Afr High Court
Case Details
1 Digitally signed by SHUBHAM SINGH RAGHUVANSHI Date: 2025.04.25 17:13:45 +0530 2025:CGHC:17304 AFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 2206 of 2019 1 - Smt. Gomati Mandavi, W/o Late Shankar Lal Mandavi Aged About 40 Years R/o Village Dhekana Tahsil Narharpur, District Kanker, Chhattisgarh 2 - Reena Mandavi D/o Shri Shankar Lal Mandavi Aged About 17 Years Minor Through Natural Guardian Mother Appellant No. 1 Smt. Gomati Mandavi, R/o Village Dhekana Tahsil Narharpur, District Kanker, Chhattisgarh 3 - Vikash Kumar Mandavi S/o Late Shri Shankar Lal Mandavi Aged About 16 Years Minor Through Natural Guardian Mother Appellant No. 1 Smt. Gomati Mandavi, R/o Village Dhekana Tahsil Narharpur, District Kanker, Chhattisgarh…..(Claimants) --- Appellants versus 1 - Santosh Kumar Dhruw S/o Shri Mohan Dhruw @ Mehar Singh Aged About 55 Years R/o Village Bhoyana Police Station Arjuni, Tahsil And District Dhamtari, Chhattisgarh……...(Driver) 2 - Kailash Kumar Sinha S/o Shri Shyam Lal Sinha Aged About 36 Years R/o Banspara Ward Dhamtari, Tahsil And District Dhamtari, Chhattisgarh………………………………………..(Owner) 2 3 - Branch Manager The Original Insurance Company Limited Dhamtari, Tahsil And District Dhamtari, Chhattisgarh..(Insurer) --- Respondent(s) MAC No. 2213 of 2019
Legal Reasoning
1 - Smt. Siya Bai W/o Late Jagat Ram Sori, Aged About 48 Years R/o Village Babu Kohka Tahsil Charama District Kanker Chhattisgarh 2 - Kamlesh Kumar S/o Late Shri Jagat Ram Sori, Aged About 30 Years R/o Village Babu Kohka Tahsil Charama District Kanker Chhattisgarh 3 - Kumari Archana D/o Kamlesh Kumar Sori Aged About 6 Years Minor Through Natural Guardian Grand Mother Appellant No. 1, R/o Village Babu Kohka Tahsil Charama District Kanker Chhattisgarh............………………………………………..(Claimants) ---Appellants Versus 1 - Santosh Kumar Dhruw S/o Shri Mohan Dhruw @ Mehar Singh, Aged About 55 Years R/o Village Bhoyana P.S. Arjuni, Tahsil And District Dhamtari Chhattisgarh. Present R/o Gokulpur, Ward Dhamtari, Tahsil And District Dhamtari Chhattisgarh……………………………………………………….(Driver) 2 - Kailash Kumar Sinha, S/o Shri Shyam Lal Sinha, Aged About 36 Years R/o Banspara Ward Dhamtari, Tahsil And District Dhamtari Chhattisgarh……………………………….(Owner) 3 - Branch Manager, The Oriental Insurance Company Limited, Dhamtari, Tahsil And District Dhamtari Chhattisgarh...(Insurer) ---- Respondents For Appellants in both the appeals : Mr. Pushpendra Kumar Patel and Mr. Dashrath Kushwaha, Advocates. 3 For Respondents No.1&2 in : Mr. Alok Tiwari, Adv. on behalf both the appeals of Mr. Parag Kotecha, Advocate. For Respondents No.3 in : Mr. Hanuman Prasad Agrawal, both the appeals Advocate Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board (15.04.2025) 1. Both the appeals arise out of same award dated 07.11.2019, passed by Motor Accident Claims Tribunal, North Bastar Kanker (C.G.), in Claim Case No. 30/2019 & 31/2019 therefore, they are being heard and decided by this common order. 2. The gist of the claims before the Tribunal, in brief, was that on 15.11.2018, Shankar Lal Mandavi and Jagat Ram Sori (now deceased) were going to hospital along with Sangram @ Sagram Singh in a motorcycle and when they reached near Indira Aawas Para, driver/respondent no.1 drove the vehicle (Bolero) bearing registration No. CG-05-X-7781 (in short the ‘offending vehicle’) rashly and negligently and dashed the motorcycle of deceased Jagat Ram Sori, due to which all three were fell down and Jagat Ram Sori died on spot and Shankar Lal Mandavi died on the way to the hospital while Sangram @ Sagram Singh sustained injuries on his body. Thereafter, the matter was reported to the concerned Police Station based on which a criminal case was registered. 3. It is claimed that at the time of accident, deceased Shankar Lal Mandavi was aged about 41 years. He was a public servant and was working in the Forest Department. His monthly salary was 30,780/-. Due to the casual death of Shankar Lal Mandavi, there is an irreparable loss to the appellants/claimants of Shankar Lal Mandavi 4 (MAC/2206/2019), therefore, the legal representatives of Shankar Lal had preferred an application (MACT Case No.31/2019) before the Tribunal claiming compensation to the tune of Rs. 98,00,000/-. While Jagat Ram Sori was aged about 55 years. He was a daily wage employee in the Forest Department. His monthly salary was 4,673/-. Due to the casual death of Jagat Ram Sori, there is an irreparable loss to the appellants/claimants of Jagat Ram (MAC/2213/2019), therefore, the legal representatives of Jagat Ram had preferred an application (MACT Case No.30/2019) before the Tribunal claiming compensation to the tune of Rs. 68,00,000. 4. Learned Tribunal, on a close scrutiny of the evidence brought on record, rejected their claim applications vide impugned order dated 07.11.2019, leading them to filing these appeals. 5. The basis for rejection of the claim application by the Tribunal is that at the time of accident, three persons were traveling in a motorcycle and deceased Jagat Ram Sori and deceased Shankar Lal Mandavi along with injured Sangram @ Sagram Singh had consumed liquor and Jagat Ram Sori was driving the motorcycle bearing registration No. CG-05-C-1909, therefore, it was held by the Tribunal that there was negligence on the part of deceased persons and it could not be proved that the accident occurred because of the negligence or carelessness of Respondent No.1/driver of offending vehicle, nor can it be said that the Respondent No.1 had any contributory negligence in the occurrence of the accident. Hence, it cannot be held that Respondent No.1 is negligent in driving the offending vehicle. 6. The argument of learned counsel for the appellants- claimants are that the accident was caused by respondent 5 No.1 Santosh Kumar by hitting the motorcycle of deceased Jagat Ram Sori with the offending vehicle, therefore, considering the negligence on the part of respondent No.1, the award should be passed. The second argument is that there no medical examination was conducted to ascertain whether the deceased were under influence of alcohol. In support of their arguments, they relied upon the judgment passed by Hon’ble the Supreme Court in the case of Dulcina Fernandes and others Vs. Joaquim Xavier Cruz and another reported in (2013) 10 SCC 646. 7. On the other hand, learned counsel appearing for the Respondents submit that in the facts and circumstances of the case, the impugned order of dismissal is just and proper and does not require any interference. Hence, it is prayed that the appeals may be dismissed. 8. Heard learned counsel for the parties and perused the record. 9. The Claims Tribunal in its award held that at the time of accident, three persons were traveling in a motorcycle. As per the postmortem report (Ex.P-8) the motorcycle rider/deceased, Jagat Ram Sori and deceased Shankar Lal Mandavi were under the influence of alcohol, therefore, there was negligence on the part of the deceased persons. As a result, it could not be established that the accident occurred due to the negligence or carelessness of Respondent No. 01 Santosh, nor can it be said that the Respondent No. 01 contributed to the accident through any culpable negligence. On the basis of above, the Claims Tribunal has rejected the claim applications of the Appellants/Claimants. 10. It is noteworthy that though wife of deceased persons Siyabai and Gomti Bai have been examined by the 6 claimants’ side but they are not the eyewitnesses. The eyewitness/independent witness of the case is Shiv Kumar Mandavi who categorically stated in his evidence that on the date of accident, he was driving his motorcycle behind the deceased persons’ motorcycle, the driver of motorcycle CG-05-C-1909 i.e. Jagat Ram Sori was carefully driving the motorcycle on his side and the driver of offending vehicle i.e. Respondent No.1 Santosh rashly and negligently driving the offending vehicle and dashed the motorcycle (CG-05-C-1909) due to which one person died on spot and the another one died on the way to the hospital. The charge-sheet (Ex.P-1) filed against Respondent No.1 Santosh also confirms the statement of this witness. 11. The Hon’ble Supreme Court in the case of Mohammed Siddique and Another v. National Insurance Company Limited and Others reported in (2020) 3 SCC 57, and this Court in the case of Kaliram Sahu & Ors. Vs. Chamanlal Dewangan & Ors. reported in 2014 (1) CGLJ 431, held that in case where three persons riding the motorcycle, is not sufficient for contributory negligence unless it is established that they contributed to the accident. 12. In view of facts and circumstances of the case, it is clear from the statement of eyewitness Shiv Kumar Mandavi that driver of the offending vehicle dashed the deceased resulting their deaths. Though three persons were travelling in a motorcycle but, as per the Mohammed Siddique (Supra), no evidence available on record to show that at the time accident, there was any wrongful act on the part of the deceased contributed to the accident. So far as the question of drink and drive is concerned though as per postmortem report (Ex.P-8) alcohol was found on the 7 body of the deceased but there is no exact time mentioned to ascertain when the deceased consumed alcohol and met with an accident. There is no evidence available on record to show that at the time of accident, the deceased persons were under the influence of alcohol or they were intoxicated. 13. The Hon’ble Supreme Court in the matter of Jiju Kuruvila and ors. Vs. Kunjujamma Mohan and ors. reported in (2013) 9 SCC 166 has specially held that “on the basis of post-mortem report, it cannot be concluded that the victim was driving vehicle rashly and negligently”. In the present case also as per the post-mortem report though liquor was found in the stomach of the deceased persons, but it can not be held that they were driving the vehicle rashly and negligently. It was the Respondents’ burden to prove that there was a negligence on the part of the deceased but, neither any witness nor Respondent No.1 (Driver) has been examined by the respondents’ side. 14. In view of aforementioned discussion, the finding of the Claims Tribunal is not found justified in dismissing the claim applications of the appellants/claimants on the basis of negligence on the part of deceased persons, rather it is proved that the accident happened due to rash and negligent driving of driver of the offending vehicle. Hence, I find it appropriate to grant compensation to the appellants/claimants as per law. (MAC/2206/2019) 15. As regards the income of deceased Shankarlal Mandavi, at the time of accident, he was aged about 41 years, as per his salary slip (Ex.P-20) his monthly income was Rs. 30,780/-. I find it appropriate to take income of deceased as Rs. 30780/- per month, the annual income comes to 8 Rs.3,69,360/- per annum. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 after adding 30% towards future prospects i.e. Rs. 1,10,808/-, the annual income comes to Rs.4,80,168 (369360+110808). Deceased Shankar Lal was aged about 41 years and was married and the claimants (total 3) are the wife and children of the deceased, so deduction towards personal expenses would be 1/3rd i.e. Rs. 1,60,056/-, the annual dependency comes to Rs. 3,20,112/-(480168-160056). In view of judgment of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 considering the age of the deceased, after applying multiplier of 14, the total loss of dependency works out to Rs. 44,81,568/-. The claimants No. 1 to 3 ( wife and children) are further entitled for loss of estate Rs. 15,000/-, for funeral expenses Rs. 15,000/- and as per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, the claimants No. 1 to 3 (wife and children) are further entitled for loss of spousal consortium and love and affection Rs. 40,000/- each i.e. Rs. 1,20,000/-. Thus, the claimants No. 1 to 3 ( wife and children) would become entitled for total compensation of Rs. 46,31,568/- in the following manner:- S.No. Heads Calculation 01 Towards loss of dependency Rs. 44,81,568/- 02 Towards loss of estate 03 Towards love and affection to claimants No. 1 to 3 ( wife and children) @ Rs. 40,000/- 04 Funeral Expenses Total Rs. 15,000/- Rs. 1,20,000/- Rs. 15,000/- Rs. 46,31,568/- 9 16. Accordingly, respondents No.1 to 3 jointly and severally shall pay total compensation amount of 46,31,568/- to ₹ the appellants No.1 to 3 /claimants. The compensation amount shall carry interest @ 6% per annum from the date of filing of claim application till the date of actual payment. As the vehicle was insured at the time of accident, the primary liability for payment of compensation shall be upon the insurance company. 17. The Claims Tribunal shall pass appropriate order with regard to apportionment, investment and disbursement of the compensation amount. MAC No.2213/2019 18. As regards the income of deceased Jagat Ram Sori, though in the claim application filed before the Tribunal, the Claimants of Jagat Ram had pleaded income of Jagat Ram to be Rs. 4,673/- but, keeping in mind the fact that deceased Jagat Ram Sori was a daily wage employee not a permanent employee, further considering the wage structure prevailing on the date of accident, price index and cost of living etc. specially notification by Labour Department for minimum wages, I find it appropriate to take income of deceased as Rs. 8,140/- per month as minimum wages, at the relevant time of accident i.e. 15.11.2018. The annual income comes to Rs. 97,680/- per annum. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 after adding 10% towards future prospects i.e. Rs. 9,768/-, the annual income comes to Rs.1,07,448/- (97680+9768). Deceased Jagat Ram was aged about 55 years and was married and the claimants (total 3) are the wife and children of the deceased, so deduction towards personal 10 expenses would be 1/3rd i.e. Rs. 35,816/-, the annual dependency comes to Rs. 71,632/-(107448-35816). In view of judgment of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 considering the age of the deceased, after applying multiplier of 11, the total loss of dependency works out to Rs. 7,87,952/-. The claimants No. 1 to 3 ( wife and children) are further entitled for loss of estate Rs. 15,000/-, for funeral expenses Rs. 15,000/- and as per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, the claimants No. 1 to 3 (wife and children) are further entitled for loss of spousal consortium and love and affection Rs. 40,000/- each i.e. Rs. 1,20,000/-. Thus, the claimants No. 1 to 3 ( wife and children) would become entitled for total compensation of Rs. 9,37,952/- in the following manner:- S.No. Heads Calculation 01 02 03 Towards loss of dependency Rs. 7,87,952/- Towards loss of estate Towards love and affection to claimants No. 1 to 3 ( wife and children) @ Rs. 40,000/- Rs. 15,000/- Rs. 1,20,000/- 04 Funeral Expenses Total Rs. 15,000/- Rs. 9,37,952/- 19.Accordingly, respondents No.1 to 3 jointly and severally shall pay total compensation amount of 9,37,952/- to the ₹ appellants No.1 to 3/claimants. The compensation amount shall carry interest @ 6% per annum from the date of filing of claim application till the date of actual payment. As the vehicle was insured at the time of accident, the primary liability for payment of compensation shall be upon the insurance company. 11 20.The Claims Tribunal shall pass appropriate order with regard to apportionment, investment and disbursement of the compensation amount.
Decision
21.In the result, the appeals (MAC No.2206/2019 & MAC No. 2213/2019) are allowed. 22.Records of the Tribunal along with a copy of this order be sent forthwith for compliance and necessary action, if any. Sd/- (Sanjay Kumar Jaiswal) Judge Shubham