Chattisgarh High Court
Shriram General Insurance ... vs Gayawati on 13 October, 2022
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
M.A.(C). NO. 976 OF 2015
Shri Ram General Insurance Company Limited, E/8, RIICO, 3-5,
Industrial Area, Sitapura, Jaipur (Rajashthan) 302022. [Insurer]
... Appellant
versus
1. Gayawati, W/o Late Man Singh, aged about 40 years, R/o Village
Badikhar, Gram Panchayat Badikhar, Thana Bhalumada, Tahsil Kotma,
Block Anuppur, District Anuppur (M.P.) [Claimant]
2. Parasram Singh, S/o Late Man Singh, aged about 13 years, Minor
represented through natural guardian Mother Gayawati. R/o Village
Badikhar, Gram Panchayat Badikhar, Thana Bhalumada, Tahsil Kotma,
Block Anuppur, District Anuppur (M.P.) [Claimant]
3. Rajendra Singh, S/o Mandhari Singh Gond, R/o Khanda, Thana and
District Anuppur (M.P.) [Driver]
4. Thanesh Prasad Kenvat, S/o Ramprasad, R/o Village Bichhiya, Post
Batura, District Shahdol (M.P.) [Owner]
5. Johan Singh Shyam, S/o Ramlal Shyam, R/o Village Ghinochi, Post
Seoni, Thana and Tahsil Marvahi, District Bilaspur (C.G.)
6. Dadan Singh, S/o Gayadeen Kenvat, Secretary, Gram Panchayat
Badikhar, Thana Bhalumada, District Anuppur (M.P.)
7. Chief Executive Officer, Block Anuppur, District Anuppur (M.P.)
8. Collector, Anuppur for Government of M.P., District Anuppur (M.P.)
... Respondents
For Appellant/Insurance Co. : Mr. Sangeet Ku. Kushwaha, Adv.
For Respondent No.1/Claimant : Mr. Yogendra Chaturvedi, Adv.
For Respondent No.4/Owner : Mr. S.P. Sannat, Advocate.
Hon'ble Shri Justice P. Sam Koshy
Order on Board
[13/10/2022]
1. The present Appeal under Section 173 of the Motor Vehicles Act,
1988, has been filed by Appellant/Insurance Company assailing the Award
dated 16.2.2015 passed by the Additional Motor Accident Claims Tribunal,
Pendrarod, District Bilaspur (as it then was) in Claim Case No.67/2011.
2. At the same time, there is also a cross-objection/appeal which has
been filed by Respondents No.1 & 2/Claimants seeking for enhancement of
the compensation awarded by the Tribunal.
3. Vide the impugned Award, the learned Tribunal has awarded a
compensation of Rs.4,41,400/- in favour of the Claimants, with interest
thereon at the rate of 6% per annum from the date of filing of the Claim
Case and has fastened the liability jointly and severally upon the Insurance
Company for payment of compensation.
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4. Facts
of the case in brief are that on 26.1.2010 there was the Chief
Minister of Madhya Pradesh having a meeting at Amarkantak in Anuppur
District. For attending the said meeting, certain people were travelling
together in the Metador bearing Registration No. MP18-7224. En route, the
Metador met with an accident resulting in grievous injuries to the deceased
Durga Prasad who succumbed on the spot.
5. The Respondents No.1 & 2/Claimants being the mother and brother
of the deceased Durga Prasad filed before the Tribunal the aforementioned
Claim Case No.67/2011 seeking compensation under Section 166 of the
Motor Vehicles Act. The said Claim Case stood decided by the Tribunal vide
the impugned Award, fastening the liability upon the Appellant/Insurance
Company for payment of Rs.4,41,400/- as compensation, which is under
challenge in the instant Appeal.
6. The solitary ground on which the Appellant/Insurance Company has
challenged the impugned Award is that on the date of accident the said
Metador was being used by the State Government for its own purpose and
therefore the liability if at all should have been shifted upon the State
Government and not on the Insurance Company.
7. According to learned Counsel for Appellant/Insurance Company,
since the deceased Durga Prasad along with other persons was travelling
in the said Metador for attending the Chief Minister's function, it has to be
presumed that the said vehicle was being used by the government for
government purposes. Therefore the liability for payment of compensation
should be fastened upon the State Government and not on the Insurance
Company.
8. However, perusal of the pleadings would clearly reflect that though
the Appellant/Insurance Company had taken these objections in their
Written Statement but there was no evidence whatsoever led on behalf of
the Insurance Company to substantiate these contentions and grounds that
they have raised. Further, what is also evident is that there is no evidence
also to establish that there was any acquisition or seizure of the said
Metador made by the State Government or that it was being used on the
instructions or orders of the State Government or any of the Officers of the
State Government. In the absence of any such evidence also the grounds
of challenge raised by the Appellant/Insurance Company, the instant Appeal
would not have any force.
9. So far as the Judgment cited by learned Counsel for Appellant/
Insurance Company rendered by the Hon'ble Supreme Court in the case of
"National Insurance Co. Ltd. Vs. Deepa Devi & Others" [AIR 2008 SC 735]
is concerned, the same would not be applicable in the instant factual
backdrop for the reason that in the said case the vehicle was seized by the
State Government for election purpose and for election duties unlike the
present case where there was neither any acquisition or any seizure made
for any government use. Thus, the said Judgment cited by the
Appellant/Insurance Company is distinguishable.
10. Thus, for the aforesaid reasons, the Appeal of the Insurance
Company being devoid of merits the same deserves to be and is
accordingly dismissed.
11. So far as the cross-objection/appeal filed by Respondents No.1 &
2/Claimants is concerned, learned Counsel for the Claimants at the outset
submits that there is certain delay that has arisen in the filing of the cross-
objection/appeal and the application for condonation of delay has not been
filed inadvertently. He thus makes an oral prayer to this Court that the delay
occurred in the filing of the cross-objection/appeal may be condoned in the
given factual backdrop, considering the fact that the Appeal of the
Insurance Company is pending since 2015.
12. This Court is quite conscious of the fact that the cross-
objection/appeal filed filed by Respondents No.1 & 2/Claimants under
Order 41 Rule 22 of the Code of Civil Procedure, 1908 ought to have been
supported with an application for condonation of delay since there is certain
delay on the part of the Claimants in filing the same. Nonetheless, what
weighs more in the mind of this Court is the fact that the provisions for
payment of compensation under the Motor Vehicles Act, 1988 being welfare
legislation, an element of discretion can be exercised by this Court while
entertaining the oral request made by the Claimants seeking for
condonation of delay, particularly when the claim arises out of a death case.
13. Another reason which weighs in the mind of this Court is the fact that
the present Appeal under Section 173 of the Motor Vehicles Act is of the
year 2015. The matter has come up for hearing in the year 2022. If today
the matter is ordered to be adjourned allowing the Claimants to file an
application for condonation of delay and the said application to be
considered at a later stage thereafter to hear the appeal finally, the appeal
would further take a couple of years to be decided finally. To avoid these
circumstances, this Court exercises its inherent discretionary power in a
pragmatic, meaningful manner which would subserve the ends of justice
and allows the oral prayer made by the Counsel for Respondents No.1 &
2/Claimants so far as the delay in the filing of the cross-objection/appeal is
concerned and hears the cross-objection/appeal on merits.
14. The deceased Durga Prasad in the instant case was aged around 18
years at the time of accident. The learned Tribunal has assessed the
notional income of the deceased at Rs.100/- a day and has quantified the
monthly income at Rs.2600/- for 26 days. Considering the period of
accident being January, 2010 and at that point of time even a labourer
would be getting only Rs.100/-, this Court is of the opinion that the
assessment of Rs.100/- per day made by the learned Tribunal does not
warrant any interference.
15. Accordingly, taking the monthly income of Rs.2600/-, the yearly
income would come to Rs.31,200/-. Taking into consideration the analogy
applied by Hon'ble Supreme Court in National Insurance Company
Limited v. Pranay Sethi & Others1, looking to the age of the deceased in
the instant case, i.e., 18 years, the Claimants would also be entitled for an
additional 40% amount of the yearly income towards the future prospect.
Thus, the 40% of Rs.31,200/- that comes to Rs.12,480 if added together,
the amount would come to Rs.43,680/- of which if 50% is deducted towards
personal expenses since the deceased being a bachelor, the amount left
would be Rs.21,840/-. This amount if multiplied applying the multiplier of 18
in view of Sarla Verma (Smt.) and others v. Delhi Transport Corporation
and Another2 and Pranay Sethi (supra), the amount would reach to
Rs.3,93,120/- which is the amount that the Respondents No.1 & 2/
Claimants shall be entitled for the loss of dependency instead of
Rs.4,21,200/- assessed by the Tribunal.
16. So far as the amount awarded under the conventional head is
concerned, in view of Pranay Sethi (supra), the Respondent No.1/Claimant
i.e. the mother of the deceased shall be entitled for an amount of
Rs.70,000/- for the love and affection, loss of estate and funeral expenses.
So also the Respondent No.2/ Claimant i.e. the younger brother of the
deceased he would also be entitled for Rs.40,000/- under the head of love
and affection. Thus, the Respondents No.1 & 2/Claimants shall be entitled
for an amount of Rs.1,10,000/- under the said conventional heads instead
of Rs.20,000/- awarded by the Tribunal.
1 2017 (16) SCC 680
2 2009 (6) SCC 121
17. Accordingly, the Respondents No.1 & 2/Claimants shall be entitled to
get a total compensation of Rs.5,03,120/- instead of Rs.4,41,400/- as
awarded by the Tribunal.
18. Resultantly, the Appeal of the Insurnace Company, i.e., M.A.(C)
No.976/2015 stands dismissed. The cross-objection/appeal of Respondents
No.1 & 2/Claimants stands allowed. They shall be entitled to get a total
compensation of Rs.5,03,120/- instead of Rs.4,41,400/- awarded by the
Tribunal. The rest of the conditions stipulated in the impugned Award
including the interest part shall remain intact. The Appellant/Insurance
Company is directed to deposit the balance of amount within a period of 45
days.
Sd/-
(P. Sam Koshy)
/sharad/ Judge
