National Insurance Company ... vs Aarti Gond And Ors
2022 Latest Caselaw 5784 Chatt

                                    1

                                                                    AFR
          HIGH COURT OF CHHATTISGARH, BILASPUR

                           MAC No. 752 of 2015

    National Insurance Company Limited Through Branch Manager,
     Branch Office, 13 Minu Complex, Kosabadi, Korba, Distt. Korba
     Chhattisgarh
                                                            ---- Appellant
                                 Versus

  1. Aarti Gond Wd/o Late Biharilal, R/o Village Bhalpahari, P.S. Urga,
     Tah. Katghora, Distt. Korba, Chhattisgarh

  2. Firaturam S/o Manglu Singh, R/o Village Bhalpahari, P.S. Urga, Tah.
     Katghora, Distt. Korba, Chhattisgarh

  3. Sulkunwar W/o Firaturam, R/o Village Bhalpahari, P.S. Urga, Tah.
     Katghora, Distt. Korba, Chhattisgarh

  4. Mohanlal Yadav S/o Nakulram Yadav, R/o Bhilaibazar, Tah.
     Katghora, Distt. Korba, Chhattisgarh

  5. Harmangal Singh S/o Dhan Singh R/o Sindurgarh, P.O. Jatga, Tah.
     Katghora, Distt. Korba Chhattisgarh

  6. Pradeep Kumar Tiwari S/o Brijmohan Tiwari, R/o Gevra Basti
     Kusmunda, P.S. And Tah. Katghora, Distt. Korba, Chhattisgarh

                                                       ---- Respondents

For Appellant : Mr. Dashrath Gupta, Advocate For Respondents 1 to 3 : Mr. A. L. Singroul, Advocate

MAC No. 351 of 2015

1. Aarti Gond W/o Late Bihari Lal, R/o Village Bhal Pahari, Thana Urga, Tahsil Katghora District Korba Chhattisgarh

2. Firtu Ram S/o Manglu Singh, R/o Village Bhal Pahari, Thana Urga, Tahsil Katghora District Korba Chhattisgarh

3. Sul Kunwar W/o Firtu Ram, R/o Village Bhal Pahari, Thana Urga, Tahsil Katghora, District Korba, Chhattisgarh

---- Appellants

Versus

1. Mohan Lal Yadav S/o Nakul Ram Yadav, R/o Bhilai Bazar, Tahsil Katghora, District Korba, Chhattisgarh

2. Her Mangal Singh S/o Dhan Singh, R/o Sindurgarh, Post Jatga, Tahsil-Katghora, District Korba, Chhattisgarh

3. Pradeep Kumar Tiwari S/o Brij Mohan Tiwari, R/o Gewara Basti Kusmunda, Thana And Tahsil Katghora, District Korba, Chhattisgarh

4. The National Insurance Company Limited hrough Branch Office 13 Minu-Complex, Kasabadi, Korba Distt.- Koraba, Chhattisgarh

---- Respondents

For Appellants : Mr. A. L. Singroul, Advocate For Insurance Company : Mr. Dashrath Gupta, Advocate

Hon'ble Shri Justice P. Sam Koshy Judgement On Board 15.09.2022

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

Additional Motor Accident Claims Tribunal, Katghora, District Korba in

Accident Claim Case No.232/2007 decided on 15.10.2014.

2. MAC 752/2015 is an appeal by the Insurance Company assailing the

liability and MAC 351/2015 is an appeal by the claimants seeking for

enhancement of compensation. Vide the impugned award the

learned Tribunal has in a death case awarded compensation of

Rs.4,62,000/- with interest @ 6% per annum from the date of

application.

3. As regards the appeal of Insurance Company, the challenge primarily

is on the liability that has been fastened upon the Insurance

Company.

4. The contention of the learned counsel for the Insurance Company is

that it is a case where the accident arose in the course of the use of

the tractor bearing registration No. MP26C03802. The deceased

Biharilal, aged around 22 years, was travelling on the said tractor

when the accident occurred resulting in his death.

5. According to the counsel for Insurance Company, since the offending

vehicle was a tractor which was otherwise to be used only for

agriculture purpose and it had a sitting capacity of only the driver,

there could not have been any person other than the driver who could

have travelled on the tractor. He submits that in case the deceased

was travelling along with the driver on the said offending vehicle, the

Insurance Company cannot be fastened with the liability of payment

of compensation for the reason that the Insurance Company had not

taken any premium for covering the risk of any person other than the

driver. The policy that was issued also was a liability only policy and

no passenger was covered under the said policy. Learned counsel for

the Insurance Company in support of his contention relied upon two

of the decisions by the Division Bench of this High Court involving the

use of a tractor. The two Judgements are MAC 714/2012 decided on

15.07.2020 and MAC 1238/2014 decided on 31.08.2020.

6. According to the counsel for Insurance Company, in both these

judgements of the Division Bench of this Court, the liability which was

fastened upon the Insurance Company by the Tribunal has been

quashed by the High Court holding that under such circumstances the

Insurance Company cannot be compelled to indemnify the insured

particularly when there is an apparent breach of both the Motor

Vehicles Rules as also the policy conditions. According to the

counsel for the Insurance Company, the Insurance Company could

have been fastened with the liability provided they had taken some

premium in this regard. When the Insurance Company had not

charged any extra premium from the insured covering the risk of any

person other than the driver, there can be no liability upon the

Insurance Company so far as the payment of compensation is

concerned of an injured or deceased travelling on the said tractor as a

passenger.

7. Per contra, learned counsel appearing for the claimants seeking for

enhancement of compensation submits that the claimants are more

worried with the quantum part of the compensation as the appeal is of

the year 2015 and the accident is of the year 2007 and the claimants

have till date not been able to reap the fruits of the award. It is also

the contention of the claimants that the amount of compensation

quantified by the Tribunal is also on the lower side as the claimants

would have definitely got the benefit of future prospects so also the

benefit under conventional heads which have not been properly

assessed and quantified by the Tribunal. Learned counsel for the

claimants relied upon the decision of the Hon'ble Supreme Court in

the case of Manuara Khatun and others Vs. Rajesh Kumar Singh and

others reported in (2017) 4 SCC 796 wherein the Hon'ble Supreme

Court under similar circumstances has applied the principle of pay

and recover. He further relied upon the case of Shivaraj Vs. Rajendra

and Another, (2018) 10 SCC 432 wherein also the Hon'ble Supreme

Court has reiterated the principle of pay and recover.

8. Having heard the contentions put forth on either side and on perusal

of records, true it is that the vehicle involved in the accident was a

tractor owned by respondent no.5 namely Harmangal Singh and

driven by respondent no.4 Mohanlal Yadav in MAC 752/15.

Undisputedly, the tractor was insured with the appellant National

Insurance Company Limited. The policy was a liability only policy.

The risk covered was that of the driver alone and the third party.

Undisputed is again the fact that the deceased was travelling in the

tractor along with the driver whereas the tractor has a sitting capacity

of only one i.e. the driver who operates the said vehicle. No extra

premium had been charged by the Insurance Company covering the

risk of any person other than the driver.

9. In view of the aforegiven admitted factual position, this Court fully

endorses the view taken by the Division Bench of this Court in the two

judgments referred to by the Insurance Company i.e. MAC 714/2012

decided on 15.07.2020 and MAC 1238/2014 decided on 31.08.2020.

However, taking into consideration the fact that the Motor Vehicles

Act is a beneficial legislation and the provisions of the Act having

been enacted for the benefit of the victims of an accident, this Court

is of the opinion that in the larger interest of the claimants and in

order to achieve substantial justice the view taken by the Hon'ble

Supreme Court, in the Case of Shivaraj Vs. Rajendra and another,

(2018) 10 SCC 432 reiterating the principles laid down in the case of

Manuara Khatun (supra) whereby the Hon'ble Supreme Court has

applied the principle of pay and recover, needs to be applied.

10. It would be relevant at this juncture to refer to paragraphs-10 &

11 in the case of Shivaraj (supra) which for ready reference is

reproduced hereinunder:

"10. The High Court, however, found in favour of respondent No.2 (insurer) that the appellant travelled in the tractor as a passenger which was

in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person namely the driver. As a result, the Insurance Company (respondent No.2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case.

11. At the same time, however, in the facts of the present case the High Court ought to have directed the Insurance Company to pay the compensation amount to the claimant (appellant) with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. Vs. Swarna Singh & Ors., Mangla Ram Vs. Oriental Insurance Co. Ltd., Rani & Ors. Vs. National Insurance Co. Ltd. & Ors. and including Manuara Khatun and Others Vs. Rajesh Kumar Singh And Others. In other words, the High Court should have partly allowed the appeal preferred by the respondent No.2. The appellant may, therefore, succeed in getting relief of direction to respondent No.2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner (respondent No.1). "

11. In view of the same, the appeal of the Insurance Company i.e.

MAC 752/2015 stands partly allowed to the extent that the Insurance

Company would stand exonerated of its liability. However, applying

the principle of pay and recover, the Insurance Company shall satisfy

the award first and thereafter would have the liberty of initiating

recovery proceedings against the respondents 5 & 6 jointly and

severally for recovering the awarded amount.

12. As regards the appeal i.e. MAC 351/2015 filed by the claimants

seeking for enhancement of compensation, this Court finds that the

Tribunal has assessed the income of the deceased at Rs.3,000/- a

month i.e. Rs.100/- a day. The deceased is said to have been working

as a labour. Under the circumstances, in the year 2007 there can be

no dispute that a labour at that point of time was earning

approximately Rs.100 a day that brings the income to Rs.3000/- a

month and Rs.36,000/- yearly. To that extent the finding of the

Tribunal does not warrant any interference.

13. However, in the light of the recent decisions of the Hon'ble

Supreme Court as laid down in the case of Sarla Verma (Smt) and

others v. Delhi Transport Corporation and another reported in

(2009) 6 SCC 121 as also in the case of National Insurance

Company Limited Vs. Pranay Sethi and Ors. reported in (2017) 16

SCC 680, the claimants would also be entitled for compensation

towards future prospects. Considering the age of deceased at the

time of accident to be 22 years, the claimants would be entitled for

40% of the income towards future prospects. Thus, 40% of Rs.36,000

comes to Rs14,400/-. Adding that with the annual income, the

amount comes to Rs.50,400/- of which if 1/3 is deducted towards

personal expenses, the amount would come to Rs.33,600/-. The said

amount if multiplied applying the multiplier of 18, the amount would

come to Rs.6,04,800/- towards loss of income. In addition, the

claimants would also be entitled for compensation under conventional

heads at Rs.70,000/- which would bring the compensation to

Rs.6,74,800/-. This Court is also inclined to award some

compensation to the parents of the deceased as they were quite

young at the time of accident when they lost their son aged around

22 years. Thus, this Court quantifies an additional compensation of

Rs.25,200/- towards the parents i.e. the appellants 2 & 3 in MAC

351/2015. This would take the total compensation payable to the

claimants at Rs.7,00,000/- in stead of Rs.4,62,000/- as has been

awarded by the Tribunal. The interest part as awarded by the

Tribunal shall remain intact. The Insurance Company shall pay the

difference of amount within a period of 45 days from the date of

receipt of copy of this order with liberty to recover the same from the

respondents 5 & 6 .

14. As a result, the appeal of the claimants stands allowed and the

appeal of the Insurance Company stands partly allowed.

Sd/-

(P. Sam Koshy) Judge Khatai