Chattisgarh High Court

Bhagwanti vs Chotu @ Rajkumar Khalkho on 18 November, 2021

AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MAC No. 1237 of 2018
Judgment Reserved On : 12/11/2021
Judgment Delivered On : 18/11/2021

 Oriental Insurance Company Limited The Branch Manager Branch
Office Ambikapur, District Surguja, Chhattisgarh.
(Insurer)
---- Appellant/ Non-Applicant No. 3
Versus
1. Bhagwanti W/o Late Parshu Aged About 32 Years

2. Jumanti D/o Late Parshu Aged About 18 Years

3. Devnarayan S/o Late Parshu Aged About 12 Years

4. Tijnarayan S/o Late Parshu Aged About 10 Years

5. Gurucharan S/o Late Parshu Aged About 3 Years

6. Malti Wd/o Sawal Sai Aged About 65 Years

No.3 to 5 are minor, represented through mother and legal guardian
Smt. Bhagwanti, wife of late Parshu

All are by Caste Kanwar, R/o Village Amatoli, Police Station And Tahsil
Sitapur, District Surguja, (CG)

7. Chhotu @ Rajkumar Xalxo S/o Nehru Xalxo @ Nawal Sai Xalxo Aged
About 22 Years Caste Uraon, R/o Village Bhanvradand, Police Station
And Tahsil Sitapur, District Surguja, (CG)
(Driver Of The Vehicle C.G. 15 A 7469).

8. Surendra Choudhari S/o Rajendra Choudhari Aged About 43 Years R/
o Village Namnakala, Police Station Gandhi Nagar, Tahsil Ambikapur,
District Surguja, Chhattisgarh.
(Owner Of The Vehicle C.G. 15 A./7469)

---- Respondents
MAC No. 1707 of 2018
1. Bhagwanti Wd/o Parshu Aged About 32 Years
2

2. Jumanti D/o Parshu Aged About 18 Years

3. Devnarayan S/o Parshu Aged About 12 Years

4. Tijnarayan S/o Parshu Aged About 10 Years

5. Gurucharan S/o Parshu Aged About 3 Years

6. Malti Wd/o Sawal Sai Aged About 65 Years

Appellant No.3 to 5 are Minor, through their natural guardian/mother
Bhagwanti, Wd/o Parshu, aged about 32 years,

All above, R/o Village Aamatoli, Police Station And Tahsil Sitapur,
District- Surguja, Chhattisgarh.
---- Appellants
Versus
1. Chotu @ Rajkumar Khalkho S/o Nehru Khalkho @ Nawal Sai Khalkho
Aged About 22 Years R/o Bhawaradand, Police Station And Tahsil
Sitapur, District- Sarguja, Chhattisgarh.

2. Surendra Chowdhary S/o Rajendra Chowdhary Aged About 43 Years
R/o Village Namnakala, Police Station Ghandhinagar, District-
Surguja, (CG).

3. The Oriental Insurance Company Limited Through Branch Manager,
Ambikapur, District- Surguja, Chhattisgarh
---- Respondents
------------------------------------------------------------------------------------------------------

For Appellant in MAC No. 1237/2018 : Shri Goutam Khetrapal, Advocate. For Respondents 1 to 6 in MAC No.1237/2018 : Shri Manoj Paranjpe and Shri Bharat Sharma, Advocates For Respondents No.7 & 8 in MAC No.1237/2018 : Shri Abhishek Pandey, Adv. For Appellants in MAC No.1707/2018 : Shri Manoj Paranjpe and Shri Bharat Sharma, Advocate.

For Respondent No.3 in MAC No.1707/2018 : Shri Goutam Khetrapal, Advocate.

------------------------------------------------------------------------------------------------------

Hon'ble Shri Deepak Kumar Tiwari, J

C A V JUDGMENT

1. Both the Misc. Appeals are being disposed of by this common

Judgment, as both the Appeals are arising out of award dated

30.1.2018 passed by the 3rd Additional Motor Accidents Claims

Tribunal, Ambikapur (for short 'the Tribunal') in Motor Accident Claim

Case No.201/2016.

2. MAC No.1707/2018 has been preferred by the claimants seeking

enhancement of the impugned award whereas MAC No.1237/2018

has been preferred by the Oriental Insurance Company Limited

seeking setting aside the impugned award dated 30.1.2018.

3. Facts of the matter, in brief, are that the claimants are the mother, wife

and children of deceased Parshuram, who died in an accident on

16.6.2016. The claim petition was filed before the Tribunal on the

ground that deceased Parshuram was working as a Mason. On the

date of the accident at about 8 am the deceased was going to Village

Bhawradandh to fetch labours. The offending vehicle i.e. Tractor

No.CG-15A/7469, which was coming from the opposite side, dashed

the deceased, as a result of which the deceased sustained grievous

injuries and died on the spot. It was further averred that the accident

occurred on account of rash and negligent driving by the Chotu @

Rajkumar Khalkho. The deceased was aged about 35 years and was

working as Mason and thereby used to earn Rs.15,000/- per month.

4. The respondents filed their reply and denied all the averments. It was

alleged that the accident happened on account of fault on the part of

the deceased and the deceased himself was responsible for the

accident.

5. After hearing learned counsel for the parties and material available on

record, the learned Tribunal passed the impugned award and granted

compensation of Rs.9,20,500/- fastening liability on the Insurance

Company as well as the Owner and Driver of the vehicle jointly and

severally.

MAC No. 1707 of 2018

6. The Claimants have assailed the impugned award on the ground that

it is illegal, erroneous and contrary to law. The Claims Tribunal has

erred in assessing the monthly income of the deceased to the tune of

Rs.4,500/-. The multiplier of 15 has wrongly been applied. The

Tribunal has failed to appreciate the law laid down by the Hon'ble

Supreme Court in the matter of National Insurance Company Ltd Vs.

Pranay Sethi and Others {(2017) 16 SCC 680} wherein it has been

held that the addition towards the future prospects between the age

group of 35-40 years should be 50% of the salary. The compensation

awarded by the Tribunal is not just and proper. The amount awarded

by the Tribunal towards consortium, love and affection and funeral

expenses is on the lower side. While determining the income of the

deceased the Tribunal has failed to appreciate the future prospects.

MAC No. 1237 of 2018

7. The Insurance Company has also assailed the impugned award on

the ground that the deceased died due to his own negligence. On the

date of the accident, the deceased was in inebriated condition and

was trying to sit in a moving vehicle. In support of their defence, the

Insurance Company has examined Rambhagat (NAW-3), who is the

Clerk in RTO, Ambikapur. He has stated that the driving licence was

issued in favour of respondent No.7, which was valid for the period

23.6.2016 o 22.6.2036 and the said licence was issued for driving

Light Motor Vehicle whereas the subject vehicle is a Goods Carriage

vehicle. The Driver was not possessing valid licence to drive the

heavy vehicle. Therefore, the impugned award fastening the liability

upon the Insurance Company is unsustainable in law.

8. I have heard learned counsel for the parties at length and perused the

record.

9. It is not disputed that on the date of the accident i.e. 16 th June, 2016,

the respondent No.7, Driver, was holding learning licence and the

Insurance Company has specifically raised the issue before the

Tribunal. Ramnath Rambhagat, Clerk of RTO, Ambikapur, has been

examined on behalf of the Insurance Company as Witness No.3. He

has also admitted in the cross-examination that at the time of

accident, respondent No.7, Driver, was holding Learning Licence and

his permanent licence was issued from 23rd June, 2016. In this case,

the Driver and Owner have not been examined and their counsel on

the date of hearing i.e. 21st September, 2017 stated that he does not

want to give any evidence on behalf of the driver and owner.

10. In the matter of Anaal Automobiles Vs. Ashish Kumar Shukla and

Others {2009 ACJ 1184}, this Court has elaborately dealt with the

issue. In para-5 of the said judgment, the judgment rendered by the

Hon'ble Supreme Court in the matter of National Insurance Co. Ltd

Vs. Swaran Singh, {2004 ACJ 1 (SC)} was referred to hold that a

learner's licence is, thus, also a licence within the meaning of the

provisions of the said Act. It cannot, therefore, be said that when a

vehicle is being driven by a learner subject to the conditions

mentioned in the licence, he would not be a person who is not 'duly

licensed' resulting in conferring a right on the insurer to avoid the claim

of the third party. It cannot be said that a person holding a learner's

licence is not entitled to drive the vehicle.

11. In the aforesaid judgment in para-8, it was observed that 'although the

driver possessed a learner's licence, the owner was required under

the Rules, 1989 not only to ensure display of the "L-Board" on the

vehicle but also that the learner/driver is accompanied by a duly

qualified and licensed trainer so that the possibility of mishap could be

avoided while learning to drive and such instructor is sitting in such a

position to control or stop the vehicle. The owner by allowing the

vehicle to be driven in violation of the rules created an extremely

hazardous situation for the third party. When the owner of the vehicle

did not enter the witness box to prove due diligence and care in

allowing the motor vehicle to be driven by the learner, the Insurance

Company successfully establishes that the was a breach of policy

conditions.

12. Learned counsel for the Insurance Company also relied on a judgment

in the matter of The Divisional Manager Vs. Revanasidda Naika &

Another rendered by the Karnataka High Court on 16th April, 2013 in

M.F.A. No.5870/2009 (MV). In the said judgment also, when the driver

failed to comply with Rule 3(b) of the Central Motor Vehicle Rules,

1989, while driving with learning licence, liability of the Insurance

Company was exonerated.

13. In view of the aforesaid appreciation, this Court is of the view that

fastening liability on the Insurance Company is not correct. Though

the deceased Parshuram, who was coming from the opposite side,

was dashed by the Tractor and died. Therefore, he is a third party and

as per the judgment in the matter of Swaran Singh, (Supra), even after

the Insurance Company successfully establishes breach of the policy

conditions, the Insurance Company would be liable under the policy

and the Insurer may recover the amount from the owner in the same

execution proceedings without filing a separate suit. Therefore, this

Court deems it appropriate to fasten the liability upon the owner i.e.

respondent No.2.

14. Learned counsel for the Claimants would submit that the Tribunal has

wrongly applied the multiplier of 15 though the deceased was aged

below 36 years. According to the judgment of the Hon'ble Supreme

Court in the matter of Sarla Verma (Smt) and Others Vs. Delhi

Transport Corporation and Another (2009) 6 SCC 121}, where the

deceased is of the age group of 31-35 years, multiplier of 16 ought to

have been applied.

15. In the instant case, the date of birth of the deceased is 3 rd July, 1980

for which his marksheet (Ex.-P/1) has been filed by the claimants,

according to which, on the date of the accident, the age of the

deceased was below 36 years. Therefore, the Tribunal ought to have

applied multiplier of 16.

16. The Tribunal has rightly assessed the notional income of the

deceased at Rs.4500/-, but no future prospects has been awarded. As

per the judgment in the matter of Pranay Sethi, Supra, 40% should

have been added on this head. The Tribunal has awarded towards

the conservative head i.e. loss of spousal consortium Rs.40,000/-, for

funeral expenses Rs.15,000/-, for loss of estate Rs.15,000/- and the

same is held to be proper. But the Tribunal has not awarded any

amount towards the loss of parental consortium to the children,

therefore, on this head, Rs.40,000/- ought to have been awarded.

17. Thus, the claimants would be entitled for the following compensation :-

       Sr. No.                Head                              Amount
          1.             Annual income            Rs.4500x12 = Rs.54,000/-
          2.          For Future Prospects        Rs.54,000/- x 40% = 21,600/-
          3.                 Income               Rs.54,000/- + Rs.21,600/- =
                                                  Rs.75,600/-
          4.              Total Income            Rs.75,600/-    x       16      =
                                                  Rs.12,09,600/-
          5.           Personal expenses          Rs.12,09,600/-     x    ¼      =
                                                  Rs.3,02,400/-
          6.          Loss of dependency          Rs.12,09,600/- - Rs.3,02,400/-
                                                  = Rs.9,07,200/-
          7.       Loss of spousal consortium Rs.40,000/-
          8.      Loss of Parental consortium Rs.40,000/-
          9.          For Funeral expenses        Rs.15,000/-
         10.              Loss of Estate          Rs.15,000/-
                           Total Award            Rs.10,17,200/-
                        Amount awarded            Rs.9,20,500/-
                       Enhanced amount            Rs.96,700/-

18. The Claimants are held to be entitled for total compensation of

Rs.10,17,200/- with 6% interest per annum from the date of filing of

claim petition i.e. 27.8.2016 till its realization.

19. In view of the finding arrived at by this Court in the preceding

paragraphs, it is directed that Insurance Company shall firstly pay the

award amount of Rs.10,17, 200/- to the claimants with 6% interest per

annum from the date of filing of claim petition i.e. 27.8.2016 till its

realization within a period of 2 months and thereafter shall recover the

said amount from the Owner in the same execution proceeding

without filing separate suit. Accordingly, MAC No.1237 of 2018

preferred by the Oriental Insurance Company is disposed of.

20. For the foregoing, MAC No.1707 of 2018 filed by the Claimants is