Nafr High Court
Case Details
1 2025:CGHC:19095 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 972 of 2017 Judgment Reserved on : 03.03.2025 Judgment Delivered on : 28.04.2025 1. 2. 3. 1. 2. 3. Smt. Renu Sharma, W/o Late Shivnarayan Sharma, Aged About 21 Years, R/o Ghasidas Nagar Nandani Road, Near Jamul Thana, P.S. Jamul, District Durg, Chhattisgarh. Ku. Isha Sharma, D/o Late Shivnarayan Sharma, Aged About 1 Years, Minor Natural Guardian Namely Smt. Renu Sharma, W/o Late Shivnarayan Sharma, R/o Ghasidas Nagar Nandani Road, Near Jamul Thana, P.S. Jamul, District Durg, Chhattisgarh. Smt. Gyandevi W/o Shivkumar Sharma Aged About 48 Years R/o Ghasidas Nagar Nandani Road, Near Jamul Thana, P.S. Jamul, District Durg, Chhattisgarh ... Appellants versus Krishna Sharma S/o Dhaneshwar Sharma R/o Ghasidas Nagar, Nandaniroad Bhilai, P.S. Jamul, District- Durg, Chhattisgarh,……… (Driver of vehicle No.CG-07-C-6053) Lallan Sharma S/o Dhaneshwar Sharma R/o Ghasidas Nagar, Near Durga Manch, Nandari Raod Bhilai, Tahsil And District Durg, Chhattisgarh………… (Owner of vehicle No.CG-07-C-6053) Divisional Manager, Bajaj Allianz General Insurance Company Shivmohan Bhawan, Vidhansabha Raod, Pandri, Raipur, Chhattisgarh……………… (Insurer of vehicle No.CG-07-C-6053) Digitally signed by VIJAY BHARATRAO PEKDE 2 4. Amit Kumar Sharma S/o Lallan Sharma R/o Ghasidas Nagar, Bhilai Post Jamul, District- Durg, Chhattisgarh. ... Respondent(s) For Appellants For Respondent Nos.1, 2 & 4 For Respondent No.3 : : :
Legal Reasoning
Mr. Amiyakant Tiwari, Advocate. Mr. Uttam Pandey, Advocate Mr. Sangeet Kumar Kushwaha, Advocate. (Hon'ble Smt Justice Rajani Dubey) (C.A.V. Judgment) 1. This appeal arises out of the award dated 07.03.2017 passed by 2nd Additional Motor Accident Claims Tribunal (for short the “Tribunal”), Durg (C.G.), in Motor Accident Claim Case No.90/2013 awarding a compensation of Rs.7,11,000/- in favour of the claimants/appellants for the death of Shivnarayan Sharma (since deceased). 2. Facts of the case in brief are that on 03.05.2007 at around 1.30 PM, when deceased Shivnarayan Sharma was standing near Pooja Grocery Shop, at the relevant time, the offending vehicle Minidor bearing registration No. CG-07-C- 6053, which was owned by non-applicant No.2/respondent No.2 and insured with non-applicant No.3/respondent No.3 being driven by non-applicant No.1/respondent No.1 in rash and negligent manner dashed the deceased as a result of which he got seriously injured. Thereafter, Shivnarayan 3 Sharma was immediately taken to Sector 9 BSP Hospital for treatment where he died during the course of treatment. A report against non-applicant No.1/respondent No.1 was made in police station Jamul and after due investigation, charge sheet under Sections 279, 337, 304-A of IPC was filed against him before jurisdictional Court. 3. A claim case was filed by the claimants/appellants, who happen to be the legal heir of the deceased claiming a compensation of Rs.31,20,000/- inter alia pleading that the deceased was Contractor, he was earning Rs.85,000/- per annum and the claimants/appellants were dependent upon him. 4. Pleading of the claimant have, however, been denied by the non-applicant Nos.1 and 2/respondent No.1 and 2 & non- applicant No.3/respondent No.3 – Insurance Company except admitted facts. 5. After evaluating the evidence available on record, the learned Tribunal recorded its finding that the offending vehicle Minidor bearing registration No.CG-07-C-6053 was insured with Insurance Company/respondent No.3 but at the time of accident, it was being driven by minor Amit Kumar Sharma – respondent No.3. On the date of incident, neither Amit Kumar/respondent No.3 nor Krishna Sharma/respondent No.1, who taught driving, has a valid 4 and effective driving license. As such, it was proved that the offending vehicle was being driven in violation of terms of policy condition, therefore, Insurance Company/respondent No.3 exenorate from its liability and held respondent No.1, 2 and 4 herein to pay compensation amount jointly and severally, and awarded the compensation of Rs.7,11,000/- along with interest @ 6% per annum in favour of the claimants/appellants taking the annual income of the deceased as Rs.36,000/-, deducting 1/4th towards personal expenses, adding 50% future prospect and applying the multiplier of 17. Hence, this appeal by the claimants/appellants for enhancement of the compensation amount. 6. Learned counsel for the appellants submits that the impugned award passed by the learned Tribunal is bad in law, arbitrary and is on lower side, therefore, liable to be enhanced. The Insurer was wrongly exonerated from its liability to satisfy the award. Learned counsel further submits that the Tribunal ought to have directed the insurer to pay the compensation first and recovered from the insured. The insurer did not successfully prove the breach on the part of the insured and merely proved the factum of vehicle being plied by a person not having valid and effective driving license. In order to succeed in this issue, 5 the insurer must have prove the knowledge on the part of the insured, and thereafter, the factum of willful breach by him but in this case requirement of law was not satisfied, yet the Tribunal exonerated the insurer from its liability, which resulted in miscarriage of justice to the claimants/appellants. Learned counsel also submits that Tribunal assessed the monthly income of the deceased as Rs.3000/- per month and Rs.36,000/- per annum, but the accident took place on 03.05.2007 and at that time minimum notional income was Rs.4500/- and it is apparent that four claimants have filed this application, so, the learned Tribunal wrongly deducted 1/3rd towards personal expenses and it should have been 1/4th and the Tribunal ought to have passed the order of pay and recovery. In support of his submission, learned counsel placed reliance on the decision on Hon’ble Apex Court in the matter of National Insurance Co. Ltd. New Delhi Vs. Jugal Kishroe and Others reported in (1998) 1 SCC 626. 7. Learned counsel for respondent Nos. 1, 2 and 4 strongly opposed the prayer of the appellants. 8. Learned counsel for respondent No.3-Insurance Company submits that the learned Tribunal having considered the evidence brought before it, has rightly exonerated the insurance company from its liability. So, this appeal is 6 without any merit and liable to be dismissed. 9. Heard both the counsel for the parties and perused the material available on record. 10. Admittedly, the accident took place on 03.05.2007 due to rash and negligent driving of non-applicant No.1/respondent No.1, driver of offending vehicle Minidor bearing registration No.CG-07-C-6053, in which Shivnarayan Sharma got seriously injured and died during the course of treatment in Sector-9 BSP Hospital. The learned Tribunal recorded its finding in Issue No.3 that on the date of incident, driver Krishna Sharma was not driving the offending vehicle and it was being driven by respondent No.4-Amit Kumar Sharma, who was minor on the date of incident, and a criminal case was registered against respondent Nos. 1 and 4 & there was breach of policy condition. It is clear from the documents of criminal case that FIR (Ex.P-1) was lodged against driver Amit Sharma and after due investigation, the charge sheet was filed against driver Krishna Sharma and Amit Sharma, who was minor at the time of accident. The learned Tribunal has rightly decided this issue. 11. The Hon’ble Apex Court in the matter of Jugal Kishore (supra) directed the Insurance Company to pay the compensation first which is recoverable by it from the owner and driver of the vehicle. 12. As regards amount of compensation, it is apparent that the 7 claimant/appellant No.1 – wife of deceased, has filed income tax document (Ex.P-7) for the year 2005 to 2006 showing the income of the deceased as Rs.85,200/- but she has admitted that she did not file the income tax document return prior to 31st March, 2007, and the learned Tribunal held that it cannot be considered that the deceased had continuous income of Rs.85,000/- and assessed the income of the deceased as Rs.3,000/- per month and Rs. 36,000/- per annum. In this case, admittedly, the incident took place on 03.05.2007, and at the relevant time, the minimum wages of unskilled labour was Rs.4,700/-, thus, the learned Tribunal ought to have assessed the monthly income of the deceased as Rs.4,700/-, which it has failed to consider. The learned Tribunal considering the number of claimants has rightly deducted 1/4th towards personal expenses and has assessed the age of the deceased as 28 years on the basis of material available on record and rightly applied the multiplier of 17 and considered 50% towards future prospect. However, learned Tribunal awarded less amount under conventional heads such as funeral expenses, loss of estate, towards spousal and filial consortium & love and affection. The Supreme Court in the matter of National Insurance Company Vs. Pranay Sethi reported in (2017) 16 8 SCC 680 and Magma Vs. Nanu Ram @ Chuhru Ram reported in 2018 (18) SCC 130 dealt with the various heads under which compensation is to be awarded in a death case. Thus, keeping in view all these things, above discussion and in view of decisions of Hon'ble Supreme Court in the matter of Magma and Pranay Sethi (supra), this Court is of the view that the amount awarded by the Claims Tribunal is on lower side and requires reconsideration. The claimants/appellants are entitled for compensation in the following manner:- Head Awarded by Tribunal Awarded by this Court Income Rs.36,000/- (Rs.3000/- month x 12) Rs.56,400/- (Rs.4,700/- per month x 12) per Deduction towards living and personal expenses Rs. 9,000/- (1/4th of 36,000/-) Rs.14,100/- (1/4th of 56,400/-) Future Prospect 13,500/- (50% of 27,000/- Rs.21,150/- (50% of Rs.42,300/-) Total Loss of Dependency Rs.40,500/- (27,000 + 13500) Rs.63,450/- (42,300 + 21,150) Multiplier applied 17 17 Loss of Future Income Rs.6,88,500/- (Rs.40,500 x 17) Rs.10,78,650 (Rs.63,450/- x 17) Rs.22,500/- Towards conventional head like funeral expenses, loss of estate, spousal consortium claimant and affection to No.1 love & to spousal Towards Consortium to claimant No.1 – Rs.40,000/- Towards parental consortium to claimant No.2 – Rs.40,000/- Towards filial consortium to claimant No. 3 – 9 claimants No. 3 & 4 Rs.40,000/- Towards filial consortium to claimant No. 4 – Rs.40,000/- Towards loss of estate to claimant - Rs.15,000/- Towards Expenses – Rs.15,000/- Funeral Total Rs.1,90,000/- Total Compensation awarded Rs. 7,11,000/- Rs.12,68,650/- 13. Thus, the total compensation including the amount awarded on conventional heads comes to Rs.12,68,650/- i.e. (10,78,650 + 1,90,000/-) for which the claimants are entitled to receive as compensation, is just and proper, for the death of deceased Shivnarayan Sharma. Since the Tribunal has already awarded Rs.7,11,000/-, after deducting the same the claimants/appellants are entitled for enhanced amount of Rs.5,57,650/-. This additional amount of compensation shall carry interest @ 6% p.a. from the date of filing of claim application till its realization. The amount received by the claimants, if any, shall be adjusted in the enhanced sum. 14. In view of the decision of Hon’ble Apex Court in the matter of Jugal Kishore (supra), the Insurance Company is directed to pay the amount of compensation first to the claimants 10 and then recover the same from owner and driver of the offending vehicle. 15.
Decision
In the result, the appeal is thus allowed with the modification as stated above. Sd/- (Rajani Dubey) Judge pekde