Branch Manager National Insurance ... vs Smt. Kamla And Ors
2024 Latest Caselaw 43 Chatt

Chattisgarh High Court

Branch Manager National Insurance ... vs Smt. Kamla And Ors on 20 June, 2024

       Neutral Citation
       2024:CGHC:20605




                                      1

                                                                     NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                               MAC No. 534 of 2015

     Branch Manager National Insurance Company, Near R.M.S.
     Office, Above Central Bank, 1st Floor, Jagdalpur, District Bastar
     C.G. Trough Authorised Signatory National Insurance Company
     Limited, Divisional Office B-1 Taha Complex, Ring Road II,
     Priydarshani Nagar, Bilaspur, Chhattisgarh
                                                            ---- Appellant
                                   Versus
  1. Smt.   Kamla Wd/o Late Jammu Aged About 25 Years
     R/o Village Bhadis Gaon, P.S. - Frezarpur, District Bastar,
     Chhattisgarh
  2. Minor Ku. Meena D/o Late Jammu Aged About 12 Years, Minor
     Through Natural Guardian Mother Smt. Kamla, R/o Village Bhadis
     Gaon, P.S. - Frezarpur, District Bastar, Chhattisgarh
  3. Minor  Govind S/o Late Jammu Aged About 9 Years
     Minor Through Natural Guardian Mother Smt. Kamla, R/o Village
     Bhadis Gaon, P.S. - Frezarpur, District Bastar, Chhattisgarh
  4. Minor  Pratima D/o Late Jammu Aged About 6 Years
     Minor Through Natural Guardian Mother Smt. Kamla, R/o Village
     Bhadis Gaon, P.S. - Frezarpur, District Bastar, Chhattisgarh
  5. Rakesh Vishvakarma S/o Shiv Shanker Vishvakarma, Aged About
     35 Years, R/o Moti Talab Para, Rajwada Parisar, Jagdalpur,
     District Bastar, Chhattisgarh
  6. Manoj   Singh S/o Ramji Singh, Aged About 35 Years
     R/o Village Dongripara Frezarpur, Jagdalpur, District Bastar,
     Chhattisgar
                                                         ---- Respondents

For Appellant : Mr. Priyanshu Gupta, Advocate, on behalf of Mr. B. N. Nande, Advocate For Respondents 1 to 4: Mr. A. L. Singroul, Advocate For Respondents 5 & 6 : None

Hon'ble Shri Justice Sanjay Kumar Jaiswal Judgment on Board 20/06/2024 Neutral Citation 2024:CGHC:20605

1. This appeal has been preferred by the Insurance Company under

Section 173 of the Motor Vehicles Act challenging the award dated 19.12.2014 passed by Upper Claims Tribunal (FTC), Bastar place Jagdalpur, Chhattisgarh, in Claim Case No.75/2012 whereby learned Tribunal has awarded compensation of Rs.4,35,000/- with interest @ 9% per annum, from the date of application till its realization, in favour of the claimants for their irreparable loss.

2. The claim of claimants before the Tribunal, in brief, was that deceased Jammu was working in Shradha Body Building workshop for the last 15 years. On 03.07.2008, when deceased Jammu was making the body of new truck bearing Chasis No.426031 ERZ 721606 (hereinafter referred as "the vehicle in question"), respondent no.1 negligently drove the said vehicle without seeing that the deceased was working under it, as a result of which, Jammu suffered grievous injuries on his body and died during the course of treatment at Maharani Hospital, Jagdalpur. Upon report being made in this regard, crime was registered against respondent no.1 at Kotwali, Bastar (CG).

3. It was claimed that at the time of accident, deceased Jammu was

aged around 30 years. He was working as a mechanic in Shradha Body Building Garage and earning Rs.6,000/- per month. Due to the casual death of deceased Jammu, there is an irreparable loss to the claimants who are the wife and children of the deceased. Therefore, the claimants preferred an application under Section 163A of the Motor Vehicles Act before the Claims Tribunal claiming total compensation of Rs.23,62,000/-.

4. The learned Tribunal, after considering the evidence and documents available on record, assessed the income of the deceased at Rs.3,000/- per month i.e. Rs.36,000/- per annum as there is no evidence brought on record regarding the income of Neutral Citation 2024:CGHC:20605

the deceased. Considering the age of the deceased and the fact that the claimants are the wife and 3 children of the deceased, 1/4th of the income was deducted towards personal expenses and after deduction, the amount comes to Rs.27,000/- per annum. Further, considering the age of the deceased at the relevant time to be 40 years, multiplier of 15 was applied and the total loss of dependency worked out to Rs.4,05,000/-. In addition, Rs.5,000/- for funeral expenses, Rs.10,000/- for spousal consortium and Rs.15,000 for love and affection has been awarded. Accordingly, the Claims Tribunal has awarded total compensation of Rs.4,35,000/- with interest @ 9% per annum, from the date of application till its realization, in favour of the claimants against which the present appeal has been filed by the Insurance Company.

5. Learned counsel for appellant submits that the claimants themselves have claimed that the income of the deceased was Rs.6,000 per month i.e. 72,000 per annum whereas the Tribunal has held the income of deceased Rs.3,000 per month i.e. Rs.36,000 per annum. He submits that the Tribunal of its own accord, contrary to the pleading, cannot bring the annual income within the limit of Rs.40,000 as per Section 163A of the MV Act. Since the income of the deceased was Rs.72,000 per annum as per the claimants, the claim application filed by the claimants under section 163A was not maintainable. Further contention of the counsel for appellant is that the Tribunal has erred in holding the age of the deceased to be 40 years since according to the postmortem report the age of the deceased was 45 years. Hence, prayed for allowing the appeal by setting aside the impugned award.

6. On the other hand, opposing the prayer of the counsel for

appellant it has been argued on behalf of learned counsel for Neutral Citation 2024:CGHC:20605

respondents 1 to 4 i.e. the claimants that in the facts and circumstances of case, the impugned awarded passed by the Claims Tribunal is just and proper and requires no interference.

7. Heard counsel for the parties and perused the record.

8. In the case at hand, the claim application was filed under Section

163A of the Motor Vehicles Act, under which, the income would not exceed Rs.40,000/- per annum. Though the claimants have claimed that at the time of accident the deceased was earning Rs.6,000/- per month but no evidence in this regard has been brought on record. The accident took place on 03.07.2008 and the deceased was engaged in the said garage for the work of body building of vehicles. Considering the nature of work and the date of accident, in the absence of any evidence regarding income of the deceased, learned Tribunal has assessed the income of the deceased to be Rs.3000 per month i.e. Rs.36,000 per annum which appears to be proper. Therefore, the contention of the appellant that the Tribunal of its own accord has brought the income of deceased within the limit of Rs.40,000 is not acceptable.

9. It is noteworthy that the original claim application was presented

before the Tribunal under Section 166 (1) and 140 (1) of the Motor Vehicles Act, 1988 which was rejected by the Tribunal on 23/02/2010 as not maintainable. Thereafter, vide order dated 26/08/2011 passed by this High Court in MAC No. 536/2010 the Tribunal was directed to pass a fresh decision on the claim. Thereafter, the claimant party amended the claim application by deleting Sections 166 (1) and 140 (1) of the Motor Vehicles Act, 1988 and mentioning Section 163A of the Motor Vehicles Act, 1988. However, the income of the deceased which was shown as Rs.6000 per month could not be amended but the Tribunal considered the annual income of the deceased to be Rs.36,000 Neutral Citation 2024:CGHC:20605

which is within the limit of Rs.40,000 as prescribed under Section 163A of the Motor Vehicles Act, 1988. In this situation, if the monthly income of the deceased could not be amended due to the mistake of the advocate in the original claim application, the claim of the claimant party should not be rejected on that basis. The legal provision for payment of compensation is welfare measure under the Motor Vehicles Act. In this situation, the argument of the appellant insurance company that the monthly income of Rs.6,000/- i.e. Rs.72,000/- per annum has been mentioned in the claim application and on this ground alone the claim of the claimants should be rejected, is not found to be acceptable.

10. So far as the contention of the appellant regarding age of the deceased is concerned, according to the claimants, the age of the deceased at the time of accident was 30 years whereas in the postmortem report, the age of the deceased has been mentioned as 45 years. There is no evidence available on record regarding the age of the deceased. Therefore, considering the difference between 30 and 45 and in the absence of any proof, the Tribunal has determined the average age of the deceased as 40 years which seems to be proper. Hence, the contention of the appellant regarding age of the deceased also stands negated.

11. In that view of the matter, this Court does not find any strong case made out by the appellant calling for an interference with the impugned award. The appeal being devoid of merit deserves to be and is accordingly dismissed.

Sd/-

(Sanjay Kumar Jaiswal) Judge Khatai