Chattisgarh High Court

Smt. Fhuleshwari Netam vs Siyaram Gond on 2 May, 2025

                                   1

                        Digitally signed by
                        SHUBHAM SINGH
                        RAGHUVANSHI
                        Date: 2025.05.05
                        13:01:35 +0530




                                              2025:CGHC:20146


                                                         NAFR

      HIGH COURT OF CHHATTISGARH AT BILASPUR


                     MAC No. 992 of 2019


1 - Smt. Fhuleshwari Netam, W/o Late Vinod Kumar Netam
Aged About 30 Years, R/o Village Limha, (Andhiyaripara), Police
Station Ratanpur, Tahsil And District Bilaspur Chhattisgarh


2 - Ku. Prema Netam S/o Late Vinod Kumar Netam Aged About
10 Years Through Natural Guardian of Her Mother Smt.
Fhuleshwari Netam W/o Late Vinod Kumar Netam R/o Village
Limha, (Andhiyaripara), Police Station Ratanpur, Tahsil And
District Bilaspur Chhattisgarh.(Claimants)
                                                 --- Appellants
                               versus
1 - Siyaram Gond S/o Vishram Gond, Aged About 46 Years R/o
Village Limha, (Gatepara) Police Station Ratanpur, Tahsil And
District Bilaspur Chhattisgarh. (Driver)


2 - Arun Kumar Kaiwart S/o Budhwar Kaiwart Aged About 45
Years R/o Village Harnmodi, (Tikrapara) Police And Tahsil Pali
District Korba Chhattisgarh. (Owner)


3 - Tata A.I.G. General Insurer Company Limited Through Tata
A.I.G. General Insurance Company Limited Branch Manager,
Local Address T-8 Forth Floor, Gwalini Chambers, Vyapar Vihar
                                2

Main    Road,   Bilaspur,    Tahsil   And    District   Bilaspur
Chhattisgarh.. (Insurer)
                                              --- Respondent(s)

Tata A.I.G. General Insurance Company Limited Through Its Legal Manager, Officer No. 403, 4th Floor, Db, City Corporate Park, Flat No. 1, Block No. 9, Rajbandha, Maidan Raipur Chhattisgarh (Insurer)

---Appellant

Versus

1 - Smt. Fuleshwari Netam W/o Late Vinod Kumar Netam Aged About 30 Years R/o Village Limha (Andhiyarin), Police Station Ratanpur, Tahsil And District Bilaspur Chhattisgarh

2 - Ku. Prema D/o Late Vinod Kumar Netam Aged About 10 Years Minor Through Natural Guardian Smt. Fuleshwari Netam, r/o Village Limha (Andhiyarin), Police Station Ratanpur, Tahsil And District Bilaspur Chhattisgarh (Claimants)

3 - Siyaram Gond S/o Vishram Gond, Aged About 46 Years R/o Village Limha (Getpara), Police Station Ratanpur, Tahsil And District Bilaspur Chhattisgarh (Driver)

4 - Arun Kumar Kaiwart S/o Budhwar Kaiwart Aged About 45 Years R/o Village Haranmudi (Tikrapara) Police Station And Tahsil Pali, District Korba Chhattisgarh (Owner)

---- Respondents

In MAC (992/2019) For Appellants :Mr. Nikhil Sahu, Advocate on behalf of Mr. Akath Kumar Yadv, Advocate For Res. No.1 & 2 :None.

For Res. No.3 :Mr. Sorabh Gupta, Advocate on behalf of Mr. Sourabh Sharma, Advocate In MAC (1009/2019) For Appellant :Mr. Sorabh Gupta, Advocate on behalf of Mr. Sourabh Sharma, Advocate For Res. No.1&2 :Mr. Nikhil Sahu, Advocate on behalf of Mr. Akath Kumar Yadv, Advocate For Res. No.3&4 :None

Hon'ble Shri Justice Sanjay Kumar Jaiswal (Order on Board) (02.05.2025)

1. Since both the appeals arise out of same award dated

19.02.2019, passed by Additional Motor Accident Claims

Tribunal, Bilaspur (C.G.), in MACC No.156/2018, therefore,

they are being heard and decided by this common order.

2. The gist of the claims before the Tribunal, in brief, was that

on 01.11.2017, when Vinod Kumar Netam (now deceased) was

waiting for a bus at Bhakoli Dabra at that time driver-Siyaram

Gond of the offending vehicle (Tractor) bearing registration No.

CG-12-AR-9203, driving the offending vehicle in a rash and

negligent manner due to which the Tractor overturned as a

result, the deceased died on spot due to being crushed under it.

The incident was reported at concerned Police Station based on

which a criminal case was registered.

3. It is claimed that at the time of accident, deceased Vinod

was aged about 30 years. He was a Mason and a labour as well

and was earning about Rs. 1,80,000/- to 2,40,000/- yearly from

his works. Due to the casual death of Vinod, there is an

irreparable loss to his legal heirs/claimants, therefore, the legal

heirs/claimants of Vinod had preferred an application before the

Tribunal claiming compensation to the tune of Rs. 52,40,000/-.

4. Learned Tribunal, on a close scrutiny of the evidence brought

on record, assessed monthly income of the deceased to

Rs.6,000/- given 40% future prospects, deducted 1/3 income

towards personal and living expenses, applied multiplier of 17,

given 50,000/- towards other heads and awarded total Rs.

11,92,400/- in favour of the claimants with interest @ 6 % per

annum, from the date of application till its realization. While

passing the award, the Claims Tribunal has fastened the liability

upon Driver, Owner and Insurer. Hence, MAC No. 992/2019 has

been filed by the claimants for enhancement and MAC

No.1009/2019 has been filed by the Insurance Company to be

freed from the liability.

(MAC NO.992/2019)

5. Learned counsel for the appellants/claimants submits

that the learned Tribunal erred in not assessing the proper

monthly income of the deceased. Learned Counsel further

submits that the Tribunal has also awarded lesser amount on

other heads, therefore, this appeal may be allowed and amount

of compensation may be enhanced suitably.

6. None appears on behalf of Respondents No.1 & 2, Driver

and Owner.

7. On the other hand learned Counsel appearing for

Respondent No.3/ Insurance Company opposes the argument

advanced by learned Counsel appearing for the

appellants/claimants and submits that the impugned award is

just and proper and requires no enhancement.

8. Now this Court shall examine as to whether the

compensation of Rs.11,92,400/- awarded by the Tribunal is just

and proper compensation in the given facts and circumstances

of the case.

9. As regards the income of the deceased, as no documentary

evidence in support of income of the deceased has been

produced, but it cannot be said that the deceased was not

earning anything from his work. Therefore, in absence of any

reliable evidence regarding income of the deceased, as per

notification of Labour Department for minimum wages, I find it

appropriate to take income of the deceased as Rs. 7,930/- per

month as minimum wages, at the relevant time of accident i.e.

01.11.2017. The annual income comes to Rs. 95,160/- per

annum. As per National Insurance Company Ltd., Vs. Pranay

Sethi and Others, (2017) 16 SCC 680, the deceased was aged

about 30 years, after adding 40% towards future prospects i.e.

Rs. 38,064/-, the annual income comes to Rs. 1,33,224/-

(95160+38064).

10. The deceased was aged about 30 years and was married

and the claimants (total 2) are wife & daughter of the deceased

so deduction towards personal expenses would be 1/3 which

dependency comes to Rs. 88,816/-(133224-44408). In view of

judgment of the Hon'ble Supreme Court in 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 considering the age of the deceased, after applying

multiplier of 17, the total loss of dependency works out to Rs.

15,09,872/-. The claimants are further entitled to get Rs.

15,000/- for loss of estate, Rs. 15,000/- for funeral expenses

and as per 'Magma General Insurance Co. Ltd. Vs. Nanu,

reported in AIR Online 2018 SC 189, they are further entitled

to get Rs. 40,000/- each for loss of spousal consortium, love and

affection. Therefore, the claimants would become entitled for

total compensation of Rs. 16,19,872/-. Thus, the claimants are

entitled for compensation in the following manner:-

S.No.               Heads                         Calculation

  01    Towards loss of dependency                Rs. 15,09,872/-
  02    Towards loss of estate                         Rs. 15,000/-
  03    Towards love and affection to                  Rs. 80,000/-
        each claimants @ Rs.
        40,000/- (40000 x 2)
  04    Funeral Expenses                               Rs. 15,000/-
                    Total                        Rs. 16,19,872/-

11. Thus, the total compensation is recomputed as Rs.

16,19,872/-. After deducting Rs. 11,92,400/- as awarded by the

Tribunal, the enhancement would be Rs. 4,27,472/-.

12. Accordingly, the claimants shall be entitled to get

Rs.4,27,472/- in addition to what is already awarded by the

Claims Tribunal. The enhanced amount will carry interest @ 6%

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.

(MAC No.1009/2019)

13. As far as the question of liability with regard to insurance

company is concerned, the main contention of learned counsel

for the appellant/Insurance Company is that at the time of

accident, the deceased was occupant in the offending vehicle

(Tractor), therefore, the deceased was gratuitous

passenger/non-fare paying passenger and his risk was not

covered under the insurance policy. He further submits that in

support of the above argument, Administrative Officer

Himanshu Garge (NAW-3) has been examined by the insurance

company who specifically stated that on the date of the accident,

the deceased, Vinod Kumar Netam, was unauthorisedly carried

on Tractor bearing Registration No. CG 12 AR 9203, which is a

violation of the terms and conditions of insurance policy. The

seating capacity of the Tractor is for the driver only and risks of

anyone else are not covered. In such circumstances, the

company bears no liability whatsoever. Furthermore, from the

FIR (Ex.P-2) filed by the Claimants' side, it is clearly mentioned

that the deceased was occupant in the offending vehicle at the

time of accident. Thus, prayed for allowing the appeal by

exonerating the Insurance Company from its liability.

14. On the other hand, learned counsel appearing for the

respondents 1 & 2 - claimants submits that the deceased was

not occupant in the offending vehicle rather he was waiting for a

bus at roadside when the accident happened. In support of his

argument, he rely upon the statement of eye-witness Bhagat

Kumar Kenwat (AW-2). Hence, in the facts and circumstances of

the case, the impugned award passed by the Tribunal regarding

liability is just and proper and does not require any interference.

15. None appears on behalf of Respondents No.3 & 4, Driver

and Owner.

16. Arguments of the parties are heard and the record is

minutely perused.

17. The moot question for consideration is whether at the time

of accident deceased Vinod Kumar Netam was occupant or not

in the offending vehicle?

18. Fuleshwari Netam (AW-1) wife of the deceased has been

examined before the Tribunal who stated that the deceased was

not occupant in the offending vehicle. The eye/independent

witness of the case is Bhagat Kumar Netam (AW-2) who has

been examined before the Claims Tribunal and specifically

stated that on the date of accident i.e. 01.11.2017, he was going

from village to Jali to Ratanpur and near Akoli-Dabra, he saw

that driver of the offending vehicle was driving in a rash and

negligent manner and hit a person (the deceased) standing on

the roadside due to which the vehicle went out of control and

overturned upon that person. In his cross-examination, he

specifically stated that at the time of accident, no person was

sitting on the offending vehicle except its driver. The statement

of this spot witness has not been rebutted.

19. Himanshu Garge (NAW-3) has been examined by the

insurance company who specifically stated that on the date of

the accident, the deceased, Vinod Kumar Netam, was

unauthorisedly carried on Tractor. In this regard, he has cited

the details mentioned in the First Information Report (Ex.P-2)

but, this witness is not a spot witness. The Claims Tribunal in

its award has discussed that the facts mentioned in the First

Information Report (Ex.P-2) indicate that the informant,

Gaurishankar Yadav, did not witness the incident but arrived at

the spot after the occurrence.

20. In such circumstances, it was incumbent upon the

insurance company to produce evidence in rebuttal of the

testimony of claimant witness Bhagat Kumar Kewat (A.W. 2) to

establish that the deceased was indeed seated in the Tractor at

the time of the accident. However, the insurance company not

examined any person who had seen the deceased seated in the

Tractor at the relevant time. Accordingly, it is not proved that

the Tractor bearing registration number CG 12 AR 9203 was

being operated in violation of the terms of the insurance policy

at the date and time of the accident. Though as per FIR (Ex.P-2),

it is mentioned that the deceased was sitting in the offending

vehicle. But this document is not substantive piece of evidence.

21. In this regard, the Hon'ble Supreme Court in the case of

National Insurance Company Limited v. Chamundeswari

and Others reported in (2021) 18 SCC 596 has held that if the

statements of the eye witnesses examined before the court are

not contradicted/rebutted by other witnesses present at the

spot, the same cannot be considered as contradicted/rebutted

on the basis of the First Information Report. In paragraph-8 of

the said judgment it has been observed as under:-

"8. It is clear from the evidence on record of PW- 1 as well as PW-3 that the Eicher van which was going in front of the car, has taken a sudden right turn without giving any signal or indicator. The evidence of PW-1 & PW-3 is categorical and in absence of any rebuttal evidence by examining the driver of Eicher van, the High Court has rightly held that the accident occurred only due to the negligence of the driver of Eicher van. It is to be noted that PW-1 herself travelled in the very car and PW-3, who has given statement before the police, was examined as eye-witness. In view of such evidence on record, there is no reason to give weightage to the contents of the First Information Report. If any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report."

22. Coming back to the facts of the present case, it is clear

from the evidence that Bhagat Kumar Kenwat (AW-2) is the

spot/eye witness. He has clearly stated that at the time of

accident the deceased was standing on the roadside at the time

of accident. Therefore, in the light of said decision of the Hon'ble

Supreme Court, the evidence recorded before the Tribunal has

to be given weightage over the contents of the FIR.

23. Accordingly, in that view of the matter, it is held that at the

time of accident deceased Vinod was not occupant in the

offending vehicle. Therefore, the conclusion of the Tribunal

regarding liability is found to be proper and does not require any

interference.