Sikkim High Court
Prem Bahadur Rai And Ano vs The Branch Manager, United India ... on 10 July, 2025
Author: Bhaskar Raj Pradhan
Bench: Bhaskar Raj Pradhan
1
MAC App. No. 22 of 2024
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
THE HIGH COURT OF SIKKIM: GANGTOK
(Civil Appellate Jurisdiction)
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SINGLE BENCH: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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MAC. App. No. 22 of 2024
1. Shri Prem Bahadur Rai,
S/o Late Sikpa Rai,
Aged about 72 years.
2. Smt. Khus Kumari Rai,
W/o Shri Prem Bahadur Rai,
Aged about 67 years.
Both residents of Kaizaley, Amba Village,
District Pakyong, Sikkim,
Pin Code-737133.
.... Appellants/Claimants
versus
1. The Branch Manager,
United India Insurance Co. Ltd.
Having its branch office at Deorali Bazaar,
Deorali, Gangtok, Sikkim,
Pin Code-737102.
2. Shri Saharman Chettri,
S/o Chandra Bahadur Chettri,
R/o Bering, Pakyong,
Sikkim,
Pin Code-737135.
(Owner of the Accident Vehicle No.SK-7-D-0102)
.... Respondents
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Appeal under Section 173 of the Motor Vehicles Act, 1988.
Appearance:
Mr. Umesh Ranpal and Ms. Rubusha Gurung, Advocates
for the Appellants/Claimants.
Mr. Pramit Chettri, Advocate for the Respondent No.1.
2
MAC App. No. 22 of 2024
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
Mr. Bhusan Nepal, Advocate for the Respondent no.2.
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Date of Hearing : 02.07.2025
Date of Judgment : 10.07.2025
JUDGMENT
Bhaskar Raj Pradhan, J.
1. The appellants/claimants-father and mother of the
deceased in an application filed under Section 166 of the Motor
Vehicles Act, 1988 (the MV Act) had sought compensation to
the tune of Rs. 22,41,000/- (Rupees twenty two lakhs forty one
thousand) only, on account of the accidental death of their son
in a motor vehicle accident that occurred on 20.04.2023.
2. The question which arose for consideration before the
learned Motor Accident Claims Tribunal (the learned Tribunal)
was whether the deceased was a workman covered by the
insurance policy or a gratuitous passenger not entitled to
compensation? Both were questions of fact.
3. The learned Tribunal has rejected the claim of the
appellants (claimants) who were the parents of the deceased on
the ground that the deceased was a gratuitous passenger in the
accident vehicle and not a workman or a helper in the accident
vehicle.
4. The claimants had asserted that the deceased was working
as a daily wage labor of the accident vehicle and on the relevant
day of the accident he was travelling from Rorathang to Bering
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
to unload sand of Ms. Durga Mishra when the accident
occurred due to which both the deceased and his brother died.
5. The Insurance Company (respondent no.1) disputed the
claim made by the claimants by filing its written objection and
denying the assertion of the claimants that the deceased was a
workman working as a daily laborer in the accident vehicle. The
Insurance Company asserted that the deceased and the driver
of the accident vehicle were from the same village and therefore,
the deceased had taken a lift in the accident vehicle. The
Insurance Company supported this claim by filing the Motor TP
Claims Investigation Report (exhibit-R1) made by Binud Arjel-
the Insurance Investigator who opined that the deceased was a
gratuitous passenger in his report.
6. The owner of the accident vehicle (respondent no.2) in his
written objection admitted that he had required five bags of
sand to repair the drain of his house which were loaded in the
accident vehicle along with the sand of Mr. Durga Mishra on the
relevant day; the deceased boarded the accident vehicle to
unload the said five bags of sand belonging to the owner but
unfortunately before unloading the sand, the accident vehicle
met with an accident.
7. In the insurance policy it is seen that the owner has paid
an additional premium for insuring his liability to workmen
greater than six. The insurance policy which is dated
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
04.02.2023 does not define the word "workmen". During the
course of the hearing it was suggested that the word "workmen"
as mentioned in the insurance policy would have the same
meaning as was defined in Workmen Compensation Act, 1923.
By section 4 of the Workmen Compensation (Amendment) Act,
2009 nomenclature of the Act has been amended by
substituting the word "Employee's" for the word "Workmen's"
w.e.f. 18.01.2010 and now the Act stands as the Employee's
Compensation Act, 1923. The Employee's Compensation Act,
1923 defines the word "Employee" in section 2(dd) to include a
person recruited as driver, helper, mechanic, cleaner or any
other capacity in connection with a motor vehicle. Thus, the
deceased would be covered by the definition of an "Employee" as
aforesaid and a "workman" covered by the Insurance Policy.
8. The appellant no.1 (claimant no.1)-(the father of the
deceased) deposed that his deceased son used to work as a
daily wage laborer and on the relevant day of the accident he
was travelling in the accident vehicle from Rorathang to Lower
Bering to unload the sand of Mr. Durga Mishra; before reaching
the house of Mr. Durga Mishra, enroute, the deceased had to
unload four bags of sand belonging to the respondent no.2-
owner at his house. The claimant no.1 also stated that since the
accident vehicle was a hydraulic vehicle the four bags of sand
had to be manually unloaded by the deceased and further when
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
the accident vehicle reached lower Bering the driver lost control
and met with an accident when both his sons as well as the
driver succumbed to their injuries. The evidence of the
claimant no.1 stood firm even after his cross examination by
the respondents including the Insurance Company.
9. The Insurance Company examined only Binud Arjel as
their witness. Binud Arjel was an Insurance Investigator as per
the Insurance Company. In his evidence on affidavit he stated
that he was a General Insurance Investigator and he had
investigated the present case as per instruction received from
the Insurance Company. Binud Arjel stated that he learned
from the injured persons Suraj Rai and Santi Dangal the
deceased took a lift in the accident vehicle. During cross
examination he admitted that he had not recorded the
statements of the claimant and other witnesses. He also
admitted that the accident vehicle had gone to deliver sand from
the quarry. Neither Suraj Rai nor Santi Dangal was examined
as witnesses by the Insurance Company. The deposition of
Binud Arjel-the Insurance Investigator as well as his report has
no evidentiary value being hearsay in nature. When the
Insurance Company cross-examined the claimant No.1 the
suggestions to the claimant No. 1 was contrary to what was
pleaded in its written objection. The suggestion of the Insurance
Company to the claimant No.1 was that the deceased used to
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
travel in the accident vehicle as he also worked for the accident
vehicle owner in carrying load. It was also suggested that the
deceased used to travel in the accident vehicle and did petty
work in the accident vehicle. Both the suggestions of the
Insurance Company were answered in the affirmative by
claimant No.1. The suggestions made by the Insurance
Company to the claimant No.1 as above which were answered
in the affirmative would be binding on the Insurance Company
and significant to be considered. Both the suggestions were to
the effect that the deceased was in fact a workman.
10. The learned Tribunal in the impugned judgment dated
25.06.2024 framed a singular issue as to whether the claimants
were entitled to the relief sought and if so who is liable to pay
the same. The learned Tribunal held that there is no dispute
that the deceased had died in the accident vehicle; the inquest
report (exhibit-5) and the autopsy report (exhibit-14) shows that
the death of the deceased was due to intracranial hemorrhage
with fracture of skull and other poly-trauma caused with a
blunt force trauma; the FIR (Exhibit-2 and 3) reveal that the
accident had occurred at lower Bering and a case under
Sections 279/338/304A of the Indian Penal Code, 1860 (IPC)
was registered against the deceased driver. The learned
Tribunal also held that the accident was caused due to the
negligence of the driver and all the relevant documents relating
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
to the accident vehicle were valid and effective. It was also held
that the insurance policy was valid and effective and additional
premium of Rs.100/- was paid for liability to workmen.
11. The learned Tribunal however, felt that it was not clear
whether the deceased was a worker employed in the operation
of the accident vehicle. The evidence of Binud Arjel-the
Insurance Investigator to the effect that the deceased was not
working as a laborer in the accident vehicle found favor with the
learned Tribunal more reliable than the evidence led by the
claimants. The evidence of Binud Arjel-the Insurance
Investigator was held to be reliable and not demolished in cross
examination. The solitary evidence of Binud Arjel-the Insurance
Investigator led to the rejection of the claim made by the
claimants holding that the deceased was a gratuitous passenger
and not a workman in the accident vehicle.
12. The learned counsel for the claimants questions this
finding of the claims Tribunal and submits that in matters of
this nature the evidence on record would clearly lead to a
conclusion that in fact the deceased was a workman under the
owner in the accident vehicle which met with an accident on the
fateful day. The learned counsel for the respondent no.1
supports the impugned judgment. The learned counsel for the
respondent no.2-the owner draws attention to his pleading in
the written objection admitting that the deceased was in fact a
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
workman under him and employed on that particular day for
his purpose.
13. The claimant no.1 was the father of the deceased. The
deceased was at the relevant time of the accident residing with
the claimants. The claimant no.1 would thus be aware of his
son's engagements. The claimants pleaded that the deceased
was working as a helper with the owner in the accident vehicle.
The claimant no.1 also deposed the same in his evidence on
affidavit. The best person to depose as to whether the deceased
was a workman would be the owner. In his written objection the
owner had clearly pleaded that he had required five bags of
sand to repair the drain of his house which was loaded in the
accident vehicle and the deceased had boarded the accident
vehicle to unload the said five bags of sand belonging to him.
This pleading would amount to an admission to the claim of the
claimants that the deceased was a workman under the owner.
14. Except for the Motor TP Claims Investigation Report
(exhibit-R1) of the insurance investigator-Binud Arjel the
knowledge of the Insurance Company is that of a stranger.
According to Binud Arjel he was instructed by the Insurance
Company to investigate. He did not record the evidence of the
people acquainted with the facts of the case and produce it in
court. The report is therefore based on hearsay evidence at the
instance of the Insurance Company. The learned counsel for the
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
Insurance Company has failed to show how the evidence of
Binud Arjel and his report should get higher precedence than
that of the claimant no.1 as well as the admission made by the
owner in his pleading. Not only had the claimant no.1 deposed
that the deceased was working as a helper with the owner in
the accident vehicle even the Insurance Company made specific
suggestions to the claimant no.1 during his cross examination
to the effect that the deceased was in fact a workman under the
owner. In response the claimant no.1 deposed that the deceased
would continuously travel in the accident vehicle as he also
worked at a quarry; the deceased used to travel in the accident
vehicle as he also worked for the owner in carrying load and at
the relevant time five bags of sand of the vehicle owner was also
loaded in the accident vehicle. The claimant no.1 emphatically
denied the suggestion of the Insurance Company that the
deceased was travelling in the accident vehicle as a gratuitous
passenger. He also admitted to the suggestion of the Insurance
Company that the deceased used to travel in the accident
vehicle and did petty work in the accident vehicle; that he was
travelling in the accident vehicle when the accident occurred.
15. On the other hand the claim of Binud Arjel-the Insurance
Investigator that the deceased was a gratuitous passenger was
based on hearsay knowledge from persons who did not enter
the witness box. There was no other evidence for the learned
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
Tribunal to conclude that the deceased was a gratuitous
passenger. On a preponderance of probabilities the evidence on
record clearly suggest that the deceased was a workman
working with the owner and engaged for the unloading of sand
for the owner in the accident vehicle when the accident
occurred and not a gratuitous passenger.
16. In the circumstances this Court is unable to accept the
finding in the impugned judgment that the deceased was only a
gratuitous passenger and not a workman.
17. The insurance policy reflects that additional premium was
paid by the owner for liability to workmen. There is no dispute
on that aspect. The learned Tribunal also has concluded so. The
accident occurred when the insurance policy was effective.
There is no dispute on this aspect as well. Admittedly the
deceased was in the accident vehicle when it met with an
accident. That was the case of the Insurance Company as well.
The accident was a consequence to the rash and negligent
driving of the driver. The learned Tribunal has affirmed this fact
in its findings in the impugned judgment. Therefore this Court
is of the considered view that owner was vicariously liable for
the rash and negligent driving of the accident vehicle by the
driver who had been duly authorized by him. As the Insurance
Company had indemnified the owner of such a liability through
the insurance policy the Insurance Company would be required
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
to make good the compensation payable to the claimants as
they were the parents of the deceased.
18. The deposition of the claimant No.1 reveals that at the
time of the accident the deceased was thirty five years old and
the claimants were dependent on him. As per the claim made
by the claimants the deceased was earning Rs 15,000/- a
month which was duly certified by the income certificate issued
by the Block Development Officer (Exhibit-15) which was duly
exhibited. The Insurance Company could not bring out
anything in the cross examination of the claimant No.1 which
would reflect that the deceased was not earning Rs.15,000/-
per month.
19. The claimants have claimed Rs.22,41,000/- as
compensation. This includes Rs.20,16,000/- as loss of earning,
Rs.15,000/- as loss of estate, Rs.15,000/- as transportation
costs to the hospital. Rs.15,000/- as funeral expenses,
Rs.80,000/- as loss of filial consortium and Rs.1,00,000/- as
cost of litigation. Considering the fact that the claim was filed in
the year 2023 and the claimants had to approach this Court for
award of compensation which is granted today it is deemed
proper to grant an amount of Rs.25,000/- as cost of litigation
and not Rs.1,00,000/- as claimed. The compensation for loss of
estate, funeral expenses and filial consortium is increased in
terms of the judgments of the Supreme Court as pointed out in
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
the calculation below. Thus the claimants would be entitled to
"just compensation" of a total amount of Rs.21,89,100/-
calculated as follows:
Annual income of the deceased (Rs.15,000/-x12) Rs. 1,80,000.00
add (+) Rs. 72,000.00
40% of Rs.1,80,000/- as Future Prospects
[in terms of paragraph 59.4 of the judgment of
National Insurance Company Limited vs. Pranay Sethi & Ors.:
(2017) 16 SCC 680]
Rs. 2,52,000.00
Less (-) Rs. 1,26,000.00
50% of Rs.2,52,000/-
[as the deceased was a bachelor in terms of paragraph 32
of the judgment of Sarla Verma (Smt) & Ors. vs. Delhi
Transport Corporation & Anr.: (2009) 6 SCC 121]
Net Yearly Income Rs. 1,26,000.00
multiplier to be adopted 16 (Rs.1,26,000/- x 16)
Rs. 20,16,000.00
[The age of the deceased at the time of death was 35
and the relevant multiplier in terms of paragraph 42
of the judgment of Sarla Verma (supra) is 16]
Transportation to Hospital (+) Rs. 15,000.00
add (+) Rs. 18,150.00
Funeral Expenses @ Rs.18,150/-
[in terms of paragraph 59.8 of the judgment of Pranay
Sethi (supra) Enhancement @ 10% in every three years
Therefore, the figure calculated is as follows:
First three years - Rs.15,000/- @ 10% = Rs.16,500/-
Second three years - Rs. 16,500/- @ 10% = Rs.18,150/- ]
add (+) Rs. 18,150.00
Loss of Estate @ Rs.18,150/-
[in terms of paragraph 59.8 of the judgment of Pranay
Sethi (supra) enhancement @ 10% in every three years
Therefore, the figure calculated is as follows;
First three years - Rs. 15,000/- @ 10% = 16,500/-
Second three years - Rs. 16,500/- @ 10% = Rs.18,150/- ]
add (+) Rs. 96,800/-
Loss of Filial Consortium
[Rs.40,000/- payable to claimants, in terms of (Rs.48,400.00/-
Paragraph 21 and 24 of the judgment of Magma payable to each of the
General Insurance Company Limited vs. Nanu Ram claimant no.1 and
Alias Chuhru Ram & Ors.: (2018) 18 SCC 130] claimant no.2.)
[also in terms of paragraph 59.8 of the judgment of
Pranay Sethi (supra) enhancement @ 10% in every
three years
Therefore, the figure calculated is as follows:
First three years - Rs.40,000/- @ 10% = 44,000/-
Second three years - Rs.44,000/- @ 10% = 48,400/-]
Prem Bahadur Rai & Anr. vs. The Branch Manager, United India Insurance Co. Ltd. & Anr.
add (+) Rs. 25,000.00
Cost of Litigation
[in terms of Paragraph 77-80 of the judgment of Sidram vs.
Divisional Manager Union of India Insurance Company Ltd.
(2023) 3 SCC 439].
Total Rs. 21,89,100.00
(Rupees twenty one lakhs eighty nine thousand one hundred) only.
20. The Insurance Company is therefore, directed to pay the
amount of Rs.21,89,100/- (Rupees twenty one lakhs eighty nine
thousand one hundred) only with simple interest @ 9% from the
date of the filing of the claim petition i.e. from 07.08.2023 till
realization to the claimants failing which it shall pay simple
interest @12% per annum as aforesaid till final realization.
Amounts, if any, already paid by the Insurance Company to the
claimants shall be accordingly deducted from the compensation
awarded.
21. The appeal filed by the claimants is allowed. The
impugned judgment is set aside and compensation awarded to
the claimants as above.
22. The Registry is directed to send a copy of this judgment
forthwith to the learned Tribunal for information along with its
records.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting: yes.
Internet: yes.
