Nafr High Court
Case Details
1 2025:CGHC:16528 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 229 of 2017 Judgment Reserved on : 25.02.2025 Judgment Delivered on :08.04.2025 1. 2. 3. 4. H. D. F. C. Ergo General Insurance Co. Ltd. Through Its Legal Manager, 3rd Floor, Chawla Complex, Devendra Nagar Raipur Chhattisgarh……...(Insurer/Respondent No.3) Raipur, District versus --- Appellant Lakesh Sahu, S/o Late Shri Guha Ram Sahu, Aged About 45 Years, R/o Sahadadev Para, Near Bajrang (Wrongly Written As ‘Banjrag’) Kirana Store, Uparwara, Thana Rakhi, District Raipur Chhattisgarh............. Claimant No. 1. Smt. Meera Bai Sahu, W/o Shri Lakesh Sahu, Aged About 42 Years, R/o Sahadadev Para, Near Bajrang (Wrongly Written As ‘Banjrag’) Kirana Store, Uparwara, Thana Rakhi, District Raipur Chhattisgarh............. Claimant No. 2 Abdul Rehman, S/o Late Shri Noor Mohammad, Aged About 54 Years, R/o South Eastern Road, Titagarh, Thana Titagarh, District 24 Pargana, West Bengal Presently R/o Kamal Vihar Project, Labour Colony, Laalpur, Devpuri, Thana Tikrapara, Raipur Chhattisgarh .......... Driver/Non Applicant No. 1. J. J. Associates, Address - House No. 16 Groves Garden, Laalpur, Thana Tikrapara, Raipur Chhattisgarh …….. (Owner/Non Applicant No. 2) --- Respondents 2 And MAC No. 231 of 2017 1. 2. 3. 4. H. D. F. C. Ergo General Insurance Co. Ltd. Through Its Legal Manger, 3rd Floor, Chawla Complex, Devendra Nagar, Raipur Chhattisgarh ....... (Insurer/Respondent No. 3) Versus ---Appellant
Legal Reasoning
Tiharu Sahu S/o Shri Mehattaru Ram Sahu, Aged About 46 Years R/o Kranti Chowk Sudama Nagar, Tikrapara, Thana Tikrapara Raipur, Chhattisgarh District …………......... (Claimant No. 1) Raipur Smt. Gwalin Bai Sahu, W/o Shri Tiharu Sahu, Aged About 43 Years R/o Kranti Chowk Sudama Nagar, Tikrapara, Thana Tikrapara Raipur, District Raipur Chhattisgarh …......... (Claimant No. 2) Abdul Rehman, S/o Late Shri Noor Mohammad, Aged About 54 Years R/o South Eastern Road, Titagarh, Thana Titagarh, District 24 Pargana, West Bengal. Presently R/o At Kamal Vihar Project, Labour Colony Laalpur, Devpuri Thana Tikrapara, Raipur Chhattisgarh ……….(Driver/Non Applicant No. 1) J. J. Associates, Address - House No. 16 Groves Garden, Laalpur, Thana Tikrapara Raipur Chhattisgarh ……..(Owner/ Non Applicant No. 2) --- Respondents And MAC No. 230 of 2017 H. D. F. C. Ergo General Insurance Co. Ltd. Through Its Legal Manager 34rd Floor, Chawla Complex, Devendra Nagar Raipur Chhattisgarh ........ (Insurer/Respondent No. 3) ---Appellant Versus 1. Tiharu Sahu S/o Shri Mehattaru Ram Sahu, Aged About 46 3 Years, R/o Kranti Chowk Sudama Nagar, Tikrapara, Thana Tikrapara Raipur, District Raipur, Chhattisgarh ....... (Claimant No. 1) Smt. Gwalin Bai Sahu, W/o Shri Tiharu Sahu, Aged About 43 Years, R/o Kranti Chowk, Sudama Nagar, Tikrapara, Thana Tikrapara Raipur, District Raipur Chhattisgarh ....... (Claimant No. 2) Abdul Rehman, S/o Late Shri Noor Mohammad, Aged About 54 Years, R/o South Eastern Road, Titagarh, Thana Titagarh, District 24 Pargana, West Bengal, Presently R/o At Kamal Vihar Project, Labour Colony Laalpur, Devpuri Thana Chhattisgarh…………...(Driver/Non Tikrapara, Applicant No. 1) Raipur J. J. Associates, Address - House No. 16 Groves Garden, Laalpur, Thana Tikrapara Raipur Chhattisgarh ……..(Owner/ Non Applicant No. 2). 2. 3. 4. --- Respondents For Appellant(s) : Mr. Tassy Abraham, Advocate on behalf of Mr. Amrito Das, Advocate. For Res. Nos. 1 & 2 : Ms. Shruti Jha, Advocate on behalf of Mr. Devershi Thakur, Advocate Hon'ble Smt. Justice Rajani Dubey (C.A.V. Judgment) 1. As these appeals arise out of the same accident and the
Decision
same vehicle, they are being disposed of by this common judgment. 2. Challenge in these appeals is to the award dated 04.11.2016 passed by the Additional Motor Accident Claims Tribunal, Raipur, District Raipur in Claim Case No.551/2014, 553/2014 and 557/2014, whereby in death case 4 compensation of Rs.8,19,000/- for the death of Sushil Kumar Sahu in M.A.(C) No.229/2017, Rs.5,86,000/- for the death of Sarojani Sahu in M.A.(C) No.230/2017 and for the death of Toman Lal @ Rinku in M.A.(C) No.231/2017, respectively, has been awarded to the claimants. 3. Facts of the case, in brief are that on 18.04.2014 at around 9.45 AM, Toman Lal @ Rinku Sahu, Sushil and Sarojani were going to Uparwara from Tikrapara Raipur to attend the marriage function on motorcycle bearing registration No. CG-04-KY-2189. When they reached near Railway Crossing ahead of Shadani Darbar, the respondent No.3, driver of the offending vehicle Hyva bearing registration No.CG-04-JC-8296, driving the vehicle in rash and negligent manner, dashed the motorcycle from behind, as a result of which, Tomanlal @ Rinku Sahu and Sushil sustained grievous injuries and succumbed to the injuries on the spot and Ku. Sarojani sustained grievous injuries on various parts of body. After the incident, Sarojani was taken to Mekahara Hospital, where she remained hospitalized for almost two months and underwent surgery and on 28.12.2014 she succumbed to the injuries during the course of treatment. Claim cases were filed by the claimants/appellants who are father and mother of the deceased claiming compensation to the tune of 5 Rs.12,50,000/- for the death of Sushil Kumar Sahu, Rs.32,80,000/- for the death of Sarojani Sahu and Rs.11,50,000/- for the death fo Toman Lal @ Rinku Sahu under various heads, inter alia, pleading that deceased Sushil Kumar Sahu in M.A.(C) No.229/2017 on the date of incident was aged around 20 years and earning Rs. 6,000/- by working as Computer Operator in Ismile Brothers, Raipur, deceased Sarojani in M.A.(C) No.230/2017 was aged around 15 years and due to death of Sarojani claimants had to suffer mental agony and loss of income & deceased Toman Lal @ Rinku Sahu in M.A.(C) No.231/2017 was aged around 21 years and earning Rs.5,000/- by doing job in Heera Bakery, Tikrapara, Raipur, and due to loss of their children they suffered mental agony, loss of income, love and affection. 4. The respondent Nos. 3 and 4 herein were ex-parte from the beginning, therefore, no written has been filed by them. 5. Pleadings of the claimants has, however, been denied by the Insurance company/appellants herein. 6. The Claims Tribunal by the impugned awards has awarded a compensation of Rs.8,19,000/- in M.A.(C) No.229/2017, Rs.5,86,000/- in M.A.(C) No.230/2017 and Rs.8,19,000/- in M.A.(C) No.231/2017 to the claimants under various head such as medical expenses, loss of income, pain & mental 6 agony, transporting expenses, attendant etc. It is these award which have been challenged by the appellant/Insurance Company in these appeals. 7. Learned counsel for the appellant/insurance company submits that the learned Claims Tribunal has erred in directing the appellant/insurance company to make necessary payment of compensation computed. The learned Claims Tribunal has utterly failed to appreciate the facts brought on record concerning the claim raised by the claimants. The learned Claims Tribunal has committed serious irregularities and illegalities in passing the impugned awards since the learned Claims Tribunal has absolutely erred in compounding the compensation payable to the claimants. Learned counsel further submits that the impugned awards passed by the learned Claims Tribunal are bad, perverse and contrary to the law applicable under the peculiarity of the facts of the case and hence deserves to be set aside. The learned Claims Tribunal has failed to consider that the driver of the offending vehicle was not having valid and effective driving license, in fact, he was not having any license. Learned counsel also submits that the learned Claims Tribunal has failed to consider that the driving license which was produced at the time to investigation was a forged license and in-fact upon further 7 investigation it was enquired that the said license was in fact issued in the name of one Shishir Sarkar and was not issued in the name of the driver. The said offending vehicle was being driven by a person who did not hold a valid and effective driving license at the time of the accident. The said fact was categorically proved by the appellant before the learned Tribunal but despite the same the learned Claims Tribunal fastened the liability to pay compensation onto the appellant/insurance company. 8. Learned counsel also submits that the learned Claims Tribunal failed to appreciate the fact that the burden to prove that the driver has misled the owner to believe that he had a valid and effective driving license whereafter the driver was permitted to drive, is on the owner. It is only once the owner proves the said fact and the said burden of proof is discharged, is the onus on the insurance company to prove that the owner despite having knowledge that the license was forged one, permitted the driver to drive the vehicle. The learned Claims Tribunal failed to consider that the owner failed to discharge his burden of proof and therefore, the onus never shifted on the appellant to prove that the owner was misled by the driver. The learned Claims Tribunal failed to consider that the appellant had established the fact that the driver did not have a valid and effective 8 driving license and therefore, the appellant ought to have been exonerated of the liability to pay compensation. Learned counsel further submits that the learned Claims Tribunal wrongly calculated the notional income of the deceased, so the entire compensation awarded by the learned Claims Tribunal is on the higher side, which deserves to be set aside. 9. Learned counsel appearing for respondent Nos. 1 and 2 strongly opposed the prayer of the appellant/Insurance Company and submits that the learned trial Court minutely appreciated the oral and documentary evidence and has rightly passed the award against the driver, owner and Insurance Company, which do not call for any interference by this Court. Thus, the aforesaid appeals are liable to be dismissed. 10. I have heard learned counsel for the parties and perused the material available on record. 11. It is apparent from the record of the learned Claims Tribunal that the accident took place on 18.04.2014 due to rash and negligent driving of driver of offending vehicle Hyva bearing registration No.CG-04-JC-8296, which was insured with appellant - Insurance Company. It is also not disputed that in the said accident, Toman Lal @ Rinku Sahu, Sushil and Ku. Sarojani succumbed to the injuries. The learned Claims 9 Tribunal, on the basis of pleading of the parties, framed as many as 06 issues, out of which, issue No.3 being significant, for ready reference, is reproduced herein, which reads thus :- dzekad 1- 2- 3- okn iz’u xxxx fu”d”kZ Xxx Xxxx D;k vuk- dza- us mDr okgu gkbZok Vªd dzekad lh-th-04@ts-lh-@8296 dks fcuk ijfeV] fQVusl o fcuk oS/k MªkbZfoax ykbZlsal ds chek ikfy’kh dh ‘krksZ ds mYya?ku esa pyk;k \ Xxx izekf.kr ughaA 12. The learned Claims Tribunal finds that Station House Officer seized attested driving license of driver under Ex.D-6 and D- 5, fitness certificate under Ex.P-6 and permit under Ex.P-7. The learned Claims Tribunal also finds that Insurance Company did not examine Surveyor before the learned Claims Tribunal to substantiate its claim. It has also finds that the owner of Hyva, after seeing/examining the license of driver Abdul Rahman, hired him as Truck Driver and the learned Claims Tribunal also finds that the police has seized driving license of driver Abdul, which is valid till 02.11.2014. The Insurance Company only questioned the driving license of the driver to be forged but it has not produced any documentary evidence which points towards that the license of driver of the offending vehicle is forged. So, Insurance 10 Company has failed to prove this fact that owner and driver have breached any condition of insurance policy. This finding of the learned Claims Tribunal is based on proper appreciation of oral and documentary evidence and this Court does not find any fault in the same. 13. This Court in National Insurance Company & Ors. Vs. Lebho Mahanand & Ors. reported in 2010 (1) ACCD, 190 (C.G.), the Division Bench of this Court has determined the burden of proof in relation to driving a vehicle under a valid driving license or violation of insurance conditions in clause 12 as follows :- "12. In the present cases, the Insurance Company, by way of evidence of N.A.W. 1, has brought on record that the licence said to be held by the driver of the Truck was a fake licence as on their enquiry it was found that the said licence was never issued from the concerned licensing authority, Kanpur (U.P.). We have seen the photocopy of the licence has been shown to be issued in Form-6 under the concerned Rule 16(1). It also bears the photograph of the driver at the appropriate place and illegible signatures with dates shown to the that of the licensing authority. This licence was shown to be issued for driving light motor vehicle, medium goods vehicle and heavy goods vehicle and it was further shown to be lastly renewed upto 16th November, 1994. Even assuming that it was a fake licence, but the insurance company did not discharge its burden by proving that the insured was guilty of negligence and he failed to exercise reasonable care in the matter of fulfilling the conditions of the policy regarding use of vehicle by duly licensed 11 driver. We presume that the said licence must have been produced before the owner and by exercising reasonable care, the owner must have handed over the vehicle to the driver taking into consideration that he was having a valid driving licence. If the alleged licence would not have been in statutory proforma or it would be showing some irregularity on the face of it, or there would have been some indication of the fake character of the licence in its appearance which a normal man must notice after seeing the licence in first sight or by applying his common sense with due diligence, then only it would be said that the insured was guilty of negligence and he failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicle by a duly licensed driver. But nothing as above could be brought on record. Even the witness of the Insurance Company A. Kujur (N.A.W. 1) categorically admitted vide Para 4 of his evidence (on a question by the Presiding Officer of the Tribunal) that "before receiving the letters Ext. D-2 & Ext. D-3, which relate to the verification regarding validity of the driving licence, it was not possible to say that the licence was a fake driving licence". This shows that even the Insurance people could not say that it was a fake licence on the face of it. It is for all these reasons, the Tribunal held that the Insurance Company was liable to pay compensation in the matters and the same cannot be exonerated. In the facts, and circumstances of the case, we do not find any fault in such approach of the Tribunal. The arguments advanced by the learned Counsel for the appellants/Insurance Company, therefore, cannot be sustained." 14. So, the learned Claims Tribunal rightly recorded its finding that the Insurance Company failed to prove any breach of policy condition and has rightly awarded the compensation 12 against all three non-applicants including the appellant – Insurance Company. 15. As regards the amount of compensation, it is apparent that the learned Claims Tribunal calculated and assessed the income of the deceased as notional income and awarded the compensation keeping in view the guidelines of Hon’ble Apex Court in the matter of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in (2009) 6 SCC 121. Thus, the finding of the learned Claims Tribunal awarding compensation to the claimants is just and proper. This Court does not find any illegalities or infirmity in the same. The amount of compensation awarded by the learned Claims Tribunal is just and proper compensation. 16. In the result, the aforesaid appeals being without any merit liable to be and are hereby dismissed. Sd/- (Rajani Dubey) Judge pekde Digitally signed by VIJAY BHARATRAO PEKDE