Saraswati Bai Anant vs Sanjay Kumar Satnami
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Chattisgarh High Court

Saraswati Bai Anant vs Sanjay Kumar Satnami on 16 January, 2025

                                   1

                           Digitally signed
                           by BHOLA
                           NATH KHATAI
                           Date:
                           2025.01.17
                           10:29:15 +0530




                                                  2025:CGHC:2766
                                                        AFR

      HIGH COURT OF CHHATTISGARH AT BILASPUR


                     MAC No. 1033 of 2016

                    Reserved on 10.01.2025
                    Delivered on 16.01.2025

1. Saraswati Bai Anant Wd/o Late Shri Itwari Anant, Aged About 30
  Years R/o- Chhaparabhatha Mangala, Thana- Civil Line, Tahsil
  And District- Bilaspur, Chhattisgarh
2. Sanjay Kumar S/o Late Shri Itwari Anant, Aged About 13 Years
  Minor Represented Through Legal Guardian Mother Saraswati
  Bai Anant, R/o- Chhaparabhatha Mangala, Thana- Civil Line,
  Tahsil And District- Bilaspur, Chhattisgarh
3. Vijay Kumar S/o Late Shri Itwari Anant, Aged About 10 Years
  Minor Represented, Through Legal Guardian Mother Saraswati
  Bai Anant, R/o- Chhaparabhatha Mangala, Thana- Civil Line,
  Tahsil And District- Bilaspur, Chhattisgarh
4. Vikram Kumar S/o Late Shri Itwari Anant, Aged About 8 Years
  Minor Represented Through Legal Guardian Mother Saraswati
  Bai Anant, R/o- Chhaparabhatha Mangala, Thana- Civil Line,
  Tahsil And District- Bilaspur, Chhattisgarh
5. Kumari Anupa D/o Late Shri Itwari Anant, Aged About 5 Years
  Minor Represented Through Legal Guardian Mother Saraswati
  Bai Anant, R/o- Chhaparabhatha Mangala, Thana- Civil Line,
  Tahsil And District- Bilaspur, Chhattisgarh
6. (Dead) Devcharan Anant (Deleted) As Per Hon'ble Court Order
  Date 15-06-2022.
                                                ... Appellants
                                       2

                                   versus
     1. Sanjay Kumar Satnami S/o Naresh Kumar Satnami, Aged About
       22 Years R/o- Village- Kachhar, Post- Sendri, Thana- Koni Sendri,
       District- Bilaspur, Chhattisgarh ...... Driver
     2. Mumtaj Akhatar W/o Shri M. D. Akhatar, Aged About 40 Years R/o-
       Village- Tifra, C/29, Police Line, Bilaspur, Thana- Civil Line, Tahsil
       And District- Bilaspur, Chhattisgarh .... Owner
     3. Branch Manager, The Iffco Tokiyao General Insurance Company
       Limited, Divisional Office- Third Floor, Shop No. 345 - 347 Lal
       Ganga Shoping Mall, G.E. Road, Raipur, Chhattisgarh ......
       Insurer
                                                        ... Respondent(s)

For Appellants : Mr. Amiyakant Tiwari, Advocate For Respondent No.2 : Mr. Goutam Khetrapal, Advocate Fro Respondent No.3 : Mr. P. Acharya, Advocate

Hon'ble Shri Justice Sanjay Kumar Jaiswal CAV ORDER

1. This appeal arises out of the award dated 14.09.2011 passed by 5th Additional Motor Accident Claims Tribunal, Bilaspur (C.G.), in Claim Case No.150/2010 awarding compensation of Rs.4,16,600/- with interest @ 7.5% per annum, from the date of application till its realization, in favour of the appellant/claimants for their irreparable loss.

2. In the present case, the accident took place on 21.09.2010 when respondent No.1 driving the offending vehicle i.e. Tractor bearing registration No. CG 10 D 5649 attached with Trolley No. CG 10 D 5650 rashly and negligently dashed deceased Itwari Anant who was returning home from Mangla on his bicycle, as a result of which, Itwari Anant suffered grievous injuries and died on the spot. Upon report being made in this regard, crime was registered against driver Sanjay Kumar Satnami at Police Station - Civil Line

Bilaspur (CG).

3. It was claimed that the age of the deceased was 32 years and he was earning Rs.10,000 per month by selling vegetables and repairing bicycles. Due to the casual death of Itwari Anant, there is an irreparable loss to the appellant/claimants who are the wife, children & father of the deceased. Therefore, the claimants preferred an application before the Tribunal claiming total compensation of Rs. 20,10,000/-.

4. Learned Tribunal, after considering the evidence and documents brought on record, assessed the income of deceased at Rs.2600/- per month i.e. Rs.31,200 per annum as there was no documentary evidence regarding income of the deceased. Further, 1/3rd of the income was deducted towards personal expenses and after deduction, the amount comes to Rs.20,800/-. Considering the age of the deceased to be 35 years, multiplier of 17 was applied and the total loss of dependency worked out to Rs.3,53,600/-. In addition, Rs.63,000/- has been given under other heads. Accordingly, the Claims Tribunal has awarded total compensation of Rs.4,16,600/- in favour of claimants with interest @ 7.5% per annum, from the date of application till its realization. Hence, this appeal is for enhancement.

5. Learned counsel for the appellant/claimants submits that the claimants had pleaded the income of the deceased to be Rs.10,000/- per month but the learned Tribunal has assessed the income of the deceased as Rs.2600 per month and awarded total compensation of Rs. 4,16,600/- including the amount of other conventional heads of Rs.63,000/- which is on the lower side and needs to be enhanced. He next submits that learned Tribunal has erred in not considering future prospects while computing compensation as it failed to appreciate that the deceased could have earned much more if he had not met with the accident. He

further submits that the Tribunal has awarded less compensation under other heads which also needs to be enhanced suitably. Hence prayed for allowing the appeal.

6. On the other hand, learned counsel appearing for respondents 2 & 3 submit that in the facts and circumstances of case, the compensation awarded by the Claims Tribunal is just and proper and requires no further enhancement.

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

8. In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza.

9. Now this Court shall examine as to whether the compensation of awarded by the Tribunal is just and proper compensation in the given facts and circumstances of the case.

10. As regards income of the deceased, though the claimants have pleaded that the deceased was earning Rs.10,000 per month by selling vegetables and doing bicycle repair work, but no documentary evidence in support thereof has been adduced. However, it cannot be said that the deceased was not earning anything from his work. The accident occurred on 21.09.2010 and as per the notification by Labour Department, the minimum wages of even an unskilled labour at that point of time was Rs.3488. Hence, the income of the deceased is assessed at Rs.3488 per month i.e. Rs.41,856 per annum as minimum wages at the relevant time. The Tribunal has not considered future prospects. In the light of the judgment of Hon'ble Supreme Court in the case of National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, the future prospects would be 40% of the income.

After adding 40% future prospects i.e. Rs.16742.4, the amount comes to Rs.58598.4. There are 5 claimants who are the wife and children of the deceased (one claimant i.e. the father of the deceased died during pendency of this appeal), so deduction towards personal expenses would be 1/4th of the income instead of 1/3rd as wrongly held by the Tribunal. After deduction of personal expenses, the amount comes to Rs.43948.8. In view of judgment of the Hon'ble Supreme Court in the case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 and also considering the age of the deceased to be 32 years as claimed by the claimants, the multiplier would be 16 instead of 17 as wrongly held by the Tribunal. After applying the said multiplier, the total loss of dependency works out to Rs.703180.8 (43948.8 x 16) in round figure Rs.7,03,181/-. The claimants are also entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- for funeral expenses. As per 'Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189, the claimants are further entitled for Rs.40,000/- each totalling Rs.2,00,000 towards loss of spousal consortium and love and affection. Accordingly, the claimants are entitled for total compensation in the following manner:-

                          Heads                         Calculation

       Compensation towards dependency                        7,03,181

       Towards loss of estate                                   15,000
       Towards consortium and Love and                        2,00,000
       affection to all the five claimants @ Rs.
       40,000/-
       Funeral Expenses                                         15,000
             Total compensation Awarded                Rs. 9,33,181/-

11. Thus, the total compensation is recomputed as Rs.9,33,181/-, from

which after deduction Rs.4,16,600/- as awarded by the tribunal, the enhancement would be Rs.5,16,581/-.

Cross Appeal/Objection

12. The Cross Appeal/Objection has been filed by the owner for exonerating him/her from the liability.

13. The Tribunal has exonerated the insurance company from its liability holding that there was breach of insurance policy conditions on two grounds: firstly the driver did not have a valid driving licence at the time of accident as he was holding a licence of Light Motor Vehicle (LMV) whereas he was driving Tractor-Trolley (transport vehicle) and secondly, the vehicle in question was insured for agricultural purposes but it was being used other than agricultural purpose as at the relevant time it was being used for transporting bricks.

14. Learned counsel for the owner submits that the weight of the tractor was 1350 Kgs and therefore, it would fall under the category of LMV. Hence, the first ground of the driver did not have a valid driving licence is not sustainable. He further submits that though the tractor was being used for transporting bricks, the Insurance Company has not led any evidence to prove that the said bricks were being transported for the use of other than agricultural purposes or for commercial purpose. Hence, the second ground of the tractor was being used for other than agricultural purpose is also not sustainable. In support of his argument, learned counsel for the owner placed reliance on the judgments of this High Court as well as Madhya Pradesh High Court in the cases of Oriental Insurance Co. Ltd. v. Bhagwati Sahu and others reported in (2017) 4 CGLJ 225 (DB), Krishna Devi Bhupendra and others v. Birbal Yadav and others reported in 2014 SCC OnLine Chh 250 and Pavitra Bai and others v. Kantilal reported in 2006 SCC

Online MP 515.

15. On the other hand, learned counsel appearing for the Insurance Company submits that the finding of the Tribunal regarding liability is just and proper and does not require any interference.

16. Heard learned counsel for the parties and perused the record.

17. It is undisputed that the vehicle in question was a Tractor-Trolley which was insured with respondent No.3 Insurance Company. The driver Sanjay Kumar Satnami had a driving license of LMV. Rule 2

(b) of the Central Motor Vehicles Rules, 1989 defining agricultural tractor, appears worth reference, which reads as under:

"agricultural tractor" means any mechanically propelled 4-wheel vehicle designed to work with suitable implements for various field operations and / or trailers to transport agricultural materials. Agricultural tractor is a non-transporting vehicle."

18. In view of above definition, agricultural tractor is a non-transporting vehicle, hence, a transport driving licence is not required for it and LMV licence is also valid for driving agricultural tractor. Moreover, and as per the particulars of the Certificate of Registration Ex.D-8, the unladen weight of the vehicle in question is 1350 Kgs and Gross vehicle weight is 4000 Kgs. As per the provisions of Section 2(21) of MV Act, all vehicles whose weight is less than 7500 Kgs are to be treated as 'Light Motor Vehicle' and the weight of the offending vehicle was less than 7500 Kgs. Therefore, the vehicle in question would fall under LMV category and the driver, at the relevant time, did have a licence to drive Light Motor Vehicle (LMV). Even otherwise, in the light of the decision of the Hon'ble Supreme Court in the case of Mukund Dewangan v. Oriental Insurance Company Limited reported in (2017) 14 SCC 663, the first ground of the Tribunal for breach of policy condition would not be

sustainable. Hence, the finding of the Tribunal that the insurance conditions were violated due to the absence of a valid driving license is not acceptable and the said finding is set aside.

19. As regards the second ground that the vehicle in question was insured for agricultural purposes whereas it was being used for other than agricultural purpose, the Tribunal has held that at the time of incident, the vehicle in question was being used for transporting bricks. In the FIR also it is mentioned that bricks were being transported in the tractor-trolley. The driver Sanjay Kumar Satnami has been examined who has also stated that at the relevant time bricks were being transported in the tractor-trolley on the instructions of the owner. Therefore, the Tribunal has held that the burden of proving the fact that the transportation of bricks in the Tractor-trolley does not come under breach of policy condition was upon the owner which she could not do. Hence, the liability has been shifted upon the owner.

20. This High Court while dealing with this issue in the case of

Bhagwati Sahu (supra) in paragraphs - 5 & 16 held as under:

"5. ....Further stand of the Insurance Company is that the offendign vehicle was insured for agriculture and forestry purposes but at the relevant time it was being used for transporting the bricks which does not come under either of these categories and for this reason also the Insurance company is not liable to satisfy the claim.

16. ......So far as breach of policy conditions due to use of vehicle for commercial purposes is concerned, the burden of proving the said breach was on the insurance company."

21. Dealing with an identical issue in the case of Krishna Devi

Bhupendra (supra), this High Court in paragraphs 3 & 11 has held as under:

"3. The insurance company contested the case on the ground that though driver of the vehicle, i.e. tractor was having licence to drive LMV (non-transport) but

the moment the tractor is attached with a trolley, it becomes a transport vehicle and, therefore, on account of there being breach of policy conditions, the insurance company cannot be held liable to pay compensation tot he claimants. This ground was taken by the insurance company as according to it, at the time of accident bricks were being transported by trolley attached with the tractor in question whereas the same was insured for agricultural purposes.

11. The Division Bench of this Court in the matter of Royal Sundaram Alliance Insurance Co. Ltd. v. Jhool Bai, 2009 ACJ 758 (Chhattisgarh), placing reliance upon the principles of law laid down in the aforementioned decision of the Supreme Court has held that since the driver of the tractor had a valid and effective driving licence to drive the tractor, he would not become disabled to drive it merely because a trailer was attached to the tractor. This apart, if the weight of the vehicle is taken into consideration, then also it can be ascertained that driver was having a valid and effective licence to drive the vehicle in question, i.e., tractor-trolley. So far as the breach of policy conditions due to use of vehicle for commercial purposes is concerned, the burden of proving the said breach was on the insurance company. However, from perusal of the evidence on record, it is evident that the insurance company has failed to discharge its burden. In view of the above, the finding of the Tribunal fastening liability upon the insurance company is well founded and is hereby affirmed. Appeal preferred by the insurance company is liable to be, and is, accordingly, dismissed."

22. In the case of Pavitra Bai (supra), the High Court of Madhya

Pradesh while discussing the same issue, in para-5, held as under:

"5. In our considered view, the finding insofar as it relates to exonerating of the insurance company is concerned; the same deserves to be reversed in favour of claimants. It is not correctly rendered on facts found by the Commissioner. True it is that the vehicle in question (tractor-trolley) was insured for use of agriculture purpose but in our view, the facts involved in the case do not show that it was not being used for agriculture purpose. In other words, carrying some boulders in tractor-trolley cannot be said to be purpose dehors the purpose for which the tractor- trolley was insured."

23. Coming to the facts of the present case, in light of the aforesaid

decisions of this High Court as well as the Madhya Pradesh High Court, the burden of proving breach of insurance policy is upon the Insurance Company but the Insurance Company has failed to discharge its burden by leading evidence that the said bricks were being transported in the vehicle in question for the use of other than agricultural purposes or for commercial purpose. Hence, the finding of the Tribunal that the insurance conditions were violated due to transportation of bricks in the tractor-trolley is not acceptable and the said finding is set aside.

24. In that view of the matter, the finding of the Tribunal fastening the

liability upon the owner is set aside and the liability is shifted upon the insurer. Hence, it is concluded that the Insurance Company shall be liable for payment of compensation.

25. In the result, the appeal of the claimants is partly allowed and the

cross appeal/objection of the owner is allowed. The claimants shall be entitled for the enhanced compensation of Rs.5,16,581/- in addition to what is already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement of the award till its realization. The impugned award stands modified to the above extent and rest of the conditions shall remain intact.

26. The Registry is further directed to communicate the claimants in

writing "the enhanced amount" in this appeal as against the award made by the Tribunal below. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a co-ordination of Secretary, Legal Aid of the concerned area wherein the claimants reside.

Sd/-

(Sanjay Kumar Jaiswal) Judge Khatai