Chattisgarh High Court
Bhagirathi vs Mohd. Habib on 19 October, 2022
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
M.A.(C). NO. 1354 OF 2014
1. Bhagirathi, S/o Late Markhande, aged about 48 years, R/o Village
Rajgamar, Tahsil & District Korba (C.G.)
2. Smt. Mangli Bai, W/o Bhagirathi, aged about 46 years, R/o Village
Rajgamar, Tahsil & District Korba (C.G.)
... Appellants
versus
1. Mohd. Habib, S/o Mohd. Sakur Musalman, aged about 38 years, R/o
Karchiya Devbhog, Tahsil Devbhog, District Raipur (C.G.) [Driver]
2. Hemlal Chandra (died) [Owner] through LR:-
2(i) Smt. Chanchala, Wd/o Hemlal Chandra, aged about 42 years,
R/o Sitamani, Korba, Tahsil & District Korba (C.G.)
3. The National Insurance Company Limited, through: Branch Manager,
National Insurance Company Limited, Branch Office Meenu Complex,
Kosabadi, Korba, District Korba (C.G.) [Insurer]
... Respondents
&
M.A.(C). NO. 1355 OF 2014
1. Smt. Sarojini Sahu, W/o Late Shiv Kumar Sahu, aged bout 25 years,
R/o Village Rajgamar, Tahsil & District Korba (C.G.)
2. Smt. Budhwara Bai, W/o Vikram Sahu, Aged About 47 Years, R/o
Village Rajgamar, Tahsil & District Korba (C.G.)
... Appellants
versus
1. Mohd. Habib, S/o Mohd. Sakur Musalman, aged about 38 years, R/o
Karchiya Devbhog, Tahsil Devbhog, District Raipur (C.G.) [Driver]
2. Hemlal Chandra (died) [Owner] through LR:-
2(i) Smt. Chanchala, Wd/o Hemlal Chandra, aged about 42 years,
R/o Sitamani, Korba, Tahsil & District Korba (C.G.)
3. The National Insurance Company Limited, through: Branch Manager,
National Insurance Company Limited, Branch Office Meenu Complex,
Kosabadi, Korba, District Korba (C.G.) [Insurer]
... Respondents
For Appellants/Claimants : Ms. Nand Kumari Kashyap, Adv.
For Respondent No.2/Owner : Mr. Akhilesh Kumar, Adv.
For Respondent No.3/Insurer : Mr. Anil Gulati, Adv.
Hon'ble Shri Justice P. Sam Koshy
Order on Board
[19/10/2022]
1. The present are two Appeals under Section 173 of the Motor Vehicles
Act, 1988 arising out of the same Award dated 13.8.2014 passed by
Additional Motor Accident Claims Tribunal (F.T.C.), Korba jointly in Claim
Case No.89/2013 [Smt. Sarojini Sahu & Anr. Vs. Mohd. Habib & Ors.] and
Claim Case No.90/2013 [Bhagirathi & Anr. Vs. Rajendra Singh & Ors.].
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2. Both the Appeals have been filed by the aforesaid two different set of
Claimants seeking for enhancement of compensation awarded by the
Tribunal.
3. Since both the Appeals arise out of the same accident and the
grounds raised are common in both the Appeals, this Court for convenience
sake is inclined to decide these Appeals by this common Order.
4. Facts
of the case in short are that on 30.10.2008 when the two
deceased persons in the instant case, i.e., Shiv Kumar and Banwari were
travelling on Motorcycle bearing Registration No. CG12-H/9225 they were
hit by a Truck bearing Registration No. CG04-G/2538 driven by Respondent
No.1 Mohd. Habib, owned by Respondent No.2 Hemlal Chandra [since
died, hence substituted by his Wife Smt. Chanchala] and insured by
Respondent No.3 The National Insurance Company Limited. As a result of
the said accident, the two deceased persons i.e. Shiv Kumar and Banwari,
aged about 35 and 26 years respectively, suffered grievous injuries to which
they later succumbed.
5. Subsequently, the family members of the two deceased persons filed
their respective claim case before the Tribunal seeking compensation. The
learned Tribunal, vide the impugned Award, has awarded a compensation
of Rs.5,33,000/- to the Claimants [Smt. Sarojini Sahu & Anr.] in Claim Case
No.89/2013 in respect of deceased Shiv Kumar and Rs.3,18,000/- to the
Claimants [Bhagirathi & Anr.] in Claim Case No.90/2013 in respect of
deceased Banwari, with interest thereon at the rate of 7% per annum from
the date of filing of the Claim Case till realization. The learned Tribunal
while passing the Award has exonerated the Insurance Company of its
liability and has fastened the liability for payment of compensation upon the
Owner and Driver of the offending Truck.
6. Contention of learned Counsel appearing for Appellants/Claimants in
both the Appeals assailing the quantum of compensation quantified is that
the learned Tribunal has assessed the income of the deceased persons on
a lower side and has also not considered the amount towards their future
prospect while quantifying the compensation. So also the compensation
awarded under the conventional heads is on a lower side.
7. Further contention of learned Counsel for Appellants/Claimants is
that even the exoneration of Respondent No.3/Insurance Company of its
liability to pay compensation is not proper as the only breach of policy
which was detected was that the Respondent No.1/Driver of the offending
Truck was not having a valid and effective driving licence at the time of
accident as the licence had already got expired and he had not got
renewed the same for a considerable period of time.
8. So far as the question of exoneration of Respondent No.3/Insurance
Company is concerned, it would be relevant to take note of the fact that the
Hon'ble Supreme Court in the case of "National Insurance Co. Ltd. v.
Swaran Singh & Ors." [2004 (3) SCC 297] has dealt with the issue where
the Driver is said to have not having a valid and effective driving licence.
Under Paragraph-110 of the said Judgement in Clauses (iii), (iv) & (vi) it
has been held as under:-
"(iii) The breach of policy condition e.g. disqualification of the
driver or invalid driving licence of the driver, as contained in
sub-section (2)(a)(ii) of Section 149, has to be proved to have
been committed by the insured for avoiding liability by the
insurer. Mere absence, fake or invalid driving licence or
disqualification of the driver for driving at the relevant time, are
not in themselves defences available to the insurer against
either the insured or the third parties. To avoid its liability
towards the insured, the insurer has to prove that the insured
was guilty of negligence and failed to exercise reasonable care
in the matter of fulfilling the condition of the policy regarding
use of vehicles by a duly licensed driver or one who was not
disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their
liability must not only establish the available defence(s) raised
in the said proceedings but must also establish "breach" on the
part of the owner of the vehicle; the burden of proof wherefor
would be on them.
(vi) Even where the insurer is able to prove breach on the part
of the insured concerning the policy condition regarding
holding of a valid licence by the driver or his qualification to
drive during the relevant period, the insurer would not be
allowed to avoid its liability towards the insured unless the said
breach or breaches on the condition of driving licence is/are so
fundamental as are found to have contributed to the cause of
the accident. The Tribunals in interpreting the policy conditions
would apply "the rule of main purpose" and the concept of
"fundamental breach" to allow defences available to the insurer
under Section 149(2) of the Act."
9. The said view has been further reiterated by the Hon'ble Supreme
Court in "Jawahar Singh v. Bala Jain" [2011 (6) SCC 425] in Paragraphs
10, 11 & 12:-
"10. On behalf of Respondent 6, National Insurance
Company Ltd., it was sought to be urged that at the time of the
accident, the motorcycle was being driven in breach of the
terms and conditions of the insurance policy and, accordingly,
the Insurance Company could not be held liable for making
payment of the compensation awarded by the Motor Accidents
Claims Tribunal. Apart from the fact that Jatin, who was riding
the motorcycle, did not have a valid driving licence, it had also
been established that he was a minor at the time of the
accident and consequently the Insurance Company had been
rightly relieved of the liability of payment of compensation to
the claimants and such liability had been correctly fixed on the
owner of the motorcycle, Jawahar Singh.
11. It has been well settled that if it is not possible for an
awardee to recover the compensation awarded against the
driver of the vehicle, the liability to make payment of the
compensation awarded fell on the owner of the vehicle. It was
submitted that in this case since the person riding the
motorcycle at the time of accident was a minor, the
responsibility for paying the compensation awarded fell on the
owner of the motorcycle. In fact, in Ishwar Chandra v. Oriental
Insurance Co. Ltd., (2007) 10 SCC 650, it was held by this
Court that in case the driver of the vehicle did not have a
licence at all, the liability to make payment of compensation fell
on the owner since it was his obligation to take adequate care
to see that the driver had an appropriate licence to drive the
vehicle.
12. Before the Tribunal reliance was also placed on the
decision in National Insurance Co. Ltd. v. Gh. Mohd. Wani,
2004 ACJ 1424 (J&K) and National Insurance Co. Ltd. v.
Gadigewwa, 2005 ACJ 40 (Kant), wherein it was held that if the
driver of the offending vehicle did not have a valid driving
licence, then the Insurance Company after paying the
compensation amount would be entitled to recover the same
from the owner of the vehicle. It was submitted that no
interference was called for with the judgment and order of the
High Court impugned in the special leave petition."
10. Further relying upon the Judgments of the Hon'ble Supreme Court, in
"Shamanna v. Divisional Manager, Oriental Insurance Company
Limited" [2018 (9) SCC 650], the doctrine of "pay and recover" was
applied. The same view has further been followed in "Kurvan Ansari alias
Kurvan Ali v. Shyam Kishore Mummu" [2022 (1) SCC 317]
11. Recently, in somewhat similar facts and circumstances, in M.A.(C)
No.322/2015 decided on 21.9.2022, this Court has applied the same
analogy while deciding the appeal of an Insurance Company.
12. Under the given factual matrix of the case, this Court is of the opinion
that in the instant matter also it is a fit a case where the principle of "pay
and recover" can be made applicable so far as the payment of
compensation is concerned. It is ordered accordingly. The entire liability for
payment of compensation shall be first upon the Respondent No.3/
Insurance Company with a liberty to recover the same from the Respondent
No.2/Owner and Respondent No.1/Driver by initiating appropriate recovery
proceeding.
13. Now, so far as the quantum of compensation is concerned, the
learned Tribunal while quantifying the amount of compensation has
assessed the monthly income at Rs.3500/- of the two deceased persons
i.e. Shiv Kumar and Banwari. The clear evidence which has come on
record was that the two deceased persons were working as Mason which is
otherwise a skilled nature of work, unlike an unskilled labour. It is anybody's
guess that at the time of accident i.e. in October, 2008 a Mason who
happens to be a skilled labour would have got at least Rs.150/- a day i.e.
Rs.4500/- a month. This Court therefore proceeds for deciding the two
Appeals, accepting the monthly notional income of the said two deceased
persons at Rs.4500/-, instead of Rs.3500/- as has been assessed by the
Tribunal.
14. At this juncture, learned Counsel for Respondent No.3/Insurance
Company submits that at the relevant point of time the minimum wage that
was considered for the purpose of settlement of matters before the Lok
Adalat of a skilled worker was at Rs.3367/- per month and therefore the
income assessed by the Tribunal in respect of the two deceased persons in
the instant case may not be warranting interference.
15. This contention of learned Counsel for Respondent No.3/Insurance
company may not find force, for the reason that the said rate was
specifically for the settlement of dispute in Lok Adalat, unlike the hearing of
matters on merits otherwise. The factors to be considered at the time of
settlement of dispute in Lok Adalat are different than the factors which are
otherwise considered when the claim appeals are decided on merits in due
course of time by a regular Bench. Thus, the said contention put forth on
behalf of Respondent No.3/Insurance Company is answered in the
negative.
16. As regards the M.A.(C) No.1354/2014 i.e. the case of deceased
Banwari, accepting Rs.4500/- as the monthly income the yearly income
comes to Rs.54,000/- of which if 50% [Rs.27,000/-] is deducted towards
personal expenses since the deceased Banwari was unmarried, the
amount left would be Rs.27,000/-. Of the said amount of Rs.27,000/- if 40%
[Rs.10,800] is added towards the future prospect in view of National
Insurance Company Limited v. Pranay Sethi & Others1, the amount
would come to Rs.37,800/-. If this amount of Rs.37,800/- is multiplied
applying the multiplier of 14 in view of Sarla Verma (Smt.) and others v.
Delhi Transport Corporation and Another2, the amount would reach to
1 2017 (16) SCC 680
2 2009 (6) SCC 121
Rs.5,29,200/- which is the amount that Appellants/Claimants shall be
entitled for the loss of dependency. In addition, in view of Pranay Sethi
(supra), the Appellants/Claimants shall also be entitled for an amount of
Rs.40,000/- each towards loss of consortium and Rs.30,000/- for loss of
estate and funeral expenses, totalling to Rs.1,10,000/-. Thus, the
Appellants/Claimants in M.A.(C) No.1354/2014 shall be entitled to get a
total compensation of Rs.6,39,200/- instead of Rs.3,18,000/- as awarded by
the Tribunal.
17. So far as M.A.(C) No.1355/2014 i.e. the case of deceased Shiv
Kumar is concerned, accepting Rs.4500/- as the monthly income the yearly
income comes to Rs.54,000/- of which if 1/3rd [Rs.18,000/-] is deducted
towards personal expenses, the amount left would be Rs.36,000/-. Of the
said amount of Rs.36,000/- if 40% [Rs.14,400] is added towards the future
prospect in view of Pranay Sethi (supra), the amount would come to
Rs.50,400/-. If this amount of Rs.50,400/- is multiplied applying the
multiplier of 13 in view of Sarla Verma (supra), the amount would reach to
Rs.6,55,200/- which is the amount that Appellants/Claimants shall be
entitled for the loss of dependency. In addition, in view of Pranay Sethi
(supra), the Appellants/Claimants shall also be entitled for an amount of
Rs.40,000/- each towards loss of consortium and Rs.30,000/- for loss of
estate and funeral expenses, totalling to Rs.1,10,000/-. Thus, the
Appellants/Claimants in M.A.(C) No.1355/2014 shall be entitled to get a
total compensation of Rs.7,65,200/- instead of Rs.5,33,000/- as awarded by
the Tribunal.
18. In the result :-
(i) M.A.(C) No. 1354/2014 stands allowed. The Appellants/
Claimants therein shall be entitled to get a total compensation of
Rs.6,39,200/-.
(ii) M.A.(C) No. 1355/2014 also stands allowed. The Appellants/
Claimants therein shall be entitled to get a total compensation of
Rs.7,65,200/-.
(iii) The Respondent No.3/Insurance Company in both the Appeals
shall ensure payment of compensation at the first instance, with
liberty to recover the same from the Respondent No.2/Owner and
Respondent No.1/Driver applying the principle of 'pay and recover' by
initiating appropriate recovery proceeding against them.
(iv) Rest of the conditions stipulated in the impugned Award
including the interest part shall remain intact.
Sd/-
(P. Sam Koshy)
/sharad/ Judge
