APPELIANTS Claimants v. Panchu
Case Details
IN THE HIGH COURT OF 3UDICATURE AT BILASPUR fC.G.) M.A. N0. li^ /2006 011 ^ 1^11 ! ^.' APPELLANTS ^O^ VA^OL^Aj^ :1. e'"' Smt. Gomti Patel W/o. Late Shyam Kumar Patel Aged about 27 years Rakesh Kumar Patel S/o. Aged about 7 years late Shyam Kumar Patel Manicharan Patel S/o. Jagannath Patel Aged about 58 years No.2 minor, through natural guardian mother Smt. Gomti Patel No.l, Village Bhawarpur, Post Bhawarpur, District P.S. Mahasamund (C.G.) Basna, R/o. All RESPONDENTS 5 VERSUS Panchu @ Panch Ram Sahu S/o. Ramadhin Sahy Aged about 25 years, R/o. Pithora, (C.G.) P.S. Dist. Mahasamund Gadbeda, Vill. 2.. ^ 3.| Shiv Prakash Agrawal S/o. Om Prakash Agrawal Aged about 45 years R/o. Vill. & Post Bhawarpur, P.S. Basna, Distt Mahasamund (C.G.) The Oriental Insurance Co. Ltd. Through Branch Manager The Oriental Company Chowk, Raipur, Dist. Raipur (C.G.) Insurance Limited Kachahari Madina Building, MISCELLANEOUS APPEAL UNDER SECTION 173 OF THE MOTOI? VFl^Tr'U?-AFT 19S8 w--" o -r HIGH COURT OF CHHATTISS^RH Single B©nch: Hon'ble Justice Sanjay K. Agrawal Misc. J^peal No. 916 OF 2006 APPELIANTS Claimants RESPONDENTS Smt. Gomti Patel & others. Versus Panchu @ Panch Ram' Sahu & others, MISC. APPEAL TJNDER SECTION 173 OF THE MOTOR VEHICLE ACT, 1988 Present: Mr. Raghvendra Pradhan, counsel for the appellants. Mr, Shivendu Pandya^ counsel for respondent No. 2 Mr. No. 3. counsel for respondent Athaley^ A<K. ORAL ORDER (27.11.2013) 1. This is an appeal filed by the claimants under Section 173 of the Motor Vehicles Act, 1988 (>henceforth ?the MV Act') seeking enhancement of compensation awa'rded by Second Additional Motor Accidents Claims Tribunal, 'Mahasamund (henceforth 'the Claims Tribun.al') in Claim Case No.123/2005 vide award dated 02.12.2005 whereas cross objection (M.(c).P. No.2010/2006) has been filed. by the Insurance Company seeking exoneration from its liability, fastened upon it by the Claims Tribunal. Therefore^ the appeal for enhancement of compensation as well as cross objection are being
Decision
disposed of--by this common order, ..•;;;^-' -—-""-^ 1-J/ o 2. The Claims Tribunal, vide impugned award^ has partly allowed the c.1aim petition filed by the claimants^ who are unfortunate widowy son and father of the deceased-Shyam Kumar, under Section 166 of the ^•W Act^l9S8 and awarded compensation to the tune of ? 2^81^636/~ along with interest @ 6% per annum from the date of filing of claim petition till its actual payment for the death of . deceased Shyam Kumar^ fastening the liability of payment of compensation upon the respondent No. 3/Insurance Company. 3. In the aforesaid claim case the Insurance Company has taken a plea^ by filing cross objection, that the offendi.ng vehicle being a Mahindra Max bearing registration No.CG-05-3346 was insured for the private purpose and its sanctioned sitting ca.pacity is nine whereas on the date of accident 18 persons were travelling in the said . vehicle in excess of its sanctioned capacity and, thus, it is a breach of terms of po.licy conditions and, therefore the Insurance Company is not liable to pay any compensation, 4. Shri Raghvendra Pradhan, learned counsel appearing for the appellants would submit that the Claims Tribunal has fallen in error in assessing the ..:--^^ ': •i,' /' 'h monthly income of the deceased as ? 2,000/- per month as the. dece.as ed v.ras working as Carpenter and in the year 2005 even an unskilled labour could have easily earn ? 3^000/~ per month, 5< Mr< A<K, Anthalay^ learned counsel 'for the respondent No<3/Insurance Company would submit that the Tribunal has falien in error in fastening the liability of payment of compensation upon Insurance Conpany as there is overwhelming evidence available on rec.ord to hold that Insurance Company is not liable to pay compensation as there was a breach of terms of the policy conditions and therefore, he submits that cross objection filed by the Insurance Conpany1 be allowed and the Insurance Company be exonerated from its liability. The said submission v.ra.s cpposed by Shri Shivendu Pandya, learned counsel appearing for the respondent No. 1 -driver of the vehicle. 6< On the basis of pleading of the parties, following points would' arise for determination of this Court, ^ (i)^\Thether the finding of fact recorded by the Tribunal holding Insurance Company is liable to make pa^7ment of compensation is liable to be set aside by granting the respondent- filed cross Insurance Company?// objection by (ii) Whether the compensation awarded by be the enhanced. deserves Tribunal Claims to 4 ANSWER TO POINT N0. (i) 7. The respondent No. 3/Insurance Company has taken a specific plea by filing cross objection thaf the offending vehicle in question vras registered as a private vehicle by Regional Transport Office, and it was insured by the Insurance Company for private purpose on the date of accident but it was being used for commercial purpose and^ therefore/ it is a breach of policy conditions. Apart from this, sanctioned capacity of the offending vehicle was nine whereas on the date of accident 18 persons were sitting in the said vehicle which is the violation of policy conditions and, therefore, the respondent No.S/Insurance Company is not liable for payment of compensation. 8< In order to prove the aforesaid fact before the Tribunal, respondent No.3/Insurance Company has examined Shri Deepak Kumar Thawait (NAW-3)- Investigating Officer/ he deposed before the Tribunal, that on being authorized by the Insurance Company he has submitted investigation report with regard to age of the deceased and about their income and his report is based upon information supplied by claimants. Apart from this^ no other evidence has been brought on record by the Insurance Company to prove the fact of alleged .breach of terms of the insurance policy. ^ "^^--~ 9. The Tribunal, after considering the evidence Deepak Kumar Thawait (NAW-3), has held that his evidence is based on probabilities and he has not made any enquiry during the course of investigation and there is no other evidence with regard to the alleged use by owner of the vehicle as a commercial ^,' vehicle by accepting fare< 10. Shri Shiv Prakash Agraw-al (NAW-2) - owner of the offendina vehicle has been examined and he has clearly denied the suggestion that vehicle vras being used for commercial purpose. Panchu @ . Panchu Ram (NAW-1)- driver of the offending has also been examined before the Tribunal and he has also denied the use of vehicle for carrying passengers, These witnes-ses were -subjected to lengthy cross examination but nothing has been brought on record to hold that the vehicle in question on the date of accident was being used for commercial purpose. 11. The law is well settled. The burden to prove violation of policy conditions is upon the insurance company. In Narcinva V. Kamat and another v. Alfredo Antonio Doe Martins and others\ the Supreme Court held thus: t ^14. . breach squarely placed • .. • The burden to prove that there was was the insurance of of shoulders contract the the of on (1985) 2 SCC 574 .,-^^"* ^•^ ^ %y^^ 1, %. ^^^^,.. '^ ^- ^£33^' 6 a so as to by by the enable discharged contract which insurance company. It could not be said to have been mere it question in cross-examination. The second appellant was under no obligation to furnish evidence insurance company to wriggle out its liability under the the R.T.A. licence keeps a record of the licences issued and renewed by it. The insurance company could have the to evidence produced substantiate its allegation. Appiying the test who would fail if no evidence is led^ the insurance company,// of issues insurance< driving obvious Further answer got the the is 12. In view of above se.ttled legal position and in view of the aforesaid discussion, it cannot be said that the Tribunal has committed illegality holding the Insurance Company has failed in to establish the violation of policy conditions and^ therefore, the Tribunal has rightly fastened the liabi.lity of pa^mient of compensation upon the respondent No,3/Insurance Company warranting no interference by this Court< r 13. Thus, cross objection (M.(c).P. No.2010/2006) filed by the Insurance Company deserves to be dismissed^ The question No.l is answered accordingly. Answer to polnt No, 2 14 < The deceased was working as Carpenter, The Tribunal after assessing the monthly income of the deceased as ? 2,000/-, deducted l/3rd of it fowards his personal expenses and applied multiplier of 17 and awarded ? 2^72frl36/~ on account of loss of .^^ /:^^ /' ^ .'\-:' ^ J ^ %^/ dependency. The Tribunal has further awarded ? 9,500/- on other heads and thus has awarded a total sum of ? 2,81.636/-. ' 15. Admittedly/ Deceased Shyam Kumar was aged about 32 years at the time of accident and was working as Carpenter. In the year 2005, even an unskilled labour could have easily earn ? S^OOO/- per month andy therefore, the Tribunal has certainly fallen in error in assessing the income of the deceased as ?2^000/- per month. Therefore^ I propose to re-compute the amount of compensation by taking into consideration the monthly income of the deceased as ? 3,000/- and ? 36,000/- per annura, 16. After deducting rd 1/3TO of income of the deceased towards his personal and living expenses, claimants' annual dependency is assessed as ? 24/000/-. By multiplying the claimants' annual dependency of- ? 24,000/- v.rith the multiplier of 17 as applied by the Tribunal^ the. amount of compensation tow^rds loss of dependency would be ? 4,08,000/-. Further, the amount of ? 2,000/- towards funeral expenses, ? 5^000/- towards loss of consortium and ? 2^500/- towards loss of estate awarded by the Tribunal also appear to be on lower side. I am of the considered opinion that the compensation awarded under the head funeral expenses •\i;- ,/ > 1—1 II 1 ; deserves to be enhanced to ? 5,000/-, compensation awarded' under the head loss of consortium deserves to be enhanced to ? lO^OOO/- and the compensation awarded under the head of loss of estate to be enhanced to ? 5^000/~. Thus^ the claimants would be entitled for a total sum of ? 4,28,000/- as corripensation instead. of ? 2^81,636/-as awarded by the Tribunal•- 17. Accordingly^ the compensation of ? 2^81,636/- awarded by the Claims Tribunal is enhanced to ^ 4^28,OOO/-* The appellants/claimants are further entitled to receive ? 1,46,364/~over and above the amount awarded by the Tribunal. Enhanced amount of ? 1/46,364/- shall carry interest @ 6% per annum from the date of filing 'o.f claim petition till its actual payments. Rest of the conditions mentioned in the award shall remain intact. 18. The respondent 3- The Oriental Insurance Company Limited is granted three months time to deposit enhanced amount of compensation of ? 1^46,364/- along with interest @ 6% per annum simple interest before the concerned Claims Tribunal. Thus, the question No. 2 is answered accordingly. 19. Resultantly, the claimants' appeal for enhancement -is partly allowed and impugned award is -.1. •.."^- Dubey/-," ) mo.dified to the extent -indicated hereinabove and the cross objection filed by the respondent No.S/Insurance Company for exoneration from its liability of pa^^ment of compensation is dismissed. 20 < No order as to costs< Sd/- Sanjay K. Agrawal Judge