Sikkim High Court
Shri Khem Raj Chettri vs Shri Hem Bahadur Chettri And Ors on 21 May, 2024
Author: Meenakshi Madan Rai
Bench: Meenakshi Madan Rai
THE HIGH COURT OF SIKKIM : GANGTOK
(Civil Appellate Jurisdiction)
DATED : 21st May, 2024
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SINGLE BENCH : THE HON‟BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE
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MAC App. No.06 of 2023
Appellant : Khem Raj Chettri
versus
Respondents : Hem Bahadur Chettri and Others
Appeal under Section 173 of the Motor Vehicles Act, 1988
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Appearance
Mr. Umesh Ranpal, Mr. Loknath Khanal and Ms. Rubusha Gurung,
Advocates for the Appellant.
Mr. Nima Tshering Sherpa and Ms. Vidya Lama, Advocates for the
Respondents No.1 to 5.
Mr. Pawan Gurung and Ms. Rachana Rai, Advocates for the
Respondent No.6.
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JUDGMENT
Meenakshi Madan Rai, J.
1. The Learned Motor Accidents Claims Tribunal, Gangtok,
Sikkim, (for short, "MACT") awarded a total compensation of ₹
63,04,500/-(Rupees sixty three lakhs, four thousand and five
hundred) only, to the Claimants (Respondents No.1 to 5 herein),
and directed the Appellant, (Respondent No.1 before the Learned
MACT), to make good the compensation to the Claimants.
Dissatisfied by the liability thrust on him, in MACT Case No.16 of
2022, (Hem Bahadur Chettri and Others vs. Khem Raj Chettri and
Another), dated 29-05-2023, the Appellant is before this Court.
2. The Claimant No.1 (Respondent No.1 herein) is the
husband of the deceased, the Claimants No.2 and 3 (Respondents
No.2 and 3 herein), are the father-in-law and mother-in-law
respectively, of the deceased and the Claimants No.4 and 5
Khem Raj Chettri vs. Hem Bahadur Chettri and Others
(Respondents No.4 and 5 herein), are the children (son and
daughter respectively) of the deceased.
(i) The parties shall hereinafter be referred to in terms of
their litigative status before this Court.
(ii) On 22-03-2022, the deceased, the wife of the
Respondent No.1, aged about thirty-three years, earning a monthly
fixed salary of ₹ 30,000/-(Rupees thirty thousand) only, was
travelling from Cheuribotey, West Pendam (East Sikkim) toward
Pendam, riding pillion on the scooty belonging to and driven by the
Appellant, bearing registration no.SK-08-P-2080. The scooty which
was speeding, suddenly veered off the road, at 8th Mile, injuring
the deceased, who succumbed to her injuries enroute to the
District Hospital, Singtam. The scooty was duly insured with the
Respondent No.6, the Insurance Company (Respondent No.2
before the Learned MACT), vide Exhibit 9, a package policy.
Compensation of ₹ 70,36,500/- (Rupees seventy lakhs, thirty six
thousand and five hundred) only, was claimed by the Respondents
No.1 to 5.
(iii) The Claim Petition was resisted by the Appellant, who
averred that he had a valid and effective driving licence on the
date of the accident and the vehicle was duly insured with the
Respondent No.6 being a "bundled policy" (first class insurance).
That, the liability rested on the Respondent No.6 and he could not
be rendered liable personally to pay the compensation to the
Respondents No.1 to 5.
(iv) The Respondent No.6 was proceeded ex-parte having
appeared only once on 14-09-2022 before the Learned MACT. No
written statement was filed by the Respondent No.6.
Khem Raj Chettri vs. Hem Bahadur Chettri and Others
(v) The Learned MACT settled three issues for
determination;
(1) Whether the Petitioners/Claimants are entitled to the
compensation or not? If so, who is liable to compensate?
(2) Whether the documents of the accident vehicle bearing
registration no.SK-08-P-2080 were valid and effective at the time
of accident?
(3) Whether the Claimants are entitled to any relief(s)?
(vi) The Learned MACT after considering the evidence and
documents on record concluded in issue no.1 that, the pillion rider
was not wearing a helmet, thereby contravening the provisions of
Section 129 of the Motor Vehicles Act, 1988 (hereinafter, the "MV
Act"), which mandates the wearing of protective headgear. That,
in the instant case the Appellant had allowed the deceased to ride
pillion on his scooty, in clear violation of the said provision, hence
it was concluded that the Respondents No.1 to 5 are entitled to the
compensation, the liability of which rested upon the Appellant. In
issue no.2, it was found that all the documents of the vehicle in
accident including the driving licence were valid and effective at the
time of accident and hence issue no.2 was decided accordingly. In
issue no.3, the Learned MACT reached a finding that the income
certificate, Exhibit 13, indicated that the deceased was earning ₹
30,000/-(Rupees thirty thousand) only, per month, working as a
supervisor in Sikkim Foils, located at Bardang, Singtam, Sikkim
and having found that the age of the deceased was thirty-three
years in terms of the inquest report Exhibit 4, the compensation
was computed accordingly and the amount granted as already
reflected.
Khem Raj Chettri vs. Hem Bahadur Chettri and Others
3. Before this Court, it is contended by Learned Counsel
for the Appellant that the Learned MACT was in error in directing
the Appellant to pay the compensation as there was no violation of
the terms of the insurance policy. Secondly, there was no proof
whatsoever that the deceased was not wearing a helmet. Even if,
the deceased was not wearing a helmet, there was no causal
connection between the violation and the accident. Drawing
succour from the ratio in Mohammed Siddique and Another vs.
National Insurance Company Limited and Others , it was contended
that the Supreme Court observed therein that, the fact that the
deceased was riding on a motor cycle, along with the driver and
another, may not, by itself, without anything more, make him
guilty of contributory negligence. There must be a causal
connection between the violation and the accident or a causal
connection between the violation and the impact of the accident
upon the victim. Strength was also derived from the decision in
Anjana Narayan Kamble and Others vs. Branch Manager, Reliance
General Insurance Company Limited and Another wherein the
Supreme Court reiterated the principle laid down in Mohammed
Siddique (supra). That, as the deceased was riding pillion on the
scooty, which was driven in a rash and negligent manner and the
scooty was duly insured vide a package policy, Exhibit 9, the
Respondent No.6 was liable to pay the compensation granted and
not the Appellant, the owner of the scooty.
4. Learned Counsel for the Respondents No.1 to 5
submitted that the Learned MACT has correctly granted the total
compensation. That, this Court may consider as to who is
(2020) 3 SCC 57
Civil Appeal No.5113 of 2022 of the Supreme Court of India, decided on 04-08-2022.
Khem Raj Chettri vs. Hem Bahadur Chettri and Others
liable to make good the compensation to the Respondents No.1 to
5 and they have no specific submissions to make in this context.
5. Per contra, it was contended by Learned Counsel for
the Respondent No.6 that, in view of the violation of the
mandatory provision of the MV Act that requires the riders on two
wheelers to wear helmet, the owner was liable to pay the
compensation granted. That, in terms of the contract of insurance,
the liability of the insurance company in any event was limited.
That, a Single Bench of this Court in The Branch Manager, United
India Insurance Company Limited vs. Jit Man Rai and Another had
denied compensation to the person who was riding a bike and met
with an accident leading to his death and hence this Judgment be
taken into consideration as the Respondents No.1 to 5 are not
entitled to compensation. Should they be found so entitled, the
Respondent No.6 be exempted from payment of compensation as
the liability rests with the Appellant.
6. The submissions advanced have been afforded due
consideration, all evidence, documents and the impugned
Judgment have been perused carefully, as also the citations made
at the Bar.
7. Was the Learned MACT correct in directing the
Appellant to pay the Award granted to the Respondents No.1 to 5
is the question to be determined here.
8. In the first instance, it is noticeable that the
Respondent No.6 entered appearance before the Learned MACT on
14-09-2022. Thereafter, no response/written statement was filed
to contest the Claim Petition nor did the party enter appearance
2016 SCC OnLine Sikk 87
Khem Raj Chettri vs. Hem Bahadur Chettri and Others
thereafter. In the obtaining circumstances, the question of the
Respondent No.6 leading evidence in the matter obviously did not
arise. The Appellant for his part had averred in his written
objection that the policy was a "bundled policy" (first class
insurance). There was no denial by Respondent No.6 to this
assertion. Exhibit 9 relied on by the Appellant also reveals that it
was a ".........Two Wheeler Policy ─ Bundled" with rates of various
premium paid indicated on it.
(i) On careful consideration of the evidence on record, it
is gleaned therefrom that, the scooty was driven at high speed by
the Appellant, however the wearing or non-wearing of the helmet
has not been extracted in the evidence. Assuming that the
deceased was not wearing a helmet at the time when the accident
occurred, it would definitely not be the proximate cause for the
accident. In this context, in Mohammed Siddique (supra) which was
reiterated in Anjana Narayan Kamble (supra), the Supreme Court
held that;
"6. .........................................................................
"13. But the above reason, in our view, is
flawed. The fact that the deceased was riding
on a motor cycle along with the driver and
another, may not, by itself, without anything
more, make him guilty of contributory
negligence. At the most it would make him
guilty of being a party to the violation of the
law. Section 128 of the Motor Vehicles Act,
1988, imposes a restriction on the driver of a
two wheeled motor cycle, not to carry more
than one person on the motor cycle. Section
194C inserted by the Amendment Act 32 of
2019, prescribes a penalty for violation of
safety measures for motor cycle drivers and
pillion riders. Therefore, the fact that a person
was a pillion rider on a motor cycle along with
the driver and one more person on the pillion,
may be a violation of the law. But such
violation by itself, without anything more,
cannot lead to a finding of contributory
negligence, unless it is established that his very
act of riding along with two others, contributed
Khem Raj Chettri vs. Hem Bahadur Chettri and Others
either to the accident or to the impact of the
accident upon the victim. There must either be
a causal connection between the violation and
the accident or a causal connection between
the violation and the impact of the accident
upon the victim. It may so happen at times,
that the accident could have been averted or
the injuries sustained could have been of a
lesser degree, if there had been no violation of
the law by the victim. What could otherwise
have resulted in a simple injury, might have
resulted in a grievous injury or even death due
to the violation of the law by the victim. It is in
such cases, where, but for the violation of the
law, either the accident could have been
averted or the impact could have been
minimized, that the principle of contributory
negligence could be invoked. It is not the case
of the insurer that the accident itself occurred
as a result of three persons riding on a motor
cycle. It is not even the case of the insurer that
the accident would have been averted, if three
persons were not riding on the motor
cycle............" (Emphasis Supplied)."
The law has thus been expounded on the aspect of causal
connection with violation of mandated safety measures, in a motor
vehicle accident with its consequences.
(ii) In consideration of the facts and circumstances and the
legal pronouncements, while I am in agreement with the finding of
the Learned MACT in issues no.2 and 3 settled by it, I cannot bring
myself to agree with the finding of the Learned MACT with the
second part of issue no.1 that, the liability to pay the compensation
should be cast on the Appellant. This would be the case only if
there was a violation of the terms of the insurance policy and a
causal connection found between the violation and the accident,
which in the instant case is not so. On this count, this Court in
Suresh Khati vs. Santosh Chettry and Others held as follows;
"13. In conclusion, summing up all the
discussions which have emanated hereinabove, it is
apparent that the insurer cannot escape its liability
when it has failed to establish breach of the policy
conditions. The question of pay and recovery in the
2023 SCC OnLine Sikk 58
Khem Raj Chettri vs. Hem Bahadur Chettri and Others
case of an insured vehicle, as ordered by the Claims
Tribunal would arise only in the eventuality of proof,
that, there was a breach of the policy conditions. In
the absence of such breach, as in the instant case,
where it has been established that the owner had put
a licensed driver in-charge of his vehicle, the question
of pay and recovery does not arise. The Claims
Tribunal has clearly misdirected itself on this aspect
and erroneously ordered recovery of the insured
amount from the Appellant, the Respondent No.3 and
the Respondent No.4."
The scooty being duly insured by the Appellant with the
Respondent No.6, in the absence of proof of violation of the terms
of the policy and the non-wearing of the helmet not being the
causal connection to the accident, it is the Respondent No.6 who is
liable to pay the compensation. Reliance on Jit Man Rai (supra) by
the Respondent No.6 is misplaced and of no assistance to its case
as in the said case Jit Man Rai, the deceased, was the driver/owner
of the scooter and was therefore the insured. The issue of insurer,
the insured and third party is not being delved into here as the
matter under consideration is not concerned with such a question.
9. Now, addressing the quantum of compensation, the
computation arrived at by the Learned MACT has not been
challenged the Respondent No.6. On perusal of the compensation
computed, it is seen that various amounts were calculated under
the following heads;
Sl. No. Head Amount in ₹
1 Loss of earning 60,48,000
2 Funeral expenses 16,500
3 Loss of estate 15,000
4 Love and affection 1,00,000
5 Loss of consortium 1,00,000
6 Cost of litigation 25,000
7 TOTAL ₹ 63,04,500
Khem Raj Chettri vs. Hem Bahadur Chettri and Others
10. There are a catena of Judgments of the Supreme Court
which lay down the heads under which compensation is to be
calculated, computation under such heads have not been factored
in by the Learned MACT, while those heads which are to be
excluded have been included for the purposes of calculating the
compensation. In such circumstances, I am of the considered view
that the compensation is to be re-computed to arrive at a "just
compensation";
Annual income of the deceased (₹ 30,000/- x 12) ₹ 3,60,000.00
Add 40% of ₹ 3,60,000/- as Future Prospects (+) ₹ 1,44,000.00
[Since the deceased was on a fixed salary in terms of Paragraph 59.4 ₹ 5,04,000.00
of the Judgment of National Insurance Company Limited vs. Pranay
Sethi and Others : (2017) 16 SCC 680]
Less 1/3rd of ₹ 5,04,000/- (-) ₹ 1,68,000.00
[in terms of Paragraph 30 of the Judgment of Sarla Verma (Smt)
and Others vs. Delhi Transport Corporation and Another : (2009)
6 SCC 121 -- deducted from the above amount as expenses that the
deceased would have incurred towards herself had she been alive]
Net yearly income ₹ 3,36,000.00
Multiplier to be adopted „16‟ (₹ 3,36,000/- x 16) (+) ₹ 53,76,000.00
[The age of the deceased at the time of death was '33' and the
relevant multiplier in terms of Paragraph 42 as per the Judgment
of Sarla Verma (supra) is „16‟]
Hence loss of earning is placed as ₹ 53,76,000.00
Add Funeral Expenses (+) ₹ 15,000.00
[in terms of Paragraph 59.8 of the Judgment of Pranay Sethi (supra)]
Add Loss of Estate (+) ₹ 15,000.00
[in terms of Paragraph 59.8 of the Judgment of Pranay Sethi (supra)]
Add Loss of Spousal Consortium (+) ₹ 40,000.00
[@ husband of the deceased, in terms in terms of Paragraph 21 of the
Judgment of Magma General Insurance Company Limited vs. Nanu
Ram alias Chuhru Ram and Others : (2018) 18 SCC 130]
Add Loss of Parental Consortium (₹ 40,000/- x 2) (+) ₹ 80,000.00
[@ one son and one daughter of the deceased, in terms of Paragraph 21
of the Judgment of Magma General Insurance Company Limited (supra)]
Total = ₹ 55,26,000.00
(Rupees fifty five lakhs and twenty six thousand) only.
Hence, the total compensation arrived at is ₹ 55,26,000/-
(Rupees fifty five lakhs and twenty six thousand) only.
11. The Learned MACT had granted ₹ 1,00,000/- (Rupees
one lakh) only, for love and affection, however more recently a
three Judge Bench in United India Insurance Company Limited vs.
Khem Raj Chettri vs. Hem Bahadur Chettri and Others
Satinder Kaur alias Satwinder Kaur and Others observed as extracted
below;
"34. At this stage, we consider it necessary to
provide uniformity with respect to the grant of consortium,
and loss of love and affection. Several Tribunals and the
High Courts have been awarding compensation for both loss
of consortium and loss of love and affection. The
Constitution Bench in Pranay Sethi [National Insurance Co.
Ltd. v. Pranay Sethi, (2017) 16 SCC 680 : (2018) 3 SCC (Civ)
248 : (2018) 2 SCC (Cri) 205] , has recognised only three
conventional heads under which compensation can be
awarded viz. loss of estate, loss of consortium and funeral
expenses. In Magma General [Magma General Insurance Co.
Ltd. v. Nanu Ram, (2018) 18 SCC 130 : (2019) 3 SCC (Civ) 146 :
(2019) 3 SCC (Cri) 153], this Court gave a comprehensive
interpretation to consortium to include spousal consortium,
parental consortium, as well as filial consortium. Loss of love
and affection is comprehended in loss of consortium."
(Emphasis Supplied)
In terms thereof compensation granted for love and affection
by the Learned MACT is being disregarded. Cost of litigation has not
been granted in any of the Judgments supra, compensation granted
by the Learned MACT under this head is excluded herein.
12. It is seen that the Learned MACT vide the impugned
Judgment, has not divided the compensation awarded amongst the
Respondents No.1 to 5. The Respondents No.2 and 3 being the
parents-in-law of the deceased cannot be said to be her dependants.
As her husband, their son is alive, it is safely assumed that they are
his dependants. Consequently, in my considered view the
Claimants/Respondents No.1, 4 and 5 are only entitled to the
compensation.
13. The Respondent No.6-Insurance Company is directed
to pay the awarded compensation to the Claimants-Respondents
No.1, 4 and 5 within one month from today, with simple interest @
9% per annum, with effect from the date of filing of the Claim
Petition before the Learned MACT, i.e., 19-07-2022, till its full
(2021) 11 SCC 780
Khem Raj Chettri vs. Hem Bahadur Chettri and Others
realisation failing which, it shall pay simple interest @ 12% per
annum, instead for the period described.
14. Amounts, if any, already paid by the Respondent No.6-
Insurance Company to the Respondents No.1, 4 and 5, shall be
duly deducted from the awarded compensation.
15. The modified compensation along with interest as
specified above, shall be divided amongst the Respondent No.1
being the spouse of the deceased and Respondents No.4 and 5
being the minor children, in the following manner, duly setting
aside the order of the Learned MACT on this aspect.
(i) From the awarded compensation, Respondent No.1, spouse
of the deceased, is entitled to 34%; and
(ii) 66% of the total amount of compensation awarded shall be
divided equally amongst the Respondents No.4 and 5 (minor
children of the deceased), i.e., 33% each.
(iii) 50% of the share of each child, shall be deposited in
individual Fixed Deposits in a Nationalised Bank, until each
child attains the age of majority.
(iv) The remaining 50% of each of the minor's share shall be
expended towards their education and upkeep.
16. Appeal allowed and disposed of.
17. No order as to costs.
18. Copy of this Judgment be sent forthwith to the Learned
MACT for information, along with its records.
( Meenakshi Madan Rai )
Judge
21-05-2024
Approved for reporting : Yes
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