• Kotak General Insurance, Office No. 312, 3rd Floor, National Corporate Park, G.E. Road v. 1. Lav Kumar, S/o Late Mahaveer Chandra, Aged About 20 Years, R/o Village Sarhar
Case Details
1 2025:CGHC:34774 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 608 of 2025 • Kotak General Insurance, Office No. 312, 3rd Floor, National Corporate Park, G.E. Road, Raipur Chhattisgarh. (At Present) Zurich Kotak General Ins. Co. (India) Ltd., Registered And Corporate Office 401, 4th Floor, Silver Metropolis, Jai Coach Compound, Off Western Express Highway, Goregaon (East), Mumbai - 400063 (M.H.) India Insurer Of C.G. - 10/bm/2974. (Insurer). --- Appellant versus 1. Lav Kumar, S/o Late Mahaveer Chandra, Aged About 20 Years, R/o Village Sarhar, P.S. Baradwar, Tahsil Saragaon, District Janjgir Champa, Chhattisgarh (Claimant). 2. Neha Chandra, D/o Late Mahaveer Chandra, Aged About 22 Years, W/o Bholashankar Chandra, R/o Village Gobra Dabhra, Tahsil Dabhra, District Sakti, Chhattisgarh (Claimant). 3. Gayatri Bai Chandra, W/o Bisahuram Chandra, Aged About 73 Years, R/o Village Sarhar, P.S. Baradwar, Tahsil Saragaon, District Janjgir Champa, Chhattisgarh (Claimant). 4. Omkar Lodhi, S/o Late Krishna Kumar Lodhi, R/o Rajkishore Nagar, Atal Awas B Block House No. 08, Bilaspur, P.S. Sarkanda, Tahsil And District Bilaspur, Chhattisgarh. As Per Driving License Address Village Beedbida, Block Pathariya, District Mungeli, Chhattisgarh (Driver Of Pickup CG-10/BM/2974). 5. Itwari Dewangan, S/o Ghanshyam Dewangan, R/o House No. 101, Ward No. 40 Vishwakarma Chowk, Chingraj Para, Bilaspur, P.S. Sarkanda, Tahsil And District Bilaspur, Chhattisgarh (Owner Of Pickup CG-10/BM/2974). --- Respondents AND 2 MAC No. 601 of 2025 • Kotak General Insurance, Office No. 312, 3rd Floor, National Corporate Park, G.E. Road, Raipur (C.G.) (At Present) Zurich Kotak General Ins.Co. (India) Ltd., Registered And Corporate Office 401, 4th Floor, Silver Metropolis, Jai Coach Compound, Off Western Express Highway, Goregaon (East), Mumbai- 400063 (M.H.) India - (Insurer Of CG-10/BM/2974). --- Appellant Versus 1. Lav Kumar, S/o Late Mahaveer Chandra, Aged About 20 Years, R/o Village Sarhar, P.S. Baradwar, Tahsil Saragaon, District Janjgir Champa (C.G.) (Claimant). 2. Neha Chandra, D/o Late Mahaveer Chandra, Aged About 22 Years, W/o Bholashankar Chandra, R/o Village Gobra Dabhra, Tahsil Dabhra, District Sakti (C.G.) (Claimant). 3. Omkar Lodhi, S/o Late Krishna Kumar Lodhi, R/o Rajkishore Nagar, Atal Awas B Block House No. 08, Bilaspur, P.S. Sarkanda, Tahsil And District Bilaspur (C.G.). As Per Driving License Address Village Beedbida, Block Pathariya, District Mungeli (C.G.) (Driver Of Pickup CG-10/BM/2974). 4. Itwari Dewangan, S/o Ghanshyam Dewangan, R/o House No. 101, Ward No. 40, Vishwakarma Chowk, Chingraj Para, Bilaspur, P.S. Sarkanda, Tahsil And District Bilaspur (C.G.) (Owner Of Pickup CG-10/BM/2974). (Cause title taken from Case Information System) --- Respondents For Appellant in both the appeals
Legal Reasoning
: Mr. Raj Awasthi, Advocate. For Respondents No.1 to 3 in MAC : Mr. Basant Dewangan, Advocate. No.608/2025 and for respondents No.1 & 2 in MAC No.601/2025 For Respondent No.5 in MAC : Mr. Budheshwar Singh, counsel No.608/2025 and for respondent appears on behalf of Ms. Seema No.4 in MAC No.601/2025 Singh, Advocate. Hon'ble Shri Justice Parth Prateem Sahu Order on Board 22/07/2025 1. As both the appeals arises out of the same accident, and therefore, they are
Decision
being heard together and disposed of by this common order. 2. Heard on I.A. No.1/2025, application under Section 5 of the Limitation Act for 3 condonation of delay in filing the appeal in both the cases. 3. On due consideration and for the reasons mentioned in the application, which is well supported by an affidavit, I.A. No.1/202 are allowed in both the cases and the delay of 2 days in MAC No.608/2025 & 49 days in MAC No.601/2025 in filing the appeals is hereby condoned. 4. MAC No.608/2025 is filed by the appellant/insurance company challenging the impugned award dated 27.09.2024 passed by the First Additional Motor Accident Claims Tribunal, Sakti, District Janjgir Champa (C.G.) in Claim Case No.68/2023, whereby the Tribunal allowed the claim application in part, awarded compensation of Rs.11,00,960/- to the claimants children and mother of the deceased, Late Mahaveer Chandra. Claimants/respondents No.1 to 3 have also filed cross objection seeking enhancement of the amount of compensation. 5. The MAC No.601/2025 is filed by the insurance company challenging the impugned award dated 27.09.2024 passed by the First Additional Motor Accident Claims Tribunal, Sakti, District Janjgir Champa (C.G.) in Claim Case No.67/2023, whereby the Tribunal allowed the claim case in part, awarded total amount of compensation of Rs.14,76,000/- in favour of the claimants (children of the deceased), against the death of Late Saraswati Bai Chandra. Claimant/respondent No.2 also filed cross objection/cross appeal seeking enhancement of the amount of compensation. 6. Facts of the case for disposal of these appeals are that on 27.08.2023 Mahaveer Chandra was travelling on his motorcycle bearing Registration No.CG-11-M-9417 along with his wife Saraswati Bai Chandra. While so one Tata Pick-up bearing Registration No.CG-10-BM-2974 driven by non- applicant No.1 rashly and negligently dashed the motorcycle of Mahaveer Chandra and caused accident. In the said accident, both the riders of motorcycle suffered grievous injuries and they succumbed to the motor accidental injuries. The claimants children and mother of the deceased 4 Mahaveer Chandra filed an application seeking compensation of Rs.78,18,000/- against death of Mahaveer Chandra and the children of the deceased Sarswati Bai filed application under Section 166 of the Motor Vehicle Act, 1988 (for short the “the Act of 1988”) seeking compensation of Rs.59,60,000/- against the death of their mother. 7. The non-applicants No.1 & 2 resisted the claim on grounds mentioned therein. Non-applicant No.3/insurance company also submitted reply to the claim applications, raising ground that on the date of accident, deceased Mahaveer Chandra was driving the motorcycle without there being valid license in his favour. At the time of accident, driver of the Pick-up offending vehicle was under the influence of the liquor, and therefore, case under Section 185 of the Act, 1988 was also registered along with other offences. There was no permit and fitness of the offending vehicle on the date of accident, hence there was breach of policy condition and prayed for dismissal of the claim against it. 8. Learned Claims Tribunal upon appreciation of the facts and evidence brought on record by the respective parties held that there was no breach of policy conditions, allowed both the claim application, and awarded Rs.11,00,960/- in Claim Case No.68/2023 against death of Late Mahaveer Chandra and awarded Rs.14,76,000/- in Claim Case No.67/2023 against the death of Late Saraswati Bai Chandra. 9. Learned counsel for the appellants/insurance company would submit that the learned Claims Tribunal fell into error in not accepting the contents of the document Ex.P/7, which is the examination of non-applicant No.1/driver by the doctor, wherein, it is recorded that they received non-applicant No.1 (Omkar) in alcoholic condition. He contended that when there is specific documentary evidence mentioning that the driver of the offending vehicle was in alcoholic condition, there was breach of policy conditions as the driver of the offending vehicle drove the vehicle in violation of the provisions of Section 185 of the Act of 1988. 5 10. Learned counsel for the respective respondents opposes the submission made by the counsel for appellants and would submit that the learned Claims Tribunal erred in not admitting the contents of the document Ex.P/7 in evidence is not correct. Except the availability of document in record, which is marked as Ex.P/7, no other evidence is brought on record by the insurance company. 11. I have heard learned counsel for the respective parties and perused the record of claim case of both the appeals carefully. 12. Counsel for the appellant/insurance company has raised sole ground before this Court that the learned Claims Tribunal erred in over looking the contents of Ex.P/7 mentioning that the non-applicant No.1 was found in alcoholic condition by the doctor, who examined him. The said document is part of the charge sheet filed by the claimants to prove the accident. By placing the documents, only happening of the accident can be proved as after investigation the charge sheet is filed against the non-applicant No.1/driver of the offending vehicle. So far as the contents of other documents like Ex.P/7, it is to be proved in accordance with law by examining the author of the document. In this case to prove Ex.P/7, the Doctor, i.e., the Medical Officer, who examined non-applicant No.1 was not called as witness by the appellant/insurance company before the learned Claims Tribunal. Nor any effort has been made to call I/O as witness before the Claims Tribunal. 13. The provisions under Section 185 of the Act of 1988 deals with driving by a drunken person or by a person under the influence of drugs. The provisions under Section 185 of the Act of 1988 is extracted for ready reference:- “185. Whoever, while driving, or attempting to drive, a motor vehicle— (a) has, in his blood, alcohol exceeding 30 mg. per 100 ml. of blood detected in a test by a breath analyser, or 6 (b) is under this influence of a drug to such an extent as to be incapable of exercising proper control over the vehicle, shall be punishable for the first offence with imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both; and for a second or subsequent offence, if committed within three years of the commission of the previous similar offence, with imprisonment for a term which may extend to two years, or with fine which may extend to three thousand rupees, or with both.” 14. Bare perusal of the aforementioned provisions would show that to attract the provisions under Section 185 of the Act of 1988, there should be specific evidence as mentioned in (a) and (b) of Section 185 of the Act, 1988. 15. In the case at hand, there is no such detailed examination of the non- applicant No.1 by expert, there is no evidence of the blood test finding alcohol exceeding 30 mili gram per 100 ml of blood detected in the test by breathe analyzer. In absence of any such evidence brought on record by the appellant/insurance company and further non-examining the doctor, who conducted the examination of driver of the offending vehicle, in the opinion of this Court, learned Claims Tribunal has not committed any error in recording a finding that, it is not proved that on the date of accident non-applicant No.1 was driving the vehicle under influence of liquor. 16. For the foregoing discussion, I do not find any merit in the appeals filed by the insurance company. Accordingly, both the appeals are dismissed. 17. So far as the cross objection filed by the claimants, non-applicants No.1 to 3 in MAC No.608/2025 seeking enhancement of the amount of compensation against the death of Late Mahaveer Chandra. Perusal of the pleadings made in the claim application would show that the claimants have pleaded the occupation of the deceased as ‘Mason’ and earning Rs.15,000/- per month. 7 However, no clinching evidence is brought on record. In the aforementioned facts of the case learned Claims Tribunal justified in assessing income of the deceased on notional basis, treating him to be a labourer, however, fell into error in assessing income as Rs.9,700/- per month only. In cases, where the claimants failed to prove the nature of occupation and income of the deceased, it is for the Courts and Tribunal to assess income keeping in mind, age of the deceased, cost of living, price index, wage structure prevailing on the date of accident at the place of resident of the deceased and can also take the help of minimum wages fixed by the competent authority under the Minimum Wages Act, 1948. In the case at hand, there is no suggestive piece of evidence of the wages prevailing on the date of accident at the place of resident of the deceased, and therefore, I find it appropriate to take help of the notification issued by the competent authority under the Minimum Wages Act, 1948 to assess income of the deceased. As the occupation is also not proved, I find it appropriate to consider the occupation of the deceased to be a labourer and as per the notification issued by the competent authority for a period from 01.04.2023 to 30.09.2023, the minimum wages of unskilled worker fixed for the labourer residing in the C-Zone area was Rs.9,960/- per month. Accordingly, the wages/income of the deceased is assessed as Rs.9,960/-. It is ordered accordingly. 18. The learned Claims Tribunal has correctly added 10% of the assessed income towards future prospects, applied the deduction of 1/3rd and applied multiplier of 11, which is to the tune of the decision of Hon’ble Supreme Court in case of S arla Verma (SMT) and Others Versus Delhi Transport Corporation and Another, reported in (2009) 6 SCC 121 and National Insurance Company Ltd. v. Pranay Sethi, reported in (2017) 16 SCC 680. 19. The learned Claims Tribunal has awarded Rs.15,000/- each under the head 8 of loss of estate and funeral expenses and further awarded Rs.44,000/- against the loss of consortium to each of the claimants, which is in consonance of the decision of Pranay Sethi (supra) and Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others, reported in (2018) 18 SCC 130. 20. For the foregoing discussion, the amount of compensation to be awarded to the claimants in Claim Case No.68/2023 requires re-computation, which is as under:- Compensation Rs.9,64,128/- Particulars A) Annual Loss of income/ dependency = Rs.1,19,520/- (Rs.9,960x12) B) Addition towards loss of future prospects @ 10% (Rs.1,19,520 x 10% = Rs.1,31,472/-) C) Deduction of 1/3 towards personal and living expenses (Rs.1,31,472 x 1/3= Rs.43,824; Rs.1,31,472 – Rs.43,824 = Rs.87,648) D) Multiplier of 11 Rs.87,648 x 11 = Rs.9,64,128/- Loss of parental consortium to claimants No.1 to 2 Rs.1,32,000/- and Loss of filial consortium to claimant No.3 (Rs.44,000 to each claimants) (40,000 x 3) Loss of estate Funeral Expenses Total Rs.15,000/- Rs.15,000/- Rs.11,26,128/- 21. Now, I will consider the cross objection filed by the claimants in MAC No.601/2025, the claimants are children of the deceased and the learned Claims Tribunal has correctly added 25% of the assessed income towards future prospects, applied the deduction of 1/3rd and the multiplier of 14, which is to the tune of the decision of Hon’ble Supreme Court in case of S arla Verma (supra) and Pranay Sethi (supra) . 9 22. The learned Claims Tribunal has awarded Rs.15,000/- each under the head of loss of estate and funeral expenses and further awarded Rs.44,000/- against the loss of consortium to each of the claimants, which is in consonance of the decision of Pranay Sethi (supra) and Nanu Ram alias Chuhuru Ram (supra). 23. Tribunal assessed the occupation of deceased as labourer and her income as Rs.9,700/- per month, which is less in view of discussion in preceding paragraph, hence income of the deceased in this case also, is assessed as Rs.9,960/- per month. It is ordered accordingly. 24. For the foregoing discussion, the amount of compensation to be awarded to the claimants in Claim Case No.67/2023 requires re-computation, Compensation Rs.13,94,400/- which is as under:- Particulars A) Annual Loss of income/ dependency = Rs.1,19,520/- (Rs.9,960x12) B) Addition towards loss of future prospects @ 25% (Rs.1,19,520 x 25% = Rs.1,49,400/-) C) Deduction of 1/3 towards personal and living expenses (Rs.1,49,400 x 1/3= Rs.49,800; Rs.1,49,400 – Rs.49,800 = Rs.99,600) D) Multiplier of 14 Rs.99,600 x 14 = Rs.13,94,400/- Loss of parental consortium to claimants No.1 to Rs.88,000/- 2 (Rs.44,000 to each claimants) (40,000 x 2) Loss of estate Funeral Expenses Total Rs.15,000/- Rs.15,000/- Rs.15,12,400/- 25. Now, the claimants No.1 to 3 in MAC No.608/2025 shall be entitled for total sum of compensation of Rs.11,26,128/- and the claimants No.1 to 2 10 in MAC No.601/2025 shall be entitled for total sum of compensation of Rs.15,12,400/-. The enhanced amount of compensation shall carry simple interest @ 8% p.a. in each case from the date of filing of claim application till its realization. Other conditions of the impugned award shall remain intact. 26. In the result appeals filed by the Insurance Company are dismissed and cross appeals filed by the claimants/respondents are allowed in part and impugned award are modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge DEEPTI JHA NIRALA Digitally signed by DEEPTI JHA NIRALA