Nafr High Court
Case Details
1 2025:CGHC:4562 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR Digitally signed by ANJANI KUMAR ALLENA Date: 2025.01.28 16:56:27 +0530 MAC No. 1623 of 2016 1 - Smt. Sanki Bai W/o Late Boti Podiyami, Aged About 45 Years 2 - Sukhram Podiyami S/o Late Boti Podiyami, Aged About 22 Years 3 - Ku. Pojje Podiyami D/o Late Boti Podiyami, Aged About 15 Years 4 - Ramesh Podiyami S/o Late Boti Podiyami, Aged About 12 Years Respondents No. 3 & 4 are Minor Through Mother Smt. Sanki Podiyami, All are R/o Village- Geedam, Kadtipara, Police Station Geedam, District Dantewada, Chhattisgarh ...............Claimants, ... Appellants versus 1 - Jitendra Yadav S/o Dularam Yadav, R/o Haram, Guddipara, Police Station- Geedam, District Dantewada, Chhattisgarh ..............Driver, 2 - Mankuram Lekami S/o Vella Lekami, R/o Village Geedam, Kadtipara, Police Station Geedam, District Dantewada, Chhattisgarh ...............Owner, 3 - The Branch Manager, Oriental Insurance Company Limited, In Front Of Laxman Avenue Building Mandir, Maharani Road, Jagdalpur, District Bastar, Chhattisgarh, ... Respondents For Appellants For Respondents 1 & 2 : None, though served. For Respondent 3
Legal Reasoning
11. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors., Mangla Ram Vs. Oriental Insurance Co. Ltd., Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. And including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner(respondent No.1). xxxx xxxx xxxx xxxx xxxx 14. In view of the above, the appeals are partly allowed to the extent of directing respondent No.2 Oriental Insurance Company Ltd. to pay the compensation amount determined by the Tribunal and affirmed by the High Court to the appellant in the first place and with liberty to recover the same from the owner of the offending tractor, Respondent No.1 in accordance with law.” 14. In view of above and considering the facts and circumstance of the case, the fact that the offending vehicle was duly insured with non-applicant No.3/Insurance Company at the relevant time and keeping in view the benevolent provisions of the Act in the light of the decision of Hon'ble Supreme court in Shivaraj (supra), this Court is of the opinion that the ends of justice would be served if the Insurance Company is directed to pay the entire amount of compensation to the claimants first and then recover the same from the driver-owner of the offending vehicle, in accordance with law. Ordered accordingly. 15. In the result, the appeal filed by the claimants are allowed in part with modification in the impugned award to the above extent and rest of the conditions of the impugned award shall remain intact, Sd/- (Radhakishan Agrawal) JUDGE Anjani
Arguments
: Shri Arjun Lal Singraul, Advocate. : Shri Arvind Panda, Advocate appears on behalf of Shri D.L.Dewangan, Advocate. (HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL) Judgment on Board 24/01/2025 1. This appeal has been filed under Section 173 of the Motor Vehicles Act, 1988 (for short, the MV Act) by the appellants/claimants seeking enhancement of compensation of Rs.4,83,000/- awarded in Claim Case No.31/2015 vide award dated 18.10.2016 passed by the Motor Accident Claims Tribunal, South Bastar Dantewada (for short, 'the Tribunal). The parties to this appeal shall herein after be referred as per their description before the Court below. 2. As per claim application filed under Section 166(1) of the MV Act, on 2 02.02.2015 at 4.00-4:30 pm, when Ku. Lakhe Podiyami was walking from Sarpanchpara to Kadtipara, Geedam on the left side of road, the Tractor bearing registration No.CG/18/G/1687 and trolley No.CG/18/G/1688 (in short, the offending vehicle) being driven by Non-applicant No.1/driver in a rash and negligent manner, dashed her near Kadtipara Handpump, as a result of which, she has died on the spot due to serious injuries sustained by her. It is not disputed that at the time of accident, the offending vehicle was owned by Non-applicant No.2/Mankuram Lekami and was insured with Non-applicant No.3insurance company. 3. On account of death of Ku. Lakhe Podiyami, a claim application was filed by him under Section 166 of the MV Act seeking compensation of Rs.6,50,000/- under various heads, pleading inter alia, that she was aged 19 years at the time of accident and used to earn Rs.4,000/- per month by working as agricultural relating labour works. The claim application was resisted by the Non-applicants on various grounds including that the insurance company taking a plea that there is violation of terms and conditions of the insurance policy. 4. Learned Claims Tribunal framed issues on the basis of pleadings and evidence and decided the same in favour of the appellants/claimants in Clam Case and awarded amount of compensation of Rs.4,83,000/- along with interest @ 9% per annum from the date of award till its realisation while fastening liability upon the Non-applicant No.2/owner of the offending vehicle. 5. Learned counsel for the appellants/claimants submits that the Tribunal has committed an illegality in assessing monthly income at Rs.3,500/- on notional basis, which is on lower side and even if the provisions of minimum wages would apply on the date of accident, then she being an unskilled labourer could have easily earned Rs.5,517/- per month. He further contends that future prospects has also not been awarded by the Tribunal, moreover, 3 reasonable amounts awarded on other conventional heads are also on meagre side. He further submits that though liability is on the owner/Non- applicant No.2 of the offending vehicle, but at the time of accident, the offending vehicle was insured with the Non-applicant No.3/insurance company, therefore, order of pay and recover may be ordered looking to the welfare and beneficial legislation of the provisions of the Motor Vehicles Act, 1988. In support, he relied on the decisions of the Supreme Court rendered in the matters of National Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC 680, Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others reported in (2018) 18 SCC 130 and Shivaraj vs Rajendra and another reported in 2018 (10) SCC 432. 6. On the other hand, learned counsel appearing for the respondent 3/insurance company, while admitting that no separate appeal has been preferred by the insurer against the impugned award, submits that although the offending vehicle was insured with Non-applicant No.3/insurance company, but the Tribunal, upon due and proper appreciation of the evidence led before it, has rightly held that the offending vehicle was being plied in breach of policy conditions, therefore, the insurance company was rightly exonerated. 7. I have heard learned counsel for the parties and perused the record of the Tribunal including the evidence adduced on record. 8. As regards the death of deceased Ku. Lakhe Podiyami, the Tribunal, considering the evidence available on record, recorded a finding that on the date of accident deceased Ku. Lakhe Podiyami went to Sarpanchpara but while returning to Kadatipara, she boarded the offending vehicle. Based on such evidence, it was held by the Tribunal that deceased Ku. Lakhe has died as a result of rash and negligent driving of the offending vehicle Tractor. 9. Now I shall examine as to whether the compensation of Rs.4,83,000/- awarded by the Tribunal is just and proper compensation in the facts and circumstances of the present case. 10. Admittedly, in an vehicular accident that had taken place on 02.02.2015, 4 deceased Ku. Lakhe has died and at the time of accident she was 19 years old and was earning Rs.4,000/- per month by working as agricultural labourer, however, the Claims Tribunal, on notional basis, assessed monthly income as Rs.3,500/- per month. This apart, no income towards future prospects has also not been awarded and that the amounts awarded under other conventional heads are also on lower side. The approach of the Tribunal in assessing Rs.3,500/- as monthly income of the deceased, in not awarding future prospects and in awarding meagre amounts on other conventional heads is not just and proper. Considering the facts of the case, looking to his nature of work and as per prevalent minimum wages, it can safely be held that the deceased could have easily earned Rs.4,000/- per month by working as daily-wage labourer, as pleaded by Claimants in their claim petition. Therefore, I propose to reassess the compensation by taking the monthly income of the deceased at Rs.4,000/- per month and Rs.48,000/- per annum. At the time of accident, age of the deceased was pleaded to be 19 years, therefore, applicable multiplier would be 18 and looking to the age of the deceased, the applicable percentage would be 40%. 11. Taking guidance from the decisions of the Hon'ble Supreme Court in Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121, Pranay Sethi and Magma General Insurance Company Limited (supra), this Court re- computes the compensation in the following manner :- Sl. No. 1. 2. 3. 4. Description Amount in Rs. Income of the deceased @ Rs.4,000/- per month. 40% of (1) above to be added towards future prospects Total annual income of the deceased Applicable deduction would be 50% as the deceased was unmarried. 48,000/- 19,200/- 67,200/- 33,600/- 5. Multiplier of 18 applied to assess total 6,04,800/- annual income 5 6. 7. 8. Funeral expenses Loss of Estate Loss of consortium Total compensation 15,000/- 15,000/- 1,60,000/- 7,94,800/- Award of the learned Tribunal. (-) Enhanced amount by this Court 4,83,000/- 3,11,800/- 12. Hence, the claimants/appellants are entitled for an additional amount of Rs.3,11,800/-. The additional amount shall carry interest as made by the Tribunal from the date of passing of award by the Tribunal till its realisation. The enhanced amount with interest shall be deposited by the insurer. The impugned award stands modified to the above extent. Rest of the conditions of the impugned award shall remain intact. 13. As regards the payment of compensation, admittedly, the offending vehicle was insured with the non-applicant No.3/Insurance Company. However, taking into consideration the fact that the Motor Vehicles Act is a beneficial legislation and the provisions of the Act having been enacted for the benefit of the victims of an accident, this Court is of the opinion that in the larger interest of the claimants and in order to achieve substantial justice, the view taken by the Hon'ble Supreme Court, in the matter of Shivaraj (surpa) reiterating the principles in the case of Manuara Khatun and others vs Rajesh Kumar Singh and others reported in (2017) 4 SCC 796, whereby the Hon'ble Supreme Court has applied the principle of pay and recover, which needs to be applied in this case. It would be relevant at this juncture to refer to paragraphs-10, 11 & 14 of the case of Shivaraj (supra), which is reproduced hereinunder: “10. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) 6 was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case.