Chattisgarh High Court
Smt. Anjana Pal And Ors vs Gyandatt Mishra @ Raju Mishra And ... on 18 November, 2021
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MAC No. 225 of 2015
Judgment Reserved On : 09/11/2021
Judgment Delivered On : 18/11/2021
1. Smt. Anjana Pal W/o Late Giradhari Pal @ Girish Pal @ Dada; Aged About
45 Years
2. Sumit Pal S/o Late Giradhari Pal @ Girish Pal @ Dada; Aged About 24 Years
3. Kumari Madhumita D/o Giradhari Pal @ Girish Pal @ Dada; Aged About 22
Years
All R/o Through- Subhash De Plot No. -261 Face-02 Near Kalchuri Awas,
Rajkishor Nagar Bilaspur Tahsil And District (Revenue And Civil) - Bilaspur,
C.G.,
---- Appellants
Versus
1. Gyandatt Mishra @ Raju Mishra S/o Chandrabhushan Mishra Aged About 22
Years R/o Village- Bhaloomada Tahsil And District (Revenue And Civil) -
Anuppur M.P. (Driver And Owner Of The Scorpio No. - M.P. 65/T/0152,
2. The Oriental Insurance Company Limited Through- Branch Manager Branch
Office- Near Rajiv Plaza, Bus Stand Bilaspur Tahsil And District (Revenue
And Civil) - Bilaspur, C.G.
---- Respondent
For Appellants : Shri Anand Kesharwani, Advocate.
For Respondent No.1 : Shri Dhirendra Mishra, Advocate.
For Respondent No.2 : Shri Pankaj Agrawal, Advocate.
Hon'ble Shri Deepak Kumar Tiwari, J
C A V JUDGMENT
1. The appellants have preferred this Appeal challenging the award dated
29.11.2014 passed by the 4th Additional Member to the Court of 1 st
Upper Motor Accident Claims Tribunal, Bilaspur in Claim Case
2
No.57/2013 whereby the appellants have been awarded a sum of
Rs.40,49,800/-.
2. Facts
of the case, in brief, are that on 8.11.2012 deceased Girdhari Pal
was going to his native village Bhalumada in the Scorpio vehicle
bearing registration No.MP65/T-0152, which was being driven rashly
and negligently by respondent No.1. On Bilaspur Marwahi route, the
said vehicle dashed the stationary truck bearing registration No.MP 18/
GA-4525. As a result of the accident the deceased suffered severe
injuries and admitted to the CHC Marwahi. However, thereafter he was
referred to Apollo Hospital, Bilaspur where he died on 9.11.2012. It
was stated that respondent No.1 is the owner of the offending vehicle
and the vehicle was insured with respondent No.2. The deceased was
an employee of SECL and was working as Draftsman and the claimants
are his dependents.
3. Respondent No.1 did not file any reply before the Tribunal and
respondent No.2 filed its reply stating that it was not liable, as the said
vehicle was being driven in violation of the conditions of the insurance
policy. On the basis of pleadings and material available on record, the
Claims Tribunal framed the issues, recorded the evidence of parties and
passed the impugned award.
4. Learned counsel for the appellants would submit that the Tribunal has
not awarded compensation towards Future Prospects and very meagre
amount towards consortium and funeral has been awarded. The
Tribunal should also have granted on the head of estate. Proper
multiplier has also not been applied. The Tribunal has wrongly
exonerated the Insurance Company in toto regarding plying the vehicle
without permit condition. Learned counsel would submit that the
instant Appeal may be allowed and the award of compensation may be
enhanced.
5. Per contra, learned counsel for the Insurance Company supported the
impugned award and submitted that the Appeal may be dismissed.
6. I have heard learned counsel for the parties and perused the record.
7. Respondent No.1 being the driver and owner of the vehicle Scorpio
bearing registration No. MP-65/T-0152, has filed Cross Appeal under
Order 41 Rule 22 of the CPC on submission that after receiving the
notice of the Claims Tribunal, he has engaged his counsel to represent
him before the Tribunal. His counsel also moved an application under
Order 9 Rule 7 of the CPC on 7.1.2014 to set aside the ex-parte order
passed against him by the Claims Tribunal. Thereafter on the next date
i.e. on 16.1.2014, learned counsel for respondent No.1 did not press the
application, therefore, respondent No.1 remains ex-parte before the
Tribunal.
8. It is alleged that respondent No.1 has not instructed his counsel and
without his consent and without giving any information to him, such
application was moved.
9. Looking to the facts of the case and the reasons assigned by respondent
No.1, this Court is not convinced to allow the Cross Appeal and to
remand the matter back to the Tribunal for fresh adjudication.
Therefore, Cross Appeal filed on this limited ground deserves to be
dismissed.
10.Learned Tribunal in paragraph-20 of the impugned award determined
the age of the deceased to be 50 years and in paragraph-19, yearly
income of the deceased has been assessed at Rs.4,66,125/-. However,
the said determination remains unchallenged before this Court.
11.Learned counsel for the appellants rightly submitted that as the
deceased was permanent employee, therefore, in view of the judgment
of the Hon'ble Supreme Court in the matter of National Insurance
Company Ltd Vs. Pranay Sethi and Others {(2017) 16 SCC 680},
future prospects ought to have been added. In the said judgment, it was
observed that for the age group of 50-60 years, addition of 15% to the
actual salary should be made. The annual income assessed by the
Tribunal is Rs.4,66,125/- and after adding 15% i.e. Rs.69,920/-, it
comes to Rs.5,36,045/-, in which for personal expenses, 1/3rd deduction
is required to be made which comes to Rs.1,78,681/-. Therefore, loss of
dependency per annum is assessed at Rs.3,57,364/- and looking to the
age of the deceased, multiplier of 13 is to be applied. Thus total
dependency comes to Rs.46,45,732/-.
12.In conservative heads i.e. for funeral expenses, only Rs.5,000/- has been
awarded. However, the said amount is enhanced to Rs.15,000/-. For
loss of estate, no amount has been awarded. On this head, Rs.15,000/-
is awarded. For loss of spousal consortium, only Rs.5,000/- has been
awarded and for loss of parental consortium to children, no amount has
been awarded. Therefore, Rs.40,000/- on each head is to be awarded.
13.Learned Tribunal has exonerated the Insurance Company in entirety by
holding that at the time of accident, the vehicle was plying without valid
permit. Surendra Kumar Agrawal has been examined on behalf of the
Insurance Company. He has stated that on investigation, the RTO
Shahdol has issued an information (Ex.-D/6) that there was no permit
on the date of the accident for the said vehicle. Copy of the permit
(Ex.-D/3) issued by the RTO, Shahdol indicates that it was valid from
12th March, 2011 to 11th March, 2012. Before this Court also, learned
counsel for respondent No.1 could not demonstrate as to the breach of
policy condition, which is wrongly decided by the Tribunal. Therefore,
the finding arrived at by the Tribunal is proper and the said finding is
affirmed. However, in such circumstances also, for the third party, the
Insurance Company is liable to pay compensation first and thereafter it
may recover from the insured.
14.The Hon'ble Supreme Court in the matter of Amrit Paul Singh and
another Vs. TATA AIG General Insurance Co. Ltd and Others {AIR
2018 SC 2662} held that the vehicle not having permit at all and if used
on hire basis is the case of fundamental breach and hence the Insurer
though absolved of its liability had to pay compensation and recovery
order made. In such cases recovery from the insured permitted.
Therefore, the Tribunal is not right to exonerate the Insurance Company
completely.
15.Thus, the claimant would be entitled for the following compensation :-
Sr. No. Head Amount
1. For loss of yearly income Rs.4,66,125/-
(assessed by the Tribunal)
2. For Future Prospects Rs.4,66,125/- x 15% =
Rs.69,920/-
3. Total yearly income (1+2) Rs.5,36,045/-
4. For personal expenses, 1/3rd Rs.1,78,681/-.
of Rs.5,36,045/-
5. Total dependency after Rs.3,57,364 x 13 =
applying multiplier of 13 Rs.46,45,732/-
6. For Funeral Expenses Rs.15,000/-
7. For loss of estate Rs.15,000/-
8. For loss of spousal consortium Rs.40,000/-
9. For loss of parental consortium Rs.40,000/-
Total (5+9) Rs.47,55,732/-
Amount already awarded Rs.40,49,800/-
Enhanced amount Rs.7,05,932/-
16.The appellants are held to be entitled for total compensation of
Rs.47,55,732/- with 6% interest per annum from the date of filing of
claim petition i.e. 6.5.2013 till its realization.
17.In view of the finding arrived at by this Court in the preceding
paragraphs, it is directed that the respondent No.2 Insurance Company
shall firstly pay the award amount of Rs.47,55,732/- to the claimants
with 6% interest per annum from the date of filing of claim petition i.e.
6.5.2013 till its realization and thereafter shall recover the said amount
from respondent No.1 in the same execution without filing separate suit.
18.Other conditions of the award passed by the learned Claims Tribunal
shall remain in tact.
19.In the result, the Appeal filed by the Claimants is allowed in part to the
extent as indicated above and the Cross Appeal filed by the respondent
No.1 is dismissed.
Sd/-
(Deepak Kumar Tiwari)
Judge
Barve
