1 - Smt. Jaishree Sahu Wd/o Late Dhanesh Kumar Aged About 28 Years R/o v. 1 - Yunush Kureshi S/o Yusuf Kureshi Aged About 32 Years R/o Ward No.5
Case Details
1 2025:CGHC:23064 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 892 of 2019 1 - Smt. Jaishree Sahu Wd/o Late Dhanesh Kumar Aged About 28 Years R/o House No. 208, Machandur, Police Station Utai, District Durg Chhattisgarh. 2 - Khemu Sahu S/o Late Agrahi Sahu Aged About 55 Years R/o House No. 208, Machandur, Police Station Utai, District Durg Chhattisgarh. 3 - Parwati Sahu W/o Khemu Ram Sahu Aged About 53 Years R/o House No. 208, Machandur, Police Station Utai, District Durg Chhattisgarh. --- Appellants Versus 1 - Yunush Kureshi S/o Yusuf Kureshi Aged About 32 Years R/o Ward No.5 Near Islam Kirana Shop Islam Nagar Supela, Bhilai, District Durg Chhattisgarh.....................Driver, District : Durg, Chhattisgarh 2 - Mumtaj Ahmad S/o Shekh Mahmood Aged About 43 Years R/o House No.254, Ward No.8, Ashraf Nagar, Takiyapar, Durg District Durg Chhattisgarh...............Owner, District : Durg, Chhattisgarh 3 - Manager Oriental Insurance Company Limited Rajendra Park Chowk, Parmanand Building, Durg District Durg Chhattisgarh.................Insurer, District : Durg, Chhattisgarh --- Respondents MAC No. 1076 of 2019 1 - Mumtaj Ahmad S/o Sheikh Mahmood Aged About 43 Years R/o House No. 254, Ward No. 8, Ashraf Nagar, Takiyapara, Durg, District Durg Chhattisgarh. ( Owner Of Vehicle) SHUBHAM DEY Digitally signed by SHUBHAM DEY 2 2 - Yunus Kureshi S/o Yusuf Kureshi, Aged About 32 Years R/o Islam Nagar Supela, Ward No. 5, Near Islam Kirana Store, Supela Bhilai, District Durg Chhattisgarh.( Driver Of The Vehicle --- Appellants Versus
Legal Reasoning
effective fitness certificate. The Division Bench of this Court in MAC No. 123/20154 “Radhakant Keshri Vs. Ku. Radha @ Sadha Sahu & Ors.” have considered the effect of not having the valid and effective fitness certificate. Section 56 of the Motor Vehicles Act, 1988 envisages certificate of fitness of transport vehicles which reads as under:- “56. Certificate of fitness of transport vehicles :- 1) Subject to the provisions of sections 59 and 60, a transport vehicle shall not be deemed to be validly registered for the purposes of section 39, unless it carries a certificate of fitness in such form containing such particulars and information as may be prescribed by the Central Government, issued by the prescribed authority, or by an authorised testing station mentioned in sub-section (2), to the effect that the vehicle complies for the time being with all the 6 requirements of this Act and the rules made thereunder: Provided that where the prescribed authority or the authorised testing station refuses is issue such certificate, it shall supply the owner of the vehicle with its reasons in writing for such refusal. 1[Provided further that no certificate of fitness shall be granted to a vehicle, after such date as may be notified by the Central Government, unless such vehicle has been tested at an automated testing station.] 2[(2) The "authorised testing station" referred to in sub- section (1) means any facility, including automated testing facilities, authorised by the State Government, where fitness testing may be conducted in accordance with the rules made by the Central Government for recognition, regulation and control of such stations.] (3) Subject to the provisions of sub-section (4), a certificate of fitness shall remain effective for such period as may be prescribed by the Central Government having regard to the objects of this Act. (4) The prescribed authority may for reasons to be recorded in writing cancel a certificate of fitness at any time, if satisfied that the vehicle to which it relates no longer complies with all the requirements of this Act and the rules made thereunder; and on such cancellation the certificate of registration of the vehicle and any permit granted in respect of the vehicle under Chapter V shall be deemed to be suspended until a new certificate of fitness has been obtained: 3[Provided that no such cancellation shall be made by the prescribed authority unless, – (a) such prescribed authority holds such technical qualification as may be prescribed by the Central Government and where the prescribed authority does not hold the technical qualification, such cancellation is made on the basis of the report of an officer having such qualification; and 7 (b) the reasons recorded in writing cancelling a certificate of fitness are confirmed by an authorised testing station chosen by the owner of the vehicle whose certificate of fitness is sought to be cancelled: Provided further that if the cancellation is confirmed by the authorised testing station, the cost of undertaking the test shall be borne by the owner of the vehicle being tested and in the alternative by the prescribed authority.] (5) A certificate of fitness issued under this Act shall, while it remains effective, be valid throughout India. 4[(6) All transport vehicles with a valid certificate of fitness issued under this section shall carry, on their bodies, in a clear and visible manner such distinguishing mark as may be prescribed by the Central Government. (7) Subject to such conditions as the Central Government may prescribe, the provisions of this section may be extended to non-transport vehicles.].” In the aforementioned facts of the case, where certificate of fitness is relevant for continuation of the registration of vehicle, admittedly on the date of accident, the vehicle was not having the valid and effective fitness certificate, it will amount to fundamental breach of conditions of the insurance policy. In view of the aforementioned facts of the case and the provisions contained under the Motor Vehicles Act, 1988 as also, the decision of the Kerela High Court as also, the Division Bench of this Court, I do not find any error in the finding recorded by the learned Claims Tribunal of exonerating the insurance company from its liability. Accordingly, there is no substance in the appeal filed by the owner and driver of the offending vehicle i.e. MAC No. 1076/2019, which is liable to be and it is accordingly dismissed. 8. So far as the ground raised by the claimants in another appeal i.e. MAC No. 892/2019 seeking enhancement of the amount of 8 compensation is concerned, the claimants have raised a three fold submission. First, that the income assessed by the learned Claims Tribunal is on lower side, non award of amount of compensation towards the loss of future prospects and the amount of compensation awarded on other heads to be on lower side. So far as the first ground raised in this appeal with respect to the assessment of the income is concerned, the learned Claims Tribunal has categorically recorded that though there is a pleading and self-serving statement of the claimants that the deceased was earning Rs. 10,000/-. However, there is no clinching and admissible piece of evidence in this regard. In the above facts of the case, Claims Tribunal was right in assessing the income of the deceased on notional basis. 9. For assessing the income of the deceased on notional basis, the learned Claims Tribunal has taken the help of the notification issued by the competent authority under the Minimum Wages Act, 1948 and has assessed the income of the deceased as Rs. 8,450/- per month treating the deceased to be a Labourer, which cannot be said to be erroneous. In the facts of the case, where the claimants/appellants failed to prove the nature of occupation and income of the deceased, it is for the Courts or Tribunal to assess the income on notional basis, keeping in mind, the price index, cost of living, wage structure and may also take the help of the minimum-wages fixed by the competent authority under the Minimum Wages Act, 1948. For the foregoing discussion, the income of the deceased as assessed by the learned Claims Tribunal cannot be find fault with. Accordingly, it is affirmed. 10. Undisputedly, in a motor vehicular accident, the deceased died. Learned Claims Tribunal based on the documents available on record 9 assessed the age of the deceased as 33 years. Hon’ble Supreme Court in the case of Pranay Sethi (Supra) has observed that the claimants will also be entitled for the compensation towards loss of future prospects and the amount is to be added to the assessed income, considering the age of the deceased in the ratio of 50%, 30% and 15% in case, where the deceased was in permanent employment and 40%, 25% and 10% where the deceased was not in permanent employment or self-employment. In the case at hand, the deceased cannot be said to be in permanent employment as he was doing the work on daily-wages and therefore, there shall be addition of 40% of the assessed income of the deceased. It is ordered accordingly. 11. The learned Claims Tribunal has awarded Rs. 15,000/- towards the loss of love and affection, Rs. 15,000/- towards the funeral expenses and Rs. 1,00,000/- towards the treatment of Rs. 40,000/- towards the loss of consortium to the Appellant No. 1 while computing the amount of compensation. When the compensation is to be awarded under the head of loss of consortium then, the amount under the head of loss of love and affection is not to be awarded. Hence, the award of Rs. 15,000/- towards the loss of love and affection by the Tribunal is erroneous, which is not sustainable and that portion of the award is set-aside. 12. The learned Claims Tribunal has not awarded the amount of compensation towards the loss of estate and loss of consortium to the Appellants No. 2 & 3. The Appellants No. 2 & 3 being parents of the deceased are entitled towards the loss of filial consortium of Rs. 40,000/- each and Rs. 15,000/- towards loss of estate. It is ordered accordingly. The Appellants No. 2 & 3 will also be entitled for 10 Rs. 1,00,000/- towards the treatment as assessed by the learned Claims Tribunal. 13. For the foregoing reason, this Court proposes to recalculate the amount of compensation payable to the appellants based on the decision of the Hon’ble Supreme Court in the case of Sarla Verma (Supra), Pranay Sethi (Supra) and Nanu Ram (Supra). 14. Accordingly, the monthly income of the deceased is taken as Rs.8,450/- and since at the time of death, the deceased was 33 years old, therefore, in view of decision of Hon’ble Supreme Court in case of Pranay Sethi (Supra), the income of deceased is required to be enhanced by 40% towards future prospects, which comes to Rs.11,830/- (8450+3380). Thus annual income of the deceased for the purpose of calculating the compensation comes to Rs.1,41,960/- (11,830 x 12). Out of this amount, 1/3rd is to be deducted towards personal and living expenses of the deceased and after deducting 1/3rd of the annual income, annual loss of dependency would come to Rs.94,640/- (1,41,960 – 47,320). By applying multiplier of 16, as applied by the Claims Tribunal, to annual loss of dependency, the total loss of dependency would come to Rs.15,14,240/- (58,800 x 18). Besides this, Appellants No. 2 & 3 are entitled for a sum of Rs. 40,000/- each towards filial consortium, as held by the Hon’ble Supreme Court in the matter of Magma General Insurance (Supra) and Rs. 40,000/- to the Appellant No. 1 towards loss of spousal consortium. Further, they are also entitled for Rs. 15,000 for funeral expenses and Rs. 15,000 for loss of estate awarded by the learned Claims Tribunal. Thus, total amount of compensation comes to 11 Rs.16,64,240/- (15,14,240 + 40,000 + 40,000 + 40,000 + 15,000 + 15,000). 15. At this stage, Mr. Vinod Kumar Sharma, learned counsel for the appellant submits that the appellants are poor persons and they are in need of immediate financial help as the sole bread-winner died in the motor vehicular accident and therefore, to protect the interest of the appellants, a direction may be issued to the Insurance Company to first satisfy the amount of compensation and thereafter, to recover the same from the owner and driver of the offending vehicle. 16. Ms. Jyoti Agrawal, learned counsel for the Insurance Company opposes the above submission of the counsel for the appellants and would submit that pursuant to the impugned award, the owner and driver has already deposited 50% amount in view of the interim order passed by this Court dated 26.06.2019 in the case of MAC No. 1076/2019. She next contended that the direction to the Insurance Company to first pay the amount of compensation and thereafter, to recover the same from the owner and driver is to be issued considering facts of each case. It is not to be applied as a straitjacket formula. In support of her contention, she referred to a decision of the Hon’ble Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Smt. Rajkumari & Ors. reported in (2008) 1 TAC 1 SC. 17. Hon’ble Supreme Court in the case of Shamanna & Anr. Vs. Divisional Manager, Oriental Insurance Company Ltd. reported in (2018) 9 SCC 650, Amrit Pal Singh and Anr. Vs. Tata AIG General Insurance Company Ltd. & Ors. reported in (2018) 7 SCC 558, National Insurance Company Ltd. Vs. Challa Upendra Rao & Ors. reported in (2004) 8 SCC 517 even after recording a finding that there 12 was breach of conditions of insurance policy while exonerating the insurance company from its liability, had issued direction to the insurance company to first satisfy the amount of compensation and thereafter, to recover the same from the owner and driver of the offending vehicle. In the case at hand also, the claimants are the poor persons, residents of an interior village and the Respondent No. 1 is driver of the offending vehicle and the Respondent No. 2 is the private transporter. Recovery of the amount of compensation from the private persons may cause difficulty to the appellants/claimants and therefore, in the opinion of this Court, keeping in mind the object of the Motor Vehicles Act, 1988 which is a beneficial legislation, I find it appropriate to issue a direction to the Respondent No. 3/Insurance Company to deposit the balance of the amount of compensation before the learned Claims Tribunal and thereafter, to recover the same from the owner and driver of the offending vehicle. 18. The enhanced amount of compensation shall carry interest at the rate of 7.5% per annum (the rate of interest of the nationalized bank for the fixed deposit) from the date of filing of the claim application till its realization. 19. The decision relied upon by the learned counsel for the Respondent No. 3/Insurance Company is on different facts and in the said case, the owner of the vehicle is a private limited company, doing the business of transport and the liability of the Insurance Company was to the extent of Rs. 50,000/- only. However, the High Court directed for the payment of entire amount of compensation and thereafter, to recover the differential amount. The said decision relied 13 upon by the counsel for the Respondent No. 3 is distinguishable on facts. 20. This Court further directs that for recovery of the amount, insurer will not be required to file separate suit, but can recover the compensation so paid, as per directives given by Hon’ble Supreme Court in case of Oriental Insurance Company Ltd. Vs. Nanjappan & Ors. reported in (2004) 13 SCC 224. 21. For the foregoing discussion, MAC No. 1076/2019 is dismissed and MAC No. 892/2019 is allowed. 22. Any amount already paid to Claimants/Appellants No. 1 to 3 as compensation shall be adjusted from the total amount of compensation as calculated above.
Arguments
1 - Smt. Jaishree Sahu W/o Late Dhanesh Kumar Aged About 28 Years R/o House No. 208, Machandur Police Station Utai, District Durg Chhattisgarh. ( Respondent / Claimant No. 1), District : Durg, Chhattisgarh 2 - Khemuram Sahu S/o Late Agrahi Sahu Aged About 55 Years R/o House No. 208, Machandur Police Station Utai, District Durg Chhattisgarh. ( Respondent / Claimant No. 2), District : Durg, Chhattisgarh 3 - Parwati Sahu W/o Khemuram Sahu Aged About 53 Years R/o House No. 208, Machandur Police Station Utai, District Durg Chhattisgarh. ( Respondent / Claimant No. 3), District : Durg, Chhattisgarh 4 - Oriental Insurance Company Ltd., Through Its Manager, Oriental Insurance Company Ltd., Rajendra Park Chowk, Parmanand Building, Durg, District Durg Chhattisgarh. ( Respondent No. 3 / Insurance Company ), District : Durg, Chhattisgarh MAC No. 892/2019 --- Respondents For Appellants For Non-appellants No. 1 & 2 For Non-Appellants No. 3 : Ms. Jyoti Agrawal, Advocate : Mr. Vinod Kumar Sharma, Advocate : Mr. Manoj Pranjape, Advocate along with Mr. Mayank Gupta, Advocate MAC No. 1076/2019 For Appellants : Mr. Manoj Pranjape, Advocate along with Mr. For Non-appellants No. 1 : Mr. Vinod Kumar Sharma, Advocate Mayank Gupta, Advocate to 3 For Non-appellants No. 3 : Mr. Jyoti Agrawal, Advocate S.B.: Hon'ble Shri Parth Prateem Sahu, Judge 11/06/2025 Order On Board 1. Appellant/Insurance Company in MAC No. 1076/2019 have filed appeal challenging the impugned award passed by the learned Claims Tribunal in its award dated 09.04.2019 passed by the Motor Accident 3 Claims Tribunal, Durg, District – Durg (C.G.) in Claim Case No. 197/2018 whereby, the learned Claims Tribunal has awarded Rs. 13,19,200/- as amount of compensation to the respondents/claimants and the respondents/claimants have filed appeal bearing MAC No. 892/2019 seeking enhancement of the amount of compensation awarded by the learned Claims Tribunal. 2. Facts of the case in brief are that, on 03.02.2018, when Dhanesh Kumar Sahu (since deceased) was traveling towards Aamti from Bhilai on his motorcycle bearing registration no. CG 07 AF 7553 and reached near Maha Lakshmi Cloth Market, Pulgaon, at that time, the offending vehicle i.e. Mahindra Pickup bearing registration no. CG 05 D 0131 which was being driven by Yunush Kureshi/Respondent No. 1 in a rash and negligent manner, dashed the motorcycle of deceased Dhanesh Kumar Sahu and caused accident. In the said accident, the deceased Dhanesh Kumar Sahu suffered serious injuries and he was taken to hospital treatment wherein, during the course of treatment, on 04.02.2018, he died. Subsequent to the said accident, an FIR was registered bearing Crime No. 44/2018, P.S. Pulgaon, District – Durg for the offence punishable under Sections 279, 337, 304A of the Indian Penal Code, 1860. 3. Mr. Manoj Pranjape, learned counsel for the appellant in MAC No. 1076/2019 submits that even if the finding recorded by the learned Claims Tribunal is stated to be correct that on the date of accident, the offending vehicle was not having the valid and effective fitness certificate, then also, that itself will not be a ground to exonerate the insurance company from indemnifying the insured because, the owner of vehicle/Appellant No. 1 for getting policy for the offending vehicle 4 had paid the premium. In alternate, he submits that even if the Court comes to the conclusion that the insurance company has rightly been exonerated, then also, this Court may direct the Insurance Company to fist satisfy the amount of compensation awarded by the learned Claims Tribunal and therafter, to recover the same. 4. Ms. Jyoti Agrawal, learned counsel for the Respondent No. 4/Insurance Company vehemently opposes the submission of the counsel for the appellant and would submit that, not having the valid and effective fitness certificate will amount to fundamental breach of the conditions of the insurance policy and in such facts, the learned Claims Tribunal justified in exonerating the insurance company from its liability. She further contended that the owner, Appellant No. 1 and the Appellant No. 2, driver of the offending vehicle cannot seek a relief of a direction of this Court to the insurance company to first satisfy the compensation awarded and thereafter to recover the same in the facts of the case, where the appeal is filed by the owner and driver of the offending vehicle. 5. Mr. Vinod Kumar Sharma, learned counsel for the Respondents No. 1 to 3/claimants would submit that he has filed separate claim appeal, seeking enhancement of the amount of compensation. He contended that the learned Claims Tribunal has assessed the income of the deceased on lower side and have accordingly, awarded less amount of compensation. He also submits that the learned Claims Tribunal has not awarded compensation towards the loss of future prospects and has awarded meagre amount of compensation against the death of Dhanesh Kumar, husband of Appellant No. 1 and son of the Appellants No. 2 & 3 in its award. He also contended that the Appellant 5 No. 2 & 3 were not awarded the amount of compensation under head of the loss of consortium and prays for enhancement of the amount of compensation suitably. He also submits that in case this Court comes to conclusion that exoneration of insurance company is correct, direction be issued to the insurance company to first pay the amount of compensation and thereafter, to recover the same from owner of the vehicle. 6. I have heard learned counsel for the parties and perused the record of the claim case. 7. So far as the submission for counsel for the appellant in MAC No. 1076/2019 on exoneration of the Insurance Company from its liability on the ground of not having the fitness certificate, admittedly, on the date of accident, the offending vehicle, was not having the valid and
Decision
23. In the result, the appeal is allowed in part and the impugned award stands modified to the extent indicated above. 24. Certified copy as per rules. Dey Sd/---/-/--------/--/- (Parth Prateem Sahu) Judge