Chattisgarh High Court
H. D. F. C. Ergo General Insurance ... vs Smt. Jamuna Bai Patel on 10 October, 2022
Author: P. Sam Koshy
Bench: P. Sam Koshy
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No.1044 of 2015
1. H.D.F.C. Ergo General Insurance Company Limited Through Branch
Manager, Qtr. No. 105 B, Ina Teps, Central Township, Dallirajhara Dist.
Durg, Chhattisgarh, Permanent Address HDFC ERGO General Insurance
Company Limited, 6th Floor, Leela Business Park, Andheri, East Mumbai
MH 400059 At Present- Devendra Nagar Road, Near Railway Line, P.S.
Devendra Nagar, Civil And Revenue Dist. Raipur, Chhattisgarh.
---Appellant(s)
Versus
1. Smt. Jamuna Bai Patel Wd/o Late Shivram Patel Aged About 35 Years
2. Devendra Chand Patel S/o Late Shivram Patel Aged About 13 Years
3. Tikam Chand Patel S/o Late Shivram Patel Aged About 12 Years
4. Ku. Nilam Patel D/o Late Shivram Patel
5. Ku. Tannuka Patel D/o Late Shivram Patel
6. Maheshwar Patel S/o Late Shivram Patel
7. Ku. Kashak Patel D/o Late Shivram Patel
8. Kartikram Patel S/o Late Mitthuram Patel Aged About 60 Years
9. Smt. Dayawati Patel W/o Kartikram Patel Aged About 55 Years
Respondents No.2 to 7 are minor represented through natural guardian
their mother respondent No.1 Smt. Jamunal Bai Patel. All resident of MPH Hospital Road, Jagdalpur, Police Station Jagdalpur, Police Station Jagdalpur, Dist. Jagdalpur, At Present- Behind Police Station Arjuni, Bathena Basti, Dhamtari Tahsil Dhamtari, Civil And Revenue Dist. Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh
10. Rasiklal Patel S/o Rajkumar Patel R/o In-Front Of Mandi, Charama, P.S. Charama, Civil And Revenue Dist. Kanker, Chhattisgarh Owner Of Vehicle No. Cg-05/1469, District : Kanker, Chhattisgarh
11. The Oriental Insurance Company Limited Through Branch Manager, Behind Amar Talkies, P.S. Dhamtari, Civil And Revenue Dist. Dhamtari, Chhattisgarh Insurer Of Vehicle No. Cg-05/1469, District : Dhamtari.
12. Naresh Kumar Patel S/o B.L. Patel R/o Qtr. No. 105 B, Ina Teps, Central Township, Dallirajhara Dist. Durg. Temporary Address Sonalika Tractor, Authorised Dealer Dudhawa Road, Behind Gyani Dhaba, P.S. Kanker, Civil And Revenue Dist. Kanker, Chhattisgarh.
Respondent(s) MAC No.823 of 2015
1. Smt. Jamuna Bai Patel Wd/o Late Shivram Patel Aged About 35 Years
2. Devesh Chand Patel S/o Late Shivram Patel Aged About 13 Years
3. Tikam Chand Patel S/o Late Shivram Patel Aged About 12 Years
4. Ku. Neelam Patel D/o Late Shivram Patel, aged about 11 years,
5. Ku. Tannuka Patel D/o Late Shivram Patel, aged about 9 years,
6. Maheshwar Patel S/o Late Shivram Patel, about about 7 years,
7. Ku. Kashak Patel D/o Late Shivram Patel, about about 3 years, Respondents No.2 to 7 are minor represented through natural guardian their mother respondent No.1 Smt. Jamunal Bai Patel.
8. Shri Kartikram Patel S/o Late Shri Mitthuram Patel Aged About 60 Years
9. Smt. Dayavati Patel W/o Kartikram Patel Aged About 55 Years All resident of MPH Hospital Road, Jagdalpur, Police Station Jagdalpur, Police Station Jagdalpur, Distt. Jagdalpur, At Present- Behind Police -2- Station Arjuni, Bathena Basti, Dhamtari Tahsil Dhamtari, Civil and Revenue Dist. Dhamtari, Chhattisgarh.
---Appellant(s) Versus
1. Rashiklal Patel S/o Shri Rajkumar Patel R/o In Front of Mandi, Thana- Charma, District- Kanker, Chhattisgarh, Chhattisgarh
2. The Oriental Insurance Company Limited, Branch Manager, Branch Office- Behind Amar Tackis, Dhamtari, District- Dhamtari, Chhattisgarh.
3. Naresh Kumar Patel S/o Shri B.L. Patel R/o Q. No. 105b, Ina Type, Central Township, Dalli Rajhara, Durg C.G. Temporary R/o Sonalika Tractor, Registered Seller, Dudhava Road, Behind Ghani Dhaba, Kanker, District- Kanker, Chhattisgarh.
4. HDFC Ergo General Insurance Co. Ltd., Branch Manager, Q. No. 105b, Ina Type, Central Township, Dalli Rajhara, Durg C.G. Permanent R/o Hdfc Argo General Insurance Co. Ltd, 6th Floor, Leela Business Park, Kurla Road, Andheri, East Mumbai, Maharashtra 400059.
Respondent(s) For HDFC ERGO Insurance Co. Shri Rohitashva Singh, Advocate.
For Claimants : Shri Arvind Prasad, Advocate.
For Owner : Shri A.N. Bhakta, Advocate.
For Oriental Insurance Co.: Shri Pankaj Agrawal, Advocate.
Hon'ble Shri Justice P. Sam Koshy Order on Board 10.10.2022
1. Both these appeals filed by the Insurance Company as also by the Claimants arise out of a common accident and award dated 13.05.2015 passed by the Additional Motor Accident Claims Tribunal, Dhamtari, in Claim Case No.54 of 2014. Vide the said impugned award, the Tribunal in a death case has awarded a compensation of Rs.4,87,000/- alongwith interest @ 6 percent per annum from the date of application. While passing the said award, the Tribunal had assessed 50 percent by way of contributory negligence. Taking note of contributory negligence of 50 percent, the liability of payment of compensation was fastened upon the insurance company and the owner jointly and severally upon the two vehicles involved in the accident.
2. MAC No. 1044 of 2015 is an appeal by the insurance company which had insured the motorcycle CG-07-LB-8526, driven by the deceased Shivram -3- Patel, owned by respondent No.12-Naresh Kumar Patel. MAC No. 823 of 2015 is the appeal by the claimants seeking for enhancement of the compensation awarded and also assailing the finding of contributory negligence. There is also a cross appeal in MAC No.823 of 2015 filed by the owner of the motorcycle-Naresh Kumar Patel so far as proceeding exparte by the Tribunal as there was no proper service effected upon the owner Naresh Kumar Patel and also assailing the finding of contributory negligence.
3. The brief facts of the case is that deceased Shivram Patel was riding a motorcycle CG-07-LB-8526 on 13.11.2012 when he was hit by another motorcycle coming from the opposite direction i.e. CG-05-C-1469 driven by deceased Omprakash Yadav, owned by Rasik Lal Patel (the respondent No.10 in the appeal of the Insurance Company) and insured by the respondent No.11, The Oriental Insurance Co. Ltd. As a consequence of the said accident, the riders of both the motorcycles Shivram Patel as also Omprakash Yadav received grievous injuries and both of them succumbed to the injuries later on.
4. The legal representatives of Shivram Patel filed a claim application before the Claims Tribunal Dhamtari where the case was registered as Claim Case No.54/2014. In the claim application, the owner and the insurance company of both the motorcycles were impleaded as necessary party and the court proceeded to decide the matter vide impugned award on 13.05.2015. While passing the said award, the Tribunal reached to a conclusion that there was a contributory negligence reflected from the pleadings, though there was no evidence in that regard and shared the liability between the owner and the insurance company of the two motorcycles at 50 percent each. The liability which was fastened upon the Oriental Insurance Company has not been challenged by the Oriental -4- Insurance Co. Ltd. any further. It is said that they have honoured the award. However, the insurance company of the motorcycle on which the deceased Shivram Patel was riding has filed an appeal (MAC No.1044 of 2015) assailing the liability which has been fastened upon them. So also, there is an appeal by the claimants seeking for enhancement of the compensation as according to the claimants the amount of compensation awarded by the Tribunal is on a lower side.
5. As regards the appeal by the HDFC Ergo General Insurance Company, MAC No.1044 of 2015, once when there is a finding of contributory negligence by the Tribunal, the insurance company cannot be fastened with the liability indemnifying the owner for his negligence. It was also the contention of the counsel for the HDFC Ergo General Insurance Company that in any case since the deceased was himself riding the motorcycle he cannot be treated as a third party thereby the appellant insurance company could have been fastened with the liability of payment of compensation.
6. According to appellant insurance company once when the contributory negligence is established, the insurance company cannot be held liable for covering the risk of the owner for the act of negligence on his part and therefore the finding to that extent needs to be set aside.
7. Per contra, the counsel appearing for the claimants in MAC No.823 of 2015 i.e. an appeal by the claimants, it has been strongly contended that the finding of contributory negligence by the insurance company is otherwise per se bad for the reason that the finding is based upon the fact that there was a head on collision.
8. The plain reading of the impugned award would clearly reflect that the finding of contributory negligence arrived at by the Tribunal is solely on the fact of an head on collision. Merely because there was an head on -5- collision by itself cannot be a determining factor for contributory negligence. An head on collision can arise even if the vehicle from the opposite direction negligently comes and dashes to a vehicle travelling on the opposite side. For reaching to a conclusion of contributory negligence there has to be some cogent material and evidence to show that there was an element of negligence on the part of either of the drivers of the two vehicles involved in the accident. The finding of contributory negligence cannot be arrived at on presumption or an assumption without any sufficient materials in this regard. The finding by the Tribunal in paragraph 15 of its award itself reflects that there is no strong material available except for the spot map from the criminal case that was made available.
9. As regards the finding of contributory negligence is concerned, the Supreme Court in case of Jiju Kuruvila and Others Vs. Kunjujamma Mohan and Others, 2013(9) SCC 166 has held as under:
"20.5. The mere position of the vehicles after accident, as shown in a Scene Mahazar, cannot give a substantial proof as to the rash and negligent driving on the part of one or the other. When two vehicles coming from opposite directions collide, the position of the vehicles and its direction etc. depends on number of factors like speed of vehicles, intensity of collision, reason for collision, place at which one vehicle hit the other, etc. From the scene of the accident, one may suggest or presume the manner in which the accident caused, but in absence of any direct or corroborative evidence, no conclusion can be drawn as to whether there was negligence on the part of the driver. In absence of such direct or corroborative evidence, the Court cannot give any specific finding about negligence on the part of any individual."
10. A similar view has also been taken by the Division Bench of this High Court in Dr. A.P. Sawant Vs. Sunil Kumar Choudhary & Others, MAC No.127 of 2015, decided on 13.01.2021 following the aforesaid judgment of Supreme Court.
11. Further, the Supreme Court in case of Khenyei Vs. New India Assurance Company Limited and Others, 2015(9)SCC 273 in paragraphs 15 held as under :
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"15.There is a difference between contributory and composite negligence. In the case of contributory negligence, a person who has himself contributed to the extent cannot claim compensation for the injuries sustained by him in the accident to the extent of his own negligence; whereas in the case of composite negligence, a person who has suffered has not contributed to the accident but the outcome of combination of negligence of two or more other persons. This Court in T.O. Anthony v. Karvarnan & Ors. [2008 (3) SCC 748] has held that in case of contributory negligence, injured need not establish the extent of responsibility of each wrong doer separately, nor is it necessary for the court to determine the extent of liability of each wrong doer separately. It is only in the case of contributory negligence that the injured himself has contributed by his negligence in the accident. Extent of his negligence is required to be determined as damages recoverable by him in respect of the injuries have to be reduced in proportion to his contributory negligence. The relevant portion is extracted hereunder :
6. 'Composite negligence' refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrong doers, it is said that the person was injured on account of the composite negligence of those wrong-doers.
In such a case, each wrong doer, is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrong-doer separately, nor is it necessary for the court to determine the extent of liability of each wrong- doer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence of the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stands reduced in proportion to his contributory negligence.
7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is his contributory negligence. Therefore where the injured is himself partly liable, the principle of 'composite negligence' will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error."
12. In view of the aforesaid facts and circumstances of the case, this court is of the firm view that the findings arrived at by the Tribunal in assessing -7- the contributory negligence on the part of the two riders of the motorcycle is without any substantial evidence. Therefore the same deserves to be and is accordingly set aside/quashed. Under the circumstances, once when the finding of contributory negligence is set aside, the entire liability of payment of compensation would automatically get shifted upon the owner and the insurance company of the opposite vehicle involved in the accident i.e. the respondents No.10 and 11 in MAC No.1044 of 2015.
13. The appeal of the HDFC Ergo General Insurance Co. Ltd. to the aforesaid extent stands allowed. The liability of payment of compensation fastened upon the appellant-HDFC Ergo General Insurance Co. Ltd. to the said extent stands set aside/quashed.
14. As regards the appeal by the claimants MAC No.823 of 2015, the counsel for the appellants submits that the income assessed by the Tribunal is extremely on the lower side when compared to the date of accident, the nature of employment that the deceased had etc. The claimants had contended that the deceased Shivram Patel was an employee working as a Field Officer with the Dealers of Sonalika Tractors and was earning roughly around 6500/- a month. Disbelieving the same, the Tribunal has assessed the income at Rs.3000/- as notional income and proceeded to decide the claim.
15. Considering the fact that the accident is of November, 2012 undoubtedly at that point of time even an unskilled labour would had been earning atleast Rs.150/- a day which would bring the monthly income to Rs.4500/-. This court therefore is of the opinion that the notional income assessed by the Tribunal ought to have been around Rs.4500/- a month instead of Rs.3000/- that has been assessed. Assessing the monthly income of the deceased at Rs.4500/- would bring the annual income at Rs.54,000/-, of which considering the fact that there are 9 claimants, the deduction -8- towards personal expenses would be 1/5th that would be Rs.10,800/-. This amount if deducted from the annual income would bring the amount to Rs.43,200/-. Similarly, the Tribunal has not granted the compensation towards future prospects and future rise of income in terms of the judgment of Supreme Court in case of National Insurance Company Ltd. Vs. Pranay Sethi & Others, 2017(16)SCC680. The claimants would be entitled for a compensation of 40 percent towards future prospects. 40 percent of the annual income of Rs.54000/-comes to Rs.21,600/- which would bring the total annual income of the deceased at Rs.64,800/-, which if multiplied applying the multiplier of 15, which would bring the total loss of income at Rs.9,72,000/-. In addition, the claimants would also be entitled for loss of consortium for the 6 children @ Rs.40,000/- each totaling Rs.2,40,000/-. The widow in addition would be entitled for loss of consortium and loss of estate and also funeral expenses at Rs.70,000/-. Thus, the total compensation payable would become Rs.12,82,000/- and the entire amount of compensation quantified at Rs.12,82,000/- shall be born by the respondents No.10 and 11 i.e. jointly and severally i.e. Rasiklal Patel and Oriental Insurance Co. Ltd. The remaining part of the award so far as rate of interest would remain intact.
16. As regards the cross appeal by respondent-Naresh Kumar Patel is concerned, from the plain reading of the records it appears that inspite of the notice being issued, the respondent-Naresh Kumar did not respond to the notices and then the Tribunal was compelled to make substitute service by making paper publication. Inspite of the paper publication being made in a newspaper having wide circulation over the area there was no response by the respondent Naresh Kumar. Under the said circumstances, it cannot be said that the Tribunal has faulted itself in proceeding exparte against the respondent-Naresh Kumar. Moreover, -9- Naresh Kumar Patel while filing the cross appeal also has not brought any material evidence to substantiate his contention by which this court could have been impressed upon the genuinity of the insurance policy which he is relying upon. There is no proof of the mode of payment made to the insurance company while the policy was issued. There is also no receipt produced in respect of the issuance of the said policy. The original insurance policy papers also is not on record. No such insurance policy was available in the criminal court record which were produced before the Tribunal. In the absence of which, it was all the more necessary for the owner, the respondent-Naresh Kumar Patel to have produced strong materials and original documents to establish that there was a genuine policy issued which was effective on the date of accident.
17. For all the aforesaid reasons and in the absence of strong cogent materials, the cross appeal of the owner would not be sustainable and the same deserves to be and is accordingly rejected.
18. Accordingly, the two appeals filed by the HDFC Ergo General Insurance Co. Ltd. as also the appeal filed by the claimants stand allowed to the aforesaid extent.
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(P. Sam Koshy) Judge inder