1 - Branch Manager National Insurance Company Limited Kamptee Line, Rajnandgaon, Chhattisgarh v. 1
Case Details
1 2025:CGHC:3216 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR (Judgment Reserved on 18/10/2024) (Judgment Pronounced on 17/01/2025) MAC No. 485 of 2018 1 - Branch Manager National Insurance Company Limited Kamptee Line, Rajnandgaon, Chhattisgarh --- Appellant versus 1 - Smt. Yugeshwari Bai W/o Late Shri Surendra Kumar Aged About 27 Years 2 - Kumari Disha D/o Late Shri Surendra Kumar Aged About 6 Years 3 - Om Kumar S/o Late Surendra Kumar Aged About 1 Year 4 - Shri Kejuram S/o Naval Singh Aged About 64 Years 5 - Smt. Dewan Bai W/o Shri Kejuram Aged About 55 Years All Resident Village Mohad, Thana Ambagarh Chowki, District Rajnandgaon, C.G. 6 - Mahendra Kumar Kesharia S/o Dharmuram Kesharia Caste Mahar (Vehicle Driver) R/o Village Dhadutola, Thana Ambagarh Chowki, District Rajnandgaon, Chhattisgarh (Driver), 7 - (a) Pankaj S/o Late Madan Lal Khandelwal Aged About 35 Years 7 (b) Smt. Kiran W/o Late Madan Lal Khandelwal Aged About 60 Years Both R/o Ambagarh Chowki, Tehsil Ambagarh Chowki, District Rajnandgaon, Chhattisgarh, ASHUTOSH MISHRA Digitally signed by ASHUTOSH MISHRA Date: 2025.01.18 12:35:48 +0530 2 7 (c) Sweety Khandelwal W/o Sanjay Khandelwal Aged About 33 Years R/o MPC College Hostel, First Floor, Near To Garogon Temple, Bada Bazar, Mayur Manch, District Boripada (Orissa) 7 (d) Shilpa Khandelwal W/o Vivek Khandelwal Aged About 32 Years Through Radhakrishan Ji Khandelwal, Radhakrist Apartment, First Floor, A-1 Jayprakash Nagar (Somadwada) Nagpur (Maharastra) 7 (e) Swati Khandelwal W/o Vikas Khandelwal Aged About 30 Years Through Vipin Kumar Ji Khandelwal, Siddheshwar Nagar, Plot No.114, Jhade Complex, Didhauri (Umred Road) Nagpur (Maharastra) --- Respondents MAC No. 1058 of 2018
Legal Reasoning
1 - Smt. Yugeshwari Bai Kashyap W/o Late Shri Surendra Kumar Kashyap, Aged About 27 Years 2 - Kumari Disha Kashyap, D/o Late Shri Surendra Kumar Kashyap, Aged About 6 Years 3 - Om Kumar Kashyap, S/o Late Shri Surendra Kumar Kashyap, Aged About 1 Years 4 - Shri Keju Ram Kashyap, S/o Nawal Singh Kashyap Aged About 64 Years 5 - Smt. Devan Bai Kashyap, W/o Shri Keju Ram Kashyap, Aged About 55 Years Appellant No.2 & 3 being minor on behalf of through their legal guardian mother Smt. Yugeshwari Bai Kashyap, W/o Late Shri Surendra Kumar Kashyap Appellant No.1. All R/o Village Mohad, Post Office And Police Station Ambagarh Chowki, District Rajnandgaon Chhattisgarh ---Appellants Versus 1 - Mahendra Kumar Keshariya S/o Dharmu Ram Keshariya, Caste Mahar, (Vehicle Driver), Aged About 48 Years, R/o Village Dhadhutola, Post Office & Police Station -Ambagarh Chowki, District Rajnandgaon (C.G.) 2 - (A) Pankaj Khandelwal, S/o Late Madan Lal Khandelwal, Aged About 35 Years (Registered Owner Of Vehicle Swaraj Mazda Bearing Registration No. Cg/08/l/0203) 3 2 (B) Smt. Kiran Khandelwal, W/o Late Madan Lal Khandelwal, Aged About 60 Years Both R/o Ambagarh Chowki, Post Office, Police Station And Tahsil Ambagarh Chowki, District Rajnandgaon Chhattisgarh 2 (C) Smt. Sweety Khandelwal, W/o Sanjay Khandelwal, Aged About 33 Years R/o M.P.C. Collage Hostel, First Floor, Near Gorogon Mandir, Bada Bazar, Mayur Manch, District Boripada (Odisha) 2 (D) Smt. Shilpa Khandelwal, W/o Vivek Khandelwal, Aged About 32 Years Through Radha Kishan Ji Khandelwal, Radha Krishna Apartment, First Floor, A-1, Jaiprakash Nagar, In Front Of State Bank (Somadwada), Nagpur, District Nagpur (Maharashtra) 2 (E) Smt. Swati Khandelwal, W/o Vikas Khandelwal, Aged About 30 Years Through Vipin Kumar Ji Khandelwal, Siddheshwar Nagar, Plot No. 114, Jhade Complex, Didhouri (Umrade Road), Nagpur, District Nagpur (Maharashtra) 3 - The Branch Manager, The National Insurance Company Limited, Through Branch Manager, Kamthi Line, Rajnandgaon, District Rajnandgaon Chhattisgarh.............(Insurer Of Vehicle Swaraj Mazda Bearing Registration No. CG/08/L/0203) --- Respondents For Appellant in MAC No.485 of 2018 : Mr. Sudhir Agrawal, Advocate with Ms. Prerna Agrawal, Advocate For Respondent in MAC No.1058 of 2018 Ms. Kalpana Vastrakar, Advocate on behalf of Mr. Arjun Lal Singroul, Advocate For Respondents No.7.a and 7.b : Mr. Arvind Prasad, Advocate appears on behalf of Mr. Samir Singh, Advocate For Respondent No.7.c : Mr. Chetan Singh Chauhan, Advocate appears on behalf of Mr. Ashish Surana, Advocate For Appellant in MAC No.1058 of 2018 Ms. Kalpana Vastrakar, Advocate appears on behalf of Mr. Arjun Lal Singroul, Advocate For Respondent in MAC No.1058 of 2018 Mr. Sudhir Agrawal, Advocate appears along with Ms. Prerna Agrawal, Advocate 4 (Hon'ble Shri Arvind Kumar Verma, Judge) C A V Judgment 1. MAC No.485 of 2018 has been filed by the National Insurance Company being aggrieved by the final award dated 30/08/2017 passed by the Motor Accident Claims Tribunal, Rajnandgaon, C.G. in Claim Case No.133/2015 whereby the learned Tribunal has awarded compensation to the claimants on account of death of one Surendra to the tune of Rs.25,70,004/- 2. MAC No.1058 of 2018 has been preferred by the claimants against the same aforementioned award for enhancement of the compensation amount. 3. The brief facts of this case are that on 28/05/2017 at about 7 PM when the deceased Surendra was driving his Motorcycle at that time he dashed to the stationary vehicle Swaraj Mazda bearing Registration No.CG-08-L-0230 from back side and on account of the said accident, the deceased sustained injuries and he succumbed to the injuries. Being aggrieved by the said accident the claimants filed the claim under Section 166 of the Motor Vehicle Act. 4. The Claims Tribunal after appreciating the evidence and material available on record reached to the conclusion that the fitness permit is necessary even for a stationary vehicle which is parked on the side of the road and there is breach of policy, therefore, the Tribunal has assessed the contributory negligence towards owner of the offending 5 vehicle and the insurance company and has assessed the ratio of contributory negligence at 50:50. 5. Learned counsel for the appellant insurance company contended that as per the statement of the eye witnesses Driver (NAW-1 Mahendra) the deceased dashed the insured Mazda Vehicle from back side without maintaining distance as per Rule, therefore, the learned Tribunal held contributory negligence as 50% which is not sustainable because the Tribunal should have considered that the deceased himself was negligent, hence the claim petition was liable to be dismissed. He placed his reliance in the law laid down by the Supreme Court in the matter of Nishan Singh Vs. Oriental Insurance Co. {2018 (6) SCC 765}; Raj Rani Vs. Oriental Insurance Co. {(2009) 13 SCC 654}; and Amrit Paul Singh Vs. Tata AIG {(2018) 7 SCC 558} and would submit that the claim petition filed by the claimants is liable to be dismissed. 6. Per contra, learned counsel for the claimants would contend that the learned tribunal has assessed the compensation at the lower side and the tribunal has failed to consider the other conventional heads. He would next contend that the Tribunal has failed to consider the income of the deceased as he was working as Patwari in the Revenue Department, therefore, the compensation as awarded by the Tribunal is required to be enhanced. 6 7. Learned counsel for the owner of the vehicle submit that the impugned award passed by the tribunal is required to be interfered by this Court. 8. I have heard learned counsel for the parties and perused the documents and record. 9. So far as the first and foremost contention of the learned counsel for the appellant/insurance company is concerned that there is finding in para 43 of the award that there was breach of policy as there was no valid permit and fitness of the vehicle i.e. Swaraz Mazda bearing Registration No.CG/08/L/0203. I have perused the record with utmost circumspection and found that the aforesaid vehicle Swaraz Mazda bearing Registration No.CG/08/L/0203 was insured with the appellant insurance company from the period 28/11/2013 to 27/11/2014 mid night. The date of incident is 28/05/2015. It is a good carriage vehicle and on the date of accident there is no permit and fitness of the vehicle, therefore, there is breach of condition of insurance policy Ex. D/4 and the learned Tribunal has also considered this aspect in para 43 that there is a breach of policy but it is a technical breach of policy, therefore, the learned Tribunal has fastened the liability on the appellant/insurance company. Learned Tribunal has failed to consider the aspect that in goods carriage vehicle, the permit and fitness is essential condition, therefore, it is a breach of policy, however, as per the law laid down by the Hon’ble 7 Supreme Court in the matter of National Insurance Co. Ltd vs Swaran Singh & Ors {2004 (3) SCC 297} the insurance company shall first pay and then recover the amount of compensation from the owner of the vehicle. 10. The second contention of the learned counsel for the appellant/insurance company is that there is an eye-witness, who is the Driver (NAW-1 Mahendra) who deposed that the deceased dashed the insured vehicle from backside and the deceased himself was negligent, therefore, the claim petition was liable to be dismissed. The Hon’ble Supreme Court in the matter of Archit Saini vs Oriental Insurance Company Ltd. {(2018) 3 SCC 365} has held that presumption against the persons parking the vehicle in the middle of the national highway in a negligent manner without indicator or parking lights and if other persons dashing against such vehicle are liable for contributory negligence. In this case, it is crystal clear that the Driver (NAW-1 Mahendra) has parked the Swaraz Mazda in the middle of the road without any indicator or parking lights and without radium plate in a negligent manner because of that the deceased who was driving motorcycle dashed on the backside of the Swaraz Mazdal and he has died. 11. As regards the submission made by learned counsel for the insurance company that the Driver of the Swaraj Mazda bearing registration No.CG/08/L/0203 has parked the vehicle in the middle of the road 8 without reflecting any indicator and the accident happened in the evening of 7.00 pm and there was darkness, therefore, it is negligence on the part of the driver and the liability should be fastened upon the driver and owner of the vehicle. In this regard I have perused the record and found that (NAW-1 Mahendra) is an accused in FIR No.130/15 (Ex. P/1) which mentions Section 283 and 304 (A) of the IPC. It is pertinent to mention here that Section 283 IPC deals with danger or obstruction in public way or line of navigation. Driver of Swaraz Mazda has parked the vehicle in the middle of the road in danger condition the FIR also contends that the driver has parked the vehicle Swaraz Mazda in the middle of the road without reflecting parking light and even no radium plate fixed in the vehicle and because of that the deceased dashed with the vehicle and thereafter came under the said vehicle. 12. In view of the aforesaid discussions and facts, the learned tribunal has rightly held that there is breach of policy and owner of the offending vehicle Swaraz Mazda bearing Registration No.CG/08/L/0203 is liable to pay 50% of the awarded amount. So far as the contributory negligence on the part of the deceased driver is concerned, since he dashed the motorcycle in a stationary vehicle, therefore, he is also liable to pay 50% of the awarded amount. As such, the insurance company is exonerated from payment of compensation, however, it is a breach of policy, therefore, as per the law laid down by the Hon’ble 9 Supreme Court in the matter of Swaran Singh (supra) the insurance company shall first pay and then recover the amount of compensation from the owner of the vehicle. 13. So far as the quantum part is concerned, on perusal of record, this Court finds that the learned Tribunal has rightly assessed the monthly income of the deceased as Rs.22,754/- per month. As the deceased was married man left behind wife, two minor children and parents, therefore, 1/4th deduction towards personal expenses is also to be granted. The Tribunal has awarded Rs.25,000/- towards funeral expenses, which in the opinion of this Court has wrongly been awarded which is granted by this Court to Rs.15,000/-. The tribunal has granted Rs.1,00,000/- for loss of spousal consortium to claimant/wife which in the considered opinion of this Court has wrongly been awarded which is granted by this Court to Rs.40,000/-. For filial loss of consortium the Tribunal has granted Rs.50,000/- which in the considered opinion of this Court has been wrongly granted which is granted by this Court to Rs.40,000/- each to claimants No.4 & 5 and parental consortium the Tribunal has awarded Rs.50,000/- to claimants /children, which in the opinion of this Court should be enhanced to Rs.40,000/- each. 14. In light of the judgments of the Hon’ble Supreme Court in the matters of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Ors. {(2009) 6 SCC 121}; Magma General Insurance Co. Ltd. Vs. 10 Nanu Ram @ Chuhru Ram & Ors. {(2018) 18 SCC 130} and National Insurance Co. Ltd. Vs Pranay Sethi {(2007) 16 SCC 680}, this Court is recomputing the compensation as below:- Sr. No. Particular Awarded by the Court 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Monthly income of the deceased Rs. 22,754/- Future prospects @ 50% Rs. 11,377/- Total income Rs. 34,131/- Personal expenditure (1/4) Rs. 25,599/- Total yearly income 25599 x 12 = Rs. 3,07,188/- Multiplier of 16 applied to assess total loss of dependency Rs.3,07,188/- x 16= Rs. 49,15,008/- Filial loss of consortium to the parents i.e. claimants No.4 & 5 Rs. 80,000/- (40,000/- each) Spousal loss of consortium Rs.40,000/- Loss of Parental Consortium to the claimants No.2 & 3 Rs.80,000/- (40,000/- each) Funeral Expenses Loss of estate Rs. 15,000/- Rs.15,000/- Total compensation Rs. 51,45,008/- 15. For the forgoing reasons, the appeal filed by the claimants is allowed in part. The amount of compensation of Rs.51,40,008/- awarded by the tribunal is enhanced to 51,45,008/-. However, in view of the above discussion, as the deceased has himself dashed the 11 stationary vehicle, therefore, he was also responsible for the said accident, as such, the claimants are liable to receive 50% of the awarded amount i.e. Rs.25,72,504/-. It is a case of contributory negligence, therefore, in view of the fastening of 50% liability on the Driver and legal heirs of the owner of the Offending vehicle Swaraj Mazda bearing Registration No.CG/08/L/0203 namely Mahendra Kumar Kesharia (Driver) and legal heirs of owner of the offending vehicle Pankaj and Smt. Kiran and 50% liability fastened upon the owner of the motorcycle bearing registration No.C.G./08/N/1261, therefore, the aforesaid amount shall be deposited by the owner and driver of the offending vehicle Swaraj Mazda bearing Registration No.CG/08/L/0203. 16.
Decision
In the result, since there is a breach of policy, therefore, the appeal bearing MAC No.485 of 2018 filed by the insurance company is allowed and the Insurance Company is exonerated from liability to pay compensation to the claimants, however, this Court finds it appropriate to apply the doctrine of pay and recover. Therefore, the appellant/Insurance Company is directed to pay the Rs.25,72,504/- (after deduction of 50%) to the claimants and thereafter shall recover it from the owner of the offending vehicle. The aforesaid amount shall be deposited within a period of 60 days by the insurance company and the amount shall carry an interest @ 6% p.a. Rest of 12 the condition of the impugned order as has been awarded by the Tribunal shall remain intact. No order as to costs. SD/- (Arvind Kumar Verma) Judge Ashu