non-applicants No. 2 & 3 i.e. owner and insurer and found that the insurance company did not send information related to the offending vehicle to RTO related but sent information pertaining to vehicle No. CG 15 CA 9196 and the insurance company sent notice after the date of accident. Admittedly, the accident occurred on 13.11.2008 whereas the insurance company sent notice for cancellation of insurance on 27.11.2008. In view of aforesaid oral and documentary evidence, the learned Tribunal rightly rejected all the objections of the insurance company and fastened liability upon it jointly and severally along with non-applicants No. 1 & 2. This Court finds no illegality or infirmity in the findings so recorded by learned Tribunal. 15. As regards quantum of compensation, considering the oral and documentary evidence adduced by the claimants with regard to age and income, this Court finds that the learned Tribunal rightly assessed age of the 9 deceased as 42 years and his income as Rs.9558/- per month. Looking to the number of dependents i.e. five, age of the deceased and the nature of his job, the Tribunal was justified in making 1/4th deduction towards personal and living expenses of the deceased, applying multiplier of 14 and granting 30% addition to his annual income towards future prospect. However, the amount awarded towards the conventional heads being not in accordance with the decisions of the Hon’ble Supreme Court in the matter of National Insurance Co. Ltd. Vs. Pranay Sethi, (2017) 16 SCC 680 and Magma General Insurance Co. Ltd. Vs. Nanuram @ Chuhru Ram and others, (2018) 18 SCC 130, it needs to be enhanced accordingly. Thus, the claimants are held entitled for compensation as under: Heads Sl. No. Calculation (in rupees) 01. Income of the deceased @ Rs.9,558/- Rs.1,14,696/- per per month. annum 02. 30% of (i) above to be added towards Rs.1,49,105/- future prospects. (Rs.1,14,696 + Rs.34,409) 03. 1/4th deduction towards personal and Rs.1,11,829/- living expenses of the deceased (Rs.1,49,105-37,276) 04. Multiplier of 14 to be applied Rs.15,65,606/- 05. Towards loss of spousal consortium to Rs.40,000/- claimant No.1 Towards loss of parental consortium to Rs.80,000/- claimants No. 2 & 3 each @ Rs.40,000/- 10 Towards loss of filial consortium to Rs.80,000/- claimants No. 4 & 5 each @ Rs.40,000/- Towards funeral expenses Rs.15,000/- Towards loss of estate Rs.15,000/- Total compensation Rs.17,95,606/- Since the Tribunal has already awarded Rs.15,92,424/-, after deducting the same from the above amount, the claimants are held entitled for additional compensation of Rs.2,03,182/- (Rupees Two lacs three thousand one hundred and eighty two only) with simple interest @ 7.5% per annum from the date of application till realization. However, rest of the terms and conditions in the impugned award shall remain intact. 16. In the result, MAC No.68/2017 filed by the appellant/insurance company being devoid of any substance is hereby dismissed. MAC No.1656/2016 preferred by the appellants/claimants is allowed in part with modification in the impugned award to the extent indicated above. MOHD AKHTAR KHAN Digitally signed by MOHD AKHTAR KHAN Date: 2025.05.08 15:46:23 +0530 Khan Sd/ (Rajani Dubey) Judge