Raipur, Chhattisgarh v. 1 - Aadhara Bai W/o Late Buddhu Singh Aged About 40 Years Caste
Case Details
1 MAC No.1870 of 2018 and MAC No.1788 of 2018 2025:CGHC:39324 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1870 of 2018 1 - ICICI Lombard General Insurance Company Limited Through Its Legal Manager, Vanijya Bhawan, Ground Floor, Devendra Nagar Raipur Chhattisgarh., District : Raipur, Chhattisgarh --- Petitioner(s) versus 1 - Aadhara Bai W/o Late Buddhu Singh Aged About 40 Years Caste - Gond, R/o Village - Kachhar, P.S. And Tahsil Marwahi, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 2 - Kuldeep S/o Late Buddhu Singh Aged About 7 Years (Minor) Through Legal Representative Mother Aadhara Bai, Caste - Gond, R/o Village - Kachhar, P.S. And Tahsil Marwahi, District Bilaspur Chhattisgarh., District : Bilaspur, Chhattisgarh 3 - Mukesh S/o Late Buddhu Singh Aged About 5 Years (Minor) Through Legal Representative Mother Aadhara Bai, Caste - Gond, R/o Village - Kachhar, P.S. And Tahsil Marwahi, District Bilaspur Chhattisgarh. (Claimants), District : Bilaspur, Chhattisgarh 4 - Rohit S/o Santosh Gond Aged About 26 Years R/o Village Kachhar, P.S. And Tahsil Marwahi, District Bilaspur Chhattisgarh. (Driver), District : Bilaspur, Chhattisgarh 2 MAC No.1870 of 2018 and MAC No.1788 of 2018
Legal Reasoning
5 - Jai Kumar Rai S/o Shri Mohanlal Rai Aged About 45 Years R/o Village Marwahi, Tahsil Marwahi, District Bilaspur Chhattisgarh. (Owner), District : Bilaspur, Chhattisgarh 6 - H.D.F.C.E.R.G.O. General Insurance Company, First Floor K.H.N. 730/2 D-2, P.H. No. 22, Ward No. 30, Rani Laxmi Nagar, Near Rama Magneto Mall, Bilaspur Chhattisgarh. (Insured Trolly), District : Bilaspur, Chhattisgarh --- Respondent(s) MAC No. 1788 of 2018 1 - H.D.F.C. Ergo General Insurance Company 1st Floor, K.H.N. 730/2 D- 2, P.H. No.-22, Ward No.30, Rani Laxmi Nagar, Near Rama Magneto Mall, Bilaspur Chhattisgarh, At Present - Through Branch Office - Near Chawla Complex, Devendra Nagar Road, Police Station Devendra Nagar, Tahsil And District - Raipur, Chhattisgarh, ---(Insurer Of Vehicle Trolley Registration No. Cg-10-A-0975), District : Raipur, Chhattisgarh ---Appellant(s) Versus 1 - Adhara Bai Wd/o Late Buddhu Singh Aged About 40 Years R/o Village Kachhar, Thana And Tahsil Marvahi, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 2 - Kuldip S/o Late Buddhu Singh Aged About 7 Years Minor And Representing Through Their Mother Res. No.1 Adhara Bai, R/o Village Kachhar, Thana And Tahsil Marvahi, District - Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 3 - Mukesh S/o Late Buddhu Singh Aged About 5 Years Minor And Representing Through Their Mother Res. No.1 Adhara Bai, R/o Village Kachhar, Thana And Tahsil Marvahi, District - Bilaspur, Chhattisgarh. ---- (Claimants), District : Bilaspur, Chhattisgarh 3 MAC No.1870 of 2018 and MAC No.1788 of 2018 4 - Rohit S/o Santosh Gond Aged About 26 Years R/o Village Kachhar, Thana And Tahsil Marvahi, District - Bilaspur, Chhattisgarh. --(Driver Of Vehicle Tractor Registration No. Mp-18-Aa-5982 And Trolley No. Cg-10- A-0975), District : Bilaspur, Chhattisgarh 5 - Jai Kumar Rai S/o Shri Mohanlal Rai Aged About 45 Years R/o Village Kachhar, Thana And Tahsil Marvahi, District - Bilaspur, Chhattisgarh. -- (Owner Of Vehicle Tractor Registration No. Mp-18-Aa-5982 And Trolley No. Cg-10-A-0975), District : Bilaspur, Chhattisgarh 6 - I.C.I.C.I. Lembard General Insurance Company Office No. 50-60, B.R. Plaza, 2nd Floor, Link Road, Bilaspur Chhattisgarh,--(Insurer Of Vehicle Tractor Registration No. Mp-18-Aa-5982), District : Bilaspur, Chhattisgarh --- Respondent(s) Mr. Sourabh Sharma, Advocate along with Ms. Harneet Kaur, Advocate, Mr. Nikhil Kumar Singh, Advocate Mr. Ghanshyam Patel, Advocate, Mr. Harshmander Rastogi, Advocate along with Ms. Apporva Pandey, Advocate on behalf of Mr. N. K. Thakur, Advocate appearing for their respective parties. Hon'ble Shri Justice Amitendra Kishore Prasad Order on Board (06.08.2025) 1. Heard. 2. Since the factual matrix and the core issues involved in both appeals are identical and arise from the same impugned order dated 19.07.2018 passed in Claim Case No. 26/2015, the appeals have been clubbed, heard together, and are being decided by this 4 MAC No.1870 of 2018 and MAC No.1788 of 2018 common order. For the sake of convenience, MAC No. 1870 of 2018 is treated as the lead case. 3. These appeals arise out of the award dated 19.07.2018 passed by Upper Motor Accident Claims Tribunal, Pendraroad District Bilaspur (C.G.), in Claim Case No. 26/2015 awarding a compensation of Rs.4,83,600/- with interest @ 6% per annum, in favour of the claimants for their irreparable loss. 4. It is undisputed in the present case that the offending vehicle, a tractor bearing registration number MP18-AA-5982 and trolley bearing registration number 10A-0975, was being driven by respondent No.4, owned by respondent No.5. The tractor was insured with ICICI Lombard General Insurance, Appellant herein, and the trolley was insured with HDFC ERGO General Insurance, respondent No.6. 5. Cross-objection/Cross Appeal under Order 41 Rule 22 of Code of Civil Procedure has been filed by the claimants in MAC No.1788 of 2018. 6. Also Heard on I.A. No.03/2025 – an application for condonation of delay in filing cross-objection/cross-appeal. 7. Upon due consideration and for the reasons assigned in the 5 MAC No.1870 of 2018 and MAC No.1788 of 2018 application, the same is allowed. Delay of 1995 days in filing the cross-objection appeal is hereby condoned. 8. The averment in the claim petition, in brief, is that the respondents No. 1 to 3, being the mother and minor brothers of the deceased Devasingh, filed a claim petition under Section 166 of the Motor Vehicles Act, 1988, alleging that on 16.06.2015, due to the rash and negligent driving of respondent No. 4, the deceased, who was seated in a trolley loaded with boulders and gravel, fell from the vehicle and came under the rear wheel of the trolley, sustaining grievous injuries which resulted in his death. It was further pleaded that the deceased was earning Rs. 300/- per day, and under various heads, a total compensation of Rs. 69,85,700/- was claimed. Respondents No. 4 and 5, being the driver and owner of the offending vehicle, jointly filed their written statement denying the accident and contending that in Criminal Case No. 99/2015, the competent court had acquitted the owner. They further denied that the deceased was traveling in the tractor-trolley or employed for loading/unloading work, and disputed the claim of his income. They asserted that the tractor was insured with the appellant-company and the trolley was insured with respondent No. 6, and that the driver held a valid and effective driving licence. The appellant- insurance company, in its written statement, denied liability on the ground that the trolley was not insured with it, but with respondent 6 MAC No.1870 of 2018 and MAC No.1788 of 2018 No. 6, and further alleged that the driver did not possess a valid driving licence. Respondent No. 6, the insurer of the trolley, also denied the occurrence of the accident and contended that as per the registration certificate and insurance policy, no person was permitted to travel in the trolley. The learned Claims Tribunal, by its impugned award dated 19.07.2018, partly allowed the claim petition, holding that the accident occurred due to the rash and negligent act of respondent No. 4, that no breach of the terms and conditions of the insurance policy was proved, and apportioned the liability equally between the appellant and respondent No. 6. Aggrieved by the said award, the appellant has preferred the present appeal, contending that fastening of liability upon it is per se illegal, contrary to law, and deserves to be set aside. 9. Learned counsel appearing for the ICICI Lumbard General Insurance Company Limited, in support of its defence, led evidence and examined its officer, Mr. Deepak Soni, Assistant Legal Manager, who categorically stated that as per the criminal case records, the deceased was traveling in the trolley, which was not insured with the appellant-company; only the tractor was insured, and that too for agricultural purposes. At the relevant time, the vehicle was being used for transporting boulders and gravel (gitti), which constitutes a commercial activity and amounts to a breach of the terms and conditions of the insurance policy. It was further 7 MAC No.1870 of 2018 and MAC No.1788 of 2018 submitted that there is no sitting capacity in a trolley or tractor, and the deceased, being a gratuitous passenger or stranger, was not covered under the policy. Moreover, the driver of the offending vehicle did not hold a valid and effective driving licence at the time of the accident. Despite these facts, the learned Claims Tribunal erroneously fastened liability upon the appellant–insurance company, which is per se illegal and unsustainable in law. 10. Additionally, the owner and driver, in their joint written statement, denied that the deceased was employed by them or was traveling in the offending vehicle, thereby admitting that he was a third party not authorized to travel in the vehicle. In such circumstances, the appellant cannot be held liable to indemnify the owner. Furthermore, the amount of compensation awarded is on the higher side and deserves to be appropriately reduced. To lend credence to his claim, he relief upon the order passed by the High Court of Madhya Pradesh in the case of Leela & Ors. Vs. Kunwar Lal & Ors. 1 . 11. Learned counsel appearing for HDFC Ergo General Insurance Company respectfully submits that the findings recorded by the learned Claims Tribunal, particularly the conclusion that the deceased was traveling in the tractor-trolley, are contrary to law and liable to be set aside. The Tribunal failed to appreciate and apply 1 MISC. APPEAL No.3417 of 2009 8 MAC No.1870 of 2018 and MAC No.1788 of 2018 the provisions of Sections 147 and 149 of the Motor Vehicles Act, 1988, as well as Rule 28 of the Rules of the Road Regulations, 1989, and Rule 220 of the Chhattisgarh Motor Vehicles Rules, 1994. It is an admitted fact, as reflected in the FIR and other criminal case records relied upon by the claimants themselves, that the deceased was traveling in the offending vehicle, which was a tractor-trolley used for commercial purposes, namely transporting boulders. The insurance policy issued by the appellant covered the tractor for agricultural use only, and explicitly did not extend coverage to gratuitous passengers traveling in the trolley. Furthermore, the seating capacity in a tractor is restricted to the driver alone, and no provision exists for carriage of passengers. The deceased, therefore, does not fall within the definition of a 'third party' under Section 147 of the Act. 12. He additionally avers that it was established through the testimony of the appellant’s official that the driver of the offending vehicle did not possess a valid and effective driving licence to operate a tractor with an attached trolley. Despite such evidence, the Tribunal arbitrarily fastened liability upon the appellant without proper appreciation of the pleadings and materials on record. The owner and driver, in their joint written statement, denied employing the deceased or that he was engaged in loading/unloading activities, and did not disclose the use of the vehicle for any such purpose. 9 MAC No.1870 of 2018 and MAC No.1788 of 2018 The Tribunal failed to consider their defence and erroneously disregarded the contradictions between their pleadings and the claimants’ version. The Tribunal also committed a serious error in awarding 40% addition towards future prospects without any cogent proof of the deceased’s occupation or income. The claim that the deceased was a labourer earning Rs. 300/- per day was neither proved nor corroborated by independent evidence. Consequently, the award under this head is without basis and liable to be quashed. The Tribunal further erred in not appreciating the case law cited by the appellant. In view of the foregoing, the impugned award is perverse, based on conjecture and surmise, and deserves to be set aside. The owner and driver of the offending vehicle, being primarily liable, should be directed to pay the compensation directly to the claimants. 13. Learned counsel appearing for the driver and owner submit that the Claims Tribunal has rightly appreciated the evidence on record and passed the award strictly in accordance with law. The learned Tribunal has meticulously considered the documentary and oral evidence before arriving at the quantum of compensation and has rightly fastened the liability upon the insurance companies. 14. Learned counsel for claimants submits that the impugned Award passed by the learned Claims Tribunal is contrary to the law, facts, and circumstances of the case. He further puts forward that the 10 MAC No.1870 of 2018 and MAC No.1788 of 2018 learned Tribunal has failed to award just, fair, and adequate compensation under various heads and has instead granted a grossly inadequate amount, thereby causing serious prejudice to the appellants. The Tribunal erred in assessing the monthly income of the deceased at a mere. In light of the above, the appeal filed by the insurance companies are liable to be dismissed and amount should be enhanced to ensure justice is done to the claimants. 15. I have heard learned counsel for the parties and their rival submissions, perused the document available on record and particularly the order impugned herein. 16. Upon careful consideration of the rival submissions and meticulous perusal of the record, this Court finds no merit in the appeals preferred by the ICICI Lombard General Insurance Company Limited and HDFC ERGO General Insurance Company Limited. The learned Claims Tribunal, after appreciating both oral and documentary evidence, has rightly concluded that the accident occurred due to the rash and negligent driving of respondent No. 4, which resulted in the untimely demise of the deceased Devasingh. The contention of the insurance companies that the deceased was a gratuitous passenger not covered under the policy, and that the vehicle was used for commercial purposes in breach of policy terms, is untenable in the present factual matrix, particularly when the insurer failed to discharge the burden of proving a willful and 11 MAC No.1870 of 2018 and MAC No.1788 of 2018 fundamental breach of the policy conditions by the insured. Further, the Tribunal has correctly held that no cogent evidence was led to establish that the driver lacked a valid and effective driving licence at the time of the accident. The pleas raised by the insurers regarding breach of policy conditions, lack of insurable interest in the trolley, and exclusion of risk to the deceased are devoid of merit in light of settled legal principles that any ambiguity in the insurance contract must be interpreted in favour of the insured. Moreover, the joint denial by the owner and driver in their written statement regarding the presence of the deceased in the offending vehicle cannot absolve the insurers of liability once negligence is established. Consequently, the appeals filed by the Insurance Companies are liable to be and are hereby dismissed. 17. So far as the cross-objection is concerned, when the claim application for compensation was filed by the claimants of deceased before the Claims Tribunal against the driver, owner and insurance company of the offending vehicle, the Tribunal has taken income of the deceased as Rs.3,000/- per month i.e. Rs.36,000/- per annum in absence of any documentary proof of income. The deceased was aged about 20 years and the claimants are the mother and two brothers of the deceased and the future prospect was 40% as the age of the deceased was below 40 years, therefore, the further prospect was Rs.36,000/- x 40/100 = 12 MAC No.1870 of 2018 and MAC No.1788 of 2018 Rs.14,400/- hence the annual income of the deceased was taken as Rs.50,400/- the deduction was 50% towards personal expenses i.e. Rs.25,200/- so, after applying multiplier of 18, the total loss of dependency calculated to Rs.4,53,600/- and on other heads Rs.30,000/- has been calculated and awarded total compensation of Rs.4,83,600/- (Rs. 4,53,600/- + Rs.30.000/- = Rs.4,83,600/-) with interest @ 6% per annum, in favour of the appellants/claimants. Hence, this cross-objection for enhancement. 18. In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza. 19. Now this Court shall examine as to whether the compensation of Rs.4,83,600/- awarded by the Tribunal is just and proper compensation in the given facts and circumstances of the case. 20. As regards the income of the deceased, though the claimants have pleaded that the deceased was earning Rs.3,000/-. per month, but no documentary evidence in support thereof 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, keeping in mind the 13 MAC No.1870 of 2018 and MAC No.1788 of 2018 nature of occupation, date of accident, wage structure prevailing on the date of accident, price index and cost of living etc. Upon considering the aforementioned factors, I find it appropriate that the trial Court has rightly assessed the income of the deceased as minimum wages, at the relevant time of accident. The annual income of the deceased is Rs.36,000/- per annum. As per Pranay Sethi (supra). 21. The deceased was aged about 20 years and was unmarried and the claimants are the mother and two brothers of the deceased so after adding 40% towards future prospects i.e. Rs.36,000/- x 40/100 = Rs.14,400/-, the annual income comes to Rs.36,000 + Rs.14,400/- = Rs.50,400/-. deduction towards personal expenses would be 1/2 which comes to Rs.25,200/- (Rs.50,400/2 = Rs.25,200/-). In view of judgment of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another , 2 and Pranay Sethi (supra), Further, considering the age of the deceased multiplier of 18 would be applicable, the total loss of dependency works out to Rs.4,53,600/-. The claimants are further entitled for loss of estate Rs. 18,000/- (10% increase in every three years), for funeral expenses Rs. 18,000/- (10% increase in every three years) along with the amount of consortium to the mother and two minor brother @ Rs.40,000/- each with 10% increase in every three years i.e. Rs.48,000/- each and as per 2 (2009) 6 SCC 121 14 MAC No.1870 of 2018 and MAC No.1788 of 2018 Magma General Insurance Co. Ltd. Vs. Nanu, 3 . Therefore, the claimants would become entitled for total compensation of Rs.6,33,600/-. In light of the judgment passed by the Hon’ble Supreme Court in case of Rajkumar Vs. Ajay Kumar & Ors 4 , this Court reassesses the compensation in the following manner:- S.No. Heads Calculation Annual Income of the Deceased Future Prospect 40% Deduction of 1/2 (Unmarried) Rs.36,000/- Rs.14,400 Rs.25,200/- Total Annual Income of the Rs.25,200/- (Rs.36,000/- + 01 02 03 04 Deceased 05 Multiplier of 18 Rs.14,400/- - Rs.25,200/-) Rs.4,53,600/- (Rs.33,600 x 18) Loss of Consortium (With 06 10% enhancement in every Rs.1,44,000/- three years) Rs.48,000/- x 3 Towards loss of Estate (With 07 10% enhancement in every Rs. 18,000/- three years) Funeral Expenses (With 10% 08 enhancement in every three Rs. 18,000/- years) Total Rs.6,33,600/- 22. Accordingly, the total compensation is enhanced to Rs.6,33,600/- from 4,83,600. Thus, there is an enhancement of Rs.1,50,000/-, which shall carry interest at the same rate as awarded by the 3 AIR Online 2018 SC 189 4 (2011) 1 SCC 343 15 MAC No.1870 of 2018 and MAC No.1788 of 2018 Tribunal (6% p.a.) from the date of claim petition till realization. 23. As a result, the Tribunal’s apportionment of liability on a 50:50 basis between the two insurance companies is fair and equitable given the composite nature of the vehicle involved. The plea regarding excessive compensation is equally without substance. Resultantly, both Appeals filed by the Insurance Company being devoid of merit are Dismissed and the Cross-Objection filed by the claimants is hereby Allowed. The award dated 19.07.2019 is modified to the extent indicated above. Rest of the terms and conditions of the Tribunal’s award remain intact. Certified Copy as per rules. Sd/- (Amitendra Kishore Prasad) JUDGE ABHIGYA SAXENA Digitally signed by ABHIGYA SAXENA Saxena