Chattisgarh High Court
Firat Ram Bareth Res. No. 2 Died Vehicle ... vs Rajmangal Chauhan @ Rajendra Chauhan ... on 2 January, 2025
1
Digitally signed
by BHOLA
NATH KHATAI
Date:
2025.01.07
10:31:16 +0530
2025:CGHC:292
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1608 of 2015
Raj Mangal Chauhan @ Rajendra Chauhan S/o Shri Laxman
Chauhan, Aged About 40 Years R/o Quarter No. 1111 Sector 05,
Balco Nagar Police Station Balco, Tehsil And District Korba
Chhattisgarh
--- Appellant
versus
1. Sitaram Bareth S/o Shri Firan Lal Bareth, Aged About 45 Years
R/o Village Baradwar Basti, Police Station- Baradwar, District
Janjgir Champa, Chhattisgarh ....... Driver
2. Firat Ram Bareth (Now died the then owner of offending vehicle)
Through Legal Representatives
(A) Smt. Gayamati Bareth W/o Late Firat Ram Bareth, Aged
About 60 Years, R/o Main Road Baradwar Basti, Police
Station And Tehsil Baradwar, District Janjgir Champa
Chhattisgarh
(B) Ramesh Kumar Bareth S/o Late Firat Ram Bareth, Aged
About 42 Years R/o Main Road Baradwar Basti, Police
Station And Tehsil Baradwar, District Janjgir Champa
Chhattisgarh
(C) Lakesh Kumar Bareth S/o Late Firat Ram Bareth, Aged
About 37 Years R/o Main Road Baradwar Basti, Police
Station And Tehsil Baradwar, District Janjgir Champa
Chhattisgarh
2
3. H. D. F. C. Ergo General Insurance Company Limited, Through
Branch Manager, H.D.F.C. Ergo General Insurance Company
Ltd. Raipur, Office Devendra Nagar Three Way Chowk
Commerce Building Raipur Chhattisgarh ...... Insurer Of Vehicle
--- Respondent(s)
For Appellant : Mr. Shivam Mishra, Advocate, on behalf of
Mr. Akhilesh Kumar, Advocate
For Respondents : Mr. Deepak Kumar Singh, Advocate
2A to 2C
For Respondent Mr. Tanmay Roy, Advocate, on behalf of
No.3 Mr. N. K. Thakur, Advocate
Firat Ram Bareth (Respondent No.2, Died vehicle owner)
Through LRs
(A) Shrimati Gayamati Bareth W/o Firat Ram Bareth, Aged
About 60 Years, R/o Main Road Baradwar Basti, Police
Station And Tehsil Baradwar, District Janjgir Champa
Chhattisgarh
(B) Ramesh Kumar Bareth S/o Firat Ram Bareth, Aged
About 42 Years R/o Main Road Baradwar Basti, Police
Station And Tehsil Baradwar, District Janjgir Champa
Chhattisgarh
(C) Lakesh Kumar Bareth S/o Firat Ram Bareth, Aged About
37 Years R/o Main Road Baradwar Basti, Police Station
And Tehsil Baradwar, District Janjgir Champa
Chhattisgarh
---Appellants
Versus
1. Rajmangal Chauhan @ Rajendra Chauhan S/o Shri Laxman
Chauhan Aged About 40 Years R/o Qua. No. 1111 Sector 05
Balco Nagar District Korba Chhattisgarh
2. Sitaram Bareth S/o Firan Lal Bareth Aged About 45 Years R/o
Baradwar Basti P.S. Baradwar District Janjgir Champa
Chhattisgarh
3. HDFC ERGO General Insurance Company Ltd. Through Branch
Manager HDFC ERGO General Insurance Company Limited
Raipur Devendra Nagar Tiraha, Vinijay Bhawan Raipur
Chhattisgarh
--- Respondent(s)
For Appellants : Mr. Deepak Kumar Singh, Advocate
For Respondent : Mr. Shivam Mishra, Advocate, on behalf of
No.1 Mr. Akhilesh Kumar, Advocate
For Respondent Mr. Tanmay Roy, Advocate, on behalf of
No.3 Mr. N. K. Thakur, Advocate
Hon'ble Shri Justice Sanjay Kumar Jaiswal
Order on Board
02/01/2025
1. Since both the appeals have arisen out of award dated 05.02.2015
passed by Motor Accident Claims Tribunal, Korba (C.G.), in Claim
Case No.185/2010 awarding compensation of Rs.5,18,432/- with
interest @ 8% per annum from the date of application till its
realization in favour of the injured claimant, they are being
disposed of by this common order.
2. MAC No.1608/2015 has been preferred by the claimant for
enhancement of compensation and MAC No.630/2015 has been
preferred by the owner for exoneration from the liability of payment
of compensation.
3. The gist of claim before the Claims Tribunal, in brief, was that on
26.10.2009 claimant Raj Mangal Chauhan @ Rajendra Chauhan
was coming from Champa to his residence Balco along with Dilip
Thakur on a Hero Honda motorcycle. The motorcycle was being
driven by claimant Raj Mangal Chauhan and Dilip was siting
behind him. At about 8.45 p.m. when they reached near Domnala
bridge of village Barbaspur on Champa Korba main road,
respondent Sitaram Bareth driving the offending vehicle bearing
registration No.CG 11 AB 0997 in a rash and negligent manner hit
his motorcycle from front, as a result of which, claimant Raj Mangal
Chauhan sustained grievous injuries on his head and other parts of
the body and suffered fracture near left knee. He was treated first
at District Hospital, Korba and then at Balco Hospital. Upon report
being made in this regard, crime was registered against driver
Sitaram Bareth at Police Chowki Urga, PS Kotwali Korba (CG).
4. It was claimed that the claimant was earning Rs.6,000 per month
from betel shop (betel cart). On account of the accident, he
suffered 45% permanent disability. Therefore, the claimant
preferred an application before the Tribunal claiming total
compensation of Rs.27,60,000/- for disability, loss in future income,
physical and mental agony, medical expenses and also under
other heads.
5. Learned Tribunal, after close scrutiny of the evidence and
documents brought on record, assessed the income of the injured
claimant at Rs.4,000/- per month i.e. Rs.48,000/- per annum. The
Tribunal, considering permanent disability of claimant to be 30%,
calculated loss of annual income as Rs.14,400 (48,000 x 30%).
Considering the age of the claimant to be 40 years, multiplier of 16
was applied and the total loss of income/earning worked out to
Rs.2,30,400 (14,400 x 16). In addition, the Tribunal has awarded
Rs.2,48,032/- for medical expenses, Rs.20,000 for Attendant,
nutritious food etc. and Rs.20,000 for physical & mental agony.
Accordingly, the Tribunal has awarded total compensation of
Rs.5,18,432/- with interest @ 8% per annum, from the date of
application till its realization, in favour of the injured claimant,
against which MAC No.1608/2015 has been preferred by the
claimant for enhancement. While passing the impugned award the
Tribunal came to the conclusion that the terms and conditions of
the insurance policy had been violated and therefore the Insurance
Company was exonerated from its liability and the liability of
payment of compensation was saddled upon the driver/owner. It is
this fastening of liability upon the owner against which MAC
No.630/2015 has been filed by the owner.
Now, the appeal preferred by the owner is being decided first.
6. Learned counsel appearing for the owner submits that the Tribunal
has erred in exonerating the insurance company from its liability by
holding that the vehicle in question did not have valid permit and
fitness certificate whereas the vehicle had valid permit and fitness
certificate. Thus, prayed for allowing the appeal.
7. On the other hand, learned counsel appearing for the Insurance
Company submits that at the relevant point of time, the vehicle in
question was being operated without valid permit and fitness
certificate, therefore, the Tribunal has rightly exonerated the
Insurance Company from its liability. Hence, the appeal of the
owner deserves to be dismissed.
8. Heard learned counsel for the parties and perused the record.
9. The Insurance Company has examined Umesh Tripathi, Assistant
Grade-III of Regional Transport Office Bilaspur and G. D. Bhoi,
Assistant Grade-II of District Transport Office, Janjgir-Champa in
support of their contention regarding permit and fitness certificate
of the offending vehicle. Umesh Tripathi has stated that as per the
original record register, permit of the vehicle in question is Ex.D1
which was issued for the period from 15.12.2009 to 14.12.2014.
The accident took place on 26.10.2009. As such, on the date of
incident, the vehicle in question did not have a valid permit. G. D.
Bhoi, has stated that the details of registration of the vehicle in
question is Ex.D-5 and it was registered in District Transport Office,
Janjgir-Champa on 11.12.2009. The fitness certificate of the said
vehicle is Ex. D-6 which was issued on 11.12.2009 and it was valid
till 10.12.2011. As such, on the date of incident the vehicle did not
have fitness certificate. Learned Tribunal, while discussing this
issue in detail in paragraphs - 17 to 26 of its award, reached to the
conclusion that at the relevant point of time the vehicle in question
did not have valid permit and fitness certificate. In this way, the
conclusion arrived at by the Tribunal that there has been a violation
of the insurance conditions is found to be proper. Hence, the
appeal of the vehicle owner is not found to be sustainable and it is
accordingly dismissed.
10. Learned counsel for appellant/claimant submits that the Claims
Tribunal has failed to consider the nature of injuries suffered by the
claimant and awarded a total compensation of Rs.5,18,432/- which
is a very meager amount and needs to be enhanced suitably. He
submits that as per the disability certificate (Ex.P/161), the
appellant suffered 45% permanent disability due to the accident
whereas the Tribunal has assessed the disability to be 30% and
calculated the compensation accordingly. He submits that the
Tribunal has erred in not considering future prospects while
computing compensation as it failed to appreciate that the injured
claimant could have earned much more if he had not met with the
accident. He submits that the Tribunal has awarded less amount
for medical expenses than the medical bills submitted by the
claimant. He next submits that though the insurance company has
been exonerated due to violation of insurance conditions,
considering the beneficiary legislation of the Motor Vehicles Act, an
order of pay and recover should be passed.
11. On the other hand, learned counsel appearing for the respondents
oppose the submission made by the counsel for claimant and
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.
12. Heard learned counsel for the parties and perused the record.
13. 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.
14. Now this Court shall examine as to whether the compensation
awarded by the Tribunal is just and proper compensation in the
given facts and circumstances of the case.
15. It is an injury case. The claimant has brought on record his
permanent disability certificate (Ex. P-161) issued by the District
Medical Board, Korba. According to the said certificate, there was
45% permanent disability on account of fracture in left leg. This
fact also stands proved from the statement of Dr. Rudrapal Singh
who was a member of the Medical Board and had put his signature
in the disability certificate.
16. However, perusal of the record would show that the income of the
claimant was from betel shop (cart) which is generally done while
sitting in the shop. The Tribunal has calculated the compensation
taking 30% permanent disability according to his whole body
considering the nature of work and the injury sustained by the
claimant, which seems to be proper and does not require any
interference.
17. The Tribunal has assessed the income of claimant at Rs.4,000/-
per month i.e. Rs.48,000 per annum as no documentary evidence
regarding income of the claimant has been brought on record. But,
the Tribunal has not considered future prospects while calculating
compensation. 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% towards
future prospects i.e. Rs.19,200, the amount comes to Rs.67,200.
18. Considering the permanent disability of 30% as has been
assessed, the loss of earning/income would become Rs.20,160
(30% of 67200) per annum. Taking into consideration the age of
claimant to be 40 years at the time of accident and in view of the
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, the multiplier would be 15 instead of 16 as wrongly held by
the Tribunal. After applying the said multiplier, the loss of income
due to permanent disability becomes to Rs.3,02,400 (20,160 x 15).
19. As regards the compensation awarded under medical expenses,
the contention of claimant is that the amount of Rs.2,48,032
awarded towards medical expenses is less than the medical bills
(Ex.P-10 to P-164A) produced by the claimant. Learned Tribunal
while considering the medical expenses in para-29 of its award has
held that the amount of Rs.41,250 mentioned in Ex.P-40 is an
expenditure written on plain paper which has not been verified and
therefore the same is not acceptable. Except the amount shown in
Ex.P-40, all other medical bills submitted by the claimant have
been duly considered by the Tribunal. Hence, the amount of
Rs.2,48,032 awarded towards medical expenses is found to be
proper. The amount of Rs.20,000 for Attendant, nutritious food etc.
and Rs.20,000 for physical & mental agony awarded by the
Tribunal is also found to be proper and reasonable. Accordingly,
the claimant would become entitled for total compensation in the
following manner:-
Heads Calculation
Loss of income due to disability 3,02,400
Medical expenses 2,48,032
Physical and mental agony 20,000
For Attendant, nutritious food etc. 20,000
during hospitalization
Total compensation Rs. 5,90,432
20. Thus, the total compensation is recomputed as Rs.5,90,432/- from
which after deduction of Rs.5,18,432/- as awarded by the Tribunal,
the enhanced compensation would be Rs.72,000/-.
21. So far as the prayer by claimant for issuing an order of "pay and
recover" is concerned, in the present case, admittedly, the
offending vehicle was insured with the Insurance Company but due
to breach of policy condition, the Insurance Company has been
exonerated. However, considering the principles laid down by the
Hon'ble Supreme Court in the case of Amrit Paul Singh and
Another Vs. Tata AIG General Insurance Company Limited and
others reported in (2018) 7 SCC 558 ordering the insurance
company to pay first and then recover and also taking note of the
facts and circumstances of the present case, particularly the fact
that at the time of accident the vehicle was insured with insurance
company, it is directed that the insurance company shall first pay
the amount of compensation awarded to the claimant and then
recover the same from the owner/driver of the offending vehicle.
22. In the result, MAC No.1608/2015 preferred by the injured-claimant
is partly allowed. The claimant Raj Mangal Chauhan @ Rajendra
Chauhan shall be entitled for the enhanced compensation of
Rs.72,000/- 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. Accordingly, the impugned award stands modified to
the above extent and rest of the conditions shall remain intact.
23. MAC No.630/2015 preferred by the owner of the offending vehicle
stands dismissed.
24. The Registry is directed to communicate the claimant in writing "the
enhanced amount" in the appeal as against the award made by the
Tribunal. 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 claimant resides.
Sd/-
(Sanjay Kumar Jaiswal)
Judge
Khatai
