Motiram Salam, S/o Shri Mandi Ram Salam, R/o Village - Koyalibeda, Thana - Koyalibeda v. 1
Case Details
1 Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.04.22 18:19:43 +0530 2025:CGHC:17700 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1981 of 2018 Motiram Salam, S/o Shri Mandi Ram Salam, R/o Village - Koyalibeda, Thana - Koyalibeda, Tahsil Pakhanjur, District North Baster Kanker Chhattisgarh ……………………….(Owner) --- Appellant versus 1 - Smt. Suni Bai Nishad W/o Late Shri Jangalu Ram Nishad Aged About 48 Years R/o Bajarpara, Koyalibeda, Thana And Tahsil - Pakhanjur, present residence of Albelapara Kankern, Thana And Tahsil - Kanker, District North Baster Kanker Chhattisgarh 2 - Minor Ku. Kanchal Nishad D/o Late Shri Gangu Ram Nishad Aged About 6 Years, through natural guardian Grand Mother Smt. Suni Bai Nishad. R/o Bajarpara, Koyalibeda, Thana And Tahsil - Pakhanjur, present residence of Albelapara Kankern, Thana And Tahsil - Kanker, District North Baster Kanker Chhattisgarh 3 - Minor Ku. Chandani Nishad D/o Late Shri Gangu Ram Nishad Aged About 2 Years through natural guardian Grand Mother Smt. Suni Bai Nishad. R/o Bajarpara, Koyalibeda, Thana And Tahsil - Pakhanjur, present residence of Albelapara 2 Kankern, Thana And Tahsil - Kanker, District North Baster Kanker Chhattisgarh
Legal Reasoning
4 - Jamuna Nishad D/o Late Shri Jangalu Nishad Aged About 20 Years R/o Bajarpara, Koyalibeda, Thana And Tahsil - Pakhanjur, present residence of Albelapara Kankern, Thana And Tahsil - Kanker, District North Baster Kanker Chhattisgarh……………………………….…………………(Claimants) 5 - Tameshwar Nishad S/o Shri Gannu Ram Nishad Aged About 25 Years R/o Village Koyalibeda Thana Koyalibeda, Tahsil Pakhankujur, District North Bastar Kanker, Chhattisgarh…………...........………………………………….(Driver) 6 - The National Insurance Company Limited Branch Office First Floor Shanti Chhavi Tower Sirasar Chowk Jagdalpur, District Bastar, Chhattisgarh..........…………………………………(Insurer) --- Respondent(s) And MAC No. 985 of 2019 1 - Smt. Suni Bai Nishad W/o Late Jangalu Ram Nishad Aged About 48 Years R/o Bazarpara, Koyalibeda, Tahsil- Pankhajur, At Present Albelapara, Kanker, Police Station And Tahsil- Kanker, District- North Bastar Kanker, Chhattisgarh 2 - Minor Chanchal Nishad S/o Late Gangu Ram Nishad Aged About 6 Years Through Natural Guardian Grandmother Smt. Suni Bai Nishad, R/o Bazarpara, Koyalibeda, Tahsil- Pankhajur, At Present Albelapara, Kanker, Police Station And Tahsil- Kanker, District- North Bastar Kanker, Chhattisgarh 3 - Minor Chandni Nishad D/o Late Gangu Ram Nishad Aged 3 About 2 Years Through Natural Guardian Grandmother Smt. Suni Bai Nishad, R/o Bazarpara, Koyalibeda, Tahsil- Pankhajur, At Present Albelapara, Kanker, Police Station And Tahsil- Kanker, District- North Bastar Kanker, Chhattisgarh 4 - Jamuna Nishad D/o Late Jangalu Nishad Aged About 20 Years R/o Bazarpara, Koyalibeda, Tahsil- Pankhajur, At Present Albelapara, Kanker, Police Station And Tahsil- Kanker, District- North Bastar Kanker, Chhattisgarh……….……………(Claimants) ... Appellant(s) versus 1 - Tameshwar Nishad S/o Gannu Ram Nishad Aged About 25 Years R/o Koyalibeda, Tahsil- Pankhajur, District- North Bastar Kanker, Chhattisgarh...……………………………………….(Driver) 2 - Moti Ram Salam S/o Mandi Ram Salam R/o Koyalibeda, Tahsil- Pankhajur, District- North Bastar Kanker, Chhattisgarh..……………………………………………………..(Owner) 3 - The National Insurance Company Limited Through Branch Manager, Office At First Floor, Shanti Chhabi Tower, Sirasar Chowk, Jagdalpur, District- Bastar, Chhattisgarh……...(Insurer) ---- Respondents In MAC (1981/2018) For Appellant : Mr. Sunil Sahu, Advocate. For Respondents No.1 to 4 : Mr. Praveen Dhurandhar, Advocate. For Respondent No.6 : Mr. Ashish Gupta, Advocate In MAC (985/2019) For Appellants : Mr. Praveen Dhurandhar, Advocate. For Respondents No.1 & 2 : Mr. Anand Kumar Gupta, Advocate For Respondents No.3 : Mr. Ashish Gupta, Advocate. 4 Hon'ble Shri Justice Sanjay Kumar Jaiswal (Order on Board) (17.04.2025) 1. Since both the appeals arise out of same award dated 01.10.2018, passed by Motor Accident Claims Tribunal, North Bastar Kanker (C.G.), in Claim Case No. 66/2018, therefore, they are being heard and decided by this common order. 2. The gist of the claims before the Tribunal, in brief, was that on 27.04.2018, Ganguram Nishad (now deceased) was traveling in offending vehicle (Bolero) bearing registration No. CG-05-V- 6325, Driver/Tameshwar Nishad drove the vehicle rashly and negligently and caused accident, due to which Ganguram sustained grievous injuries and died in a hospital. Thereafter, the matter was reported to the concerned Police Station based on which a criminal case was registered. 3. It is claimed that at the time of accident, deceased Ganguram was aged about 29 years. He was a labour and was earning Rs. 10,000/- monthly. Due to the casual death of Ganguram, there is an irreparable loss to the claimants, therefore, the claimants had preferred an application before the Tribunal claiming compensation to the tune of Rs. 27,26,000/-. 4. Learned Tribunal, on a close scrutiny of the evidence brought on record, assessed monthly income of the deceased to Rs.45,00/- given 40% future prospects, deducted 1/4 income towards personal and living expenses and applied multiplier of 5 17 and awarded Rs. 9,63,900/-. Furthermore, Rs.30,000/- has been awarded by the Tribunal in other heads. Thus, total Rs.9,93,900/- has been awarded in favour of the claimants with interest @ 7.5 % per annum, from the date of application till its realization. While passing the award, the Claims Tribunal has exonerated the insurance company finding breach of policy conditions and fastened the liability upon Driver Tameshwar Nishad and Owner Motiram Salam. Hence, MAC No. 1981/2018 has been filed by owner of the offending vehicle to be freed from the liability and MAC No.985/2019 has been filed by the claimants for enhancing the amount of compensation. (MAC No.1981/2018) 5. It is an undisputed fact that the offending vehicle (Bolero) was insured with the Insurance Company/Respondent No.6 whose policy is Exhibit D-1. The said Bolero vehicle was insured under a private car policy. According to the argument of Counsel for the insurance company, it was being used commercially, which the Tribunal had accepted and exonerated the insurance company from its liability and put the responsibility on the offending vehicle’s owner and the driver. 6. Learned counsel for the appellant/vehicle’s owner Motiram Salam argues that the insurance company has failed to prove through its evidence that the vehicle at fault was being used for commercial purpose and hence breach of policy has not been proved in the case. Hence the insurance company should be held liable to pay the amount of compensation. 6 7. Learned counsel for the insurance company argues that the deceased's wife, Smt. Sunibai Nishad (claimant) has admitted in her evidence that the vehicle at fault was taken on rent for marriage of the Driver Tameshwar Nishad's sister. Thus, it has been proved that the vehicle at fault was used for commercial purposes. In this regard, the conclusion of the Tribunal is appropriate. The argument put forward by Counsel appearing for appellant Motiram Salam is invalid and his appeal may be dismissed. 8. Arguments of both the parties are heard and the record is minutely perused. 9. In this case, Smt. Sunibai Nishad, wife of the deceased, has been examined from the claimants’ side, who was not in the said accidented Bolero vehicle at the time of the accident. Development Officer Ram Chandra Verma has also been examined from the insurance company, who was not in the Bolero vehicle at the time of the accident. Mukesh Nishad (AW- 2), who was travelling in the Bolero vehicle at the time of the accident, has been examined from the claimants’ side and no such fact has come out in the statement of Mukesh Nishad which establishes that the Bolero vehicle was used for commercial purpose at the time of the accident. The fact of the accidented Bolero vehicle being used for commercial purpose has come out only in the cross-examination of Smt. Sunibai Nishad, wife of the deceased. It is clear that the burden of proof 7 of breach of policy lies on the insurance company which has made such a plea. There is no clear evidence in the entire claim application or the police charge-sheet in this regard that at- fault, vehicle was used for commercial purpose at the time of the accident. Mukesh Nishad (AW-2) who was in the said Bolero vehicle has also denied the suggestion that there were 10 people in the Bolero vehicle, rather he has stated that there were only 3 people. 10. It is clear from the entire evidence that at the time of the accident, Motiram Nishad, the owner of the vehicle, was not present in the vehicle and no one from his family was present either, but it is clear that Tameshwar Nishad was the driver of the vehicle whom Owner Motiram has admitted as his driver. In the statement of the deceased's wife Sunibai, it has definitely come to light that the offending vehicle Bolero had gone to Tameshwar's sister's wedding and while returning from there, her husband Ganguram was coming in that vehicle. 11. In this situation, while there is no clear evidence that the said vehicle was hired by someone and the rent amount was paid, then Sunibai's own statement in cross-examination is contradictory. She has denied the suggestion that the Bolero vehicle was being taken on rent. But later she accepts that the Bolero vehicle was taken on booking. She also stated that she was not in the vehicle at the time of the accident. But in paragraph 11, she also stated that she was riding in the offending vehicle along with 04-05 other people. Thus, on the 8 basis of her statement which is contradictory, it cannot be concluded that the offending vehicle was used for commercial purpose. 12. In this situation, the conclusion of the Tribunal that the vehicle was being used for commercial purposes and that there was a violation of the terms of insurance policy is not sustainable. Hence, the appeal of the vehicle’s owner Motiram Salam is allowed and the insurer of the offending vehicle i.e. The National Insurance Company/Respondent No.6 is held responsible for paying the amount of compensation. (MAC NO.985/2019) 13. Learned counsel for the appellants/claimants submits that the compensation awarded by the Tribunal is on the lower side and needs to be enhanced suitably. He further submits that the claimants have pleaded the income of the deceased as Rs. 10,000/- per month, but the learned Claims Tribunal has only assessed the income of the deceased as Rs. 45,00/- per month and awarded the aforementioned amount of compensation including the amount of other conventional heads. The learned counsel urged that the Tribunal erred in not assessing the proper monthly income of the deceased. Learned Counsel further submits that the Tribunal has also awarded lesser amount on other heads, therefore, this appeal may be allowed and amount of compensation may be enhanced suitably. 14. On the other hand learned Counsels appearing for the Respondents oppose the argument advanced by learned Counsel 9 appearing for the appellants/claimants and submit that the impugned award is just and proper and requires no interference. 15. Now this Court shall examine as to whether the compensation of Rs.9,93,900/- awarded by the Tribunal is just and proper compensation in the given facts and circumstances of the case. 16. As regards the income of the deceased, though the claimants have pleaded that the deceased was earning Rs.10,000/-. per month from his work, but no documentary evidence in support thereof has been produced, but it cannot be said that the deceased was not earning anything from his work. Therefore, in absence of any reliable evidence regarding income of the deceased, keeping in mind the nature of occupation, date of accident, wage structure prevailing on the date of accident, price index and cost of living etc. specially notification by Labour Department for minimum wages. Upon considering the aforementioned factors, I find it appropriate to take income of deceased as Rs. 7,800/- per month as minimum wages, at the relevant time of accident i.e. 27.04.2018. The annual income comes to Rs. 93,600/- per annum. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 after adding 40% towards future prospects i.e. Rs. 37,440/-, the annual income comes to Rs. 1,31,040/-. 17. The deceased was aged about 29 years and the claimants (total 4) are children, mother & sister of the deceased so 10 deduction towards personal expenses would be 1/4 which dependency comes to Rs. 98,280/-(131040-32760). In view of judgment of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 considering the age of the deceased, after applying multiplier of 17, the total loss of dependency works out to Rs. 16,70,760/-. The claimants are further entitled to get Rs. 15,000/- for loss of estate, Rs. 15,000/- for funeral expenses and as per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, they are further entitled to get Rs. 40,000/- each for loss of love and affection. Therefore, the claimants would become entitled for total compensation of Rs. 18,60,760/-. Thus, the claimants are entitled for compensation in the following manner:- S.No. Heads Calculation 01 Towards loss of dependency Rs. 16,70,760/- 02 Towards loss of estate Rs. 15,000/- 03 Towards love and affection to Rs. 1,60,000/- each claimants @ Rs. 40,000/- (40000 x 4) 04 Funeral Expenses Total Rs. 15,000/- Rs. 18,60,760/- 18. Thus, the total compensation is recomputed as Rs. 18,60,760/-. After deducting Rs. 9,93,900/- as awarded by the Tribunal, the enhancement would be Rs. 8,66,860/-. 11 19. Accordingly, the claimants shall be entitled to get Rs. 8,66,860/- in addition to what is already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 6% from the date of enhancement of the award till its realization. The impugned award in relation to MAC No.985/2019 stands modified to the above extent. 20. In the result, the appeal filed by the owner (MAC No.1981/2018) is allowed according to which the insurance company is liable to pay the amount of compensation and the appeal filed by the claimants (MAC No.985/2019) is partly allowed. 21. The Registry is further directed to communicate the claimants in writing “the enhanced amount” in this appeal as against the amount awarded by the Tribunal. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a co-ordination of Secretary, Legal Aid of the concerned area wherein the claimants resides. Shubham Sd/- (Sanjay Kumar Jaiswal) Judge