The Branch Manager, The National Insurance Company Limited Through Branch Manager, Branch Office, Akash v. 1
Case Details
-1- 2025:CGHC:31006 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 765 of 2019 The Branch Manager, The National Insurance Company Limited Through Branch Manager, Branch Office, Akash Ganga Complex, Supela, District - Durg Chhattisgarh. (non-applicant No.3) (Insurer Of Vehicle Motor Cycle Bearing Registration No. CG07/AU- 3575). --- Appellant (s) versus 1 - Smt. Anusuiya Bai Sahu W/o Late Bhanupratap Chandrakar Aged About 58 Years R/o Village - Tarra, Post Office And Police Station Patan, District Durg Chhattisgarh. (Applicant / Claimant No. 1) 2 - Smt. Lekha Chandrakar D/o Late Bhanupratap Chandrakar Aged About 39 Years W/o Ishwar Chandrakar, R/o Village - Chicha, Tahsil - Patan, Post Office And Police Station Patan, District Durg Chhattisgarh. (Applicant / Claimant No. 2) 3 - Janardan Chandrakar S/o Late Bhanupratap Chandrakar Aged About 37 Years R/o Village - Tarra, Post Office And Police Station - Patan, District Durg Chhattisgarh. (Applicant/ Claimant No. 3) 4 - Smt. Veena Chandrakar D/o Late Bhanupratap Chandrakar Aged About 35 Years W/o Basant Chandrakar, R/o Mahasamund, District Mahasamund Chhattisgarh. (Applicant/ Claimant No. 4) 5 - Dushyant Chandrakar S/o Late Bhanupratap Chandrakar Aged About 33 Years R/o Village - Tarra, Post Office And Police Station Patan, District Durg Chhattisgarh. (Applicant / Claimant No. 5) Digitally signed by PRAVEEN KUMAR SINHA Date: 2025.07.16 10:58:18 +0530 6 - Sumit Chhedaiya S/o Rajkamal Chhedaiya Aged About 26 Years R/o Village - Akhra, Post Office And Police Station - Patan, District Durg Chhattisgarh. (Non Applicant No. 1). (Driver Of Vehicle Motor Cycle Bearing Registration No. Cg07/au-3575) -2- 7 - Premlal Dewangan S/o Ghanshyam Dewangan Aged About 24 Years R/o Babu Bagicha, Patan, Post Office And Police Station - Patan, District Durg Chhattisgarh. (Non Applicant No. 2) (Registered Owner Of Vehicle Motor Cycle Bearing Registration No. Cg07/au-3575) --- Respondent(s) __________________________________________________________ For Appellant (s) : Mr. Shivendu Pandya, Advocate For Respondents No. 1 to 5 : Mr. Jitendra Gupta, Advocate For Respondents No. 6 & 7 : None appears though served ___________________________________________________________ MAC No. 1744 of 2019 1 - Smt. Ansuiya Bai Sahu W/o Late Bhanupratap Chandrakar Aged About 58 Years R/o Village Tarra, P.S. Patan, District- Durg, Chhattisgarh. 2 - Smt. Lekha Chandrakar D/o Late Bhanupratap Chandrakar Aged About 39 Years W/o Ishwar Chandrakar, R/o Chicha Tahsil Patan, District- Durg, Chhattisgarh 3 - Janardan Chandrakar S/o Late Bhanupratap Chandrakar Aged About 37 Years R/o Village Tarra, P.S. Patan, District- Durg, Chhattisgarh
Legal Reasoning
4 - Smt. Veena Chandrakar D/o Late Bhanupratap Chandrakar Aged About 35 Years W/o Basant Chandrakar, R/o Mahasamund, Chhattisgarh. 5 - Dushyant Chandrakar S/o Late Bhanupratap Chandrakar Aged About 33 Years R/o Village Tarra, P.S. Patan, District- Durg, Chhattisgarh............(Claimants) ---Appellant (s) Versus 1 - Sumit Chhedaiya S/o Rajkamal Chhedaiya Aged About 26 Years R/o Village Akhara, P.S. Patan, District- Durg, Chhattisgarh........... (Driver) 2 - Premlal Dewangan S/o Ghanshyam Dewangan Aged About 24 Years R/o Babu Bagicha, Patan, P.S. Patan District- Durg, Chhattisgarh 3 - Banch Manager National Insurance Company Limited, Akash -3- Ganga Complex Supela, District- Durg, Chhattisgarh...........(Insurer), --- Respondent(s) __________________________________________________________ For Appellant (s) : Mr. Jitendra Gupta, Advocate For Respondents No. 1 & 2 : None appears For Respondent No. 3 : Mr. Shivendu Pandya, Advocate _______________________________________________________ S.B.: Hon'ble Shri Parth Prateem Sahu, Judge 07/07/2025 Judgment On Board 1. MAC No.765 of 2019 filed by appellant-Insurance Company and MAC
Decision
No.1744 pf 2019 filed by appellant- Claimants are being disposed off by this common order as both the appeals arise out of same award dated 02.11.2018 passed by learned First Additional Tribunal to the Court of First Additional Motor Accidents Claims Tribunal, Durg in Claim Case No.281 of 2017. 2. Heard on IA No.1, which is an application for condonation of 198 days delay in filing the appeal MAC No.1744/2019. 3. On due consideration of the grounds raised in the application and submission made by learned counsel for the appellant/claimants, application is allowed. Delay in filing the appeal i.e. MAC No.1744 of 2019 is hereby condoned. 4. With the consent of learned counsel appearing for the parties, both the appeals are heard finally. 5. Facts relevant for disposal of this appeal are that claimants No.1 to 5 (MAC No.1744 of 2019) filed an application under Section 166 and 140 of the Act of 1988 before the learned First Additional Motor Accident Claims Tribunal, Durg, pleading therein that on 04.03.2017 -4- when Bhanupratap Chandrakar was going to Funda Raipur from his house on bicycle, non-applicant No.1-Sumit Chhedaiya driving his motorcycle No. CG-07/AU-3575 rashly and negligently dashed Bhanupratap Chandrakar from front side in which Bhanupratap Chandrakar sustained grievous injuries. He was taken to hospital where he succumbed to injuries during course of his treatment. At the time of accident deceased Bhanupratap Chandrakar was aged about 65 years and was earning Rs.9000/- per month by working as a salesman in a cloth shop. Claimants were dependent upon the income of deceased. Claimants prayed for a total compensation of Rs.14,30,000/- from non-applicants under different heads. 6. Non-applicants No. 1 & 2 (Driver and Owner of the offending vehicle) in their written statement have opposed the pleadings of claim application and pleaded that no accident had occurred with the said motorcycle, in the FIR name of driver and number of motorcycle are differently mentioned. False report has been lodged against them, therefore, they may be exonerated from liability to pay any amount of compensation . 7. Non-applicant No.3/Insurance company in its written statement stated that documents with respect to income, age, occupation, dependency have not been submitted and proved by the claimants. The accident occurred due to negligence of the deceased himself. Though on the date of accident, non-applicant No.1 had a Learning Licence, however, there was neither a sign of "L" mentioned in the vehicle nor a skilled driver was present along with the driver, which is clearly a violation of conditions of insurance policy. 8. Learned Claims Tribunal, on appreciation of pleadings and evidence -5- brought on record by respective parties, held that on the date of accident, the offending vehicle was being driven by non-applicant No.1 rashly and negligently, caused accident, in which Bhanupratap Chandrakar sustained grievous injuries and died. Recording a finding that breach of conditions of insurance policy was not found proved and there was no contributory negligence on the part of deceased in the said accident, non-applicants were held liable to satisfy the award and assessing monthly income of the deceased as Rs.4500/-, awarded total compensation of Rs.2,55,000/- 9. Learned counsel for the appellant insurance company in MAC No.765 of 2019 would submit that learned Claims Tribunal erroneously held appellant-Insurance Company liable to satisfy the amount of compensation overlooking the fact that on the date of accident non- applicant No.1/driver was having Learner's Licence and there was non- compliance of Rule 3 of the Central Motor Vehicle Rules 1989 (for short "Rules of 1989"). He next contended that Driver and Owner of the offending vehicle did not enter into witness box to give their evidence before the Claims Tribunal. In absence of evidence on behalf of Driver and Owner of offending vehicle it could not be presumed that Driver on the date of accident was riding the motorcycle complying with the provision under Rule 3 of the Rules of 1989. 10. Learned counsel for respondents/claimants No. 1 to 5 submits that learned Claims Tribunal upon appreciation of evidence brought on record by the respective parties has rightly held appellant -insurance company liable to pay amount of compensation which does not call for any interference. He next contended that claimants have filed separate -6- appeal bearing MAC No.1744 of 2019 seeking enhancement of amount of compensation awarded by learned Claims Tribunal. 11. I have heard learned counsel for the parties, perused the record of appeal as also claim case. 12. Owner and Driver in both the appeals were served however there is no representation on their behalf. 13. So far as the ground raised by learned counsel for the appellant- insurance company in MAC No.765 of 2019 is concerned, perusal of the impugned award would show that learned Tribunal has concluded that non-applicant No.1/ driver of offending vehicle was possessed with Learner's Licence which is marked as Ex.D-1. In the said document date of issuance of Learner's Licence is mentioned as 05.10.2016 and it was valid up to 14.04.2017. Accident is dated 04.03.2017. From aforementioned relevant dates, it is crystal clear that on the date of accident, Learner's Licence issued in favour of Sumit Cheddaiya was valid and effective. 14. Issuance of licence is provided under Section 10 of the Act of 1988 which is reproduced as under for ready reference: “10. Form and contents of licences to drive.— (1) Every learner’s licence and driving licence, except a driving licence issued under section 18, shall be in such form and shall contain such information as may be prescribed by the Central Government. (2) A learner’s licence or, as the case may be, driving licence shall also be expressed as entitling the holder to drive a motor vehicle of one or more of the following classes, namely:— (a) motor cycle without gear; (b) motor cycle with gear; -7- (c) [adapted vehicle]; (d) light motor vehicle; [(e) transport vehicle;] (i) road-roller; (j) motor vehicle of a specified description.” 15. Rule 3 of the Rules of 1989 provides for instructions to a person to drive the class of vehicle as mentioned in Learner's Licence complying with the conditions as mentioned therein which reads as under: “3. General - The provisions of sub-section (1) of section 3 shall not apply to a person while receiving instructions or gaining experience in driving with the object of presenting himself for a test of competence to drive, so long as- (a) such person is the holder of an effective learner’s license issued to him in Form 3 to drive the vehicle; (b) such person is accompanied by an instructor holding an effective driving license to drive the vehicle and such instructor is sitting in such a position to control or stop the vehicle; and (c) there is painted, in the front and the rear of the vehicle or on a plate or card affixed to the front and the rear, the letter “L” in red on a white background as under: L Note.- The painting on the vehicle or on the plate or card shall not be less than 18 centimetres square and the letter “L” shall not be less than 10 centimetres high, 2 centimetres thick and 9 centimetres wide at the bottom: -8- Provided that a person,while receiving instructions or gaining experience in driving a motorcycle (with or without a side-car attached), shall not carry any other person on the motorcycle except for the purpose and in the manner referred to in clause (b).” 16. A bare perusal of the Rule 3 of the Rules of 1989 would show that person holding Learner's Licence is permitted to drive the class of vehicle as mentioned therein subject to fulfilling the conditions as mentioned under Rule 3 (1) of the Rules of 1989. 17. Owner and Driver of the offending vehicle though have filed reply to the claim application pleading therein of false implication of driver of the vehicle in the accident, after filing reply to claim application, non- applicants No. 1 & 2 Driver and Owner of offending vehicle did not appear before Claims Tribunal and they were proceeded ex-parte. In absence of any evidence, pleading made in the reply could not be accepted as the evidence in claim case. 18. Learned Claims Tribunal while deciding the issue No.4 though has accepted the evidence of non-applicant that Learner's Licence was issued in favour of non-applicant No.1- Sumit having its validity from 05.10.2016 to 04.04.2017, however, in para -26 of the award it has observed that from the documents submitted by applicant it is appearing that at the time of accident along with non-applicant No.1 his elder brother namely Chandrakant Chhediya was also sitting. 19. The aforementioned fact which has been taken note of by learned Claims Tribunal is neither the defence of non-applicants No. 1& 2 in their reply nor they have stated before the Tribunal in their evidence as they chose not to enter into witness box. -9- 20. In the aforementioned facts of the case learned Tribunal erred in recording a finding that on the date of accident along with driver of motorcycle, non-applicant No.1,his brother Chandrakant Chhediya was sitting. 21. Copy of insurance policy is also filed as Ex.D-2 which bears driver clause as under:- "DRIVER: Any person including insured: Provided that a person driving holds an effective driving licence at the time of the accident and is not disqualified from holding of obtaining such a licence. Provided also that the person holding an effective Learner's Licence may also drive the vehicle and that such a person satisfies the requirements of Rule 3 of the Central Motor Vehicle Rules, 1989.” 22. Under insurance policy (Ex.D-2) there is specific clause that if the driver is possessed of Learner's Licence then he can also drive the vehicle specifying the requirements of Rule 3 of Rules of 1989. As there is non-compliance of Rule 3 of Rules of 1989 in the opinion of this Court learned Claims Tribunal erred in recording a finding that appellant insurance company failed to prove breach of conditions of insurance policy overlooking the fact that vehicle driven by a person holding driving licence without complying the Rule 3 of Rules of 1989 would have effect of breach of conditions of insurance policy . 23. For the foregoing discussions, finding recorded by learned Claims Tribunal with regard to issue No.4 of award is not sustainable and it is accordingly set aside. Appellant insurance company is exonerated from its liability. Now the liability to satisfy the award is upon non- -10- applicants No. 1 & 2 jointly and severally. However considering the decisions of Hon'ble Supreme Court in the case of National Insurance Company Ltd. vs. Swaran Singh & Ors. (2004) 3 SCC 297 and Shamanna & Anr Vs. Divisional Manager, Oriental Insurance Company Ltd. & Ors. (2018) 9 SCC 650, I find it appropriate to direct the appellant insurance company to first satisfy the amount of compensation and thereafter to recover the same from owner and driver of the offending vehicle in accordance with law. For recovery of amount of compensation, appellant -insurance company shall not be required to file separate proceedings but it can recover the amount in the same execution proceedings as per directives of Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. Vs. Nanjappan & Ors. (2004) 13 SCC 224. 24. So far as the appeal MAC No.1744 of 2019 filed by appellant claimants seeking enhancement of amount of compensation is concerned, learned counsel for the appellants made two submissions, first that learned Tribunal assessed income of the deceased on lower side and second, has not applied appropriate multiplier. 25. Perusal of the record of Claim Case would show that claimants in their pleading in the claim application pleaded that deceased was doing the cloth business and earning Rs.9000/- per month. 26. To prove the pleadings made in the claim application, claimants have examined Khilawan Chandrakar as AW2 who in his evidence has stated that deceased was his employee and he was making payment of Rs.300/- per day. From perusal of the pleading made in the claim application and evidence AW2 it is appearing that it is not co-relating -11- with each other. Claimants have pleaded that he was doing business of cloth selling, however, this witness in his evidence stated that deceased was working as his employee. 27. In the aforementioned fact of case and evidence of the claimants with regard to nature of occupation of deceased is not admissible. However in the aforementioned fact of case, it is for the Claims Tribunal to assess the income of deceased on notional basis treating him to be working as labourer. 28. As there is no suggestive evidence to show the wages prevailing on the date of accident at the place where deceased resided therefore I find it appropriate to take help of notification issued by the competent authority under Minimum Wages Act for assessing income of deceased. As per notification, minimum wages fixed by the Competent Authority for unskilled labourer is fixed as Rs.7800/- per month and therefore I find it appropriate to assess income of the deceased as Rs.7800/- per month. It is ordered accordingly. 29. Age of the deceased as assessed by Claims Tribunal as 66 years based on the age mentioned in postmortem report Ex.P-10. No document is brought on record by claimants to prove age of the deceased, therefore, in the opinion of this Court, learned Claims Tribunal justified in assessing age of deceased as 66 years. 30. Learned Tribunal has deducted ½ towards personal and living expenses which appears to be erroneous in view of decision of Hon’ble Supreme Court in the case of of Sarla Verma (Smt.) and Ors. Vs. Delhi Transport Corporation and Anr. (2009) 6 SCC 121. Claimant No.1 is widow of deceased and therefore she being spouse, -12- appropriate deduction would be 1/3 instead of 1/2. Claims Tribunal has further applied multiplier of 5 which is in consonance of decision in case of Sarla Verma (supra). 31. Learned Claims Tribunal has awarded Rs.15,000/- towards ‘funeral expenses’, Rs.15,000/- towards ‘loss of estate’ and Rs.40,000/- towards ‘loss of consortium’. 32. Claimant No.1 is widow of deceased and claimants No. 2 to 5 are children. According to decision of Hon'ble Supreme Court in the case of Magma General Insurance Co. Ltd. Vs. Nanu Ram alias Chuhru Ram & Ors. (2018) 18 SCC 130, children are also entitled for compensation under head of ‘loss of parental consortium’ of Rs.40,000/- . Learned Claims Tribunal fell into error in not awarding amount of compensation under head loss of consortium to claimants No. 2 to 5. Claimants No. 2 to 5 will be entitled to get Rs.40,000/- each under the head loss of parental consortium. It is ordered accordingly. 33. For the foregoing discussions, I find it appropriate to re-compute the amount of compensation as under:- S. N. Heads Compensation 1. Loss of Income : Rs. 3,12,000 (A) Income 7800 x 12 = 93600 (B) Deduction of 1/3 towards personal and living expenses (93600 x 1/3= 31200) 93600 - 31200 = 62400/- (D) Multiplier of 5 62400 x 5 = 3,12,000 2. Medical Expenses : (+) Rs. 5,000 -13- 3. Funeral Expenses 4. Loss of Estate 5. 6. Spousal Consortium to claimant No.1 (wife) Loss of parental consortium to claimants No. 2 to 5 (children) @ 40,000/- each : : : (+) Rs. 15,000 (+) Rs. 15,000 (+) Rs. 40,000 (+) Rs. 1,60,000 Total compensation Rs. 5,47,000 34. Now the appellant/claimant is awarded total compensation of Rs.5,47,000/- instead of Rs.2,55,000/- as awarded by the Claims Tribunal. 35. The enhanced amount of compensation shall carry interest @ 8% per annum from the date of filing of claim application till its realization. Any amount of compensation already paid to the claimants shall be adjustable from the total amount of compensation which has now been calculated and awarded by this Court. Other conditions of impugned award shall remain intact. 36. At this stage, learned counsel appearing for respondent-Insurance Company would submit that there is delay of 198 days in filing the appeal- MAC No.1744 of 2019, therefore, claimants are not entitled for the interest for delayed period. 37. Considering the submission made by learned counsel for respondent- insurance company it is directed that the claimants shall not be entitled for interest for the delayed period of 198 days in filing the appeal (MAC 1744/2019) as held by Hon'ble Supreme Court in case of Lakkamma & Ors. vs. Regional Manager, United India Insurance Co. Ltd. & -14- Anr. (2021) 20 SCC 797. 38. In the result, both the appeals are allowed in part. The appellant- Insurance Company though exonerated from its lability of paying amount of compensation to insurer, it is directed that appellant/insurance company shall first satisfy the amount of compensation and thereafter recover the same from Owner and Driver of the offending vehicle as observed above. Sd/- (Parth Prateem Sahu) Judge Praveen