Nafr High Court
Case Details
1 Digitally signed by BHOLA NATH KHATAI Date: 2025.05.05 16:32:29 +0530 2025:CGHC:20214 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1880 of 2018 Smt. Kusum Bai Patre W/o Late Dashrath Ram Patre, Aged About 55 Years, R/o Belsari, P.S. Takhatpur, District- Bilaspur, Chhattisgarh versus ... Appellant 1. Jay Kumar @ Jay Singh Thakur (Deleted) As Per Hon’ble Court Order Dated 04-02-2025. 2. Raju Gupta S/o Ramu Sav Gupta R/o Ramnagar Kota, P.S. Kota, District- Bilaspur, Chhattisgarh............(Owner Of Bus Bearing No. C.G. 10/A-7425)
Legal Reasoning
3. Branch Manager, Shriram General Insurance Company Limited, E-8 Epip Riico, Industrial Area Sitapur, Jaipur Rajasthan 302022, India ... Respondent(s) For Appellant : Mr. Rajesh Jain, Advocate For Respondent(s) : None Hon'ble Shri Justice Sanjay Kumar Jaiswal
Decision
Order on Board 02 / 05 / 202 5 1. It is a claimant’s appeal under section 173 of the Motor Vehicles Act 2 challenging the award dated 18.09.2018 passed by 5th Additional Motor Accident Claims Tribunal, Bilaspur (CG) in Claim Case No.386/2015 2. The facts, necessary for disposal of this appeal, in brief, are that Jagendra Patre (deceased) was working as a Khalasi in the bus bearing registration No. CG 10 A 7425, owned by respondent No.2 Raju Gupta and insured by respondent No.3 insurance company. On 01.05.2015 at about 4:20 pm, when the said bus was on its way from Takhatpur to Kota carrying passengers, respondent No.1 Jai Kumar while driving the bus rashly and negligently overturned it near Bija Ghoda Road, as a result of which, Jagendra suffered grievous injuries on his head, face, forehead and other parts of the body. He was immediately taken to CIMS Hospital Bilaspur for treatment where he died. The mother of the deceased preferred an application before the Tribunal claiming compensation of Rs.13,50,000/- under various heads. Learned Tribunal, on a close scrutiny of the evidence brought on record, awarded total compensation of Rs.6,90,400/- with interest @ 6% per annum from the date of application till its realization, in favour of the claimant. 3. While passing the impugned award, the Tribunal held that the deceased Jagendra Patre was a Khalasi i.e. cleaner of the offending vehicle. The Tribunal has found in paragraphs - 32 & 33 of the award that as per policy Exhibit D-3, the risk was covered for personal accident of Owner Driver, 1 Paid Driver & 1 Paid Conductor apart from third party but the risk of Khalasi was not covered. Hence, the insurance company was exonerated from its liability and the driver and the owner of the offending vehicle was held liable for payment of compensation. 4. Learned counsel for the claimant/appellant argued that deceased Jagendra Patre was a cleaner of the bus and as per the premium paid under policy Exhibit D-3, the risk of the deceased cleaner was 3 also covered. He has referred to IMT 40 in policy Exhibit D-3 and submitted a separate copy of the same for perusal of the Court. Apart from this, learned counsel for the claimant/appellant also argued that the income of the deceased has been assessed on the lower side and under other heads also, less amount has been awarded, which should be suitably enhanced. 5. There is no representation on behalf of the respondents. 6. Heard learned counsel for the appellant and perused the record. 7. In the "award in question" the Tribunal has held that the deceased Jagendra Patre was working as a Khalasi in the offending vehicle and died when the said vehicle met with an accident. The premium paid in the policy Exhibit D-3 is as under:- ADD: GR36A-PA for Owner Driver ADD: LL to Paid Driver Count : 1 100 50 ADD: LL to Paid Conductor Count : 1 50 8. In the insurance policy Exhibit D-3, “Subject to IMT Endorsement printed herein/attached to : IMT-21, IMT-23, IMT-40, IMT-7” is mentioned. As per the documents regarding Liability Only Policy- Commercial Vehicles (Passenger Carrying Vehicle) submitted by learned counsel for the appellant, IMT-40 is as follows:- IMT 40. Legal Liability to paid driver and/or conductor and/or cleaner employed in connection with the operation of motor vehicle. In consideration of the payment of an additional premium it is hereby understood and agreed that notwithstanding anything contained herein to the contrary the insurer shall indemnify insured against his legal liability under the Workmen's Compensation Act, 1923 and subsequent amendments of that Act prior to the date of this endorsement, the Fatal Accidents Act, 1855 or at Common Law in respect of personal injury to any paid driver and/or conductor and/or cleaner whilst engaged in the service of the insured in such 4 occupation in connection with the vehicle insured and will in addition be responsible for all costs and expenses incurred with its written consent. The premium to be calculated and paid while taking insurance of the vehicle concurred at the rate of Rs. 50/- per driver and/or conductor and/or cleaner. Provided always that :- 1) this Endorsement does not indemnify the insured in respect of any liability in cases where the insured holds or subsequently effects with any insurer or Group of Underwriters a Policy of Insurance in respect of liability as herein defined for his general employees. 2) the insured shall take reasonable precautions to prevent accidents and shall comply with all statutory obligations. 3) the insured shall keep a record of the name of each driver cleaner conductor or person employed in loading and/or unloading and the amount of wages salary and other earnings paid to such employees and shall at all times allow the insurer to inspect such record. 4) in the event of the Policy being cancelled at the request of the insured no refund of the premium paid in respect of this Endorsement will be allowed. Subject otherwise to the terms exceptions conditions and limitations of this Policy except so far as necessary to meet the requirements of the Motor Vehicles Act, 1988. 9. From perusal of the insurance policy and IMT-40, it is clear that under the insurance policy, apart from the driver, a premium of Rs. 50/- has also been paid for the conductor. According to IMT-40, “Driver and/or Conductor and/or Cleaner” are also included in that premium of Rs. 50/-. Khalasi can be meant as cleaner only. There is no evidence that anyone other than the deceased was working as a cleaner in the offending vehicle. In this situation, keeping in view the entry in the policy exhibit D-3 and IMT-40, this Court finds that the risk of deceased Jagendra Patre was also covered under the policy. Thus, the finding of the Tribunal in this regard is not found to be proper. For this reason, the insurance company which 5 has been exonerated from its liability by the Tribunal is also not found to be proper. 10. In view of the above discussion, it is held that the risk of the deceased was also covered under the insurance policy Exhibit D-3. Hence, the insurance company is liable to compensate the deceased. 11. As regards quantum, from the evidence presented by the claimant side, it is clear that at the time of accident, the deceased was an unmarried young man of 19 years. The deceased was working as a Khalasi. Hence, the Tribunal has assessed the income of deceased at Rs.4,500 per month as no documentary evidence regarding his income has been brought on record. The accident occurred on 01.05.2015 and the minimum wages of even an unskilled labour at that time was Rs.5517. Hence, the income of the deceased is assessed to be Rs.5517 per month as minimum wages instead of Rs.4,500 as held by the Tribunal. Accordingly, the annual income comes to Rs.66204. Considering the age of the deceased, his marital status and number of claimants, the future prospects of 40% and deduction of ½ of the income towards personal expenses held by the Tribunal are found to be proper. 12. In the light of the judgments of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121, National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 and Magma General Insurance Co. Ltd. v. Nanu Ram @ Chuhru Ram & Ors; (2018) 18 SCC 130, the compensation is being recomputed as below:- Sl. No. Particulars Calculation 1. Monthly income of the deceased 2. Yearly income 5517 66204 6 3. Future prospects(40% of the 26481.6 in round figure income) Total Personal expenses (1/2 of the income) Annual loss of dependency 26482 92686 46343 46343 Total loss of dependency (applying multiplier of 18) 46343 x 18 = 834174 Funeral Expenses Loss of estate 10. Filial consortium Total compensation 15000 15000 40000 Rs.9,04,174 4. 5. 6. 7. 8. 9. 13. Thus, the total compensation is recomputed as Rs.9,04,174/- from which after deduction of Rs.6,90,400/- as awarded by the Tribunal, the enhancement would be Rs.2,13,774/-. 14. Accordingly, the appeal is allowed. The claimant is entitled for the enhanced amount of Rs.2,13,774/- in addition to what is already awarded by the Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement of the award till its realization. It is made clear that the insurance company is liable to pay the compensation. The impugned award stands modified to the above extent and rest of the conditions shall remain intact. 15. The Registry is directed to communicate the claimant in writing “the enhanced amount” in this appeal as against the award made 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. Sd/- Sd/- (Sanjay Kumar Jaiswal) JUDGE Khatai