Nafr High Court
Case Details
Digitally signed by AVANISH KUMAR PATHAK Date: 2025.02.05 15:28:02 +0530 1 2025:CGHC:5424 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 934 of 2018 1 - Jagdev Netam S/o Chamraram Netam Aged About 50 Years (now) 2 - Smt. Baisakhin Bai W/o Jagdev Netam Aged About 42 Years (now) 3 - Rajaram Netam S/o Jagdev Netam Aged About 27 Years(now) 4 - Rameshwari D/o Jagdev Netam Aged About 19 Years (now) 5 - Rajesh S/o Jagdev Netam Aged About 18 Years All R/o Village Murnar P.S. And Tahsil Keshkal District Kondagaon, Present Address Jhuniyapara, P.S. And Tahsil Kanker, District North Bastar Kanker, Chhattisgarh (Claimants), District : Kanker, Chhattisgarh versus 1 - Gautam Aanchala S/o Jon Aanchala Aged About 25 Years (owner of vehicle) ... Appellants 2 - Lalit Ram Aanchala S/o Johan Aanchala Aged About 20 Years (driver of vehicle) Both R/o Village Murnar P.S. and Tahsil Keshkal District Kondagaon, Chhattisgarh, District : Kondagaon, Chhattisgarh 3 - The Ifco Tokiyo General Insurance Co. Ltd. Through Branch Manager Raipur I.T.G.I. 205 Second Floor M.M. Silver Plaza Near Udyog Bhawan Mining Office Ring Road No.1 Raipur District Raipur, Chhattisgarh (Insurer Of The Tractor), District : Raipur, Chhattisgarh 4 - Royal Sundaram General Insurance Co. Ltd. Branch Office Raipur Raj Chamber No. 306 Third Floor Behind Mowa Over Bridge Raipur, Chhattisgarh (Insurer Of Trolley), District : Raipur, Chhattisgarh ... Respondents For appellants For Respondent No. 3 : :
Legal Reasoning
Mr. Praveen Kumar Tulsiyan, Adv. with Ms. Pooja Yadav, Adv. Mr. P.R. Patankar, Adv. 2 For respondent No. 4 : Mr. B.N. Nande, Adv. along with Mr. Abhishek Mishra, Adv. (HON’BLE SHRI NARESH KUMAR CHANDRAVANSHI, J) Order on Board 29/01/2025 1. This is claimant's appeal seeking enhancement of the compensation awarded by the Motor Accident Claims Tribunal, Uttar Bastar, Kanker (CG) (henceforth, referred to as ‘the Tribunal’) in Claim Case No. 20/2015 vide award dated 9-3-2018. 2. As against the claim for compensation of Rs. 12,55,000/-, claimed by the appellants/claimants, by filing application under Section 166 of the Motor Vehicles Act, 1988 (in short “the Act”) for the death of Ku. Rajeshwari Netam in motor accident on 8-2-2013, the Tribunal awarded a total sum of Rs. 7,10,400/- as compensation along with interest @ 7.5% per annum from the date of the application till its actual payment. 3. The Tribunal, on a close scrutiny of the evidence led by the parties, held that the accident had occurred due to rash and negligent driving of Tractor bearing registration No. CG 19 G 2156 (henceforth, referred to as ‘offending tractor’) and Trolley bearing registration No. CG 19 G 2281 (henceforth, referred to as ‘offending trolley’) by its driver – Lalit Ram Anchla i.e. respondent No.2; the deceased Ku. Rajeshwari Netam, who was sitting on the offending tractor, sustained injuries in the said accident and succumbed; the tractor and trolley turned turtle because of rash and negligent driving of its driver respondent No. 2; respondent No. 1 Gautam Anchla was owner of offending tractor and trolley, respondent No. 4/Royal Sundaram General Insurance Com. was insurer of the offending tractor and respondent 3 No. 3/Iffco Tokiyo General Insurance Company Ltd. was insurer of the offending trolley, but learned Tribunal held that the offending tractor was being used violating the insurance policy, therefore, it exonerated the respondent - Insurance company and fastened liability upon the driver and owner to satisfy the award. Hence, this appeal. 4. Learned counsel for the appellants would submit that, the offending tractor was insured by respondent No. 4/Royal Sundaram General Insurance Co. Ltd. vide Policy Ex. P-8 and offending trolley attached with the tractor was insured by respondent No. 3/Iffco Tokiyo General Insurance Co. Ltd. vide Policy Ex. D-1. The deceased was sitting on the trolley and as per Insurance Policy (Ex. D-1), sitting capacity of trolley is mentioned as ‘1 person’. The deceased was sitting as a labourer of owner of the pipes which was being transported, as such, liability of deceased was covered with the Insurance policy (Ex. D-1). It is submitted that, eye-witness Manoj Kumar Sahu (A.W.2) has clearly deposed in his affidavit statement under Order 18 Rule 4 of the CPC that, deceased was sitting on the trolley, but learned Tribunal discarding said eye-witness, only on the basis of certified copy of documents of criminal case, has held that the deceased was sitting on the offending tractor, which is against the substantive evidence. Since, deceased was sitting in the trolley and as per insurance policy (Ex. D-1), liability of deceased was covered, therefore, exonerating respondent No. 3 i.e. insurer of trolley by the Tribunal, is perverse and illegal, as such, the impugned award may be set aside to the extent whereby the Tribunal exonerated respondent No. 3 from its liability to satisfy the award, and the liability be fastened upon the respondent No. 3. He relied on a decision of Hon’ble 4 Supreme Court in the case of Manuara Khatun and ors. Vs. Rajesh Kumar Singh and ors. [(2017) 4 SCC 796]. 4.1 Learned counsel for the appellants further submits that, the Tribunal has not granted any amount to the claimants on the head of consortium, therefore, as per the dictum of Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd vs Nanu Ram Alias Chuhru Ram [(2018) 18 SCC 130], each claimant may be granted Rs. 40,000/- as consortium. 5. In reply, learned counsel for the respondent No. 3 would submit that, the certified copy of the charge sheet and documents attached with it, filed against the respondent No. 2/ driver of offending tractor clearly shows that, the deceased was sitting on the engine of the offending tractor, therefore, learned Tribunal has rightly held that, the offending tractor was being used by driver and owner violating the policy conditions, as such, exonerating respondent No. 3 by learned Tribunal is just and proper. Hence, the appeal is liable to be dismissed. 6. I have heard learned counsel for the parties and perused the record of the Tribunal including the impugned award. 7. Though, as per certified copy of the charge sheet and other documents annexed with the same, deceased was sitting on the offending tractor, but the eye-witness Manoj Kumar Sahu (A.W. 2) has clearly stated in his affidavit statement under Order 18 Rule 4 of the CPC that, at the time of accident, deceased was sitting on the trolley as labourer. In cross- examination, he has denied the suggestion of learned counsel for the respondent No. 4/Royal Sundram General Insurance company Ltd. that the 5 deceased was sitting on the offending tractor. Respondent No. 3 has examined its law officer Khumeshwar Sahu (NAW 1), but neither he has stated that they got investigated about the incident from their investigator nor any such document has been filed. Though, on the basis of certified copy of the charge sheet, he has stated that, the deceased was sitting on the offending tractor, but if the eye-witness has made statement in the Court that, the deceased was sitting on the trolley, then instead of certified copy of charge sheet, his deposition recorded in Court, will bear more weightage in the eye of law, therefore, the finding recorded by learned Tribunal only on the basis of certified copy of the charge sheet that the deceased was sitting on the tractor, is found to be perverse and illegal. Hence, the same is set aside and it is held that, the deceased was sitting on the trolley. 8. Ex. D-1 is insurance policy of offending trolley, which has been proved by the Law officer Khomeshwar Sahu (NAW 1) of respondent No. 3. In para 2 of his examination-in-chief itself, he has admitted that as per Insurance policy Ex. D-1, sitting capacity of the offending trolley was one person. He has stated that, premium for that person was not paid by the owner of the trolley, but as per Section 147(1)(b)(i) of the Act, in statutory policy, insurance of owner of the goods or his authorized representative carried in the motor vehicle are also covered. Since deceased was sitting as labourer on the trolley as representative of the goods of owner, therefore, it is found that, liability of one person in the trolley was covered under statutory policy Ex. D-1. As such, the finding recorded by learned Tribunal in this regard is also set aside. Consequently, it is held that, risk of deceased was 6 covered vide insurance policy Ex. D-1 issued by respondent No. 3/Iffco Tokiyo General Insurance Company in respect of the offending trolley. 9. Perusal of impugned award shows that, the Tribunal has not granted any amount to the claimants towards consortium. Other calculation made by the Tribunal has not been disputed by learned counsel for appellants, hence, the compensation granted and calculated by the Tribunal on other heads is not required to be deliberated. 10. The Tribunal has not awarded any amount towards consortium. Here para 20 to 24 of Nanu Ram’s (supra) case are relevant and reproduced below :- “20. MACT as well as the High Court have not awarded any compensation with respect to” loss of consortium and loss of estate, which are the other conventional heads under which compensation is awarded in the event of death, as recognised by the Constitution Bench in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . The Motor Vehicles Act is a beneficial and welfare legislation. The Court is duty-bound and entitled to award “just compensation”, irrespective of whether any plea in that behalf was raised by the claimant. In exercise of our power under Article 142, and in the interests of justice, we deem it appropriate to award an amount of Rs 15,000 towards loss of estate to Respondents 1 and 2. 21. A Constitution Bench of this Court in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] dealt with the various heads under which compensation is to be awarded in a death case. One of these heads is loss of consortium. In legal parlance, 7 “consortium” is a compendious term which encompasses “spousal consortium”, “parental consortium”, and “filial consortium”. The right to consortium would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family. With respect to a spouse, it would include sexual relations with the deceased spouse : [Rajesh v. Rajbir Singh, (2013) 9 SCC 54 : (2013) 4 SCC (Civ) 179 : (2013) 3 SCC (Cri) 817 : (2014) 1 SCC (L&S) 149] 21.1. Spousal consortium is generally defined as rights pertaining to the relationship of a husband-wife which allows compensation to the surviving spouse for loss of “company, society, cooperation, affection, and aid of the other in every conjugal relation”. [Black's Law Dictionary (5th Edn., 1979).] 21.2. Parental consortium is granted to the child upon the premature death of a parent, for loss of “parental aid, protection, affection, society, discipline, guidance and training”. 21.3. Filial consortium is the right of the parents to compensation in the case of an accidental death of a child. An accident leading to the death of a child causes great shock and agony to the parents and family of the deceased. The greatest agony for a parent is to lose their child during their lifetime. Children are valued for their love, affection, companionship and their role in the family unit. 22. Consortium is a special prism reflecting changing norms about the status and worth of actual relationships. Modern jurisdictions world-over have recognised that the value of a child's consortium far exceeds the economic value of the compensation awarded in the case of the death of a child. Most jurisdictions therefore permit parents to be awarded compensation under loss of consortium on the death of a child. The amount awarded to the parents is 8 a compensation for loss of the love, affection, care and companionship of the deceased child. 23. The Motor Vehicles Act is a beneficial legislation aimed at providing relief to the victims or their families, in cases of genuine claims. In case where a parent has lost their minor child, or unmarried son or daughter, the parents are entitled to be awarded loss of consortium under the head of filial consortium. Parental consortium is awarded to children who lose their parents in motor vehicle accidents under the Act. A few High Courts have awarded compensation on this count [ Rajasthan High Court in Jagmala Ram v. Sohi Ram, 2017 SCC OnLine Raj 3848 : (2017) 4 RLW 3368; Uttarakhand High Court in Rita Rana v. Pradeep Kumar, 2013 SCC OnLine Utt 2435 : (2014) 3 UC 1687; Karnataka High Court in Lakshman v. Susheela Chand Choudhary, 1996 SCC OnLine Kar 74 : (1996) 3 Kant LJ 570] . However, there was no clarity with respect to the principles on which compensation could be awarded on loss of filial consortium. 24. 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 Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ) 248 : (2018) 2 SCC (Cri) 205] . In the present case, we deem it appropriate to award the father and the sister of the deceased, an amount of Rs 40,000 each for loss of filial consortium.” 11. In view of the decision of Hon’ble Supreme Court in the matter of Nanu Ram @ Chuhru Ram (supra), it would be appropriate to grant Rs. 40,000/- to each claimants towards loss of consortium, total comes to Rs. 2,00,000/-. Thus, the claimants are entitled to get compensation Rs. 9 2,00,000/- over and above the amount awarded by the Tribunal. 12. In view of foregoing discussion, compensation of Rs. 7,10,400/- awarded by the Tribunal is enhanced to Rs. 9,10,400/-. Accordingly, the appellants are entitled for a further sum of Rs. 2,00,000/- over and above the amount of Rs. 7,10,400/- awarded by the Tribunal. 13. The respondent No. 3/Iffco Tokiyo General Insurance Co. Ltd is also held jointly and severally liable along with owner and driver of offending trolley for payment of compensation to the claimants. Rest of the directions given by the Tribunal in the impugned award shall remain intact. The award stands modified to the above extent. 14. The respondent No. 3/Iffco Tokiyo General Insurance Company Ltd. is granted two months’ time to deposit the amount of compensation awarded by this Court along with interest before the concerned Tribunal. 15. Accordingly, appeal is allowed to the extent indicated
Decision
hereinabove. No order as to costs. Sd/- (NARESH KUMAR CHANDRAVANSHI) JUDGE Pathak