Nafr High Court
Case Details
YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.06.26 11:06:24 +0530 1 2025:CGHC:24968 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1139 of 2017 1 - Smt. Jalmati W/o Manish @ Mansha, Aged About 26 Years Cast Binjhwar, R/o Village Chandranagar, Police Station Sarsinwa, Tahsil Bilaigarh, District Baloda Bazar Bhatapara, Chhattisgarh. 2 - Ugrasen S/o Ghasiram, Aged About 50 Years Cast Binjhwar, R/o Village Chandranagar, Police Station Sarsinwa, Tahsil Bilaigarh, District Baloda Bazar Bhatapara, Chhattisgarh. 3 - Smt. Milan Bai W/o Ugrasen, Aged About 45 Years Cast Binjhwar, R/o Village Chandranagar, Police Station Sarsinwa, Tahsil Bilaigarh, District Baloda Bazar Bhatapara, Chhattisgarh. 4 - Ku. Dhaneshwari Aged About 1 Years 6 Month, Minor Represented Through Legal Guardian Mother Smt. Jalmati, Cast Binjhwar, R/o Village Chandranagar, Police Station Sarsinwa, Tahsil Bilaigarh, District Baloda Bazar Bhatapara, Chhattisgarh. --- Appellants Versus 1 - Toshendra Dhrahe S/o Madariya Dhirahe, Aged About 23 Years R/o Village Nandeli, District Janjgir Champa, Chhattisgarh. Driver Of Max Pick Up Mahindra No. C.G. 11 A B 0733 2 - Smt. Pushpa Kriplani W/o Manohar Kriplani, Aged About 50 Years R/o Station Road, Sakti District Janjgir Champa, Chhattisgarh. Owner Of Max Pick Up Mahindra No. C G 11 A B 0733 3 - United India Insurance Company Limited, Through The Branch Manager, Branch Office Post Office, Railway Station Road, Bhatapara, District Balodabazar Bhatapara, Chhattisgarh. --- Respondents 2 MAC No. 1138 of 2017 Toshram S/o Gosai Ram, Aged About 23 Years Caste Gond, R/o Chandranagar, Police Station Sarsinwa, Tahsil Bilaigarh, District Balodabazar Bhatapara Chhattisgarh....Claimant. --- Appellant Versus 1 - Toshendra Dhirhe Madariya Dhirhe, Aged About 23 Years R/o Nandeli, Police Station Sakti, District Janjgir- Champa Chhattisgarh....Driver Of Max Pick- Up Mahindra No. C. G.- 11- A B- 0733.
Legal Reasoning
2 - Smt. Pushpa Kriplani W/o Manohar Kriplani, Aged About 50 Years R/o Station Road, Sakti, District Janjgir- Champa Chhattisgarh....Owner Of Max Pick- Up Mahindra No. C. G.- 11- A B- 0733. 3 - United India Insurance Company Limited, Through Branch Office, Post Office, Railway Station Road, Bhatapara, District Balodabazar- Bhatapara Chhattisgarh....Insurer Of Max Pick- Up Mahindra No. C. G.- 11- A B- 0733.....Non Applicants. --- Respondents MAC No. 1555 of 2017 The United India Insurance Co. Ltd. Through Divisional Manager Branch Office Post Office Railway Station Raod, Bhatapara, District Baloda Bazar Bhatapara Chhattisgarh, Insurer Of Max Pickup Mahindra Bearing Registration No. C. G. 11/ A B / 0733 ---Appellant Versus 1 - Smt. Jalmati W/o Manish @ Mansha Aged About 26 Years Cast Binjhwar, R/o Village Chandranagar, Police Station Sarsinwa, Tahsil Bilaigarh, District Balodabazar- Bhatapara Chhattisgarh 2 - Ugrasen S/o Ghashiram Aged About 50 Years Cast Binjhwar, R/o Village Chandranagar, Police Station Sarsinwa, Tahsil Bilaigarh, District Balodabazar- Bhatapara Chhattisgarh 3 3 - Smt. Milan Bai W/o Ugrasen Aged About 45 Years Cast Binjhwar, R/o Village Chandranagar, Police Station Sarsinwa, Tahsil Bilaigarh, District Balodabazar- Bhatapara Chhattisgarh 4 - Minor Kumari Dhaneshwari, D/o Late Manish @ Mansha, Aged About 18 Months, Minor Represented Through Legal Guardian Mother Smt. Jalmati, Cast Binjhwar, R/o Village Chandranagar, Police Station Sarsinwa, Tahsil Bilaigarh, District Balodabazar- Bhatapara Chhattisgarh 5 - Toshendra Dhirhe S/o Madariya Dhirhe Aged About 23 Years R/o Village Nandeli, District Janjgir Champa Chhattisgarh Driver Of Max Pick Up Mahendra No. C. G. - 11- A B- 0733 6 - Smt. Pushpa Kriplani W/o Manohar Kripalani, Aged About 50 Years R/o Station Road, Sakti, District Janjgir Champa Chhattisgarh , District : Janjgir-Champa, Chhattisgarh --- Respondents MAC No. 1633 of 2017 The United India Insurance Co. Ltd. Through Divisional Manager Branch Office- Post Office Railway Station Road, Bhatapara, District Baloda Bazar- Bhatapara, Chhattisgarh. Insurer Of Max Pickup Mahindra Bearing Registration No. C. G. 11/ A B /0733 ---Appellant Versus 1 - Toshram S/o Gosai Ram Aged About 23 Years Cast- Gond, R/o Chandranagar, Police Station- Sarsinwa, Tahsil Bilaigarh, District Balodabazar- Bhatapara, Chhattisgarh. 2 - Toshendra Dhirhe, S/o Madariya Dhirahe, Aged About 23 Years R/o Village- Nandeli, District Janjgir- Champa, Chhattisgarh. Driver Of Max Pick Up Mahendra No. C. G. 11- A B -0733 3 - Smt. Pushpa Kriplani, W/o Manohar Kriplani, Aged About 50 Years R/o Station Road, Sakti, District Janjgir- Champa, Chhattisgarh. (Cause-title taken from Case Information System) ... Respondents 4 For Claimants : Mr. S.P. Sahu, Advocate For Owner and Driver : None For Insurance Company : Mr. P.R. Patankar, Advocate Hon’ble Shri Amitendra Kishore Prasad, Judge 17.06.2025 Judgment on Board 1. As all the appeals arise out of same accident and common
Decision
question is involved in it, therefore, they are being disposed of by this common judgment. 2. Challenge in all these four appeals is to the award dated 20.07.2017 passed by the Motor Accident Claims Tribunal, District Balodabazar (C.G.) (hereinafter referred to as 'Claims Tribunal') in Claim Case No.06/2014 and Claim Case No.05/2014, respectively whereby learned Claims Tribunal allowed claim applications in part of the respective claimants. 3. MAC No.1139/2017 and MAC No.1138/2017 have been filed by the legal heirs of the deceased Manish @ Mansha as well as injured claimant for enhancement of amount of compensation awarded by the learned Claims Tribunal whereas MAC No.1555/2017 and MAC No.1633/2017 have been filed by the Insurance Company challenging the liability fastened upon it stating that since the offending vehicle was not having requisite permit and fitness certificate to ply the vehicle, as such there is violation of the conditions of insurance policy as per Section 5 149(a)(i)(a) of the Motor Vehicles Act, 1988 (for short, ‘M.V. Act’), as such, in stead of Insurance Company, the concerned owner and driver are liable to pay the compensation to the respective claimants. 4. Brief facts of these appeals, in a nutshell, are that, on 30.08.2013, at about 4.00 PM, Manish along with his friend Toshram was going from Jaijaipur to his village Chandranagar on his motorcycle bearing registration No.CG-04/CA/7193, at that relevant time, when they reached near Gunjiya turning, a Mahindra Max Pick-up bearing registration No.CG-11/AB/0733 coming from opposite direction and driven by non-applicant No.1, dashed the motorcycle of Manish, due to which, both of them i.e. driver Manish and pillion rider Toshram fell down from the motorcycle. In the accident, Manish suffered severe injuries over his person and succumbed to the injuries on the spot, whereas Toshram has suffered fracture on his shoulder as well as injury on his right leg. Due to accident, his finger of leg was amputated. Toshram was admitted to Jaijaipur Government Hospital for treatment. The accident was reported to the concerned police station and crime bearing No.169/2013 was registered against the driver of the offending vehicle. 5. Though notices were issued to the respondents including driver and owner of the offending vehicle however, in spite of the service of the notice, none appeared on behalf of the driver and owner of the offending vehicle. 6 6. The claimants, who are widow, father, mother and daughter of Late Manish @ Mansha filed an application under Sections 166 and 140 of M.V. Act seeking total compensation of Rs.22,00,000/- towards loss of life pleading therein that on the date of accident, deceased was aged about 28 years and earning Rs.300/- per day while doing the work of Mason. 7. After recovery of the injured suffered by injured claimant Toshram, he has filed an application under Sections 166 and 140 of the M.V. ACt seeking total compensation of Rs.5,35,000/- pleading therein that at the time of accident, he was aged about 23 years and doing the work of Mason and earning Rs.9,000/- per month and due to the accident, he could work for more than one month as well as he got permanent disability in the accident as his finger of leg was amputated. 8. The driver and owner of offending vehicle submitted reply to claim application and denied the fact of accident itself. It was pleaded that offending vehicle was insured with the Insurance Company, as such, liability, if any, to satisfy the compensation would be upon the Insurance Company. 9. Insurance Company submitted reply to claim application, resisting the claim. It was further pleaded that on the date of accident, driver of the offending vehicle was not possessed with valid and effective licence, as such, there was breach of policy conditions, hence, Insurance Company be exonerated from its liability. 10. On appreciation of pleadings, oral and documentary evidence 7 brought on record by the respective parties, Tribunal held that Manish @ Mansha died on account of motor accidental injures due to rash and negligent driving of offending vehicle by the driver of the offending vehicle and breach of policy conditions, while awarding Rs.8,33,500/- as total compensation, fastened liability to satisfy the compensation upon the Insurance Company jointly and severally as well as the Claims Tribunal held that Toshram suffered grievous injury in the said motor accident, as such, while awarding compensation of Rs.14,500/- as total compensation, fastened the liability to pay the amount of compensation upon the Insurance Company. 11. Learned counsel for the claimants in MAC No.1139/2017 submits that learned Claims Tribunal has not assessed the income of deceased in appropriate manner. He further submits that learned Claims Tribunal has not awarded any amount of compensation towards future prospects. It is contended that learned Claims Tribunal erred in awarding meagre amount of compensation towards funeral expenses, loss of estate as well as loss of consortium and submits that amount of compensation be suitably enhanced. 12. Learned counsel for the claimant in MAC No.1138/2017 submits that the injured was not driving the motorcycle and he was travelling as pillion rider, as such, learned Claims Tribunal failed to 8 appreciate the fact that it is the case of composite negligence because injured was not contributed in the accident. He further submits that learned Claims Tribunal has wrongly assessed the income of injured and determined the compensation on the lower side. He lastly submits that in the given facts and circumstances of the case, appeal may be allowed and just compensation be awarded to the claimant. 13. Learned counsel for the Insurance Company submits that the offending vehicle was not having valid fitness certificate as well as permit, which is evident from the evidence of Siyaram Dhruw (Assistant Grade-II) of the Regional Transport Office, Janjgir, District Janjgir-Champa (C.G.), who has categorically stated that since the permit was not issued, therefore he has not carried the register of permit. The fitness was also for the period from 10.10.2013 to 17.10.2014 and the date of accident is 30.08.2013, however, in cross-examination, he could not state that the fitness certificate was not issued at the time of accident, as such, the appeal filed on behalf of the Insurance Company be allowed since the fitness certificate as well as permit was not there for the said vehicle, as such, it was a fundamental breach of insurance policy and hence, the Insurance Company is not liable to pay the amount of compensation. 14. Since no one has appeared on behalf of owner and driver and as such, this fact has not been rebutted by any of the party. 9 15. I have heard and considered the submission advanced by the learned counsel for the parties and perused the record of the claim cases. 16. In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza. 17. Now, this Court has to first examine MAC No.1139/2017 as to whether the compensation of Rs.8,33,500/- awarded by the Claims Tribunal is just and proper compensation in the given facts and circumstances of the case. 18. As regards income of the deceased, though the claimants have pleaded that the deceased was earning Rs.300/- per day while working as Mason, but no documentary evidence in support thereof has been adduced, but it cannot be said that the deceased was not earning anything from his work. Therefore, in absence of reliable evidence, income of deceased is to be assessed on notional basis keeping in mind the nature of occupation, date of accident, wage structure prevailing on the date of accident, price index and cost of living etc. specially notification by Labour Department for minimum wages in the year 2013. Upon considering the aforementioned factors, this Court finds it appropriate to take income of deceased (skilled labour) as 10 Rs.4,900/- per month i.e. Rs.58,800/- per annum from the work of skilled labour and as per National Insurance Company Ltd. v. Pranay Sethi and others reported in (2017) 16 SCC 680, after adding 40% towards future prospect i.e. Rs.23,520/-, the annual income comes to Rs.82,320/-. 19. The deceased was aged about 28 years on the date of accident and he was a married man having 1 daughter (total 4 claimants i.e. wife, daughter, father and mother), so deduction towards personal and caring expenses would be 1/4th, which is Rs.20,580/-. In view of judgment of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Limited v. Pranay Sethi and others, reported in (2017) 16 SCC 680, considering the age of the deceased, after applying multiplier of 17 as applied by learned Claims Tribunal, the total loss of income works out to Rs.10,49,580/-. The claimants are further entitled for loss of estate Rs.15,000/-, for funeral expenses Rs.15,000/- and as per Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram and others reported in (2018) 18 SCC 130, the claimants are further entitled for amount towards loss of consortium Rs.40,000/- each i.e. Rs.1,60,000/- (wife, son, father and mother). Further, 10% enhancement is every three years is also required to be given in respect of loss of estate, funeral 11 expenses and consortium. Thus, the claimants are entitled for compensation in the following manner:- Sl. No. Head Calculation Awarded amount 01 Income of deceased @ Rs. 4,900/- per month 02 40% of (1) above to be added as future prospects 03 1/4th of (2) deducted personal the as expenses of deceased Rs.58,800/- per annum 58,800 + 23,520 = Rs.82,320/- 82,320 – 20,580 = Rs.61,740/- 04 Compensation after 17 of multiplier applied 61,740 x 17 Rs.10,49,580/- 05 Towards estate loss of 15,000 + 3,000 Rs.18,000/- 06 Towards loss of love and affection to all the four claimants @ Rs. 40,000/- 40,000 + 8,000 = 48,000/- Rs.1,92,000/- 07 Funeral Expenses 15,000 + 3,000 Rs.18,000/- Total Compensation Awarded Rs.12,77,580/- 20. Thus, the total compensation is recomputed as Rs.12,77,580/-. After deducting Rs.8,33,500/- as awarded by the Claims Tribunal, the enhancement would be Rs.4,44,080/-. 21. In the result, the appeal being MAC No.1139/2017 is partly allowed. The claimants shall be entitled to Rs.4,44,080/- in addition to what is already awarded by the Claims Tribunal. The 12 enhanced amount will carry interest @ 9% from the date of enhancement of the award till its realization. 22. Now, this Court has to examine MAC No.1138/2017 as to whether the compensation of Rs.14,500/- awarded by the Claims Tribunal is just and proper compensation in the given facts and circumstances of the case. 23. From perusal of the record, it is apparent that the injured sustained fracture i.e. on clavicle bone. However, while granting compensation the Claims Tribunal has not considered the aforesaid aspect of the matter and has granted a very meager amount towards all heads. 24. Since the fracture of bone is not in dispute and the treatment for the same is also not disputed, as such, Clams Tribunal ought to have passed appropriate compensation. Usually fracture takes one month’s for its recovery and as such looking to the part of the body where the fracture was sustained, it seems that for one month the injured appellant must have not worked and had taken rest. 25. Considering the overall facts and circumstances of the case, this Court is of the opinion that for further treatment, the claimant must have spent reasonable amount for his treatment. It seems that he has also taken proper diet and medicines as such, considering the entire aspect of the matter, this Court thinks it appropriate to enhance the compensation as awarded by the Claims Tribunal 13 and a lump sum of Rs.60,000/- is awarded in addition to the amount already awarded by the Claims Tribunal. 26. In the result, the appeal being MAC No.1138/2017 is partly allowed. The claimant shall be entitled to Rs.60,000/- in addition to what is already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 9% from the date of enhancement of the award till its realization. It is made clear that remaining amount of award shall be paid by Insurance Company. 27. Now, this Court shall deal with the appeals filed by the Insurance Company being MAC No.1555/2017 and 1633/2017. 28. Learned counsel for the Insurance Company is challenging the impugned awards stating that the Insurance Company be exonerated from its liability to pay the amount of compensation on the ground that since offending vehicle was not having requisite permit and fitness certificate to ply the vehicle, as such there is violation of the conditions of insurance policy as per Section 149(a)(i)(a) of the M.V. Act. 29. Considering the facts and circumstances of the case, the evidence of Siyaram Dhruw (AW-2), Clerk of Regional Transport Office, Janjgir, District Janjgir-Champa (C.G.) as well as Lakhanlal Patel, Administrative Officer of the United India Insurance Company Limited, it seems that both the witnesses would not dispute the said fact that the offending vehicle was plied without permit and it was also not having appropriate fitness 14 certificate. Not bringing the register will not given any presumption to the Insurance Company, therefore, it cannot be said that the offending vehicle was not having valid permit. 30. Insofar as the fitness certificate is concerned, it is being issued time to time, as such the primary responsibility was upon the Insurance Company to produce this document at the time of accident as the offending vehicle was not having any fitness certificate. If this fact has been brought by the Insurance Company, the Tribunal should consider the same and should have passed the award, but in the present cases, on the basis of presumption, it cannot be held that the offending vehicle was not having effective permit and appropriate fitness certificate. 31. Insofar as driving licence is concerned, in paragraph-4 of the evidence of driver, Toshendra Dhirhe (NAW-1), he has specifically stated that he was having valid and effective driving licence that has been examined, as such, both the appeals filed by the Insurance Company fail and the learned Claims Tribunal has rightly fastened the liability upon the Insurance Company because there was a breach of conditions of the insurance policy. 32. I have perused the applications filed by the Insurance Company under Order 41 Rule 27 & 28 of the Civil Procedure Code for taking additional documents on record in MAC No.1555/2017 and MAC No.1633/2017 is perused. 15 33. Considering the grounds mentioned in the application, this Court is of the opinion that since the same is about the statements were recorded before the Police, as such it cannot be considered. If the Insurance Company should have examined the said witness before the Tribunal then only it can be taken into consideration. 34. In the result :- (i) MAC No.1139/2017 and MAC No.1138/2017 are allowed in part and (ii) MAC No.1555/2017 and MAC No.1633/2017 are dismissed. Accordingly, the United India Insurance Company shall pay the amount of compensation within a period of sixty days from the date of production of certified copy of this order. 35. Records of the concerned Motor Accident Claims Tribunal be sent. Yogesh Sd/- (Amitendra Kishore Prasad) Judge