Smt. Kamla Bai Sahu vs Pawan Kumar
2022 Latest Caselaw 3585 Chatt

                                 1

         HIGH COURT OF CHHATTISGARH, BILASPUR

                     MAC No. 1657 of 2016

Smt. Kamla Bai Sahu and Others

                                                  ---- Appellants

                       Versus



Pawan Kumar & Others

                                             ---- Respondents

Post for pronouncement of order on 13 /05/2022

JUDGE 12 /05/2022

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Judgment Reserved on : 14.02.2022

Judgment Delivered on : 13.05.2022

MAC No. 1657 of 2016

1. Smt. Kamla Bai Sahu W/o Late Udho Ram Sahu, Aged About 27 Years R/o Bharat Nagar Ramsagarpara F C I Godam, Near Malgadi Gate, Police Station- Gudhiyari Raipur, District Raipur, Chhattisgarh Wife Of Deceased

2. Shri Human Ram Sahu S/o Late Jhadu Ram Sahu, Aged About 55 Years R/o Bharat Nagar Ramsagarpara F C I Godam, Near Malgadi Gate, Police Station- Gudhiyari Raipur, District Raipur, Chhattisgarh Father Of Deceased

3. Smt. Amrita Sahu W/o Shri Human Ram Sahu, Aged About 50 Years R/o Bharat Nagar Ramsagarpara F C I Godam, Near Malgadi Gate, Police Station- Gudhiyari Raipur, District Raipur,, District : Raipur, Chhattisgarh

4. Minor Ku. Ritu Kumari Sahu D/o Late Udho Ram Sahu, Aged About 13 Years Minor Through Legal Guardian Mother Smt. Kamla Bai Sahu W/o Late Udho Ram Sahu, Appellant No.1, R/o Bharat Nagar Ramsagarpara F C I Godam, Near Malgadi Gate, Police Station- Gudhiyari Raipur, District Raipur, Chhattisgarh Daugher Of Deceased

5. Minor Narayan Sahu S/o Late Udho Ram Sahu, Aged About 10 Years Minor Through Legal Guardian Mother Smt. Kamla Bai Sahu W/o Late Udho Ram Sahu, Appellant No.1, R/o Bharat Nagar Ramsagarpara F C I Godam, Near Malgadi Gate, Police Station- Gudhiyari Raipur, District Raipur, Chhattisgarh Son Of Deceased .................Claimants

---- Appellants

Versus

1. Pawan Kumar S/o Chatar Singh, Aged About 21 Years R/o Tatibandh, Ring Road No.1, Raipur, Chhattisgarh

2. Shish Ram S/o Dhansi Ram, R/o Nayan, Tahsil Narnot, District Manendragan Haryana

3. Hoshiyar Singh S/o Shamshor Singh R/o Jorasi, Tahsil Sabhlakh, District Panipat Hariyana, Present Address Singh Nagar Dhamdha, District Durg, Chhattisgarh

4. I.C.I.C.I. Lombard General Insurance Company Limited, Lalganga, Shopping Mal, District Raipur, Chhattisgarh

---- Respondents

For Appellant : Shri A.D.Kuldeep, Advocate For Respondent No.2 : Shri Vivek Sharma, Advocate For Respondent No.4 : Shri Sourabh Sharma, Advocate

Hon'ble Smt. Justice Rajani Dubey

C A V Order

13/05/2022

The appellants/claimants who are the wife, father, mother and

children of deceased Udho Ram Sahu have preferred this appeal

under Section 173 of the Motor Vehicles Act, 1988, against the order

dated 21.09.2016, passed by the learned Second Additional Motor

Accident Claims Tribunal, Raipur, district Raipur in Claim Case No. 71

of 2012.

2. The present appeal has been filed by the claimants seeking

enhancement of compensation. By the impugned award dated

21.09.2016, the learned Additional Motor Accident Claims Tribunal has

granted a total compensation of Rs.6,57,000/- .

3. Brief facts of the case are that on the date of incident ie.

08.12.2007, when the deceased was going on his motorbike from Saja

to Raipur, near Shere Punjab Dhaba, Shirsha Bhatha Chow,

respondent No.1 who was driving the offending vehicle bearing

registration No. HR-35-C-8991, came from the opposite direction and

dashed the deceased as a result of which he sustained injuries and

died on the spot. Report was lodged at Police Station Dhamdha, district

Durg and offence was registered against the respondent No.1 under

Sections 279,337 and 304-A IPC.

4. The appellants/claimants filed a claim case before the learned

Claims Tribunal claiming compensation of Rs. 17,65,000/- inter alia

pleading that the accident occurred on account of rash and negligent

driving of respondent No.1. The Tribunal after evaluating the evidence

has passed the award of Rs.6,57,000/-. Hence the claimants have the

instant appeal for enhancement of the amount awarded.

5. Counsel for the appellant submits that the impugned award

passed by the tribunal is on the lower side, claimants have suffered

heavy financial loss, at the relevant time, deceased was aged about 35

years working as mason and his monthly gross income was Rs. 6,500/-

but the Tribunal has assessed the income as Rs. 3,000/- per month.

He submits that the tribunal has failed to appreciate the documents and

evidence available on record. He further submits that the tribunal has

passed a contradictory order which is not substantial in the eye of law.

Lastly, he submits that the tribunal ought to have seen the quantum of

the compensation awarded which is meager and therefore it may be

enhanced suitably.

6. Counsel for the respondent No.3 submits that at the relevant

time, owner of the vehicle was insured with respondent No.4-I.C.I.C.I

Lombard General Insurance Company Limited but the Tribunal has

exonerated the Insurance Company and all the liability has been

fastened against the respondents 1 & 3 which is against the law. He

submits that the vehicle was insured with the Insurance Company and

the claimants have filed cover note of the Insurance Company but the

tribunal did not appreciate the oral and documentary evidence properly

therefore the findings of issue No. 2 & 3 are against the law. Reliance

has been placed by respondent No.3 in the matter of United India

Insurance Co. Limited Vs. Santro Devi and Others (in Civil Appeal

No. 7009/2008 arising out of SLP (C) No. 4301 of 2006) passed by

the Apex Court vide judgment dated 02.12.2008 and in the matter of

Naveen Kumar Vs. Vijay Kumar and Others (in Civil Appeal

No.1427/2018 arising out of SLP (C) No. 18943 of 2016) passed by

the Apex Court vide judgment dated 06.02.2018.

7. Counsel for respondent No.4/ICICI Lombard General Insurance

Company Limited submits that the respondent No.4/Insurance

Company has strongly objected the cover note and proved this fact that

the cover note was missing from his office and the offending vehicle

was not insured with the Insurance Company and they have produced

oral and documentary evidence to prove this fact that the cover note

was forged document and the trial court has properly appreciated this

fact and exonerated the Insurance Company. The finding of the trial

court is based on proper appreciation of oral and documentary

evidence. Reliance has been placed in the matter of New India

Insurance Company Limited Vs. Phoolmati and Others passed by

the Allahabad High Court in FA No. 59 of 2001 vide order dated

27.02.2019.

8. Heard counsel for the parties and perused the material available

on record.

9. Before the Tribunal, respondents No.1 & 3 have filed their written

statement and filed one cover note No. 5886051 dated 08.08.2007

which was objected by the respondent No.4 and stated that the vehicle

was not insured with the Insurance Company and some cover note of

the Insurance company was missing for which a missing report was

lodged at police station. The respondents No.1 & 3 did not filed any

Insurance Policy or other document.

10. The trial court appreciated the oral and documentary evidence of

the respondents and has found (in para 8 to 11) that the respondents 1

& 3 did not appear in the witness box and except the cover note thhey

did not file any document related to the Insurance Policy. The

respondent No.4 examined its witness Santosh Banjare. NAW No.1xd

who has clearly proved this fact that some cover notes were missing

from the Insurance Company and they have filed missing report Ex.D-

1. In the said report, list of cover notes were annexed and in the fourth

page, cover note No. 5886051 is written.

11. The trial court found that the cover note is a forged document

and the vehicle was not insured with respondent No.4. The

respondents No.1 to 3 have neither filed any policy related documents

nor able to explain as to where is he Insurance policy and other

documents of vehicle therefore the findings of the trial court is based

on proper appreciation of oral and documentary evidence. Thus, in

aforesaid view of the matter, this Court does not find any illegality or

irregularity in the order of the court below.

12. Appellants have claimed for enhancement of the award on the

ground that the income of the deceased was Rs. 6,500 per month and

claimant AW-1 Kamla Bai has stated that her husband Udhoram Sahu

was a carpenter and has some agricultural land from which he earned

Rs. 6,500/- per month but she has admitted in her cross-examination

that she did not file any documents either in relation to the agriculture

or the income of her husband. The trial court found that the claimants

have failed to prove the fact that income of the deceased was Rs.

6,500/- per month and thus, has calculated the dependency on the

basis of the income of the deceased which was considered as Rs.

3,000/- per month as per the provisions of the Minimum Wages Act. In

para 33, the trial court, has given a finding that at the relevant time, the

deceased was aged about 35 years and as per the decision of the

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

Transport Corporation and Another (2009) 6 SCC 121, by applying

the multiplier of 16, calculated the loss of dependency which comes to

Rs. 4,32,000/- which is in accordance with law. By the impugned award

the Tribunal has awarded compensation of Rs. 6,57,000/- in favour of the

appellants/claimants under the following heads:

I. towards loss of dependency Rs. 4,32,000/-

ii)    towards funeral expenses                        Rs. 25,000/-

iii)   towards loss of consortium                      Rs. 1,00,000/-

iv) towards love and affection on behalf of Rs. 50,000/-

appellants 2 & 3

v)    towards love and affection on behalf of
appellants 3 & 4                              Rs. 50,000/-

       Total                                           Rs. 6,57,000

13. Therefore, this Court finds that after assessing the income of the

deceased, a just compensation has been awarded by the Tribunal and the

same cannot be faulted with. There is no infirmity in the impugned award

and the appeal is accordingly dismissed.

Sd/-

(Rajani Dubey)

Judge suguna