Chattisgarh High Court
Smt. Nandini Bai Kashyap vs Santosh Kumar Kashyap @ Lalu on 11 October, 2022
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
M.A.(C). NO. 1480 OF 2015
1. Smt. Nandini Bai Kashyap, W/o Late Shri Krishan Kumar Kashyap,
aged about 45 years, R/o Near Santoshi Mandir, Torwa, Tehsil and District
Bilaspur (C.G.)
2. Padarath Lal Kashyap, S/o Late Shri Chulbul Ram Kashyap, aged
about 70 years, R/o Near Santoshi Mandir, Torwa, Tehsil and District
Bilaspur (C.G.)
3. Smt. Sundari Bai Kashyap, W/o Padarath Lal Kashyap, aged about
68 years, R/o Near Santoshi Mandir, Torwa, Teh. and Distt. Bilaspur (C.G.)
... Appellants/Claimants
versus
1. Santosh Kumar Kashyap @ Lalu, S/o Late Shri Tilak Ram Kashyap,
aged about 40 years, R/o Village Paijaniya, P.S. Lormi, Tahsil Lormi, District
Mungeli (C.G.)
2. Bajaj Allianz General Insurance Company Limited, through: Branch
Manager, 3rd Floor, Guru Kripa Tower, behind I.C.I.C.I. Bank, Vyapar Vihar,
Bilaspur (C.G.)
... Respondents
M.A.(C). NO. 1631 OF 2015
Bajaj Allianz General Insurance Company Limited, through: Branch
Manager, 3rd Floor, Guru Kripa Tower, behind ICICI Bank, Vyapar Vihar,
Bilaspur (C.G.). At present - Shivmohan Bhavan, Vidhan Sabha Road, PS
Pandri, Civil and Revenue District Raipur (C.G.)
... Appellant/Insurance Company
versus
1. Smt. Nandini Bai Kashyap, W/o Late Shri Krishan Kumar Kashyap,
aged about 45 years, R/o Near Santoshi Mandir, Torwa, Police Station
Torwa, Civil and Revenue District Bilaspur (C.G.)
2. Padarath Lal Kashyap, S/o Late Shri Chulbul Ram Kashyap, aged
about 70 years, R/o Near Santoshi Mandir, Torwa, Police Station Torwa,
Civil and Revenue District Bilaspur (C.G.)
3. Smt. Sundari Bai Kashyap, W/o Padarath Lal Kashyap, aged about
60 years, R/o Near Santoshi Mandir, Torwa, Police Station Torwa, Civil and
Revenue District Bilaspur (C.G.)
4. Santosh Kumar Kashyap @ Lalu, S/o Late Shri Tilak Ram Kashyap,
aged about 40 years, R/o Village Paijaniya, P.S. Lormi, Tahsil Lormi, District
Mungeli (C.G.)
... Respondents
For Claimants : Mr. Anand Shukla, Advocate.
For Insurance Company : Mr. Raj Awasthi, Advocate.
Hon'ble Shri Justice P. Sam Koshy
Order on Board
[11/10/2022]
1. The present are two Appeals, under Section 173 of the Motor
Vehicles Act, 1988 arising out of the same Award dated 29.9.2015 passed
by the 9th Motor Accident Claims Tribunal, Bilaspur in M.A.C.T. No.53/2015.
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2. M.A.(C) No.1480/2015 is the Appeal of the Claimants seeking for
enhancement of compensation awarded. M.A.(C) No.1631/2015 is the
Insurance Company's Appeal challenging the liability part.
3. Facts
of the case, in brief, are that on 19.1.2013 the deceased
Krishan Kumar Kashyap while travelling on his Motorcycle No. CG10-
EL/0446 was hit by the another Motorcycle No. CG10-N/7792 owned and
driven by Santosh Kumar Kashyap. As a result of the said accident, the
deceased Krishan Kumar Kashyap received multiple injuries to which he
later succumbed. At the time of accident, the deceased was aged about 50
years and he was working as Headmaster at Government Middle School,
Pathari Kapa, Teshil Lormi, District Mungeli. Regarding the accident, an FIR
was lodged against Santosh Kumar Kashyap on 19.1.2013 itself at Police
Station Lormi vide Crime No.21/2013 for the offence punishable under
Section 304-A of the Indian Penal Code, 1860.
4. Subsequently, the widow and the parents of deceased Krishan
Kumar Kashyap had filed before the Tribunal the aforementioned Motor
Accident Claim Case No.53/2015 under Section 166 of the Motor Vehicles
Act, seeking compensation for the accidental death of deceased Krishan
Kumar Kashyap.
5. The learned Tribunal, vide the impugned Award, taking into
consideration the age and the employment of the deceased Krishan Kumar
Kashyap, has awarded a total compensation of Rs.37,04,780/- in favour of
the Claimants, with interest thereon at the rate of 7.5% per annum from the
date of filing of the Claim Case. While passing the impugned Award, the
learned Tribunal has fastened the liability for payment of compensation
upon the Insurance Company.
6. It is this Award dated 29.9.2015 which has been challenged by the
Claimants seeking for enhancement of compensation and by the Insurance
Company assailing the liability part.
7. For convenience sake, this Court is first dealing with the Insurance
Company's Appeal i.e. M.A.(C) No.1631/2015 as there is a challenge to the
liability part.
8. Contention of learned Counsel for Insurance Company is that from
the evidence that have come on record it would be established that in fact it
is a case where the accident had occurred prior to the policy having been
issued by the Insurance Company. The Owner of the offending motorcycle
has obtained the policy by playing mischief and fraud after the accident.
9. As regards the aforesaid contention of learned Counsel for Insurance
Company, if we peruse the evidence that have come on record, particularly
the evidence of the Witnesses that have been examined on behalf of the
Insurance Company, there is no dispute so far as the issuance of the policy
by the Insurance Company i.e. Bajaj Allianz General Insurance Company
Limited. There is also a categorical admission that the policy was issued on
18.1.2013 and it was valid up till 17.1.2014. If the FIR that was registered is
taken note of, it would also reflect that the accident had occurred on
19.1.2013 that is on the next date of the issuance of policy. Since the policy
had already come into force from 18.1.2013, for all practical purposes, for
any subsequent accident that occurs during the valid period of policy, it
would be the Insurance Company which would indemnify the owner for any
of the accident that takes place. There is no cogent and substantial material
brought on record by the Insurance Company either before the Tribunal or
before this Court in the present Appeal to firstly disbelieve the date of
accident mentioned in the FIR, i.e., the date of accident being 19.1.2013.
There is also no material made available to establish that the accident in
fact had occurred on 18.1.2013 and not on 19.1.2013. Undisputedly, the
Owner of the offending motorcycle was prosecuted by way of the
aforementioned FIR considering the date of accident to be 19.1.2013.
10. Learned Counsel for Claimants at this juncture submits that the
Insurance Company has already obtained permission under Section 170 of
the Motor Vehicles Act and at the same time it is contended by the
Insurance Company that under Section 149(2) of the said Act there was no
need for the Insurance Company to take a separate permission for
questioning the liability part. The Insurance Company is denying the fact of
the insurance policy itself having been issued or there being a valid policy
at the time of the accident.
11. The very fact that the Insurance Company intends to take a defence
under Section 149 of the Motor Vehicles Act goes to show that there is a
certificate of insurance issued by the Insurance Company. In that
circumstances, there was no need for the Insurance Company to have a
permission under Section 170 of the said Act which, in other words, means
the fact that they have taken permission under Section 170 in order to take
all permissible grounds available for their defence, hence, the fact of
issuance of policy stands established. All said and done, what clearly
reflects from the pleadings and evidence that have come on record is that
under either of the circumstances the Insurance Company has not been
able to substantiate their contentions to prove that on the date of accident
there was no valid policy.
12. Thus, for all the aforesaid reasons, this Court does not find any
strong case made out by the Insurance Company on the aspect of the
liability which has been fastened upon the Insurance Company. The Appeal
of the Insurance Company thus being devoid of merits deserves to be and
is accordingly dismissed.
13. Now, coming to M.A.(C) No.1480/2015 i.e. the Appeal filed by the
Claimants seeking for enhancement of compensation, what is apparently
evident is that the deceased Krishan Kumar Kashyap was a government
employee working as Headmaster in Government Middle School, Pathari
Kapa. The salary of Rs.36,999/- per month has been assessed by the
Tribunal in terms of the salary slip issued to the deceased. The Appeal of
the Claimants has been primarily on the ground that the Tribunal has not
granted any compensation towards the future prospect and also that the
compensation awarded under the conventional heads is on the lower side.
14. In the light of the Judgments of the Hon'ble Supreme Court starting
from the Judgment rendered in the case of National Insurance Company
Limited v. Pranay Sethi & Ors.1 and the other Judgments which have
been followed, in the course of quantifying the compensation the income
under the future prospect also was required to be assessed. In the case of
a government employee where he has regular employment and regular
income and where the age is 50 years, the amount of income to be
assessed for future prospect is mentioned as 30%. Thus, the Claimants in
the instant case would also be entitled for an addition of 30% towards the
annual income for the purpose of quantifying the compensation.
15. Similarly, under the conventional heads, the Tribunal has awarded
only Rs.25,000/-. Whereas, the Judgments of the Hon'ble Supreme Court
rendered in the recent past again provide for compensation under the
conventional heads at Rs.70,000/-, i.e., Rs.40,000/- towards the loss of
consortium to widow, Rs.15,000/- each towards the loss of estate and
funeral expenses. Thus, the total compensation awarded by the Tribunal
needs to be revisited accordingly.
16. Accepting Rs.36,999/- as the monthly income of deceased Krishan
Kumar Kashyap, the annual income would come to Rs.4,43,988/-. Adding
30% of Rs.4,43,988/- towards the future prospects, i.e. Rs.133,196, the
total of both the figures would come to Rs.5,77,184/-. Of the said amount of
Rs.5,77,184/-, 10% has to be deducted towards the income tax since the
annual income exceeds the tax free amount of Rs.2,50,000/-. Thus, the
1 2017 (16) SCC 680
taxable income exceeding Rs.2,50,000/- would be Rs.3,27,184/- of which
10% would come to Rs.32,718/- which if deducted from the annual income
of Rs.5,77,184 towards the income tax, the figure which we get is
Rs.5,44,466/-. Of the said amount of Rs.5,44,466/-, taking into
consideration the fact that there are three dependents, if 1/3rd is deducted
towards the personal expenses, the net balance would be Rs.3,62,977/-. If
the said amount of Rs.3,62,977/- is multiplied applying the multiplier of 13
which has been rightly applied by the Tribunal, the amount would reach to
Rs.47,18,701/- which is the amount that the Claimants shall be entitled for
the loss of dependency instead of Rs.36,79,780/- assessed by the Tribunal.
In addition to the said amount of Rs.47,18,701, the Claimants shall also be
entitled for a compensation of Rs.70,000/- under the conventional heads
instead of Rs.25,000/- awarded by the Tribunal. Thus, the Claimants shall
now be entitled to get a total compenstion of Rs.47,88,701/- instead of
Rs.37,04,780/- as awarded by the Tribunal.
17. Resultantly, the Appeal of the Insurnace Company, i.e., M.A.(C)
No.1631/2015 stands dismissed. The M.A.(C) No.1480/2015 i.e. the Appeal
of the Claimants stands allowed. The Claimants shall be entitled to get a
total compensation of Rs.47,88,701/- instead of Rs.37,04,780/- awarded by
the Tribunal. The rest of the conditions stipulated in the impugned Award
including the interest part shall remain intact. The balance of amount shall
be paid by the Insurance Company within a period of 45 days.
Sd/-
(P. Sam Koshy)
/sharad/ Judge
