Nafr High Court
Case Details
1 Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.05.05 13:01:35 +0530 2025:CGHC:20146 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 992 of 2019 1 - Smt. Fhuleshwari Netam, W/o Late Vinod Kumar Netam Aged About 30 Years, R/o Village Limha, (Andhiyaripara), Police Station Ratanpur, Tahsil And District Bilaspur Chhattisgarh 2 - Ku. Prema Netam S/o Late Vinod Kumar Netam Aged About 10 Years Through Natural Guardian of Her Mother Smt. Fhuleshwari Netam W/o Late Vinod Kumar Netam R/o Village Limha, (Andhiyaripara), Police Station Ratanpur, Tahsil And District Bilaspur Chhattisgarh.(Claimants) --- Appellants versus 1 - Siyaram Gond S/o Vishram Gond, Aged About 46 Years R/o Village Limha, (Gatepara) Police Station Ratanpur, Tahsil And District Bilaspur Chhattisgarh. (Driver) 2 - Arun Kumar Kaiwart S/o Budhwar Kaiwart Aged About 45 Years R/o Village Harnmodi, (Tikrapara) Police And Tahsil Pali District Korba Chhattisgarh. (Owner) 3 - Tata A.I.G. General Insurer Company Limited Through Tata A.I.G. General Insurance Company Limited Branch Manager, Local Address T-8 Forth Floor, Gwalini Chambers, Vyapar Vihar 2 Main Road, Bilaspur, Tahsil And District Bilaspur Chhattisgarh.. (Insurer) --- Respondent(s) MAC No. 1009 of 2019 Tata A.I.G. General Insurance Company Limited Through Its Legal Manager, Officer No. 403, 4th Floor, Db, City Corporate Park, Flat No. 1, Block No. 9, Rajbandha, Maidan Raipur Chhattisgarh (Insurer) ---Appellant Versus
Legal Reasoning
1 - Smt. Fuleshwari Netam W/o Late Vinod Kumar Netam Aged About 30 Years R/o Village Limha (Andhiyarin), Police Station Ratanpur, Tahsil And District Bilaspur Chhattisgarh 2 - Ku. Prema D/o Late Vinod Kumar Netam Aged About 10 Years Minor Through Natural Guardian Smt. Fuleshwari Netam, r/o Village Limha (Andhiyarin), Police Station Ratanpur, Tahsil And District Bilaspur Chhattisgarh (Claimants) 3 - Siyaram Gond S/o Vishram Gond, Aged About 46 Years R/o Village Limha (Getpara), Police Station Ratanpur, Tahsil And District Bilaspur Chhattisgarh (Driver) 4 - Arun Kumar Kaiwart S/o Budhwar Kaiwart Aged About 45 Years R/o Village Haranmudi (Tikrapara) Police Station And Tahsil Pali, District Korba Chhattisgarh (Owner) ---- Respondents 3 In MAC (992/2019) For Appellants :Mr. Nikhil Sahu, Advocate on behalf of Mr. Akath Kumar Yadv, Advocate For Res. No.1 & 2 :None. For Res. No.3 :Mr. Sorabh Gupta, Advocate on behalf of Mr. Sourabh Sharma, Advocate In MAC (1009/2019) For Appellant :Mr. Sorabh Gupta, Advocate on behalf of Mr. Sourabh Sharma, Advocate For Res. No.1&2 :Mr. Nikhil Sahu, Advocate on behalf of Mr. Akath Kumar Yadv, Advocate For Res. No.3&4 :None Hon'ble Shri Justice Sanjay Kumar Jaiswal (Order on Board) (02.05.2025) 1. Since both the appeals arise out of same award dated 19.02.2019, passed by Additional Motor Accident Claims Tribunal, Bilaspur (C.G.), in MACC No.156/2018, 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 01.11.2017, when Vinod Kumar Netam (now deceased) was waiting for a bus at Bhakoli Dabra at that time driver-Siyaram Gond of the offending vehicle (Tractor) bearing registration No. CG-12-AR-9203, driving the offending vehicle in a rash and negligent manner due to which the Tractor overturned as a 4 result, the deceased died on spot due to being crushed under it. The incident was reported at concerned Police Station based on which a criminal case was registered. 3. It is claimed that at the time of accident, deceased Vinod was aged about 30 years. He was a Mason and a labour as well and was earning about Rs. 1,80,000/- to 2,40,000/- yearly from his works. Due to the casual death of Vinod, there is an irreparable loss to his legal heirs/claimants, therefore, the legal heirs/claimants of Vinod had preferred an application before the Tribunal claiming compensation to the tune of Rs. 52,40,000/-. 4. Learned Tribunal, on a close scrutiny of the evidence brought on record, assessed monthly income of the deceased to Rs.6,000/- given 40% future prospects, deducted 1/3 income towards personal and living expenses, applied multiplier of 17, given 50,000/- towards other heads and awarded total Rs. 11,92,400/- in favour of the claimants with interest @ 6 % per annum, from the date of application till its realization. While passing the award, the Claims Tribunal has fastened the liability upon Driver, Owner and Insurer. Hence, MAC No. 992/2019 has been filed by the claimants for enhancement and MAC No.1009/2019 has been filed by the Insurance Company to be freed from the liability. (MAC NO.992/2019) 5 5. Learned counsel for the appellants/claimants submits that the learned 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. 6. None appears on behalf of Respondents No.1 & 2, Driver and Owner. 7. On the other hand learned Counsel appearing for Respondent No.3/ Insurance Company opposes the argument advanced by learned Counsel appearing for the appellants/claimants and submits that the impugned award is just and proper and requires no enhancement. 8. Now this Court shall examine as to whether the compensation of Rs.11,92,400/- awarded by the Tribunal is just and proper compensation in the given facts and circumstances of the case. 9. As regards the income of the deceased, as no documentary evidence in support of income of the deceased 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, as per notification of Labour Department for minimum wages, I find it appropriate to take income of the deceased as Rs. 7,930/- per 6 month as minimum wages, at the relevant time of accident i.e. 01.11.2017. The annual income comes to Rs. 95,160/- per annum. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, the deceased was aged about 30 years, after adding 40% towards future prospects i.e. Rs. 38,064/-, the annual income comes to Rs. 1,33,224/- (95160+38064). 10. The deceased was aged about 30 years and was married and the claimants (total 2) are wife & daughter of the deceased so deduction towards personal expenses would be 1/3 which dependency comes to Rs. 88,816/-(133224-44408). 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. 15,09,872/-. 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 spousal consortium, love and affection. Therefore, the claimants would become entitled for total compensation of Rs. 16,19,872/-. Thus, the claimants are entitled for compensation in the following manner:- 7 S.No. Heads Calculation 01 Towards loss of dependency Rs. 15,09,872/- 02 Towards loss of estate 03 Towards love and affection to Rs. 15,000/- Rs. 80,000/- each claimants @ Rs. 40,000/- (40000 x 2) 04 Funeral Expenses Total Rs. 15,000/- Rs. 16,19,872/- 11. Thus, the total compensation is recomputed as Rs. 16,19,872/-. After deducting Rs. 11,92,400/- as awarded by the Tribunal, the enhancement would be Rs. 4,27,472/-. 12. Accordingly, the claimants shall be entitled to get Rs.4,27,472/- 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 stands modified to the above extent and rest of the conditions shall remain intact. (MAC No.1009/2019) 13. As far as the question of liability with regard to insurance company is concerned, the main contention of learned counsel for the appellant/Insurance Company is that at the time of accident, the deceased was occupant in the offending vehicle (Tractor), therefore, the deceased was gratuitous 8 passenger/non-fare paying passenger and his risk was not covered under the insurance policy. He further submits that in support of the above argument, Administrative Officer Himanshu Garge (NAW-3) has been examined by the insurance company who specifically stated that on the date of the accident, the deceased, Vinod Kumar Netam, was unauthorisedly carried on Tractor bearing Registration No. CG 12 AR 9203, which is a violation of the terms and conditions of insurance policy. The seating capacity of the Tractor is for the driver only and risks of anyone else are not covered. In such circumstances, the company bears no liability whatsoever. Furthermore, from the FIR (Ex.P-2) filed by the Claimants’ side, it is clearly mentioned that the deceased was occupant in the offending vehicle at the time of accident. Thus, prayed for allowing the appeal by exonerating the Insurance Company from its liability. 14. On the other hand, learned counsel appearing for the respondents 1 & 2 - claimants submits that the deceased was not occupant in the offending vehicle rather he was waiting for a bus at roadside when the accident happened. In support of his argument, he rely upon the statement of eye-witness Bhagat Kumar Kenwat (AW-2). Hence, in the facts and circumstances of the case, the impugned award passed by the Tribunal regarding liability is just and proper and does not require any interference. 15. None appears on behalf of Respondents No.3 & 4, Driver and Owner. 9 16. Arguments of the parties are heard and the record is minutely perused. 17. The moot question for consideration is whether at the time of accident deceased Vinod Kumar Netam was occupant or not in the offending vehicle? 18. Fuleshwari Netam (AW-1) wife of the deceased has been examined before the Tribunal who stated that the deceased was not occupant in the offending vehicle. The eye/independent witness of the case is Bhagat Kumar Netam (AW-2) who has been examined before the Claims Tribunal and specifically stated that on the date of accident i.e. 01.11.2017, he was going from village to Jali to Ratanpur and near Akoli-Dabra, he saw that driver of the offending vehicle was driving in a rash and negligent manner and hit a person (the deceased) standing on the roadside due to which the vehicle went out of control and overturned upon that person. In his cross-examination, he specifically stated that at the time of accident, no person was sitting on the offending vehicle except its driver. The statement of this spot witness has not been rebutted. 19. Himanshu Garge (NAW-3) has been examined by the insurance company who specifically stated that on the date of the accident, the deceased, Vinod Kumar Netam, was unauthorisedly carried on Tractor. In this regard, he has cited 10 the details mentioned in the First Information Report (Ex.P-2) but, this witness is not a spot witness. The Claims Tribunal in its award has discussed that the facts mentioned in the First Information Report (Ex.P-2) indicate that the informant, Gaurishankar Yadav, did not witness the incident but arrived at the spot after the occurrence. 20. In such circumstances, it was incumbent upon the insurance company to produce evidence in rebuttal of the testimony of claimant witness Bhagat Kumar Kewat (A.W. 2) to establish that the deceased was indeed seated in the Tractor at the time of the accident. However, the insurance company not examined any person who had seen the deceased seated in the Tractor at the relevant time. Accordingly, it is not proved that the Tractor bearing registration number CG 12 AR 9203 was being operated in violation of the terms of the insurance policy at the date and time of the accident. Though as per FIR (Ex.P-2), it is mentioned that the deceased was sitting in the offending vehicle. But this document is not substantive piece of evidence. 21. In this regard, the Hon'ble Supreme Court in the case of National Insurance Company Limited v. Chamundeswari and Others reported in (2021) 18 SCC 596 has held that if the statements of the eye witnesses examined before the court are not contradicted/rebutted by other witnesses present at the spot, the same cannot be considered as contradicted/rebutted 11 on the basis of the First Information Report. In paragraph-8 of the said judgment it has been observed as under:- “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.” 22. Coming back to the facts of the present case, it is clear from the evidence that Bhagat Kumar Kenwat (AW-2) is the spot/eye witness. He has clearly stated that at the time of accident the deceased was standing on the roadside at the time of accident. Therefore, in the light of said decision of the Hon’ble Supreme Court, the evidence recorded before the Tribunal has to be given weightage over the contents of the FIR. 23. Accordingly, in that view of the matter, it is held that at the time of accident deceased Vinod was not occupant in the offending vehicle. Therefore, the conclusion of the Tribunal regarding liability is found to be proper and does not require any interference. 12 24. In the result, the appeal filed by the claimants (MAC No.992/2019) is partly allowed and the appeal filed by the insurance company (MAC No.1009/2019) is dismissed. 25. 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