Chattisgarh High Court
Smt. Kamla Jaiswal vs Smt. Priyanka Jaiswal on 16 April, 2024
Neutral Citation
2024:CGHC:13306
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Misc. Appeal (C) No.1337 of 2017
Order Reserved on : 30.01.2024
Order Delivered on : 16.04.2024
1. Smt. Kamla Jaiswal W/o Ambika Jaiswal, Aged About 52 Years,
2. Ku. Seema Jaiswal, D/o Ambika Jaiswal, Aged About 33 Years,
3. Ambika Jaiswal D/o Late Mohan Lal Jaiswal, Aged About 57 Years,
All appellants are R/o New Changorabhatha, Ganpati Nagar, Behind
Bharat Kirana Store, Raipur, Chhattisgarh.
---- Appellants
Versus
1. Smt. Priyanka Jaiswal W/o Late Anurag Jaiswal, Aged About 22 Years
R/o Ward No. 20, Manendragarh, District Koriya, Chhattisgarh.
2. Vikas Back, S/o Victor Back, Aged About 28 Years R/o Ubka Muskutri,
Police Station Bagicha, District Jashpur Nagar, Chhattisgarh. (Driver of
Vehicle No. CG 13 L 3806)
3. Ashok Kumar Agrawal, S/o Nandkishore Agrawal, Aged About 49 Years
R/o Sandiya Building, Gopi Talkies Road, 2nd Floor, Police Station City
Kotwali, District Raigarh, Chhattisgarh. (Registered Owner of Vehicle No.
CG 13 L 3806)
4. The New India Insurance Company Limited, Regional Office Madina
Building, Jail Road, Raipur, Chhattisgarh. (Insurer of Vehicle No. CG 13 L
3806)
5. Ku. Anupriya Jaiswal D/o Late Anurag Jaiswal, Aged About 8 Months,
Minor Through Mother Smt. Priyanka Jaiswal, W/o Late Anurag Jaiswal,
R/o Village & Post Gunda, District Satna, Madhya Pradesh. At Present
R/o Village Dilora, Police Station Polgawa, Tahsil Raghuraj Nagar, District
Satna, Madhya Pradesh.
---- Respondents
(Cause-tile taken from the Case Information System) Neutral Citation 2024:CGHC:13306 2 For Appellants : Mr. Amiyakant Tiwari, Advocate For Respondent No.1 : Mr. Shakti Raj Sinha, Advocate For Respondent No.3 : Mr. Abhishek Saraf, Advocate For Respondent No.4 : Mr. Sudhir Agrawal, Advocate Hon'ble Shri Justice Arvind Kumar Verma C.A.V. Order
1. Claimants-appellants have filed this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short 'Act of 1988') for enhancement of the award, challenging the impugned award dated 30.06.2017 passed by the 6th Additional Motor Accident Claims Tribunal, Raipur (C.G.) (for short, 'Tribunal') in Claim Case No.55/2014, whereby Tribunal allowed application filed under Section 166 of the Motor Vehicles Act, 1988 in part, calculated total compensation of Rs.23,32,000/- on account of death of Anurag Jaiswal.
2. Facts relevant for disposal of this appeal are that on 15.10.2013, the deceased Anurag Jaiswal was going to his residence in Hillwill Colony, Raigarh from the motorcycle Pulsar bearing registration No. CG 04 DK 7084 driven by himself. On the way, when he reached near Alok Auto Parts, Patrapali then in the darkness of the night, applicant No.2 self- driven vehicle, Hyva bearing registration No.CG-13-L-3806 (henceforth 'the offending vehicle') parked in the middle of the road due to which met with an accident and Anurag Jaiswal suffered serious injuries and he tragically died in the hospital as a result of serious injuries. On the Neutral Citation 2024:CGHC:13306 3 report of accident, crime under Section 304(A) of the IPC was registered against non-applicant No.2. The offending vehicle was driven by non-applicant No.2, owned by non-applicant No.3 while the offending vehicle was insured with non-applicant No.4.
3. Appellant/Claimant No.1 is mother of the deceased, appellant No.2 is sister of the deceased while appellant No.3 is father of the deceased, filed an application under Section 166 of the Motor Vehicles Act, 1988 seeking total compensation of Rs.1,22,20,688/- pleading therein that on the date of accident, deceased- Anurag Jaiswal was aged about 29 years of age. He was working as a 'Junior Manager' in the Jindal Steel and Power Company Limited and was earning Rs.49,818/- per month and they were dependent upon income of deceased.
4. Non-applicants No.1 & 5/wife and minor daughter of the deceased-
Anurag Jaiswal, submitted reply to claim application and denied the facts pleaded therein. It was further pleaded that the appellants herein are not legal heirs of the deceased. The first and second class legal heirs and heirs of the deceased are respondents No.1 & 5 herein, who are wife and minor daughter of the deceased, who have filed a claim in the Satna Court for compensation regarding death of the deceased, which is under consideration. In such a situation, rejection of the claim submitted by the appellants is justified. The appellants are not dependents of the deceased. Before his death, the deceased was living separately from the appellants and was living with wife and minor daughter/respondents No.1 & 5. Hence, the appellants are not entitled Neutral Citation 2024:CGHC:13306 4 to get any kind of compensation. Only respondents No.1 & 5 are entitled to get compensation in connection with death of the deceased.
5. Claim case due to absence of non-applicants No.2 & 3/Driver and Owner of the offending vehicle, according to order filed dated 03.01.2015 and no written statement has been submitted in the claims by non-applicants No.2 & 3, ex-parte action has been taken against them.
6. Non-applicant No.4/New India Insurance Company Limited also submitted its reply to claim application denying facts pleaded therein. It was further pleaded that the appellants are not entitled to get any compensation from the Insurance Company because the alleged accident was due to the negligence of the deceased himself. Apart from this, the Hyva bearing registration No.CG-13-L-3806 in question was being operated by its owner without valid and effective fitness and permit and even driver of the said vehicle had not a valid and effective driving license to drive the said vehicle. The said act of the vehicle owner was a violation of the terms of the insurance contract. Hence, non-applicant No.4 is not liable for any compensation to the appellants.
7. Upon appreciation of pleadings and evidence placed on record by respective parties, the learned Tribunal held that Anurag Jaiswal has died in a road side accident taken place in the night of 15.10.2013, due to negligence and carelessness parked without parking lights by respondent/non-applicant No.2. Accordingly, Tribunal allowed Neutral Citation 2024:CGHC:13306 5 application in part, awarded Rs.23,32,000/- with interest @ 6% per annum from the date of 24.01.2014 and with interest @ 9% from the date of 30.06.2017, i.e., date of passing award, fastened liability upon non-applicants No.2 to 4, i.e., Driver, Owner & Insurance Company to pay the amount of compensation.
8. Learned counsel appearing for the appellants/claimants submits that the Tribunal erred in assessing income of deceased as Rs.35,300/- per month overlooking the pleadings and evidence placed on record by the claimants, where he has very specifically pleaded that on the date of accident, deceased was working on the post of 'Junior Manager' in the Jindal Steel and Power Company thereby earning Rs.49,818/- per month.
9. He vehemently argued that the learned Tribunal committed an error of law in deducting the amount of group insurance since it is not a benefit arising out of the same cause of action but is an investment. The findings and the deductions are erroneous and against the law laid down by the larger Bench of the Hon'ble Supreme Court in Mrs. Helen C. Rebello & Ors. Vs. Maharashtra State Road Transport Corporation & Another reported in AIR 1998 SC weekly 3105. He further contended that the learned Tribunal failed to consider the future prospects of the deceased. He also submitted that amount on other heads is also on lower side. Hence, suitable enhancement may be made by this Court.
Neutral Citation 2024:CGHC:13306 6
10. Learned counsel appearing for respondent No.1 submits that the appellants herein are not legal heirs of the deceased. The first and second class legal heirs and heirs of the deceased are respondents No.1 & 5 herein, who are wife and minor daughter of the deceased. The appellants are not dependents of the deceased. Before his death, the deceased was living separately from the appellants and was living with wife and minor daughter/respondents No.1 & 5. Hence, the appellants are not entitled to get any kind of compensation. Only respondents No.1 & 5 are entitled to get compensation in connection with death of the deceased.
11. Learned counsel appearing for respondent No.3 submits that the vehicle in question was being valid and effective fitness and permit. He further submits that the accident was not caused by negligent and carelessness of the driver of the vehicle in question. The said accident occurred as a result of negligence of the deceased. On the date of incident, the vehicle in question was insured with non-applicant No.4, hence, liability to satisfy the amount of compensation would be of Insurance Company.
12. Learned counsel appearing for respondent No.4 opposes the prayer made by the learned counsel for the appellants/claimants and submits that the Claimants have failed to place on record any material or document to prove that the monthly income of the deceased was Rs.49,818/-. The Tribunal is justified in assessing the income of deceased as Rs.35,300/- on the basis of Exhibits-D/5, D/6 & D/8. Neutral Citation 2024:CGHC:13306 7 Claims Tribunal after taking into consideration documents placed on record by the Claimants has awarded total amount of compensation Rs.23,32,000/-. Hence, amount of compensation awarded by the Tribunal to Claimants cannot be said to be on lower side, rather it is just and proper in the given facts and circumstances of the case and does not call for any interference.
13. I have heard learned counsel appearing for the parties, considered their rival submissions and perused the records with utmost circumspection.
14. Barring the evidence Exs.D/5, D/6 & D/8 proved by Manohar Lal Gupta (non applicant witness No.3), Vice President of the Jindal Steel and Power Company, Raigarh, the learned Tribunal has assessed the monthly income of the deceased Rs.35,300/- per month which is just and proper.
15. As the deceased was a married person and number of dependency is '4', therefore, in the light of judgment passed by the Hon'ble Supreme Court in the matter of National Insurance Co. Ltd Vs. Pranay Sethi & others, (2017) 16 SCC 680, the learned Tribunal has applied deduction of 1/4 of above amount towards personal expenses of the deceased which is just and proper.
16. Further, the Tribunal has applied multiplier of '16', considering the age of the deceased. In the matter of Sarla Verma & Ors. v. Delhi Transport Corporation & Ors; (2009) 6 SCC 121, the Apex Court has Neutral Citation 2024:CGHC:13306 8 held that while computing the compensation, the Tribunal must consider the age of the deceased and in the present case, the deceased was aged about 32 years at the time of incident, therefore, the trial Court has rightly been applied multiplier of '16' in light of the above judgment.
17. Relying upon the judgment passed by the Hon'ble Supreme Court in case of Mamatha & Others Vs. R. Ranganath & Others in Civil Appeal No.3784 of 2015 and The New India Assurance Company Limited Vs. Mamatha & Others in Civil Appeal No.3778 of 2015 dated 27.07.2016, the learned Tribunal has deducted the amount of Rs.23,00,000/- of GIS from the net income of Rs.50,83,200/-. While, in case of Mamatha & Others (supra), amount of Group Personal Accident Claim Policy had already been paid to the claimant-wife, hence, the said amount of Policy had deducted from the net income of the deceased.
18. In the present case, Manohar Lal Gupta (non-applicant witness No.3) posted in Jindal Steel and Power Limited, Raigarh as Vice-President has stated in his cross-examination (para 8) that the legal heirs of the deceased are to receive approximately Rs.23,00,000/- from the Company as group insurance. The said amount has been approved for payment but the same has not been paid due to dispute between the wife and the mother of the deceased.
Neutral Citation 2024:CGHC:13306 9
19. Considering the order passed in Mrs. Helen C. Rebello & Ors. Vs. Maharashtra State Road Transport Corporation & Another reported in AIR 1998 SC weekly 3105 has held in paragraphs 36 and 37 as under :
"36. As we have observed the whole scheme of the Act, in relation of the payment of compensation to the claimant, is beneficial legislation, the intention of the legislature is made more clear by the change of language from what was in Fatal Accidents Act, 1855 and what is brought under Section 110-B of 1939 Act. This is also visible through the provision of Section168(1) under the Motor Vehicles Act, 1988 and Section 92-A of 1939 Act which fixes the liability on the owner of the vehicle even on no fault. It provides where the death or permanent disablement of any person has resulted from an accident spite of no fault of the owner of the vehicle, an amount of compensation fixed therein is payable to claimant by such owner of the vehicle. Section 92-B ensures that the claim for compensation under Section 92-A is addition to any other right to claim compensation respect whereof under any other provision of this Neutral Citation 2024:CGHC:13306 10 Act or of any other law for the time being in force. This clearly indicates the intention of the legislature which is conferring larger benefit to the claimant. Interpretation of such beneficial legislation is also well settled. Whenever there be two possible interpretations in such statute then the one which subserves the object of legislation, viz., benefit to the subject should be accepted. In the present case, two interpretations have given of this statute, evidenced by two distinct sets of decisions of the various high courts. We have no hesitation to conclude that the set of decisions, which applied the principle of no deduction of the life insurance amount should be accepted and the other set, which interpreted to deduct, is to be rejected. For all these consideration we have no hesitation to hold that such High Courts were wrong in deducting the amount paid or payable under the life insurance by giving restricted meaning to the provisions of the Motor Vehicles Act basing mostly on the language of English statutes and not taking into consideration the changed language and intends of the legislature under various provisions of the Motor Vehicles Act, 1939.
Neutral Citation 2024:CGHC:13306 11
37. Accordingly, we set aside the impugned judgment dated 9th September, 1985 and restore the judgment of the tribunal dated 29 September, 1980 and hold that the amount received by the claimant on the life insurance of the deceased is not deductible from the compensation computed under the Motor Vehicles Act. The concerned respondent shall make the payment accordingly, if not already paid in terms thereof."
20. Further considering the facts and circumstance of the case, material available on record and in the light of judgment passed by the Hon'ble Supreme Court in the matter of Sebastiani Lakra & Others Vs. National Insurance Company Limited & Another reported in (2019) 17 SCC 465 held that amounts/advantages accruing to claimants as a result of some contract or act which deceased performed in his lifetime (like on account of insurance, bank deposits, shares, debentures, pensionary benefits, gratuity or grant of employment to a kin of deceased) cannot be said to be outcome or result of death of deceased in a motor vehicle accident even though these amounts may go into the hands of claimants only after the death of deceased. Hence, such amounts are not liable to be deducted. Neutral Citation 2024:CGHC:13306 12
21. I have no hesitation to held that the learned Tribunal is wrong in deducting the amount to be paid or payable under the Group Insurance Scheme by giving restriction of provisions of the Motor Vehicles Act, 1988. The amount received by the Claimant/s under the Group Insurance Scheme of the deceased is not deductable from the compensation computed under the Motor Vehicles Act.
22. Looking to the statement of Manohar Lal Gupta (non-applicant witness No.3), Vice President of the Company, the amount of group insurance has been approved for payment but the same has not been paid to the dependents of the deceased, hence, the learned Tribunal has wrongly deducted the amount of group insurance from the net income of the deceased. In the opinion of the Court, the amount of Rs.23,00,000/- will have to paid as group insurance to the dependents of the deceased.
23. Further relying upon the judgment passed by the Hon'ble Supreme Court in case of Shyamvati Sharma & Others Vs. Karam Singh & Others reported in 2011 (II) SCCD 846, the learned Tribunal has deducted 20% flat towards income tax, which is just and proper.
24. On perusal of records, this Court finds that the learned Tribunal has not added towards future prospects of the deceased. The deceased was married person, his date of birth is 26.07.1983 (as per Ex.P/7C) so at the time of incident, he was aged about 30 years 02 months and 20 days rounded off 31 years and he was a salaried person, therefore, in Neutral Citation 2024:CGHC:13306 13 the light of judgment passed by the Hon'ble Supreme Court in the matter of National Insurance Co. Ltd Vs. Pranay Sethi & others, (2017) 16 SCC 680, it should be 50%.
25. It is also evident from the record that no award in the head of filial loss of consortium was granted by the Tribunal to Claimant No.3 (father of the deceased). Considering the order passed by the Hon'ble Supreme Court in case of Magma General Insurance Company Limited Vs. Nanu Ram alias Chuhru Ram & Others, (2018) SCC Online SC 1546, Claimant No.3 also entitled to get Rs.40,000/- towards filial loss of consortium.
26. This Court is recomputing the compensation as below:-
Sr. No. Particular Awarded by the Court
1. Monthly income of the deceased Rs.35,300/-
2. Yearly income of the deceased Rs.4,23,600/-
(Rs.35,300 x 12)
3. Future prospects @ 50% Rs.2,11,800/-
4. Total income (Rs.4,23,600/- + Rs.6,35,400/-
2,11,800)
5. 20% deduction towards income tax Rs.5,08,320/-
(Rs.6,35,400 x 20% = 1,27,080) (635400 - 127080 = 5,08,320)
6. Personal expenditure (¼) Rs.3,81,240/- (per annum) (Rs. Rs.5,08,320 x ¼ =1,27,080)
7. Multiplier of 16 applied to assess Rs.60,99,840/-
total loss of dependency Neutral Citation 2024:CGHC:13306 14 (Rs.3,81,240/- x 16)
8. Filial loss of consortium for Rs.40,000/-
appellant No.1 (mother)
9. Filial loss of consortium for Rs.10,000/-
appellant No.2 (sister)
10. Filial loss of consortium for Rs.40,000/-
appellant No.3 (father)
11. Loss of spousal consortium for Rs.40,000/-
respondent No.1 (wife)
12. Loss of parental consortium for Rs.40,000/-
respondent No.5 (daughter)
13. Loss of estate Rs. 15,000/-
14. Funeral Expenses Rs.15,000/-
15. Total compensation Rs.62,99,840/-
27. For the forgoing reasons, the appeal is allowed in part. The amount of compensation of Rs.23,32,000/- awarded by the Tribunal is enhanced to Rs.62,99,840/-. Hence, after deducting the amount of Rs.23,32,000/-, the appellants/claimants and respondents No.1 & 5 are held entitled for an additional amount of Rs.39,67,840/- rounded off Rs.39,68,000/-. Respondents/Non-applicants No.2, 3 and 4, i.e., Driver, Owner & the Insurance Company are directed to deposit the amount of compensation as enhanced by this Court within a period of 60 days from the date of receipt of copy of this order. The additional amount of compensation shall carry interest @ 6% per annum from the Neutral Citation 2024:CGHC:13306 15 date of filing of claim application before the Tribunal, till its realization. Rest of the conditions of impugned award shall remain intact.
28. The impugned award stands modified to the above extent. On deposit the amount, the Tribunal shall pass appropriate order with regard to apportionment, investment and disbursement of the enhance amount of compensation.
29. Consequently, appeal is allowed in part.
Sd/-
(Arvind Kumar Verma) Judge Vasant