Chattisgarh High Court

Suchitra Sana vs Smt. Kaushilya on 20 April, 2022

                                                                                                   AFR
                     HIGH COURT OF CHHATTISGARH, BILASPUR

                         Miscellaneous Appeal (C) No.999 of 2015
      1.   Suchitra Sana, W/o Late Jagbandhu Sana, aged about 34 years,
      2.   Sukhdev Sana, S/o Late Jagbandhu Sana, aged about 15 years,
      3.   Subrat Sana, S/o Late Jagbandhu Sana, aged about 14 years,
      4.   Vishal Sana, S/o Late Jagbandhu Sana, aged about 11 years,
           Appellants No.2 to 4 are minor through their Natural Guardian Mother
           namely Suchitra Sana (Appellant No.1)
           All are R/o Bangali Camp Bhasi, Police Station and Tahsil and District
           Dantewada, Chhattisgarh
                                                                  ---- Appellants
                                       versus
      1. Smt. Kaushilya, W/o Late Tulsi, aged about 25 years, R/o
         Subhashchandra Bose, Ward No.1 Rai Camp, Near Old House Vipul
         Rai, Above Railway Tanki Kirandul, Tahsil Kuakonda, District
         Dantewada, Chhattisgarh
      2. Nilesh Parte, S/o Bhikharam Ji Parte, aged about 22 years, Kirandul,
         District Dantewada, through registered owner Ramesh Kumar
         Lonhare, S/o Manikchand Lonhare, aged about 34 years, R/o Kirandul,
         Tahsil Kuakonda, Kuakonda, District Dantewada, Chhattisgarh
      3. Shri Ram General Insurance Company Limited, E-8 EPIP, RLLCO,
         Industrial Area Sayapara Jaipur, Rajasthan, Pin No.302022
                                                               --- Respondents

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For Appellants : Shri Soumitra Kesharwani, Advocate For Respondent No.2 : Shri Sumit Shrivastava, Advocate For Respondent No.3 : Shri Sachin Singh Rajput and Shri Sangeet Kumar Kushwaha, Advocates For Respondent No.1 : None

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Hon'ble Shri Justice Arvind Singh Chandel

Order on Board 20.4.2022

1. This appeal has been preferred by the claimants, i.e., wife and

children of deceased Jagbandhu Sana against the award dated

30.6.2015 passed by the Additional Motor Accidents Claims

Tribunal, South Bastar Dantewada in Claim Case No.403 of 2014,

whereby the Tribunal has awarded total compensation of

Rs.4,33,000 along with interest @ 7.5% per annum from the date of

submission of the claim petition before the Tribunal fastening

liability on the driver and the owner of the offending vehicle only.

Respondent No.1 is wife of Tulsi, who was driver of the offending

vehicle, Respondent No.2 is owner and Respondent No.3 is insurer

of the offending vehicle.

2. As per the claim petition, on 21.1.2011, due to rash and negligent

driving of vehicle tipper bearing registration No.CG 18 H 0957 by

deceased Tulsi, husband of Respondent No.1, the tipper turned

turtle, as a result of which Jagbandhu Sana, who was sitting in the

tipper died on the spot. Claimants, i.e., wife and children of

deceased Jagbandhu Sana filed a claim petition under Section 166

of the Motor Vehicles Act against the Respondents for

compensation of Rs.16,60,000. It was the pleadings of the

claimants that on the date of accident, deceased Jagbandhu Sana

was engaged in the said vehicle as a labour/conductor and was

returning in the said vehicle after loading sand in it. Due to the

accident of the said vehicle, he died. At the time of accident, he

was engaged as a labour by the owner of the said vehicle and was

getting Rs.5,000 per month. The driver of the said vehicle was

having a valid and effective driving licence and the vehicle was also

insured with Respondent No.3/insurance company.

3. Respondents No.1 and 2 opposed the claim petition. It was

pleaded by them that as the vehicle was insured with Respondent

No.3/insurance company and the driver was having a valid and

effective driving licence, therefore, if any liability arises for

compensation it should be fastened on the insurance company.

4. Respondent No.3/insurance company pleaded that deceased

Jagbandhu Sana was not working as a labour of the

owner/Respondent No.2 and was travelling as a passenger in the

vehicle in question. The insured vehicle was a goods carrying

commercial vehicle in which the deceased was sitting as a

passenger and, therefore, there was a breach of the insurance

policy and thus the insurance company is not liable for any

compensation.

5. After recording evidence and hearing the parties, the Tribunal

awarded Rs.4,33,000 along with interest against Respondents No.1

and 2 only. Respondent No.3/insurance company is exonerated to

pay the compensation on the ground that the deceased was

travelling as a passenger in the goods vehicle and, therefore, there

was a breach of the insurance policy. Hence, this appeal by the

claimants.

6. With regard to quantum of compensation, Learned Counsel

appearing for the Appellants/claimants submits that the Tribunal

has wrongly held that the monthly income of the deceased was not

more than Rs.3,000. The claimants have duly proved monthly

income of the deceased to be Rs.5,000. It is further argued that the

Tribunal has also not awarded any amount towards future

prospects. Referring to (2017) 16 SCC 680 (National Insurance

Company Limited v. Pranay Sethi), it is argued that future

prospects of the deceased should be 40% of his established

income. It is further argued that the Tribunal has only granted

Rs.20,000 under the head of consortium and Rs.5,000 under the

head of funeral expenses, which should be suitably enhanced

according to the principles laid down by the Supreme Court in

Pranay Sethi case (supra). With regard to liability, it is argued that

since the offending vehicle was insured with the insurance

company and the driver of the offending vehicle was having a valid

and effective driving licence, the insurance company is liable for

compensation. From the evidence adduced by the

Appellants/claimants, it is well established that at the time of

accident, the deceased was working as a labour/conductor in the

offending vehicle and was travelling in the said vehicle in the same

capacity. Therefore, there was no breach of the insurance policy.

Thus, the insurance company is liable to pay the compensation.

7. Learned Counsel appearing for Respondent No.2/owner supported

the arguments advanced by Learned Counsel appearing for the

Appellants/claimants with regard to fastening of the liability of

compensation on the insurance company.

8. Learned Counsel appearing for Respondent No.3/insurance

company submits that from the documentary evidence available on

record, particularly, from the First Information Report and other

annexed documents (which were part of the charge-sheet), it is well

established that at the time of accident the deceased was travelling

in the offending vehicle as a passenger along with some other

persons. As the offending vehicle was a goods carrying vehicle

and the deceased was travelling therein as a passenger, the

Tribunal has rightly held that there was a breach of insurance policy

and the Tribunal has rightly exonerated the insurance company

from payment of the compensation. Reliance has been placed on

2007 AIR SCW 3591 (Oriental Insurance Co. Ltd. v. Premlata

Shukla).

9. I have heard Learned Counsel appearing for the parties and

perused the record of the Tribunal including the evidence adduced

by the parties minutely.

10. So far as quantum of compensation is concerned, considering the

pleadings of the parties and the evidence led by them, it is well

established that at the time of accident the deceased was aged

about 35 years. With regard to his income, there is no

documentary and other evidence available on record on the basis

of which it could be said that he was getting monthly income of

Rs.5,000. Therefore, the Tribunal has rightly held that he was

earning Rs.3,000 per month. Looking to the age of the deceased,

the Tribunal has applied multiplier of 17, which is in accordance

with law laid down by the Supreme Court in (2009) 6 SCC 121

(Sarla Verma v. Delhi Transport Corporation).

11. In Pranay Sethi case (supra), it has been held by the Supreme

Court as follows:

"59.4. In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component."

12. Looking to the above law laid down by the Supreme Court and

considering the fact that the deceased was getting monthly income

of Rs.3,000, an addition of 40% of his established income should

be made towards future prospects because he was below 40 years

of age. Ordered accordingly.

13. The Tribunal has deducted 1/3rd income towards personal and

living expenses of the deceased. There are 4 dependents of the

deceased. Therefore, this deduction should be 1/5th of his income

as held in Sarla Verma case (supra). Ordered accordingly.

14. With regard to other conventional heads, the Tribunal has awarded

Rs.5,000 for funeral expenses and Rs.20,000 for loss of

consortium. It should be Rs.15,000 for funeral expenses,

Rs.15,000 for loss of estate, Rs.40,000 for loss of spouse

consortium and Rs.40,000x3 children = Rs.1,20,000 for loss of

paternal consortium. Ordered accordingly.

15. On the basis of above discussion, I shall now recalculate the

amount of compensation as under:

       S.                          Particulars                 Amount
       No.                                                        (Rs.)
        1    Annual income          Rs.3,000x12=                  36,000
        2    Income after           Rs.36,000x40%=Rs.14,400;      50,400
             addition of future     Rs.36,000+Rs.14,400=
             prospects
        3    Income after 1/5th Rs.50,400x1/5=Rs.10,080;          40,320
             deduction towards Rs.50,400-Rs.10,080=
             personal and living
             expenses

             applicable is
        5    Loss of income         Rs.40,320x17=              6,85,440
        6    Addition of funeral                                  15,000
             expenses




        7    Addition of loss of                                     15,000
             estate
        8    Addition of spouse                                      40,000
             consortium
        9    Addition of           Rs.40,000x3 children=            1,20,000
             parental
             consortium
                                         Total Compensation =       8,75,440

(6,85,440+15,000+15,000+40,000+1,20,000=)

16. Hence, now, the Appellants/claimants are entitled to get total

compensation of Rs.8,75,440 along with interest of 7.5% per

annum from the date of submission of the claim petition before the

Tribunal till realisation. Ordered accordingly.

17. With regard to liability to pay the compensation, from the statement

of witness of Respondent No.3/insurance company, namely,

Ramesh Kumar Sinha, Legal Executive Officer and the admissions

made by the insurance company, it is well established that the

offending vehicle was insured with Respondent No.3/insurance

company for the period from 6.7.2010 to 5.7.2011 midnight as a

goods carrying commercial vehicle. There is also no dispute on the

point that Tulsi, driver of the offending vehicle was having a valid

and effective driving licence at the time of accident.

18. According to the pleadings of the Appellants/claimants, the

deceased was engaged as a labour/conductor with Respondent

No.2/owner and on the date of accident also he had gone to the

river for collecting sand and was returning in the offending vehicle

as a labour/conductor. In their affidavits submitted under Order 18

Rule 4 of the Code of Civil Procedure, Suchitra Sana, who is wife of

deceased Jagbandhu, Bipad Bhanjan, who is claimants' witness

No.2 and who claims himself to be eyewitness and

Chandrashekhar Mandal, claimants' witness No.3, who lodged the

FIR have stated that deceased Jagbandhu was an employee of the

owner of the offending vehicle and at the time of accident also

deceased Jagbandhu and other 4 persons were returning in the

said offending vehicle. Contrary to this, in the FIR (Ex.A1) and the

morgue report (Ex.A2), which were lodged by Chandrashekhar

Mandal, claimants' witness No.3, it is mentioned that at the time of

accident, the deceased and other persons were going in the said

offending vehicle for selling their vegetables. There is no mention

in the FIR and the morgue report that Bipad Bhanjan, claimants'

witness No.2 had witnessed the accident. Respondent No.2/owner

of the offending vehicle has also not been examined before the

Tribunal. He was the best person who could state whether the

deceased was his employee or not. Looking to the above, in my

considered view, the Tribunal has rightly held that the deceased

was travelling in the goods vehicle as a passenger. Therefore, it

appears that there was a breach of the insurance policy on the part

of the owner of the offending vehicle. The Tribunal has fastened

the liability only on the owner and the driver of the offending

vehicle.

19. In (2017) 4 SCC 796 (Manuara Khatun v. Rajesh Kumar Singh), it

is observed by the Supreme Court as under:

"13. The only question, which arises for consideration in these appeals, is whether the appellants are entitled for an order against the insurer of the offending vehicle i.e. (Respondent 3) to pay the awarded sum to the appellants and then to recover the said amount from the insured (owner of the offending vehicle Tata Sumo) Respondent 1 in the same proceedings.

14. The aforesaid question, in our opinion, remains no more res integra. As we notice, it was the subject-matter of several decisions of this Court rendered by three-Judge Bench and two)Judge Bench in the past viz. National Insurance Co. Ltd. v. Baljit Kaur, (2004) 2 SCC 1, National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517, National Insurance Co. Ltd. v. Kaushalaya Devi, (2008) 8 SCC 246, National Insurance Co. v. Roshan Lal, (2017) 4 SCC 803 and National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785.

15. This question also fell for consideration recently in National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the insurance company by reversing the judgment Saju P. Paul v. National Insurance Co., 2011 SCC OnLine Ker 3791 of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy. However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover".

16. R.M. Lodha, J. (as his Lordship then was and later became CJI) speaking for the Bench held in paras 20 and 26 as under: (Saju P. Paul case, (2013) 2 SCC 41, SCC pp. 52 & 55) "20. The next question that arises for consideration is whether in the peculiar facts of this case a direction could be issued to the Insurance Company to first satisfy the awarded amount in favour of the claimant and recover the same from the owner of the vehicle (Respondent 2 herein).

* * *

26. The pendency of consideration of the above questions by a larger Bench does not mean that the course that was followed in Baljit Kaur, (2004) 2 SCC 1 and Challa Upendra Rao, (2004) 8 SCC 517 should not be followed, more so in a peculiar fact situation of this case. In the present case, the accident occurred in 1993. At that time, the claimant was 28

years old. He is now about 48 years. The claimant was a driver on heavy vehicle and due to the accident he has been rendered permanently disabled. He has not been able to get compensation so far due to the stay order passed by this Court. He cannot be compelled to struggle further for recovery of the amount. The Insurance Company has already deposited the entire awarded amount pursuant to the order of this Court passed on 1.8.2011 [National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41] and the said amount has been invested in a fixed deposit account. Having regard to these peculiar facts of the case in hand, we are satisfied that the claimant (Respondent 1) may be allowed to withdraw the amount deposited by the Insurance Company before this Court along with accrued interest. The Insurance Company (the appellant ) thereafter may recover the amount so paid from the owner (Respondent 2 herein). The recovery of the amount by the Insurance Company from the owner shall be made by following the procedure as laid down by this Court in National Insurance Co. Ltd. v. Challa Upendra Rao, (2004) 8 SCC 517."

17. The facts of the case at hand are somewhat identical to the facts of the case mentioned supra because here also we find that the deceased were found travelling as "gratuitous passengers" in the offending vehicle and it was for this reason, the insurance companies were exonerated. In National Insurance Co. Ltd. v. Saju P. Paul, (2013) 2 SCC 41 also having held that the victim was "gratuitous passenger", this Court issued directions against the insurer of the offending vehicle to first satisfy the awarded sum and then to recover the same from the insured in the same proceedings."

20. In the case in hand also, the claimants are wife and children of the

deceased. The accident is of the year 2011. The driver of the

offending vehicle has already died. Till date, the claimants have

not received any compensation. Therefore, considering the facts

and circumstances of the case and the decision of the Supreme

Court in Manuara Khatun case (supra), I am of the view that a

direction to Respondent No.3/insurance company, it being the

insurer of the offending vehicle, which was found involved in

causing the accident due to negligence of its driver, needs to be

issued to first pay the sum of compensation to the

Appellants/claimants and then to recover the paid sum of

compensation from the owner of the offending vehicle, i.e.,