Amrit Vishwakarma S/o Shri Mahadev Ram Vishwakarma Aged About 27 Years Occu - Owner v. 1 - Lakhan Vishwakarma S/o Late Chandradev Vishwakarma Aged About 52 Years Occu. Badai
Case Details
-1- 2025:CGHC:29037 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 165 of 2019 Amrit Vishwakarma S/o Shri Mahadev Ram Vishwakarma Aged About 27 Years Occu - Owner Of Vehicle R/o Mohalla Mahamayapara (Nahar Road), Ward No. 20, P.S. And Tehsil Ambikapur, District Surguja Chhattisgarh. (Owner) ... Appellant (s) versus 1 - Lakhan Vishwakarma S/o Late Chandradev Vishwakarma Aged About 52 Years Occu. Badai, Mason 2 - Smt. Chandramani W/o Lakhan Vishwakarma Aged About 45 Years Occu. House Wife 3 - Smt. Meena Devi W/o Late Ranjeet Vishwakarma Aged About 25 Years Occu. House Wife 4 - Kumari Palak Vishwakarma D/o Late Ranjeet Vishwakarma Aged About 3 Years (Minor) 5 - Tanmay Vishwakarma S/o Late Ranjeet Vishwakarma Aged About 1 Years (Minor) Applicants No. 4 & 5 through guardian mother applicant No.3 All Caste Lohar R/o Mohalla Mahamayapara (Nahar Road), Ward No. 20, P.S. And Tehsil Ambikapur District Surguja Chhattisgarh 6 - Branch Manager United India Insurance Company Ltd, Branch Ambikapur, Bramha Road, P.S. And Tehsil Ambikapur District Surguja Chhattisgarh. (Insurer) ... Respondent(s) Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.07.11 10:40:42 +0530 -2- __________________________________________________________ For Appellant (s) : Mr. Nishikant Sinha, Advocate For Resp No. 1 to 5 : Ms. Mahima Chandra, Advocate on For Respondent No. 6 : behalf of Ms. Hamida Siddiqui, Advocate Mr. Abhishek Mishra, Advocate on behalf of Mr. B.N. Nande, Advocate _______________________________________________________
Legal Reasoning
S.B.: Hon'ble Shri Parth Prateem Sahu, Judge Judgment On Board 30/06/2025 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) is filed by the appellant/owner of the offending vehicle challenging award of compensation passed by learned Fifth Motor Accidents Claims Tribunal, Ambikapur, District- Sarguja (CG) vide award dated 18.10.2016 passed in Motor Accident Claim Case No.14 of 2016. 2. Facts relevant for disposal of this appeal are that respondents No. 1 to 5/claimants filed an application under Section 166 of the Act of 1988 before the learned Fifth Additional Motor Accident Claims Tribunal, Ambikapur (CG) pleading therein that on 14.11.2015 when Ranjit Vishwakarma was coming to his home in Ambikapur from Tiger Point Mainpat in Scorpio vehicle no. CG 15 CL 4543, at around 05:45 p.m. near village Bijlahawa, Ranjit stepped down from the vehicle and went to the side of the road to answer nature’s call, at the same time, non- applicant No.1, driving the offending vehicle rashly and negligently, hit the deceased and collided with a tree standing on the side of road, due to which the deceased suffered serious injuries and died in the -3- hospital during course of his treatment. Age of the deceased at the time of accident was 27 years and was he working as a Manager in Ravi Cement Traders, Kharsia Naka Ambikapur. He was earning Rs.8000/- (eight thousand rupees) pe month. The applicants were dependent on the deceased. Hence, they pray for total compensation of Rs.35,00,000/- under different heads from respondents. 3. Non-applicant No.1 by filing its written statement opposed the claim application pleading that the accident of the deceased was caused by an unknown vehicle, as non-applicant was also with the deceased in which he also got seriously injured. It is additionally pleaded that on the date of the accident, deceased had gone to Mainpat with no-applicant No.1 in which eight people were riding in the vehicle along with non- applicant No.1 and while returning from Mainpat, the vehicle met with an accident due to a side collision with an unknown vehicle, in which the hand of non-applicant No.1 was broken and he got head injury, other persons sitting in the vehicle also got seriously injured. On the alleged date of the incident, deceased met with an accident with another vehicle, for which he himself is responsible. Even if the accident happened with the said vehicle, in such a situation also the liability to pay compensation is not on non-applicant No.1 because the vehicle of non-applicant No.1 was insured with non-applicant No.2/ insurance company on the date of accident and the burden of covering the risk of accident is on the insurance company, hence, the liability to pay amount of compensation is of non-applicant No.2/Insurance Company. 4. Non-applicant No.2/Insurance Company in its written statement stated -4- that the vehicle has been insured by the vehicle owner Amrit Vishwakarma for his own use, however, it was was being plied on the date of accident as passenger transport vehicle in violation of the policy and registration conditions . Further, the vehicle was being used in violation of the registration and insurance conditions, at the time of accident, more persons than the prescribed capacity were travelling in the vehicle, due to which non-applicant No.3/Insurance Company has no responsibility for the damage arising out of the alleged accident. 5. Learned Claims Tribunal, on appreciation of pleadings and evidence brought on record by respective parties, held that on the date of accident, offending vehicle was being driven by non-applicant No.1 rashly and negligently, caused accident, in which Ranjit Vishwkarma suffered grievous injuries and died. Recording a finding that breach of conditions of the insurance policy has been found to be proved, held non-applicant No. 1 (Driver and Owner of the vehicle) liable to pay the amount of compensation. Assessing income of the deceased as Rs.4000/- per month, calculated amount of compensation under different heads, awarded total compensation of Rs.7,02,000/ -. 6. Learned counsel for appellant/owner would submit that learned Claims Tribunal erred in exonerating the insurance company only considering that at the time of accident, more persons than the seating capacity of the vehicle were travelling which is erroneous. He submits that according to insurance policy, risk of occupant of vehicle is also covered as seating capacity of vehicle is 8 including the driver, premium for covering risk of compulsory PA for owner and driver was also paid along with legal liability for paid driver. It is contention of -5- learned counsel for the appellant that in the aforementioned facts of the case when the policy issued by the insurance company for offending vehicle is live on the date of accident, the insurance company is liable to satisfy the amount of compensation with respect to 8 + 1 claim and indemnify the insured with respect to highest 8 claims . In support of his contention he places reliance upon the decision in the case of United India Insurance Company Ltd. Vs. K.M. Poonam and Ors. (2015) 15 SCC 297. 7. Learned counsel for the respondent No.6/Insurance Company vehemently opposes the submission of learned counsel for the appellant and would submit that learned Claims Tribunal has rightly recorded finding that more persons than the seating capacity were travelling on the vehicle on the date of accident, as such, there was breach of conditions of insurance policy. He further submits that in the claim application, claimants have tried to suppress the fact that deceased was travelling on the offending vehicle along with other persons and pleaded that deceased was a pedestrian and he was hit by offending vehicle which is incorrect in view of the documentary evidence available on record like FIR and charge sheet. He contended that in the evidence of father of deceased it has come that deceased before the accident has boarded down from the vehicle to answer's nature call and at that relevant time vehicle ran over him . 8. Learned counsel for respondents No. 1 to 5/ claimants would submit that claimants have filed cross-appeal seeking enhancement of amount of compensation. It is her contention that learned Claims Tribunal erred in assessing income of deceased as Rs.4000/- pe month overlooking -6- the date of accident, nor awarded any compensation under loss of future prospects. Amount of compensation under other conventional heads is also on lower side. 9. I have heard learned counsel for the parties and also perused the records of claim case. 10. So far as submission of learned counsel for the appellant/owner on exonerating the insurance company from its liability is concerned, perusal of the pleading made in the claim application would show that claimants have pleaded that at the time of accident deceased came out from offending vehicle to answer the nature's call and thereafter offending vehicle ran over him. Copy of documents of criminal case like FIR is filed by clamant as Ex.P-1 wherein it is mentioned that deceased along with others were travelling on the offending vehicle which met with an accident by dashing tree standing on roadside, in the said accident deceased suffered grievous injuries and died during course of his treatment. Claimants to prove pleadings made in the claim application has examined Lakan Vishwkarma as AW1 father of deceased. He is not the eyewitness to the accident. Non-applicant insurance company has also submitted copy of insurance policy as Ex.D-1 in which seating capacity of vehicle is mentioned as 8 including driver. The owner of offending vehicle has paid premium towards compulsory PA coverage for owner -driver, PA coverage for unnamed persons and legal liability to paid driver of Rs.50/-. 11. Learned Claims Tribunal, considering that at the time of accident, 9 persons were travelling on the offending vehicle, came to conclusion that as more persons were travelling than that of seating capacity of -7- the offending vehicle, there was breach of condition of insurance policy. No other ground/reason has been assigned for exoneration of insurance company. True it is that from the insurance policy (Ex.D-1) it is apparent that seating capacity of offending vehicle is mentioned as 8 including driver, it is the averment of non-applicant No.2 that at the time of accident 9 persons were travelling. No other admissible piece of evidence is available on record to suggest that at the time of accident 9 persons were travelling. Even if for any reason said averment of learned counsel for non-applicant No.2 who appeared before the Tribunal is accepted then also excess persons travelling on vehicle than that of the seating capacity of the said vehicle cannot be treated to be fundamental breach of conditions of insurance policy resulting in exoneration of insurance company from its liability. In the above facts of case and ground as considered by Claims Tribunal that 9 persons were travelling on the offending vehicle at the time of accident whereas seating capacity was only 8 for exoneration of the insurance company from its lability, is erroneous and not sustainable in the eyes of law. 12. Hon’ble Supreme Court in the case of K.M. Poonam (supra) has considered the issue of of tavelling more persons than the seating capacity of the vehicle involved in accident and observed thus: 33. However, in order to fix the liability of the insurer, the provisions of Section 147 have to be read with Section 149 of the Act which deals with the duty of the insurer to satisfy judgments and awards against persons insured in respect of third-party risks. Although, on behalf of the Insurance Company it has been sought to be contended that no third- -8- party risks were involved in the accident and that the persons travelling in the ill-fated vehicle were gratuitous passengers, the Insurance Company cannot get away from the fact that the vehicle was insured for carrying six persons and the liability of the Insurance Company was to pay compensation to the extent of at least six of the occupants of the vehicle, including the driver 33. However, in order to fix the liability of the insurer, the provisions of Section 147 have to be read with Section 149 of the Act which deals with the duty of the insurer to satisfy judgments and awards against persons insured in respect of third-party risks. Although, on behalf of the Insurance Company it has been sought to be contended that no third- party risks were involved in the accident and that the persons travelling in the ill-fated vehicle were gratuitous passengers, the Insurance Company cannot get away from the fact that the vehicle was insured for carrying six persons and the liability of the Insurance Company was to pay compensation to the extent of at least six of the occupants of the vehicle, including the driver. 34. Sub-section (1) of Section 149 of the Motor Vehicles Act, 1988, makes it amply clear that once a certificate of insurance is issued under sub-section (3) of Section 147, then notwithstanding that the insurer may be entitled to avoid or cancel the policy, it shall pay to the person entitled to the benefit of the decree any sum not exceeding the sum assured, payable thereunder, as if he was the judgment- debtor, in respect of the liability, together with any amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments. 35. Sub-section (2) of Section 149, however, places a fetter on the payment of any sum by the insurer under sub- section (1) in respect of any judgment or award unless, the -9- insurer had notice of the proceedings in which the said judgment or award is given and an insurer to whom such notice is given shall be entitled to be made a party thereto and to defend the action on the grounds enumerated therein involving a breach of a specified condition of the policy. 36. The liability of the insurer, therefore, is confined to the number of persons covered by the insurance policy and not beyond the same. In other words, as in the present case, since the insurance policy of the owner of the vehicle covered six occupants of the vehicle in question, including the driver, the liability of the insurer would be confined to six persons only, notwithstanding the larger number of persons carried in the vehicle. Such excess number of persons would have to be treated as third parties, but since no premium had been paid in the policy for them, the insurer would not be liable to make payment of the compensation amount as far as they are concerned. However, the liability of the Insurance Company to make payment even in respect of persons not covered by the insurance policy continues under the provisions of sub- section (1) of Section 149 of the Act, as it would be entitled to recover the same if it could prove that one of the conditions of the policy had been breached by the owner of the vehicle.” 13. In the case at hand even after putting specific query to counsel for respondent No.6/insurance company it could not be specifically stated that arising out of the accident 8 or more claims have been filed. In the facts of case, this Court taking note of submission of learned counsel for respective parties that arising out of accident only one claim application was filed and also considering the aforementioned decision -10- of Hon’ble Supreme Court in the case of K.M. Poonam (supra) learned tribunal erred in exonerating insurance company from its liability. Hence, said finding is not sustainable, it is set aside and it is held that insurance company is liable to indemnify the insured and to satisfy the award passed by learned Claims Tribunal. 14. So far as the ground raised by learned counsel for respondents No. 1 to 5/claimants seeking enhancement of amount of compensation is concerned, date of accident is 14.11.2015. Claims Tribunal finding that, claimants failed to prove nature of occupation, income of deceased, assessed the income on notional basis as Rs.4,000/- per month. Accident is dated 14.11.2015 and taking note of the minimum wages fixed by the Competent Authority under the Minimum Wages Act, I find it appropriate to to assess the income of deceased on the date of accident as Rs.5860/- it is ordered accordingly. 15. Learned Claims Tribunal has not awarded compensation under head of loss of future prospects. Hon'ble Supreme Court in the case of National Insurance Company Ltd. Vs. Pranay Sethi and Ors. (2017) 16 SCC 680 has observed that claimants will be entitled for addition of 40% of the assessed income towards loss of future prospects in fatal accident case where the age of deceased was less than 40 years. In the case at hand, age of the deceased is assessed by the Tribunal as 27 years and therefore there shall be addition of 40% of the assessed income towards future prospects. Tribunal has correctly deducted ¼ towards personal and living expenses taking note of number of dependents as 5 and further applied multiplier of 17 which does not call for any interference. -11- 16. Learned Claims Tribunal has not awarded amount of compensation under other conventional heads as held by Hon'ble Supreme Court in the case of Pranay Sethi (supra) and Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram & Ors. (2018) 18 SCC 130 and therefore I find it appropriate to re-compute the amount of compensation to be awarded to claimants/respondents No. 1 to 5. 17. Applicants are father, mother, widow and children of deceased- Ranjit Vishwakarma and therefore all the five claimants will be entitled for loss of filial consortium, spousal consortium and parental consortium of Rs.40,000/- each respectively, 18. As this Court has awarded compensation under head of loss of consortium to all the claimants according to decision of Hon'ble Supreme Court in the case of Pranay Sethi (supra) and Nanu Ram (supra), compensation awarded under loss of consortium subsumes the compensation under head of ‘loss of love and affection’, claimants will further be entitled for Rs.15,000/- towards ‘loss of estate’ and
Decision
Rs.15000/- towards ‘funeral expenses’. It is order accordingly. 19. For the foregoing discussions, I find it appropriate to re-compute the amount of compensation as under:- S. N. Heads Compensation 1. (A) Loss of Income/dependency Rs. 12,55,212 5860 x 12 =70320 (B) Addition towards future prospects @ 40% (70320 x 40% =28128) 70320+ 28128 = 98,448 (C) Deduction of 1/4 towards personal and living expenses (98,448 x 1/ 4 =24612) -12- 98448 - 28392 = 73836 (D) Multiplier of 17 73836 x 17 = 12,55,212 2. Funeral Expenses 3. Loss of Estate : : : (+) Rs. 15,000 (+) Rs. 15,000 (+) Rs. 80,000 4. 5. 6. Loss of Filial Consortium of Rs.40,000/- each to appellants/ claimants No. 1 & 2 (parents) Loss of spousal consortium to appellant/claimant No.3 (wife) : (+) Rs. 40,000 Loss of parental consortium of Rs.40,000/- each to appellant/ claimants No. 2 to 5 : (+) Rs. 1,60,000 Total compensation : Rs. 15,65,212 20. Now the appellants/claimants are awarded total compensation of Rs.15,65,212/- instead of Rs.7,02,000/- as awarded by the Claims Tribunal. 21. Aforementioned total amount of compensation shall carry interest @ 7.5% per annum from the date of filing of claim application till its realization. Any amount of compensation already paid to the claimants shall be adjustable from the total amount of compensation which has now been calculated and awarded by this Court. Other conditions of impugned award shall remain intact. 22. In the result, appeal filed by appellant/owner and cross-appeal by filed respondents/claimants both are allowed. Respondent No.6/non- applicant No.2 is held liable to satisfy the amount of compensation as -13- awarded. Impugned award is modified to the extent as indicated herein above. Sd/- (Parth Prateem Sahu) Judge Praveen