The Oriental Insurance Company ... vs Hirmat Bai And Ors
2022 Latest Caselaw 5753 Chatt

                                   1


                                                                    NAFR

           HIGH COURT OF CHHATTISGARH AT BILASPUR

                         MAC No. 260 of 2015
  1. Hirmat Bai W/o Late Khorbahara Sahu Aged About 54 Years R/o
     Village Semarkona, Thana And Tahsil, Distt. Bilaspur Present Distt.
     Mungeli Chhattisgarh , Chhattisgarh
  2. Rajendra Kumar S/o Late Khorbahara Sahu Aged About 34 Years
     R/o Village Semarkona, Thana And Tahsil, Distt. Bilaspur Present
     Distt. Mungeli Chhattisgarh, District : Mungeli, Chhattisgarh
  3. Komal Kumar S/o Late Khorbahara Sahu Aged About 32 Years R/o
     Village Semarkona, Thana And Tahsil, Distt. Bilaspur Present Distt.
     Mungeli Chhattisgarh, District : Mungeli, Chhattisgarh
                                                          ---- Appellants
                                Versus
  1. Haricharan Sahu S/o Banjari Sahu Aged About 33 Years R/o Village
     Belsari Tahsil Lorm Distt. Bilaspur Present Distt. Mungeli
     Chhattisgarh, Chhattisgarh
  2. Radha Lal S/o Mahesh Ram Sahu Aged About 35 Years R/o Village
     Belsari Tahsil Lorm Distt. Bilaspur Present Distt. Mungeli
     Chhattisgarh , District : Mungeli, Chhattisgarh
  3. Nishad S/o Aged About 32 Years R/o Village Belsari Tahsil Lorm
     Distt. Bilaspur Present Distt. Mungeli Chhattisgarh , District :
     Mungeli, Chhattisgarh
  4. The Oriental Insurance Company Limited S/o The Oriental Insurance
     Company Limited Divisional Office Bilaspur Chhattisgarh , District :
     Bilaspur, Chhattisgarh
                                                       ---- Respondents

For Appellants : Mr. Arjun Lal Singroul, Advocate For Respondent No.4 : Ms. Chitra Shrivastava, Advocate

AND

MAC No. 544 of 2015 • The Oriental Insurance Company Ltd. Through Its Divisional Manager, Divisional Office- Bilaspur Chhattisgarh , Chhattisgarh

---- Appellant Versus

1. Hirmat Bai W/o Khorbahara Sahu Aged About 54 Years R/o Village Semarkona, Thana And Tahsil, Zilla- Bilaspur, Present Zilla Mungali, Chhattisgarh , Chhattisgarh

2. Rajendr Kumar S/o Khorbahara Sahu Aged About 34 Years R/o Village Semarkona, Thana And Tahsil, Zilla- Bilaspur, Present Zilla Mungali, Chhattisgarh , District : Mungeli, Chhattisgarh

3. Komal Kumar S/o Khorbahara Sahu Aged About 32 Years R/o Village Semarkona, Thana And Tahsil, Zilla- Bilaspur, Present Zilla Mungali, Chhattisgarh , District : Mungeli, Chhattisgarh

4. Haricharan Sahu S/o Banjari Sahu Aged About 33 Years R/o Village Belsari, Tahsil Lormi, Zilla- Bilaspur, Present Address- Zilla Mungeli Chhattisgarh , District : Mungeli, Chhattisgarh

5. Radhelal S/o Maheshram Sahu Aged About 35 Years R/o Village Belsari, Tahsil Lormi, Zilla- Bilaspur, Present Address- Zilla Mungeli Chhattisgarh , District : Mungeli, Chhattisgarh

6. Laxminarayan S/o Daduram Nishad Aged About 32 Years R/o Village Belsari, Tahsil Lormi, Zilla- Bilaspur, Present Address- Zilla Mungeli Chhattisgarh , District : Mungeli, Chhattisgarh

---- Respondents

For Appellant : Ms. Chitra Shrivastava, Advocate For Respondents : Mr. Keshav Dewangan, Advocate

Hon'ble Shri Justice P. Sam Koshy Order on Board 14/09/2022

1. These are two appeals arising out of the same award passed by the

Additional Motor Accident Claims Tribunal, Mungeli in Motor Accident

Claim Case No. 157/2011 decided on 09.02.2015. Vide the

impugned award the Tribunal has awarded an amount of

Rs.1,32,500 in favour of the claimants with interest @ 6% p.a. from

the date of application. The liability for payment of compensation has

been fastened upon the Oriental Insurance Company. These are two

appeals both by the claimants as well as by the insurance company.

MAC No. 260/2015 is an appeal by the claimants seeking for

enhancement of the compensation. MAC No. 544/2015 is the appeal

by the insurance company assailing the liability of payment of

compensation by the Tribunal.

2. As regards the appeal by the claimants, the contention of the

appellants-claimants is that the amount of compensation awarded is

excessively on the lower side. The contention of the learned counsel

for the appellants is that the income assessed by the Tribunal

considering the year of accident, firstly is on the lower side.

Likewise, the deduction towards personal expenditure also has been

deducted at 1/4th whereas it ought to had been 1/3rd considering the

fact that there are only three claimants. It was the further contention

of the appellants that the multiplier applied also is on the lower side.

The future prospects have not been taken into account while

quantifying the compensation. Likewise, the compensation under the

other conventional heads like; loss of consortium, funeral and other

expenses and loss of estate have not been sufficiently awarded by

the Tribunal and thus the award needs to be revisited and enhanced

amount of compensation should be awarded.

3. The contention of the learned counsel for the appellants is that the

date of accident is May, 2010 and at the relevant point of time, the

minimum wages for an unskilled labour any way would had been

around more than Rs.150 a day, which brings the monthly income at

Rs.4500, whereas the Tribunal has erroneously assessed the

income at Rs.2500, which is too meager an amount for a family of

four members to sustain decently at that point of time. According to

the claimants, the deceased Khorbahara Sahu was a trader in the

grains market and was earning roughly around Rs.8000 a month.

Since there is no proof of the income of the deceased, however at

any cost, the deceased at the relevant point of time must have been

definitely earning around Rs.150 a day i.e. Rs.4500 a month and

therefore this Court assess the income of the deceased at Rs.4500 a

month instead of Rs.2500 as assessed by the Tribunal, which would

bring the yearly income of the deceased at Rs.54,000 to which if

considering the judgment of the Hon'ble Supreme Court in the case

of "National Insurance Co. Ltd v. Pranay Sethi" reported in (2017)

16 SCC 680, if 10% of his income is added towards future

prospects, that would bring the amount at Rs.5400, which would

bring the total yearly income of the deceased at Rs.59,400, of which

if considering the number of claimants to be 3 (three), the personal

expenditure to be deducted would become 1/3rd, which comes to

Rs.19,800, which if deducted from the total income the amount

would come to Rs.39,600. This amount if applied applying the

multiplier of 9 instead of 5 that was applied by the Tribunal would

bring the total amount of compensation towards loss of income at

Rs.3,56,400.

4. In addition, taking into consideration the recent decisions of the

Hon'ble Supreme Court in the case of "Pranay Sethi" (supra) and

the subsequent decisions rendered in the case of "Magma General

Insurance Company Limited v. Nanu Ram @ Chuhru Ram &

others" (2018) 18 SCC 130 the claimants would be also entitled for

a loss of consortium of Rs.40,000 to the widow and Rs.40,000 each

to the two sons of the deceased and in addition the claimants would

also be entitled for the funeral and other expenses of Rs.15,000 and

the loss of estate at Rs.15,000. Thus, the total amount of

compensation under these heads becomes Rs.1,50,000. In all the

total compensation payable to the appellants would become

Rs.3,56,400 + Rs.1,50,000 = Rs.5,06,400 instead of Rs.1,32,500 as

awarded by the Tribunal. The appeal of the claimants i.e. MAC No.

260/2015 accordingly stands allowed. The claimants shall be entitled

for the total compensation of Rs.5,06,400 instead of Rs.1,32,500.

The difference amount after deducting the amount already deposited

in terms of the award be paid by the insurance company within a

period of 45 days from the date of receipt of copy of this order.

5. Now coming to the appeal filed by the insurance company, Ms.

Chitra Shrivastava, learned counsel for the insurance company

submits that it is a case where the vehicle involved in the vehicle

was a Metador owned by the respondent No.2 driven by the

respondent No.1 and insured by the appellant-insurance company

that the appellant in MAC No. 544/2015. The contention of the

appellant is that though it is a package policy, however the deceased

in the instant case Khorbahara Sahu was not an employee engaged

by the owner of the vehicle for the purpose of the operation of the

said vehicle and that there was no extra premium paid for any

additional person to travel on the said vehicle and therefore the

insurance company under the given circumstances cannot be

fastened with the liability of payment of compensation.

6. It is the further contention of the learned counsel for the insurance

company that it is a case where the deceased was in fact a

gratuitous passenger as from the contents of their pleadings and

also from the evidence of the claimants before the Tribunal, it is

evidently clear that the deceased was traveling in the said Metador

with his agriculture produce (vegetables) and he was there sitting in

the said Metador, which is a 'Goods Carrying Commercial Vehicle'

protecting his goods that were being transported. That the said

deceased person was never authorized by the owner of the said

vehicle, nor was he traveling in the said vehicle with the consent,

knowledge or permission of the owner. Moreover, since no extra

premium was paid for any extra passenger or extra person to travel

in the said Metador, the insurance company cannot be fastened with

the liability.

7. Learned counsel for the appellant-insurance company relied upon

the decisions of the Hon'ble Supreme Court in the case of "National

Insurance Co. Ltd. v. Prema Devi & others" 2008 ACJ 1149,

"Anu Bhanvara & others v. Iffco-Tokio General Insurance Co.

Ltd. & others" 2019 ACJ 2802 in support of her contentions. In

addition, the appellant-insurance company also relied upon the

judgment of the Hon'ble Supreme Court in the case of "National

Insurance Co. Ltd. v. Baljit Kaur & others" 2004 ACJ 428.

8. Having considered the contention put forth by the counsel for the

appellant-insurance company, undisputed fact is that the vehicle

involved in the accident is the Metador bearing registration No. CG

10/A-4622 driven by the respondent No.1 and owned by the

respondent No.2. It is also an admitted factual position that the said

vehicle was duly insured with a package policy coverage issued by

the appellant-insurance company. On the date of accident, there was

a valid policy in operation. The vehicle involved in the accident was a

'Goods Carrying Commercial Vehicle'. Undisputedly, at the time of

accident it was the goods of the deceased which was being

transported in the said vehicle and incidentally it was the deceased

who was traveling along with his goods sustained injuries, to which

he later succumbed.

9. Given the aforesaid admitted factual matrix of the case and also

considering the fact that the Hon'ble Supreme Court itself in the case

of "Anu Bhanvara" (supra) as also in the case of "Prema Devi"

(supra) has applied the principle of "pay and recover" and directed

the insurance company to deposit the amount with liberty to recover

the same from the owner. This Court is also therefore inclined to

apply the same analogy in the present case as well. In addition this

Court further relies upon the judgment of the Hon'ble Supreme Court

in the case of "Shamanna & another v. Divisional Manager,

Oriental Insurance Company Limited & others" (2018) 9 SCC

650 and "Jagtar Singh @ Jagdev Singh v. Sanjeev Kumar &

others" (2018) 15 SCC 189, "Shivaraj v. Rajendra & another"

(2018) 10 SCC 432 wherein also the Hon'ble Supreme Court has

emphasized on the principle of "pay and recover". Accordingly, the

appeal of the insurance company stands allowed in part. The liability

of payment of compensation shall remain on the insurance company,

however with a liberty to recover the same from the owner i.e. the

respondent No.2 by initiating appropriate recovery proceedings.

10. As a consequence, MAC No. 260/2015 by the claimants stands

allowed and MAC No. 544/2015 filed by the insurance company

stands allowed in part. Remaining part of the award so far as

awarding of interest etc. is concerned, the same would remain intact

as awarded by the Tribunal.

Sd/-

(P. Sam Koshy) Judge Ved