Nafr High Court
Case Details
1 AKHILESH BEOHAR Digitally signed by AKHILESH BEOHAR Date: 2025.01.20 17:09:29 +0530 2025:CGHC:2599 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1043 of 2016 1. Smt. Nilima, W/o Late Suraj Agrawal, aged about 24 Years, 2. Ku. Riya, D/o Late Suraj Agrawal, aged about 3 Years, being minor through the Natural Guardian Mother Smt. Nilima W/o Late Suraj Agrawal, 3. Bhagwat Lal, S/o Late Lalji Agrawal, aged about 75 Years, 4. Sagar, S/o Bhagwat Lal Agrawal, aged about 24 Years, All are R/o Ward No.6 Sonarpara, Khairagarh, P.S. and Tahsil- Khairagarh, Dist.- Rajnandgaon, Chhattisgarh. (Claimants) ---Appellants versus 1. Lalit Sori, S/o Nawal Ram Sori, aged about 33 Years, R/o Village Signapur, P.S. Keshkal, Tehsil- Keshkal, Dist.- Kondagaon, Chhattisgarh. (Driver of Offending Vehicle/Non-Applicant No.1) 2. Umashankar Shukla, S/o Late Gajadhar Prasad Shukla, aged about 63 Years, R/o Vardhman Colony Jagdalpur, Post- Jagdalpur, Dist.- Bastar, Chhattisgarh. (Owner of Offending Vehicle/Non-Applicant No.2) 3. Bajaj Alliance General Insurance Company Ltd., Through Branch Manager, Branch Office at inront of Main Gate Of Rajkumar College, Near ICICI Bank, G.I. Road Raipur, Chhattisgarh (Insurance Company/Non-Applicant No.3) --- Respondents MAC No. 893 of 2017 • Vijay Lal Chopda, S/o Manak Lal Chopda, aged about 46 Years, R/o Ward No.12 Amlipara Khairagarh, P.S. and Tehsil Khairagarh, District Rajnandgaon, Chhattisgarh. (Claimant) Versus ---Appellant 2 1. Lalit Sori, S/o Nawal Ram Sori, aged about 30 Years, R/o Village Singanpur, P.S. Keshkal, Tehsil Keshkal, District Kondagaon, Chhattisgarh. 2. Umashankar Shukla, S/o Late Gajadhar Prasad Shukla, aged about 60 Years, R/o Vardhaman Colony Jagdalpur, Post Jagdalpur, District Bastar, Chhattisgarh. 3. Bajaj Allianz General Insurance Company Limited, Through Branch Manager, Branch Office In Front of Main Gate of Rajkumar College, Near ICICI Bank, G.E. Road, District Raipur, Chhattisgarh. --- Respondents MAC No. 1044 of 2016 1. Ku. Mahak Chopda, D/o Vijay Lal Chopda, aged about 21 Years,
Legal Reasoning
2. Smt. Sunder Bai, W/o Late Manak Lal Chopda, aged about 75 Years, 3. Vinay Chopda, S/o Vijay Lal Chopda , aged about 19 Years, 4. Vijay Lal Chopda, S/o Late Manak Lal Chopda, aged about 49 Years, All are R/o- Ward No. 12 Amlipara, Khairagarh, P.S. and Tehsil- Khairagarh, District- Rajnandgaon, Chhattisgarh. (Claimants) ---Appellants Versus 1. Lalit Sori, S/o Nawal Ram Sori, aged about 33 Years, R/o- Village- Signapur, P.S. Keshkal, Tehsil- Keshkal, District- Kondagaon, Chhattisgarh. (Driver of Offending Vehicle/non-Applicant No. 1) 2. Umashankar Shukla, S/o Late Gajadhar Prasad Shukla, aged about 63 Years, R/o- Vardhman Colony, Jagdalpur, Post- Jagdalpur, District- Bastar, Chhattisgarh. (Owner of Offending Vehicle/non-Applicant No. 2) 3. Bajaj Alliance General Insurance Company Ltd., Through Branch Manager, Branch Office at infront of Main Gate of Rajkumar, College, Near ICICI Bank, G.E. Road Raipur, Chhattisgarh. (Insurance Company/non-Applicant No. 3) --- Respondents For Claimants : Mr. Akash Shrivastava, Advocate. For Driver and Owner : None, though served. For Insurance Company : Mr. Sangeet Kumar Kushwaha and Mr. Prashant Sahu, Advocates. (Hon'ble Shri Justice Radhakishan Agrawal) Judgment on Board 15/01/2025 3 1. Since all the above appeals filed by the claimants arise out of the same accident that took place on 18.02.2013, they are being heard together
Decision
and disposed of by this common judgment. 2. As per averments made in the claim petitions, on 18.02.2013, deceased persons namely Suraj Agrawal, Smt. Santosh Jain and injured-Vijay Lal Chopda were going to Kondagaon to attend funeral of their relative by car Ritz bearing registration No.CG08-K-0793. However, on way, when they reached village Kulgaon, non-applicant No.1 / driver of the Truck bearing registration No.CG17-H-0554 (hereinafter called as 'offending vehicle') by driving the same in a rash and negligent manner, dashed the said car, as a result of which, Suraj Agrawal and Smt. Santosh Jain sustained grievous injuries over their bodies and died. In the said accident, injured-Vijay Lal Chopda also sustained grievous injuries over his body and his right side hip bone behind the waist was fractured and left hip bone was got dislocated. Thereafter, injured-Vijay Lal Chopda was taken to District Hospital, Kanker and from there, he was referred to Raipur for better treatment. After that, claimant/injured-Vijay Lal Chopda also took treatment in Chaudhary Hospital, Nagpur. At the time of accident, the said offending vehicle was owned by non-applicant No.2 and was insured with non-applicant No.3. 3. On account of death of deceased-Suraj Agrawal, a claim petition under Section 166 of the Motor Vehicles Act was filed by the claimants seeking compensation to the tune of Rs.29,50,000/- under various heads, inter alia, stating that at the time of accident, deceased-Suraj Agrawal was aged about 25 years and was earning Rs.300/- per day by working as driver and also used to earn Rs.100-200/- per day by selling grocery 4 items. Apart from this, he was also earning money by working as Agent in Sahara India Pvt. Ltd. However, the learned Additional Motor Accident Claims Tribunal, Khairagarh, District Rajnandgaon, C.G. in Claim Case No.26/2013 vide award dated 30.04.2016, assessed and awarded the compensation of Rs.4,28,000/- to the claimants with interest at the rate of 9% per annum from the date of application till its realization while fastening liability upon the non-applicants jointly and severally. 4. Similarly, on account of death of deceased- Smt. Santosh Jain, a claim petition under Section 166 of the Motor Vehicles Act was also filed by the claimants seeking compensation to the tune of Rs.57,50,000/- under various heads, inter alia, stating that at the time of accident, deceased- Smt. Santosh Jain was aged about 41 years and was engaged in the business of selling grains along with her husband and used to earn Rs.10,000/- per month. Apart from this, she was also running a transport business and used to earn Rs.10-15,000/- per month. However, the learned Additional Motor Accident Claims Tribunal, Khairagarh, District Rajnandgaon, C.G. in Claim Case No.27/2013 vide award dated 30.04.2016, assessed and awarded the compensation of Rs.3,80,000/- to the claimants with interest at the rate of 9% per annum from the date of application till its realization while fastening liability upon the non- applicants jointly and severally. 5. Likewise, on account of injuries sustained by the claimant- Vijay Lal Chopda, a claim petition under Section 166 of the Motor Vehicles Act was filed by him seeking compensation to the tune of Rs.52,50,000/- under various heads, inter alia, stating that at the time of accident, injured/claimant was aged about 46 years and was engaged in the business of grains and used to earn Rs.800-1,000/- per day. However, 5 the learned Additional Motor Accident Claims Tribunal, Khairagarh, District Rajnandgaon, C.G. in Claim Case No.51/2013 vide award dated 08.02.2017, assessed and awarded the compensation of Rs.13,27,527/- to the claimant with interest at the rate of 9% per annum from the date of application till its realization while fastening liability upon the non- applicants jointly and severally. Against the said awards, claimants are before this Court by filing appeals separately for enhancement. 6. Learned counsel for the appellants in MAC No.1043/2016 & MAC No.1044/2016 submits that as per the documents (Ex.P-8), income tax return for the AY (2011-2012) filed by the deceased-Suraj Agrawal dated 31.12.2012 i.e. before the accident and income tax return for the AY (2011-2012) filed by the deceased- Smt. Santosh Jain dated 20.09.2011 i.e. before the accident, it is evident that the total annual income of the deceased-Suraj Agrawal was Rs.1,57,820/- and that of the deceased- Smt. Santosh Jain was Rs.1,88,560/-, but the Tribunal did not consider the same and assessed the annual income of the deceased persons namely Suraj Agrawal and Santosh Jain at Rs.36,000/- each on notional basis. He further submits that in these cases, Tribunal has not awarded any amount towards future prospects, which ought to have been awarded looking to the age of the deceased persons and that amount awarded by the Tribunal towards conventional heads is also on lower side, which also needs to be enhanced suitably. In MAC No.893/2017, counsel for the appellant submits that as per the document (Ex.P-238), income tax return for the AY (2011-2012) filed by the claimant-Vijay Lal Chopda dated 20.09.2011 i.e. before the accident, it is evident that the total annual income of the claimant-Vijay Lal Chopda was Rs.1,52,502/- after deduction, but the Tribunal did not 6 consider the same and assessed the total annual income of the claimant-Vijay Lal Chopda at Rs.1,00,000/-. He further submits that in the said accident, claimant suffered 70% permanent disability, which is evident from disability certificate marked as Ex.P-240 issued by the District Medical Board, Rajnandgaon and proved by AW-2 Dr. Prakash Bhalerao, but the Tribunal did not consider the said disability certificate and on its own assessed the permanent disability of claimant to the extent of 30%, which needs to be reconsidered suitably. He further submits that the Tribunal has not awarded any amount towards future prospects. He also submits that the amount awarded by the Tribunal towards pain and suffering is also on lower side, which requires to be enhanced suitably. Reliance has been placed on the decisions of Hon’ble Supreme Court in the matters of National Insurance Company Limited vs Pranay Sethi and others, (2017) 16 SCC 680 & Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others reported in (2018) 18 SCC 130. 7. Learned counsel for the Insurance Company supports the impugned award and submits that the Tribunal, after considering all the relevant aspects of the matter, has rightly awarded compensation amount to the respective claimants, which needs no interference by this Court. 8. Heard learned counsel for the parties and perused the record. 9. MAC No.1043/2016:- As regards the income of the deceased- Suraj Agrawal, though the claimants in the claim petition have pleaded that deceased was earning Rs.300/- per day by working as driver, also used to earn Rs.100-200/- per day by selling grocery items and was also earning money by working as Agent in Sahara India Pvt. Ltd and for 7 proving the said fact, they have filed income tax return of the deceased- Suraj Agrawal for the AY 2011-2012 dated 31.12.2012 i.e. prior to incident where his annual income has been shown as Rs.1,57,820/- and the other relevant documents, however, the Tribunal did not consider the documents filed by the claimants and on its own, assessed the annual income of the deceased at Rs.36,000/-, which in my opinion, is on lower side. 10. The Supreme Court in the matter of Smt. Anjali & ors. vs Lokendra Rathod & Ors.1 wherein the Supreme Court, while dealing with the importance of the income tax return, held in para 9 as under : “9. The Tribunal and the High Court both committed grave error while estimating the deceased’s income by disregarding the Income Tax Return of the Deceased. The appellants had filed the Income Tax Return (2009-2010) of the deceased, which reflects the deceased’s annual income to be Rs.1,18,261/-, approx. Rs.9,855/- per month. This Court in Malarvizhi & Ors vs. United India Insurance Co. Ltd. & ors. (2020) 4 SCC 228 has reaffirmed that the Income Tax Return is a statutory document on which reliance be placed, where available, for computation of annual income. In Malarvizhi (supra), this Court has laid as under: “10. …..We are in agreement with the High Court that the determination must proceed on the basis of the income tax return, where available. The income tax return is a statutory document on which reliance may be placed to determine the annual income of the deceased.” Hence, this Court is of the opinion that the deceased’s annual income be fixed at Rs.1,18,261, approx. Rs.9,855/- per month keeping in mind the deceased’s Income Tax Return for the year 2009-2010.” 11. Therefore, by applying the aforesaid judgment and looking to the document (Ex.P-8) i.e. income tax return of the deceased-Suraj Agrawal for the AY 2011-2012 dated 31.12.2012 and the nature of work of the deceased, I propose to recompute the annual income of deceased-Suraj Agrawal at Rs.1,57,820/-. 1 2022 LiveLaw (SC) 1012 8 12. So far as grant of future prospects is concerned, in this case, the Tribunal considering the pleadings, evidence, oral and documentary, available on record, determined the age of the deceased as 25 years, but did not grant any amount towards future prospects. The Hon’ble Supreme Court in the matter of Pranay Sethi, (supra) has considered 40% towards loss of future prospects for the self-employed persons who are below 40 years. Therefore, in the present case, the applicable percentage of future prospects would be 40%. 13. Further, taking the guidance from the decisions of the Hon'ble Supreme Court in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, Pranay Sethi & Magma General Insurance Co. Ltd. (supra), this Court recomputes the compensation in the following manner:- S.No. Heads Calculation(in rupees) 01. 02. Income of the deceased- Suraj Agrawal 40% of (i) above to be added towards future prospects. Rs.1,57,820/- per annum Rs.63,128/- Rs.1,57,820/- + Rs.63,128/-= Rs.2,20,948/- 03. Multiplier of 18 to be applied Rs.2,20,948/- x 18 04. 05. 06. 1/3 deduction towards personal and living expenses of the deceased Towards loss of estate and funeral expenses Towards loss of consortium to to 3, claimants No.1 (Rs.40,000/- each) Rs.39,77,064/- Rs.13,25,688/- Rs.39,77,064/- - Rs.13,25,688/- = Rs.26,51,376/- Rs.30,000/- (Rs.15,000/- each) Rs.1,20,000/- Total Compensation Rs.28,01,376/- Since the Tribunal has already awarded Rs.4,28,000/-, after 9 deducting the same from Rs.28,01,376/-, the claimants (in MAC No.1043/2016) are entitled for an additional compensation of Rs.23,73,376/-, which shall carry interest as awarded by the Tribunal. Rest of the conditions of the impugned award shall remain intact. 14. MAC No.1044/2016:- As regards the income of the deceased- Smt. Santosh Jain, though the claimants in the claim petition have pleaded that deceased- Smt. Santosh Jain was engaged in the business of selling grains along with her husband and used to earn Rs.10,000/- per month. Apart from this, she was also running a transport business and used to earn Rs.10-15,000/- per month and for proving the said fact, they have filed income tax return of the deceased-Smt. Santosh Jain for the AY 2011-2012 dated 20.09.2011 i.e. prior to incident where her annual income has been shown as Rs.1,88,560/- and the other relevant documents, however, the Tribunal did not consider the documents filed by the claimants and on its own, assessed the annual income of the deceased at Rs.36,000/-, which in my opinion, is on lower side. Therefore, by applying the aforesaid judgment and looking to the document (Ex.P-8) i.e. income tax return of the deceased-Smt. Santosh Jain for the AY 2011-2012 dated 20.09.2011 and the nature of work of the deceased, I propose to recompute the annual income of deceased-Smt. Santosh Jain at Rs.1,88,560/-. 15. So far as grant of future prospects is concerned, in this case, the Tribunal considering the pleadings, evidence, oral and documentary, available on record, determined the age of the deceased as 45 years, but did not grant any amount towards future prospects. The Hon’ble Supreme Court in the matter of Pranay Sethi, (supra) has considered 25% towards 10 loss of future prospects for the self-employed persons who are aged between 40-50 years. Therefore, in the present case, the applicable percentage of future prospects would be 25%. 16. Further, taking the guidance from the decisions of the Hon'ble Supreme Court in Smt. Sarla Verma and others vs. Delhi Transport Corporation and another, (2009) 6 SCC 121, Pranay Sethi & Magma General Insurance Co. Ltd. (supra), this Court recomputes the compensation in the following manner:- Sl. No. 01. Heads Calculation (in rupees) Income of the deceased-Smt. Santosh Jain Rs.1,88,560/- per annum 02. 25% of (i) above to be added towards future prospects. 03. 1/3 deduction towards personal and living expenses of the deceased Rs.47,140/- Rs.1,88,560/- + Rs.47,140/- = Rs.2,35,700/- Rs.78,566/- Rs.2,35,700/- - Rs.78,566/- = Rs.1,57,134/- 04. Multiplier of 14 to be applied Rs.1,57,134/- x 14 Rs.21,99,876/- 05. Towards loss of estate and Rs.30,000/- (Rs.15,000/- each) funeral expenses 06. Towards loss of consortium to to 4, claimants No.1 (Rs.40,000/- each) Rs.1,60,000/- Total Compensation Rs.23,89,876/- Since the Tribunal has already awarded Rs.3,80,000/-, after deducting the same from Rs.23,89,876/-, the claimants (in MAC No.1044/2016) are entitled for an additional compensation of Rs.20,09,876/-, which shall carry interest as awarded by the Tribunal. Rest of the conditions of the impugned award shall remain intact. 17. MAC No.893/2017:- As regards the income of the claimant- Vijay Lal 11 Chopda, though the claimant in the claim petition has pleaded that he was engaged in the business of grains and used to earn Rs.800- Rs.1,000/- per day and for proving the said fact, he has also filed income tax return for the AY 2011-2012 dated 20.09.2011 (Ex.P-238) i.e. prior to incident where his annual income has been shown as Rs.1,52,502/- after deduction and the other relevant documents, however, the Tribunal did not consider the documents filed by the claimant and on its own, assessed the annual income of the deceased at Rs.1,00,000/-, which in my opinion, is on lower side. Therefore, by applying the aforesaid judgment and looking to the document (Ex.P-238) i.e. income tax return for the AY 2011-2012 filed by the claimant dated 20.09.2011 and the nature of his work, I propose to recompute the annual income of claimant- Vijay Lal Chopda at Rs.1,52,502/-. 18. As regards the permanent disability suffered by the claimant, AW-2 Dr. Prakash Bhalerao has stated that on 10.01.2014, claimant appeared before the Medical Board, Rajnandaon and was examined by him and upon examination, he found there were fractures on left shoulder and right acetabulum which were operated and that there was injury on left brachial plexus and also there was stiffness in his right knee and hip joint. According to him, claimant had suffered brachial plexus injury on his left arm, due to which, his working capacity has been affected. However, in his cross-examination, he admitted that on his own, he assessed the permanent disability to the extent of 70% and prepared the disability certificate (Ex.P-240) without examining him. The Tribunal, after evaluating the evidence available on record, has come to the conclusion that permanent disability sustained by the claimant was not of his whole 12 body, but to the extent of particular limb, assessed the permanent disability to be 30% in place of 70%. This apart, photo of the claimant affixed in the disability certificate (Ex.P-240) also shows that claimant is able to perform his work with walker. Therefore, looking the nature of injury sustained by the claimant and nature of his work, I am of the considered view that the Tribunal was justified in assessing the permanent disability to the extent of 30%. 19. As regards non-grant of any amount by the Tribunal towards pain and suffering, a perusal of the record would reveal that indisputably due to rash and negligent driving of offending vehicle by its driver/non-applicant No.1, claimant sustained grievous injuries over his body and his right side hip bone behind the waist was fractured and left hip bone was got dislocated and there was fracture on his left shoulder, for which, he had to be admitted in Medishine Hospital, Raipur from 18.02.2013 to 23.03.2013, where his waist, hip and shoulder were operated twice. Thereafter, he was admitted in Chaudhary Hospital, Nagpur from 24.03.2013 to 03.06.2013 and then, he also took treatment in Ahmedabad Hospital from 14.06.2014 to 13.08.2014 as is evident from the documents filed by him. During hospitalization and treatment, appellant-Vijay Lal Chopda must have suffered pain and suffering owing to injuries sustained by him and must have incurred expenses for getting better treatment. However, the Tribunal, did not grant any amount towards pain and suffering, which in the considered opinion of this Court, is not just and proper as the claimant sustained serious injuries including fractures for which he had to take treatment in different hospitals. Therefore, considering the facts and circumstances of the case, the nature and extent of injuries suffered by the claimant, the period of his 13 hospitalization in different hospitals & places and the expenses incurred by him, ends of justice would be served, if the claimant is granted an amount of Rs.60,000/- towards pain and suffering. Accordingly, the appellant is entitled to be awarded Rs.60,000/- towards pain and suffering. 20. So far as non-grant of any amount towards future prospects is concerned, the Supreme Court in the matter of Mohd. Sabeer alias Shabir Hussain vs. Regional manager, U.P. State Road Transport Corporation2 has held in para 18 which reads as under:- “18. It is a well settled position of law that in cases of permanent disablement caused by a motor accident, the claimant is entitled to not just future loss of income, but also future prospects. It has been reiterated by this Court in multiple instances that “just compensation” must be interpreted in such a manner as to place the claimant in the same position as he was before the accident took place.” 21. By applying the aforesaid decision to the facts of the present matter, claimant in the present case shall also be entitled for the income under future prospects. In the said accident, claimant/injured suffered grievous injuries including fractures over his body and on account of the injuries, he would have to face/suffer consequences and deprive from day to day activity. In such a situation, the Tribunal ought to have added future prospects in view of the decisions of Supreme Court in matter of Pranay Sethi (supra), which in the present case comes to 25% of his annual income looking to the age of the claimant as 46 years. This apart, the Tribunal awarded Rs.8,86,927/- towards medical expenses, Rs.30,000/- towards special diet and Rs.20,600/- towards transportation, which in the considered opinion of this Court, is just and proper. 22. In view of above, the claimant is entitled for compensation in the 2 2022 SCC OnLine SC 1701 following manner:- 14 S.No. Head Awarded by this Court (Rs.) 1. 2. 3. 4. 5. 6. 7. 8. Income of the claimant Rs.1,52,502/- per annum. Future prospect 25% Loss of earning capacity @ 30% Multiplier of 13 applied to assess the total loss of earning capacity For Medicines Expenses (as awarded by the Tribunal) Towards attendant & Special Diet (as awarded by the Tribunal) Towards awarded by the Tribunal) transportation (as Rs.1,90,627/- (Rs.1,52,502/- + Rs.38,125/-) 30% of Rs.1,90,627/- Rs.57,188/- Rs.7,43,444/- Rs.8,86,927/- Rs.30,000/- Rs.20,600/- Towards Pain and suffering Rs.60,000/- Total Compensation Rs.17,40,971/- Since the Tribunal has already awarded Rs.13,27,527/-, after deducting the same from Rs.17,40,971/-, the claimants (in MAC No.893/2017) is entitled for an additional compensation of Rs.4,13,444/-, which shall carry interest as awarded by the Tribunal. Rest of the conditions of the impugned award shall remain intact. 23. It is pertinent to mention here that the Motor Vehicles Act is a beneficial and welfare legislation aimed at providing relief to the victims or their families, in cases of genuine claims. The Tribunals must bear in mind the object of the Act in awarding just and fair compensation to the victim in motor accident cases and it is also the bounden duty of the Courts/Tribunals to see that the victim or injured of the motor accident cases is properly and reasonably compensated and in assessing, what has been described as a just compensation under the Act, all factors 15 including possibilities have to be kept in mind. However, in these cases, learned MACT has not properly assessed the income of the deceased persons and injured, not granted prospects to them and other conventional heads, whereas it ought to have assessed the same by taking into consideration the above aspects. 24. In the result, all the above captioned appeals filed by the respective claimants are allowed in part with modification in the impugned awards to the above extent. Sd/- (Radhakishan Agrawal) Judge Akhilesh