Chattisgarh High Court
Smt. Durpati Bai vs Narayan Nishad on 18 September, 2024
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Digitally signed
by BHOLA
NATH KHATAI
Date:
2024.09.23
10:40:38 +0530
2024:CGHC:36547
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 360 of 2016
1. Smt. Durpati Bai W/o Shri Kaliram Mehar Aged About 39 Years
R/o Village And Post Biroda, Thana And Tahsil Sahaspur Lohara,
Civil And Revenue Distt. Kabeerdham, Chhattisgarh.
2. Kaliram Mehar S/o Shri Mangalu Mehar Aged About 42 Years R/o
Village And Post Biroda, Thana And Tahsil Sahaspur Lohara, Civil
And Revenue Distt. Kabeerdham Chhattisgarh.
3. Kamlesh S/o Shri Kaliram Mehar Aged About 17 Years For Being
Minor Through Natural Guardian Mother Smt. Durpati Bai W/o.
Kaliram Mehar, R/o Village And Post Biroda, Thana And Tahsil
Sahaspur Lohara, Civil And Revenue Distt. Kabeerdham
Chhattisgarh.
4. Ku. Umeshwari D/o Shri Kaliram Mehar Aged About 16 Years For
Being Minor Through Natural Guardian Mother Smt. Durpati Bai
W/o. Kaliram Mehar, R/o Village And Post Biroda, Thana And
Tahsil Sahaspur Lohara, Civil And Revenue Distt. Kabeerdham,
Chhattisgarh
---- Appellants
versus
1. Narayan Nishad S/o Shri Jagdish Nishad Aged About 37 Years
R/o Village And Post - Biroda, Thana And Tahsil Sahaspur
Lohara, Civil And Revenue Distt. Kabeerdham Chhattisgarh.
Owner Of Motor Cycle No. C.G.-09/JA/ 6723.
2. Regional Manager, National Insurance Company Limited, Akash
Ganga, Supela Bhilai, P.S. - Bhilai, Civil And Rev. Distt. Durg
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Chhattisgarh. Insurer Of Motor Cycle No. C.G.-09/JA/ 6723.
---- Respondents
MAC No. 401 of 2016
1. Smt. Anita W/o Shri Ishwari Pali, Aged About 40 Years R/o Village And Post- Biroda, Thana And Tahsil- Sahaspur Lohara, Civil And Revenue Distt.- Kabeerdham, Chhattisgarh
2. Ishwari Pali S/o Shri Latel Pali, Aged About 44 Years R/o Village And Post- Biroda, Thana And Tahsil- Sahaspur Lohara, Civil And Revenue Distt.- Kabeerdham, Chhattisgarh
3. Basantpali D/o Shri Ishwari Pali, Aged About 17 Years Minor Through Natural Guadian Mother Smt. Anita W/o Ishwari, Wrongly Mentioned As Durpati Baiin Order R/o Village And Post- Biroda, Thana And Tahsil- Sahaspur Lohara, Civil And Revenue Distt.- Kabeerdham, Chhattisgarh
4. Ku. Minu D/o Shri Ishwari Pali, Aged About 14 Years Minor Through Natural Guadian Mother Smt. Anita W/o Ishwari, Wrongly Mentioned As Durpati Baiin Order R/o Village And Post- Biroda, Thana And Tahsil- Sahaspur Lohara, Civil And Revenue Distt.- Kabeerdham, Chhattisgarh
5. Smt. Neera Bai W/o Shri Latel Pali, Aged About 48 Years R/o Village And Post- Biroda, Thana And Tahsil- Sahaspur Lohara, Civil And Revenue Distt.- Kabeerdham, Chhattisgarh
----Appellants Versus
1. Narayan Nishad S/o Shri Jagdish Nishad, Aged About 37 Years R/o Village And Post- Biroda, Thana And Tahsil- Sahaspur Lohara, Civil And Revenue Distt.- Kabeerdham, Chhattisgarh ..... ... Owner Of Motor Cycle No. C.G.-09/J A/ 6723
2. Regional Manager, National Insurance Company Limited, Akash Ganga, Supela Bhilai, P.S.- Bhilai, Civil And Revenue Distt.- Durg, Chhattisgarh ..... Insurer Of Motor Cycle No. C.G.-09/ J A / 6723
---- Respondents 3 / 10 For Appellants : Mr. Rajendra Patel, Advocate, on behalf of Mr. Sunil Sahu, Advocate For Respondent No.1 : Mr. D. C. Verma, Advocate For Respondent No.2 Mr. G. V. K. Rao, Advocate Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board 18/09/2024
1. Since both the appeals have arisen out of award dated 08.01.2016 passed by Additional Motor Accident Claims Tribunal, District Kabirdham (C.G.), in Claim Case Nos.49/2015 & 50/2015, they are being disposed of by this common judgment.
2. The facts, in brief, necessary for disposal of both the appeals are that on 05.03.2015 at about 8:30 p.m., when Suraj Pali (Driver) along with Kailash Mehar (Pillion rider) was going on the motorcycle bearing registration No.CG 09 JA 6723 from village Bidora to Silhati, the said motorcycle went out of control near Silhati bridge and collided with the bridge and fell down from the bridge. On account of the accident, both Suraj Pali and Kailash Mehar suffered grievous injuries and died on the spot. Claim Case No.49/2015 was preferred by the claimants who are the parents and siblings of deceased Kailash Mehar, under Section 166 of the Motor Vehicles Act. Claim Case No.50/2015 was filed by the claimants who are the parents and siblings of deceased Suraj Pali, under Section 163A of the Motor Vehicles Act. Both the claim cases were filed against the registered owner of the motorcycle Narayan Nishad and the insurer National Insurance Company Limited.
3. In Claim Case No.49/2015, the Tribunal, after considering the evidence bought on record, assessed the income of deceased Kailash Mehar to be Rs.36,000 per annum. Since at the time of accident deceased Kailash Mehar was unmarried aged around 20 4 / 10 years, 1/2 of the income was deducted towards personal expenses and after deduction, the amount comes to Rs.18,000. Considering the age of the deceased, multiplier of 18 was applied and the total loss of dependency worked out to Rs.3,24,000/-. In addition, a total amount of Rs.20,000/- has been awarded under other heads. Accordingly, the Claims Tribunal awarded total compensation of Rs.3,44,000/- in favour of the claimants with interest @ 7% per annum, from the date of application till its realization. Hence, MAC No.360/2016 has been preferred for enhancement of compensation.
4. In Claim Case No.50/2015, learned Tribunal has rejected the claim application on the ground that deceased Suraj Pali himself was negligent and responsible for the accident, therefore, the claimants are not entitled to get any compensation for the death of Suraj Pali. Hence, MAC No.401/2016 has been filed seeking for grant of compensation suitably.
5. In MA(C) No.360 of 2016 filed by the claimants for enhancement, it is argued that the Tribunal has not considered the future prospects while computing compensation. He submits that less compensation has been given under other heads which also needs to be enhanced suitably. Learned counsel for the appellant/claimants prays for issuance of an order of "pay and recover" in case breach of policy condition is found by this Court.
6. In MA(C) No.401 of 2016, it is argued that the Tribunal has erred in rejecting the claim application as it was filed under Section 163A of MV Act and under this section, the wrongful act or negligent or default of the driver of the vehicle is not considered while deciding the claim application. Hence, prays for allowing the appeal by awarding compensation suitably.
7. On the other hand, it has been argued on behalf of the respondents 5 / 10 that deceased Suraj Pali himself was the driver of the offending motorcycle which he had borrowed from the registered owner and therefore, he was not a third party to the offending motorcycle. His position becomes like that of vehicle owner and as per the policy, his risk cover limit is up to Rs.1,00,000. Since the driver of the offending motorcycle i.e. deceased Suraj Pali did not have a valid driving license at the time of accident, there was a violation of policy condition, and therefore, the insurance company is not liable for payment of any compensation. Hence, in the facts and circumstances of case, the impugned awards passed by the Claims Tribunal are just and proper and require no interference.
8. Heard learned counsel for the parties and perused the record.
9. It is undisputed fact that respondents 1 & 2 are the registered owner and insurer of the offending motorcycle. The motorcycle was being driven by deceased Suraj Pali on which deceased Kailash Mehar was travelling as a pillion rider.
MAC No. 401 of 201610. Now, this Court will consider the issue that the deceased Suraj Pali being the driver of the vehicle in question does not fall in the category of a third party. Law on this point is already settled by the Supreme Court in the matter of Ramkhiladi and another vs. United India Insurance Company and another, reported in (2020) 2 SCC 550 wherein the Supreme Court, relying upon its own case rendered in the matter of Ningamma v. United India Insurance Co. Ltd. reported in (2009) 13 SCC 710, has specifically observed and held that the provisions of Section 163-A of the Act cannot be said to have any application with regard to an accident wherein the owner of the motor vehicle himself is involved. Para 9.4 is relevant for the purpose, which is reproduced as under:
"9.4 An identical question came to be considered by 6 / 10 this Court in Nigamma. In that case, the deceased was driving a motorcycle which was borrowed from its real owner and met with an accident by dashing against a bullock cart i.e. without involving any other vehicle. The claim petition was filed under Section 163-A of the Act by the legal representatives of the deceased against the real owner of the motorcycle which was being driven by the deceased. To that, this Court has observed and held that since the deceased has stepped into the shoes of the owner of the vehicle, Section 163-A of the Act cannot apply wherein the owner of the vehicle himself is involved. Consequently, it was held that the legal representatives of the deceased could not have claimed the compensation under Section 163-A of the Act. Therefore, as such in the present case, the claimants could have even claimed the compensation and/or filed the claim petition under Section 163-A of the Act against the driver, owner and insurance company of the offending vehicle i.e. motorcycle bearing Registration No. RJ 29 2M 9223, being a third party with respect to the offending vehicle. However, no claim under Section 163-A was filed against the driver, owner and/or insurance company of the motorcycle bearing Registration No.RJ 29 2M 9223. It is an admitted position that the claim under Section 163-A of the Act was only against the owner and the insurance company of the motorcycle bearing Registration No. RJ 02 SA 7811 which was borrowed by the deceased from the opponent-owner Bhagwan Sahay. Therefore, applying the law laid down by this Court in Ningamma and as the deceased has stepped into the shoes of the owner of the vehicle bearing Registration No.RJ 02 SA 7811, as rightly held by the High Court, the claim petition under Section 163-A of the Act against the owner and insurance company of the vehicle bearing Registration No. RJ 02 SA 7811 shall not be maintainable."
11. Having applied the principles laid down by the Supreme Court in the above referred matter to the present case, it is held that the claim petition filed under Section 163-A of the Act, 1988 is not maintainable. Having observed and held as such, the Supreme Court, however, restricted the claimants to entitle personal accident cover strictly as per terms of insurance contract covering borrowed vehicle, which is sum of Rs.1 lakh and awarded interest 7 / 10 as well. Para 9.8 is relevant for the purpose and is reproduced as under:
"9.8 However, at the same time, even as per the contract of insurance, in case of personal accident the owner-driver is entitled to a sum of Rs.1 lakh. Therefore, the deceased, as observed hereinabove, who would be in the shoes of the owner shall be entitled to a sum of Rs.1 lakh, even as per the contract of insurance.
12. The witness of Insurance Company Yaspal Gajbhaye has stated that at the time of incident, deceased Suraj Pali did not have a driving licence. The claimants have also stated that they do not know whether deceased Suraj Pali had a driving licence or not. The father of deceased Suraj Pali has also admitted that he has not presented the driving licnece of the deceased. According to seizure Ex.P-7, no DL of Suraj Pali has been seized. Therefore, the violation of insurance policy is found.
13. In the light of the principles laid down by the Hon'ble Supreme Court in the above referred matters, it is vivid that in the present case, as per the contract of insurance, the insurance company shall be liable to pay the compensation to a third party and not to the owner, except to the extent of Rs.1 lakh. Since the vehicle was being driven by deceased Suraj Pali himself as borrower of the vehicle from the owner, he had stepped into the shoes of the owner, therefore, he was not a third party to the vehicle in question. If the liability of the Insurance Company arises, it will be limited to Rs.1,00,000/-. However, the deceased driver Suraj Pali did not have a valid driving license, which is violation of the terms of the insurance policy and therefore, liability of even Rs.1,00,000/- does not arise.
14. Accordingly, MA(C) No.401 of 2016 is hereby dismissed.
8 / 10 MAC No.360 of 201615. It is claimed that deceased Kailash Mehar was earning Rs.300 per day i.e. Rs.9,000 per month by working as a mason. However, the Tribunal has assessed the income of deceased Kailash Mehar at Rs.3,000/- per month i.e. Rs.36,000 per annum as no documentary evidence regarding income of the deceased has been brought on record. The accident occurred on 05.03.2015 and as per the notification by Labour Department, the minimum wages of even an unskilled labour at that point of time was Rs.5517. Hence, the income of the deceased is assessed at Rs.5517 per month instead of Rs.3000 as held by the Tribunal. Accordingly, the annual income comes to Rs.66204. 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 and after adding 40% towards future prospects i.e. Rs.26481.6, the amount comes to Rs.92685.6. The deceased was unmarried aged around 20 years and the claimants are the parent and siblings of the deceased, so deduction towards personal expenses would be 1/2 of the income as rightly held by the Tribunal. After deduction of personal expenses, the amount comes to Rs.46342.8. In view of 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 and also considering the age of the deceased, the multiplier would be 18 as rightly held by the Tribunal. After applying the said multiplier, the total loss of dependency works out to Rs.834170.4 ( 46342.8 x 18) in round figure Rs.834170. The claimants are also entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- for funeral expenses. As per 'Magma General Insurance Co. Ltd. Vs. Nanu, 9 / 10 reported in AIR Online 2018 SC 189, the claimants are further entitled for Rs.40,000/- each totalling Rs.1,60,000 towards love and affection. Accordingly, the claimants would become entitled for total compensation in the following manner:-
Heads Calculation
Compensation towards dependency 834170
For loss of estate 15,000
For love and affection to the claimants 1,60,000
@ Rs. 40,000/- each
Funeral Expenses 15,000
Total compensation Rs.10,24,170
16. Thus, the total compensation is recomputed as Rs.10,24,170/- from which after deduction of Rs.3,44,000/- as awarded by the Tribunal, the enhanced compensation would be Rs.6,80,170/-.
17. So far as the prayer for issuing an order of "pay and recover" is concerned, the Tribunal has exonerated the insurance company considering the fact that there is a breach of policy condition.
18. In the present case, admittedly, the offending motorcycle was insured with National Insurance Company Limited 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 & another. Vs. Tata AIG General Insurance Company Limited & 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 appellant/claimants and then recover the same from the registered owner of the offending vehicle i.e. respondent no.1.
10 / 1019. Accordingly, MAC No.360/2016 is partly allowed. The claimants shall be entitled for the enhanced amount of Rs.6,80,170/- 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. The impugned award stands modified to the above extent and rest of the conditions shall remain intact.
20. In the result, MAC No.360/2016 is partly allowed to the extent indicated herein-above and MA(C) No.401/2016 stands dismissed
21. The Registry is directed to communicate the claimants in MAC No.360/2016 in writing "the enhanced amount" in the appeal as against the award made by the Claims 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 claimants reside.
Sd/-
(Sanjay Kumar Jaiswal) Judge Khatai