Bilaspur, Chhattisgarh v. 1
Case Details
SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI 1 2025:CGHC:37566 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 266 of 2021 1. United India Insurance Co. Ltd. Through Branch Manager United India Insurance Co. Ltd. Anupama Chowk Jagdalpur District Bastar Chhattisgarh, Through T.P. Hub/divisional Manager United India Insurance Co Ltd. Magarpara Road Bilaspur District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh ... Appellant versus 1. Smt. Prafulla Ganesh Mandavi Wd/o Late Ganesh Narasu Mandavi Aged About 42 Years 2. Vikramaditya S/o Late Ganesh Narasu Mandavi Aged About 23 Years 3. Avinash Ganesh Mandavi S/o Late Narsu Mandavi Aged About 21 Years 4. Vandana Mandavi D/o Late Ganesh Narsu Mandavi Aged About 20 Years 5. Ravina D/o Late Ganesh Narasu Mandavi Aged About 18 Years All are R/o Gongwada Bhamragarh District Gadhchirouli (M.H.) (Above all are claimants) 6. Jagdish Pujari S/o Shri Kantaiya Pujari Aged About 30 Years R/o Patelpara Musalur Police Station Kotwali Bijapur District Bijapur Chhattisgarh (Driver Of Offending Vehicle), 2 7. Goverdhan Katla S/o Late Shankaraiya Katla Aged About 53 Years R/o Tahsilpara Bijapur Police Station Kotwali Bijapur District Bijapur Chhattisgarh (Owner of the offending Vehicle) ... Respondent(s)
Legal Reasoning
that there is no dispute that accident was reported in concerned police station within few hours of accident, mentioning registration number of vehicle that caused accident as 'CG18-H-1451 (709)’, however, the informant of FIR was not the eyewitness of accident though present nearby the spot. Eyewitness of accident are Komti Chaitu and Chandaiya Partagiri. He contends that during course of investigation, statement of aforementioned eyewitnesses were recorded and based upon which vehicle that has caused accident was seized by the police i.e. offending vehicle, and after completion of investigation, charge sheet was also submitted against its driver. He also submits that eyewitness Komti Chaitu was examined as AW-2 and Sarju Madkami, 5 lodger of FIR, was also examined as AW-3 before the Claims Tribunal. AW-2 has clearly stated in his evidence that he was travelling along with deceased, it is Force Toofan vehicle bearing No.CG18-K-5294 which dashed deceased and after the accident another vehicle stopped near the place of accident. Suraj Madkamni (AW-3) in his evidence has clarified as to how he has informed registration number ‘CG18-H-1459 (709)’ to the police and that, he got knowledge after lodging of FIR that offending vehicle is Force Toofan bearing No. CG18-K-5294. In course of investigation, police seized the vehicle which caused accident. He next contended that deduction of one- fourth towards personal expenses and application of multiplier by the Claims Tribunal is in consonance with the decision of Hon’ble Supreme Court in case of Sarla Verma vs DTC, reported in (2009) 6 SCC 121. He further submitted that the claimants have also filed cross- appeal seeking enhancement of quantum of compensation on the ground that the Claims Tribunal has assessed income of deceased on lower side; no amount is not added in the income of deceased towards future prospects and even compensation under the head of loss of consortium is denied to claimants No.2 to 5 and 4, who are sons of deceased. Hence, he prays for enhancement of compensation suitably. 6 8) Heard learned counsel for respective parties and perused the record. 9) As regard first submission of learned counsel for appellant Insurance Company that offending vehicle was not involved in the accident, was falsely implanted. Perusal of the record would show that date and time of accident is 6.9.2018 at 4:30 p.m., as mentioned in FIR (Ex.P-2). Information of accident was given to concerned police station on the same day at about 18:30 hrs (6:30 pm.) i.e. within few hours of accident. In FIR, it is mentioned that accident was caused by driver of vehicle bearing registration No. CG18-H-1451 (709). From the contents of FIR, it is appearing that after occurrence of accident when Sarju Madkami turned back, he saw that one vehicle was standing near the place of accident and its driver was not there. From the aforementioned facts available in FIR, it is clear that though informant of FIR was present near the place of accident, but he could not able to see the act of dashing of deceased by vehicle. Claimants in support of pleadings have examined eyewitness to accident namely Komti Chaitu, who in his statement clearly stated in his statement that at the time of accident, two vehicles were coming together, one was Force Toofan whose number was CG18-K-5294 and another was 709 (CG18-H-1451), against which report was lodged. He in clear terms stated that it is Force Toofan vehicle that dashed the deceased due to which he fell down on road and suffered grievous injuries. He further stated in categorical terms that after accident, other vehicle which was 7 reported by the informant, stopped immediately nearby the place of accident, due to fear its driver fled from place of accidetn leaving the vehicle. Sarju was also examined as AW-3 before Claims Tribunal and he clearly deposed that he did not see actual happening of accident but saw vehicle 709 bearing registration No.CG18-H-1451 standing near the place of accident, its driver was not in vehicle, therefore, he suspected that accident was caused by said vehicle and accordingly, he lodged report. Thereafter he has clarified that from the eyewitnesses of accident namely Komti Chaitu and Chandaiya Partagiri, he came to know about involvement of other vehicle in the accident i.e. Force Toofan bearing registration No.CG18-K-5294. 10) Along with copies of documents of criminal case, the claimants have also enclosed statements of Sarju Madkami, Komti Chaitu Pungati and Chandaiya Partagiri recorded in Criminal Case pending against the driver in the Court of learned CJM, South Bastar Dantewada. In the statement recorded before the CJM, Sarju Madkami has clearly admitted that by mistake he informed that vehicle bearing registration No.CG18-H-1451 (709) had caused accident and later on, he came to know from the eyewitnesses of accident that accident was caused by vehicle Force Toofan No.CG18-K-5294. 11) Eyewitnesses who were examined in claim case, were also examined before the Chief Judicial Magistrate and in that proceeding also they 8 have made statement in tune of their statement before the Claims Tribunal. 12) In case of National Insurance Co. Ltd. vs. Chamundeswari and others, reported in (2021) 18 SCC 596, the Hon’ble Supreme Court has observed thus; "8. It is clear from the evidence on record of PW-1 as well as PW-3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW-1 & PW-3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW-1 herself travelled in the very car and PW-3, who has given statement before the police, was examined as eye-witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellant's counsel in the case of Oriental Insurance Company Limited v. Premlata Shukla and Others, 2007 (13) SCC 476 , this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. 9 In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. In the judgment in the case of Nishan Singh and Others v. Oriental Insurance Company Limited, 2018 (6) SCC 765, this Court has held, on facts, that the car of the appellant therein, which crashed into truck which was proceeding in front of the same, was driven negligently by not maintaining sufficient distance as contemplated under Road Regulations, framed under Motor Vehicles Act, 1988 . Whether driver of the vehicle was negligent or not, there cannot be any straitjacket formula. Each case is judged having regard to facts of the case and evidence on record. Having regard to evidence in the present case on hand, we are of the view that both the judgments relied on by the learned counsel for the appellant, would not render any assistance in support of his case." 13) From the above facts of the case and evidence available in record, more particularly evidence of eyewitnesses and informant of FIR, in the opinion of this Court, the Claims Tribunal has not committed any error in recording finding that accident occurred due to rash and negligent driving of offending vehicle by its driver. Hence, I do not find any force in the submission of learned counsel for appellant that the Claims Tribunal erred in holding that offending vehicle was involved in accident and the same is repelled. 14) Coming to second submission of learned counsel for appellant that standard deduction towards personal expenses of deceased and 10 multiplier applied by the Claims Tribunal is incorrect. Perusal of the claim application would show that it is filed by five claimants, who are widow and major sons of deceased aged about 21, 20 and 18 years respectively. However, there is no evidence available in record that major sons of deceased are married and residing separately with their respective family. There is also no whisper that they are having sufficient independent income for their livelihood. In absence of any such material on record, in the opinion of this Court, submission of learned counsel for appellant that major sons of deceased cannot be considered as dependent is not sustainable and it is repelled. 15) So far as deduction of one-fourth towards personal expenses of deceased is concerned, claim application is filed by five claimants, who are respondents No.1 to 5 before this Court. As per decision in case of Sarla Verma (supra), where number of dependent family is 4 to 6, there shall be deduction of one-fourth towards personal expenses. Hence, in the opinion of this Court, Claims Tribunal rightly applied deduction of one-fourth towards personal expenses of deceased and it is affirmed. 16) So far as application of multiplier is concerned, in case of Sarla Verma (supra) it is held that where deceased was in the age group of 41 to 45 years, multiplier of 14 will be applicable and where deceased was in the age group of 46 to 50 years, multiplier of 13 will be applicable. 11 In case at hand, there is no suggestive piece of evidence that deceased has attained age of 46 years on the date of accident. True it is that as per date of birth of deceased (1.1.1973) mentioned in adhaar card annexed with application filed on behalf of appellant under Order 41 Rule 27 of Code of Civil Procedure, 1908, on the date of accident, age of deceased was 45 years 8 months and 6 days. Even if submission of learned counsel for appellant based on date of birth mentioned in adhaar card of deceased is to be accepted, then also it is evident from the adhaar card itself that the deceased has not attained age of 46 years. Therefore, in the opinion of this Court, submission of learned counsel for appellant that at the time of accident, age of deceased was 45 years 8 months and 6 days, therefore, multiplier of 13 would be applicable is not sustainable and it is repelled. 17) As regards cross-appeal/cross objection filed on behalf of claimants seeking enhancement in quantum of compensation, as per pleadings and evidence of claimants, the deceased was agriculture labour and earing Rs.6,000/- per month. However, since the claimants did not produce any admissible piece of evidence substantiating their claim with respect to occupation and income of deceased, the Claims Tribunal has taken monthly income of deceased as Rs.5,500/- on notional basis. The reason assigned by the Claims Tribunal for fixing income of deceased on notional basis appears to be justified, which 12 does not call for interference. However, the notional income so fixed by the Claims Tribunal appears to be on lower side. Now-a -days even an unskilled worker gets more than Rs.6,,000/- per month. Thus, considering that the deceased was an agriculture worker and permanent resident of State of Maharashtra, I deem it proper to fix his monthly income at Rs.6,000/-, as pleaded by the claimants themselves in claim application. It is ordered accordingly. 18) A glance of impugned award would show that the Claims Tribunal while assessing income of deceased, has not added anything towards future prospects. As per decision of Hon’ble Supreme Court in case of National Insurance Company Ltd. vs. Pranay Sethi, reported in (2017) 16 SCC 680, while determining income of deceased, 25% of established income is to be added towards future prospects where the deceased was self employed and in the age group of 40 to 50 years. Thus, the Claims Tribunal erred in not adding future prospects in the income of deceased while assessing loss of dependency. Therefore, there shall be addition of 25% of established income of deceased towards future prospects. It is ordered accordingly. 19) Perusal of impugned award further reveals that while computing compensation, Claims Tribunal awarded only Rs.40,000/- for loss of consortium. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in the matter of 13 Pranay Sethi (supra) and of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuhru Ram & ors reported in (2018) 18 SCC 130,, according to which each claimant is entitled to consortium under spousal, filial and parental respectively in case claimants are wife/husband, parents and children at the rate of Rs.40,000/- each. Respondents No.2 to 5 being sons of the deceased are therefore entitled for parental consortium at the rate of Rs.40,000/- each. However, as per decision of Hon’ble Supreme Court in case of Pranay Sethi (supra), the amount of compensation under the aforesaid heads i.e. loss of consortium, funeral expenses and loss of estate, is to be increased @ 10% after every three years, which will make the compensation payable to claimants under the head of loss of consortium as Rs.44,000/- (10% of 40000 + 40000); loss of estate as Rs.16,500/- (10% of 15000 + 15000) and funeral expenses as Rs.16,500/- (10% of 15000 + 15000). It is ordered accordingly. 20) For the foregoing, this Court proposes to recalculate quantum of compensation. 21) Accordingly, income of deceased is taken as Rs.6,000/- per month and after adding 25% towards future prospects, the monthly income of deceased would come to Rs.7,500/- and annual income would be Rs.90,000/-. Out of this amount, one-fourth is to be deducted towards personal and living expenses of deceased and after deducting one- 14 third, annual dependency would come to Rs.67,500/-. Applying multiplier of 14, as applied by Claims Tribunal, the loss of dependency would be Rs.9,45,000/-. Besides this, appellant No.1 is entitled for a sum of Rs.44,000/- towards spousal consortium; appellant No.2 to 5 are entitled for Rs.44,000/- each i.e. total Rs.1,76,000/-, for loss of parental consortium, as held by Hon’ble Supreme Court in the matters of Nanu Ram @ Chuharu Ram (supra). In addition to aforesaid amount, appellants are entitled to get a sum of Rs.16,500/- for funeral expenses and Rs.16,500/- for loss of estate. Thus, total amount of compensation comes to Rs.11,98,000/-. The enhanced amount of compensation shall carry interest @ 8% p.a. from the date of application till actual payment is made. Rest of the conditions mentioned in the impugned award shall remain intact. Any amount disbursed to appellant pursuant to impugned award will be adjusted. 22) In the result, the appeal filed by appellant Insurance Company is dismissed. Cross-appeal filed on behalf of claimants-respondent No.1 to 5 is allowed in part. The impugned award stands modified to the extent indicated above. Sd/- (Parth Prateem Sahu) Judge roshan/-
Arguments
For Appellant For Respondent Nos.1 to 5 : Mr. P.K. Dhurundhar, Advocate : Mr. P.K. Tulsiyaan, Advocate. Hon'ble Shri Justice Parth Prateem Sahu Judgment On Board 31/7/2025 1) This appeal is filed by appellant Insurance Company challenging the award dated 150/2022 passed by learned 2 nd Additional Motor Accident Claims Tribunal, Bastar at Jagdalpur (for short ‘the Claims Tribunal”). 2) Brief facts of the case are that claimants-respondent No.1 to 5 herein have filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking compensation to the tune of Rs.19,15,000/- against the death of Ganesh Narasu Mandavi in a motor vehicular accident caused by Force Toofan vehicle bearing registration No.CG18-K-5294 due to rash and negligent driving by its driver. 3) Non-applicant No.1 and 2, driver and owner of offending vehicle, filed joint reply to claim application and denied the averments made therein. They pleaded that non-applicant No.1 driver was driving the offending vehicle cautiously and deceased himself was responsible for the accident. On the date of accident, offending vehicle was insured 3 with non-applicant No.3, driver was having valid and effective license and therefore, insurance company is liable for compensation. 4) Non-applicant No.3 also filed its reply to claim application pleading that at the time of accident, driver of offending vehicle was not possessing valid and effective driving license. As per FIR, accident was caused by vehicle bearing No.CG18-H-1451. Accident occurred while deceased was crossing the road. 5) Learned Claims Tribunal by the impugned award allowed the claim application in part, awarded compensation of Rs.7,63,000/- along with interest @ 9% p.a. and held the non-applicants, jointly and severally, liable to pay amount of compensation to claimants. 6) Learned counsel for appellant Insurance Company would submit that it is the case of false implant of vehicle bearing registration mark CG18-K-5294 (Force Toofan) in accident, whereas accident was caused by vehicle bearing registration No.CG18-H-1451 (709). He contended that immediately after a few hours of accident, FIR was lodged in police station specifically mentioning therein that deceased Ganesh Narsu Mandavi was dashed by vehicle bearing registration No.CG18-H-1451 (709). However, during investigation, police in collusion with owner of said vehicle has seized vehicle bearing registration No.CG18-K-5294 (Force Toofan) and accordingly, final report was submitted against driver of vehicle Force Toofan, which 4 infact was not involved in the accident in question, only to take undue advantage of its insurance with appellant. He next contended that Claims Tribunal erred in deducting one-fourth towards personal and living expenses of deceased overlooking the fact that children of deceased are major on the date of accident and as such, they cannot be considered to be dependent on deceased. He further submits that date of birth of deceased in his adhaar card is mentioned as ‘1.1.1973’ and thus, on the date of accident, age of deceased was 45 years 8 months and 6 days, therefore, appropriate multiplier would be ‘13’ in instead of ‘14’. 7) Learned counsel for respondents No.1 to 5 -claimants vehemently opposes submissions of learned counsel for appellant and submits