1 - The Oriental General Insurance Company Limited Branch Office, Jagdalpur, District Bastar, Chhattisgarh v. 1 - Guddiram Netam S/o Late Chamru Ram Netam, Aged About 28 Years R/o
Case Details
1 Digitally signed by GOPAL SINGH Date: 2025.06.25 19:40:09 +0530 2025:CGHC:23100 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1598 of 2017 1 - The Oriental General Insurance Company Limited Branch Office, Jagdalpur, District Bastar, Chhattisgarh., Chhattisgarh ... Appellant versus 1 - Guddiram Netam S/o Late Chamru Ram Netam, Aged About 28 Years R/o Village Kasoli, Manjharpara, Tahsil Geedam, District South Bastar, Dantewada, Chhattisgarh. Through Santosh Kumar Netam, S/o Late Chamru Ram Netam, Aged About 28 Years, R/o Village Kasoli, Manjharpara, Tahsil Geedam, District South Bastar, Dantewada, Chhattisgarh. Due To Deaf And Dumb The Respondent No. 1 Is Represented Through His Brother Santosh Kumar Netam, Claimant, Chhattisgarh 2 - Moturam Taram, S/o Late Kanuram Taram, Aged About 30 Years R/o Village Kasoli, Manjharpara, Tahsil Geedam, District South Bastar, Dantewada, Chhattisgarh. Non Applicant No. 1, District : Dantewada, Chhattisgarh 3 - Amar Lal Kashyap, S/o Late Lacchuram Kashyap, Aged About 35 Years R/o Village Haram, Tahsil Geedam, District South Bastar, Dantewada, Chhattisgarh. Non Applicant No. 2, District : Dantewada, Chhattisgarh ... Respondents For Appellant For Respondent No.1 : :
Legal Reasoning
accident was duly proved and there is no dispute as such. So far as liability part of the award is concerned, the insurance company has tried to establish that the vehicle was being run in contravention of conditions of the insurance policy as per Section 149 of the Motor Vehicles Act. The offending vehicle was covered with insurance policy which is private package policy and Rs.50 each for seven persons has been paid as premium. Though the insurance company has pleaded that the deceased was a gratuitous passenger, however, from the evidence of the witnesses it has not been substantially proved. Rather, from the evidence of AW1 and AW2 it is proved that no fare has been paid for travelling in the offending vehicle. The insurance company has adduced evidence of AW3 according to which the aforesaid witness has categorically stated that he was not the eye witness of the accident. The vehicle was insured and premium was paid for seven persons and excess persons were seated in the offending vehicle is not of his personal knowledge and he is stating about the same on the basis of documents of the criminal case. Since the vehicle was insured and extra premium for seven occupants have already been paid, as such the Tribunal has rightly fastened liability upon the insurance company which cannot be said to be faulted with. The 7 claimants have filed a cross objection for enhancement of the compensation to which learned counsel for the insurance company has opposed stating that in cross objection no order regarding enhancement of amount in favour of the claimants can be passed. 8. Learned counsel for the claimant/respondent No.1 submits that the objection raised by the insurance company in respect of maintainability of the cross objection is not maintainable. The aforesaid aspect of the matter has been dealt with by a Division Bench of Madhya Pradesh High Court in the matter of New India Assurance Company Limited v. Guddi, 2002 (2) MPHT 308 in which it has been held that a cross objection is permissible under the Motor Vehicles Act and the provisions of Order 41 of the CPC would apply to the appeals filed under Section 173 of the Motor Vehicles Act. It has further been held that the appellate Court has the power to enhance compensation even in absence of cross objection in the interest of justice, equity and conscience. Learned counsel for the claimants further submits that the income of the deceased has not been properly calculated and as such it requires consideration. The income of the deceased was assessed as Rs.3,500 per month which is on very lower side. Even according to the Minimum Wages Act prevailing on the date of accident, the income of unskilled labour was determined as Rs.5517 per month. The Hon’ble Supreme Court in the matter of Neeta, W/o Kallappa Kadolkar and 8 others v. Divisional Manager, Maharashtra State Road Transport Corporation, Kolhapur, (2015) 3 SCC 590 has considered minimum wages notification for the purposes of income of the deceased person. In the instant case, since the deceased was aged between 22 to 25 years as such appropriate multiplier would be 18 and as such the future prospects as per National Insurance Company Limited v. Pranay Sethi, (2017) 16 SCC 680 should be 40% which the Tribunal has wrongly assessed as 30%. So far as deduction in respect of personal expenses is concerned, the deceased being married, deduction should be 1/3 whereas the deduction was considered by the Tribunal to be ½ which is erroneous. No amount in respect of loss of estate has been granted whereas a sum of Rs.15,000 is required to be granted. Consortium has been given to the tune of Rs.1,00,000 which should be only Rs.40,000 as per Pranay Sethi case (supra). Further, for funeral expenses Rs.25,000 has been awarded, which is also incorrectly granted which is required to be calculated to the tune of Rs.15,000. According to Pranay Sethi case (supra), 10% addition would be applicable for 3 years as such in this case after lapse of 6 years from the date of award there would be 20% increase in the conventional heads. As such, following would be the appropriate compensation after considering the entire aspect of the matter: Sl.No. 1 2 Particulars Amount (Rs.) Loss of income Rs.5517 x 12 = Future prospects 40% x 66,204 = 66,204 26,482 9 3 Total of Loss of 66,204 + 26,482 = 92,686 income plus Future prospects 4 5 6 7 8 Application of 92,686 x 18 = 16,68,348 multiplier 18 Dependency 16,68,348 x 1/3 = Funeral expenses Rs.15,000 + 10% increase in 3 years 5,56,116 18,000 Loss of estate Rs.15,000 + 10% 18,000 Loss of consortium Rs.40,000 + 10% 48,000 increase in 3 years increase in 3 years Total Compensation = 24,93,836 9. The Tribunal has awarded a sum of Rs.6,01,034, as such after re-calculation the above total compensation of Rs.24,93,836 would be payable to the claimant. 10. The interest part on the compensation and other conditions shall be applied as per the impugned award passed by the Tribunal. 11. In the result, the appeal filed by the insurance company is dismissed, while the cross-objection filed by the claimant/respondent No.1 is allowed to the extent shown above. Sd/- (Amitendra Kishore Prasad) JUDGE Gopal Singh
Arguments
Shri H.B. Agrawal, Senior Advocate with Shri Pankaj Agrawal and Ms. Preeti Yadav, Advocates Shri Praveen Dhurandhar, Advocate 2 Hon’ble Shri Justice Amitendra Kishore Prasad 11/06/2025 Order on Board 1. This appeal is filed by the Insurance Company. 2. Briefly stated the facts of the case are that the claimant has filed an application under Section 166 read with Section 140 of the Motor Vehicles Act, 1988 contending that on 05.11.2014 at about 11:00 a.m. on Barsur National Highway in Village Hiranar near big culvert, respondent No. 3 was the vehicle owner of Tata Magic bearing registration No. C.G.18-D-0845 driven by respondent No.2 was going with Smt. Shanti Netam due to rash and negligent driving, respondent No. 2 turtled the vehicle thereby Smt. Shanti Netam died on the spot. Hence, claim petition was filed by respondent No. 1 who is unable to hear therefore through his brother as next guardian filed the claim. The deceased was wife of respondent No. 1 who was residing in Village Kasoli gone in Tata Magic from Majharpara for purchasing household goods going towards Geedam and other 6 - 7 persons of that village were also going in it about 05 kms. from Geedamnar on Barsur National Highway near big culvert of Village Hiranar at about 11:00 a.m. respondent No. 2 got turtled the Tata Magic vehicle thereby Shanti Netam got grievous injuries in head, right hand and other parts of body and due to it she died on the spot as claimed Rs. 12,70,000/- in different heads. Respondents No. 2 3 and 3 denied the claim, however it was admitted that 6 - 7 persons were going from Village Kasoli to purchase household goods from Geedam. The deceased was aged about 22 years was going for agricultural work was denied, since there was cow running on the road to save her vehicle got turtled, respondent No. 2 was driving vehicle with moderate speed he is having valid and effective driving license, therefore, since the vehicle was insured with the appellant, the amount of compensation if any is payable by the appellant. The appellant denied age of deceased working position and income for want of knowledge, the respondent No. 2 was not having valid and effective driving license and vehicle was being driven against the terms of policy, there was no permission to carryout passenger in permit therefore the deceased was traveling as gratuitous passenger, the appellant is not liable to pay anything, since there is violation of policy condition, the appellant be exonerated from paying any compensation. The Tribunal though held that Smt. Shanti Netam died due to rash and negligent driving of Tata Magic, but while deciding the issue no. 2 held that the violation of policy condition is not proved. It is admitted by Santosh Kumar Netam P.W. 1 that deceased was traveling in the vehicle as gratuitous passenger therefore the finding regarding issue No. 2 from paras 11 to 13 are illegal and perverse, in fact there was no coverage for carrying gratuitous passenger in goods vehicle, therefore, it ought to have been held that liability of paying compensation by the appellant is not there since there 4 was admission by P.W. 1 Santosh Kumar Netam that deceased was traveling in goods vehicle without paying fare and has gone to purchase household goods along with 6 other persons, therefore, finding of award para 11 to 13 is perverse and illegal and is liable to be set aside by exonerating the appellant from paying any compensation. Hence, this appeal. 3. The prayer made by the appellant/insurance company in the appeal is as under: “It is therefore, prayed that the Hon'ble Court may kindly be pleased to allow the appeal by either by exonerating the appellant from paying any liability because risk of gratuitous passenger is not covered, in the interest of justice.” 4. Learned Senior Counsel appearing for the appellant/insurance company submits that the Tribunal has committed an error in giving finding regarding issue No. 2 in para 11 to 13 of the award, therefore, the finding being perverse and illegal is liable to be set aside and the appellant be exonerated from paying compensation. The Tribunal has committed an error in not considering the statement of Santosh Kumar Netam P.W.1 who has clearly admitted that in goods vehicle the deceased was traveling as without fare paying passenger, therefore, she was gratuitous passenger and the finding of Tribunal in para 11 to 13, therefore, being perverse is liable to be set aside and the appellant is liable to be exonerated, since risk of 5 gratuitous passenger was not covered. The Tribunal erred in not considering the admission of Santosh Kumar Netam P.W. 1 who clearly admitted that the deceased was without fare paying passenger. 5. Learned counsel appearing for respondent No.1/claimant has filed a cross objection stating that the insurance company has filed the appeal before this Court challenging the award dated 11-08-2017, which is pending consideration, in which notices has been issued to the claimant (respondent No.1), who is husband of deceased. The claimant submits that the compensation awarded by the Tribunal is on lower side and is not a just compensation. The Tribunal has assessed the income on lower side, which ought to have been as per the pleadings i.e. Rs.200/- per day, but, the Tribunal has assessed at Rs.3500/- per month. The Tribunal has awarded 30% future prospect, which ought to have been 40%. The Tribunal wrongly deducted 50% towards personal expenses, which ought to have been 1/3rd looking to the status and physical condition of the claimant itself. The Tribunal has applied the multiplier of 17 which ought to have been 18. The Tribunal has awarded less compensation in the other head and also less interest has been awarded. Following prayer has been made in the cross objection: “It is most respectfully prayed with this Hon'ble Court kindly allow the claimants/respondent No.1 and may kindly be pleased to enhance the compensation amount awarded in the award dated 11-08-2017, in the interest of justice.” the cross objection of 6 6. I have heard the rival contentions put forth on behalf of the parties and perused the material available with due care. 7. From perusal of the impugned award, it appears that the