Partly allowed

National Insurance Company Limited v. Smt. Seema Sarkar And Ors.

Chhattisgarh HC22 Apr 2022MAC/538/2015

Case brief

AI extract

What is this about?

The High Court dismissed the insurer's appeal regarding liability as the tank vehicle was empty, rejecting the breach of policy claim. Regarding the claimants' appeal, the court enhanced the compensation amount to Rs. 12,61,000 by recalculating income and increasing damages for consortium and funeral expenses.

What did the court decide?

Miscellaneous Appeal No.538 dismissed; Miscellaneous Appeal No.684 allowed with enhancement of compensation to Rs. 12,61,000.

National Insurance Company Limited Vs Smt. Seema… — Motor Accident Claims | Chhattisgarh HC (2022)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Miscellaneous Appeal (C) No.538 of 2015

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Order Reserved on : 24.3.2022

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Order Passed on : 22.4.2022

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National Insurance Company Limited, Branch Manager, in front of Main Post Office Jagdalpur, through Authorised Authority, Divisional Manager, Divisional Office B-1, Taha Complex, First Floor, Ring Road, Priyadarshani Nagar, Bilaspur, Tahsil and District Bilaspur, Chhattisgarh

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---- Appellant

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versus

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Smt. Seema Sarkar, Wd/o Late Vishwajeet Sarkar, aged 28 years, 2. Amar Sarkar, S/o Late Asani Sarkar, aged 60 years, 3. Smt. Usha Rani Sarkar, W/o Amar Sarkar, aged 52 years, 4. Rajeev Sarkar, S/o Late Vishwajeet Sarkar, aged 7 years (minor), 5. Sumit Sarkar, S/o Late Vishwajeet Sarkar, aged 5 years (minor), 6. Ku. Tumma Sarkar, D/o Late Vishwajeet Sarkar, aged 3 years (minor), Respondents No.4 to 6 are minor through guardian mother Smt. Seema Sarkar, Wd/o Late Vishwajeet Sarkar, aged 28 years (Respondent No.1) Respondents No.1 to 6 all are R/o Village Sonarpal, P.O. Sonarpal, P.S. Bhanpuri, District Bastar, Chhattisgarh

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Sarvajeet Singh Sandhu, S/o Janrail Singh Sandhu, aged 44 years, R/ o Kohka Purani Basti, Bhilai, District Durg, Chhattisgarh (occupation Truck Driver)

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Smt. Soni Devi Sao, Wd/o Late Surjeet Sao, R/o Ring Road No.2, Industries Area, Raipur, District Raipur, Chhattisgarh (Owner)

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--- Respondents

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and

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Miscellaneous Appeal (C) No.684 of 2015

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Smt.Seema Sarkar, Wd/o Vishwajeet Sarkar, aged about 28 years,

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Amar Sarkar, S/o Late Asani Sarkar, aged about 60 years,

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Smt. Usha Rani Sarkar, W/o Amar Sarkar, aged about 52 years,

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Master Rajeev Sarkar, S/o Late Vishwajeet Sarkar, aged about 7 years,

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Master Sumit Sarkar, S/o Late Vishwajeet Sarkar, aged about 5 years,

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Miss Tumma Sarkar, D/o Vishwajeet Sarkar, aged about 3 years, Appellants No.4 to 6 are minor through their mother Smt. Seema Sarkar (Appellant No.1)

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All are residents of Village Sonarpal, Post Sonarpal, P.S. Bhanpuri, District Bastar, Chhattisgarh

---- Appellants

versus

Sarvjeet Singh Sandhu, S/o Janrail Singh Sandhu, aged about 44 years, resident of Kohka Purani Basti, Bhilai, District Durg, Chhattisgarh (Driver)

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Smt. Soni Devi Sao, Wd/o Late Surjeet Sao, R/o Ring Road No.2, Industrial Area, Raipur, District Raipur, Chhattisgarh (Owner)

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The National Insurance Co. Ltd. Through Branch Manager Main Opposite Main Post Office, Jagdalpur, District Bastar, Chhattisgarh (Insurance Co.)

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--- Respondents

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------------------------------------------------------------------------------------------------------For National Insurance Company Ltd. : Shri Dashrath Gupta, Advocate For Claimants Smt. Seema Sarkar and : Shri Kunal Das, Advocate 5 others

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For Driver Sarvjeet Singh and Owner : Shri A.L. Singroul, Advocate Smt. Soni Devi Sao

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Hon'ble Shri Justice Arvind Singh Chandel

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C.A.V. ORDER

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Since the above mentioned appeals arise out of a common award, they are heard and decided together.

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Vide appeals being Miscellaneous Appeal (C) No.538 of 2015 and Miscellaneous Appeal (C) No.684 of 2015, both the insurer and the claimants, respectively impugn the award dated 17.12.2014 passed by the 3^rd Additional Motor Accidents Claims Tribunal, Bastar at Jagdalpur in Claim Case No.100 of 2013.

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As per the claim petition preferred by the claimants, Vishwajeet Sarkar (deceased) by driving his motorcycle bearing registration No.CG 17 KD 6812 was going to Kondagaon to take hens for his shop. On the way, driver Sarvjeet Singh by driving a truck bearing registration No.CG 04 D 6983 rashly and negligently hit the motorcycle of Vishwajeet Sarkar as a result of which Vishwajeet

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Sarkar received grievous injuries and died on the spot. Claimants Smt. Seema Sarkar and 5 others filed a claim petition under Section 166 of the Motor Vehicles Act for a compensation of Rs.16,87,000 against the driver, owner and insurer of the truck.

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The driver and owner of the truck, in their written statement, denied the claim and pleadings of the claim petition and stated that on the date of accident the truck was insured with the National Insurance Company Limited and, therefore, the insurer is liable to pay the compensation.

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The insurer, in its written statement, denied the claim and pleadings of the claim petition and stated that the offending vehicle was registered as a tanker for carrying goods of dangerous and hazardous nature and, therefore, the driver of the offending vehicle should have been holder of a driving licence as per Section 14(2)(a) of the Motor Vehicles Act and Rule 9 of the Central Motor Vehicles Rules. On the date and time of the alleged accident, the driver was not a holder of a valid and effective driving licence. Thus, the owner has committed breach of the terms and conditions of the insurance policy.

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The Tribunal, after recording evidence of the parties, awarded a compensation of Rs.6,42,000 in favour of the claimants along with interest @ 9% per annum from the date of filing of the claim petition till realisation of the compensation.

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Being aggrieved by the impugned award, the insurer has preferred

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Miscellaneous Appeal (C) No.538 of 2015 on the ground that the insurer by leading evidence has proved that on the date of accident in the driving licence of the driver of the offending vehicle there was no endorsement for driving the vehicle which is meant for carrying hazardous and dangerous goods and thus, the driver was not entitled to drive the offending tanker. Hence, the driver had no valid and effective driving licence to drive the tanker. Therefore, the owner has committed breach of the terms and conditions of the insurance policy. Thus, the insurer is not liable to pay the compensation. The Tribunal has wrongly fastened the liability of compensation upon the insurer.

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Seeking enhancement in the amount of compensation, the claimants have preferred Miscellaneous Appeal (C) No.684 of 2015.

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Learned Counsel appearing for claimants Smt. Seema Sarkar and 5 others submitted that the Tribunal has wrongly assessed the income of the deceased as Rs.4,000 per month. The Tribunal has also failed to see that the accident took place in the year 2013 and for that year the minimum wages fixed by the State Government was Rs.172 per day. The Tribunal has also not considered the future prospects of the deceased’s income. It was further argued that the Tribunal has also not awarded sufficient amount towards funeral expenses, loss of love and affection, loss of consortium and loss of estate. Hence, the compensation deserves to be enhanced. Reliance was placed on 2020 (3) TAC 6 (SC) (United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur, (2009) 6

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SCC 121 (Sarla Verma v. Delhi Transport Corporation), (2017) 16 SCC 680 (National Insurance Company Limited v. Pranay Sethi) .

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Learned Counsel appearing for the National Insurance Company Limited opposed the above arguments and submitted that from the evidence adduced by the insurance company and the material available on record, it is well established that the driver of the offending vehicle tanker had no valid and effective driving licence to drive the offending vehicle as in view of Section 14(2)(a) of the Motor Vehicles Act there was no renewal of the driving licence of the driver. Therefore, the Tribunal ought to have exonerated the insurance company from the liability of compensation.

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Learned Counsel appearing for the driver and the owner of the offending vehicle tanker opposed the arguments raised on behalf of the insurer. He submitted that at the time of accident, as observed by the Tribunal, the offending vehicle tanker was empty. Therefore, the Tribunal has rightly fastened the liability of compensation on the insurance company.

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I have heard Learned Counsel appearing for the parties and perused the record of the Tribunal including the evidence adduced by the parties minutely.

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From perusal of the evidence adduced by the claimants, it is well established that the deceased was doing a business of selling eggs, fish and chickens and he also possessed a shop for doing that business. According to the claimants, from the said business,

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the deceased was getting monthly income of Rs.8,000, but, in this regard, there is no conclusive evidence available on record on the basis of which it could be said that he was getting monthly income of Rs.8,000. Considering the fact that the accident is of the year 2013, further considering the deceased as unskilled labour and that the minimum wages fixed by the State Government for an unskilled labour in the year 2013 is Rs.155 per day, his monthly income comes to Rs.4650. In round figure, his monthly income can be assessed as Rs.5,000. Ordered accordingly.

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As regards the multiplier, there is no dispute on the point that at the time of accident, the deceased was 28 years of age. Therefore, following the principles laid down by the Supreme Court in Sarla Verma case (supra), the Tribunal has rightly applied the multiplier of 17.

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With regard to the future prospects, the Tribunal has not awarded any amount. As observed by the Supreme Court in Pranay Sethi case (supra), 40% of the established income of the deceased should have been added towards future prospects as he was below 40 years of age at the time of accident. Ordered accordingly.

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The Tribunal has awarded Rs.5,000 under the head of loss of estate, Rs.20,000 under the head of loss of consortium and further awarded Rs.5,000 for funeral expenses, which are not in accordance with law laid down by the Supreme Court in Pranay Sethi case (supra). The award thereunder should be as follows: (i) under the head of loss of estate Rs.15,000, (ii) under the head of

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loss of spouse consortium Rs.40,000, (iii) under the head of loss of parental consortium Rs.40,000 x 3 = Rs.1,20,000 and (iv) under the head of funeral expenses Rs.15,000.

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As discussed above, now, I shall re-calculate the compensation as follows:

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Sl.	Particula	rs	Amount
No.			(Rs.)
(1)	Annual Income	Monthly income Rs.5,000x12=	60,000
(2)	Future Prospects	40% of the	24,000
		established annual income needs to be added; Rs.60,000x40% =
(3)	Total Annual Income after Addition of Future Prospects	Rs.60,000+ Rs.24,000=	84,000
(4)	Deduction Towards Personal and Living Expenses (¼ deduction from the total annual income)	Rs.84,000x¼=	21,000
(5)	Remaining Amount after the Deduction Towards Personal and LivingExpenses	Rs.84,000– Rs.21,000 =	63,000
(6)	Multiplier Applicable is		17
(7)	Loss of Income comes to	Rs.63,000x17=	10,71,000
(8)	Addition of Loss of Estate		15,000

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(9) Addition of Funeral		15,000
Expenses
(10) Addition of Spouse		40,000
Consortium
(11) Addition of Parental	Rs.40,000x3=	1,20,000
Consortium
(12) Total Compensation		12,61,000

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Ordered accordingly.

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As regards liability of the insurance company, there is no dispute on the point that the offending vehicle was insured with the insurance company. No evidence has been adduced by the insurance company that the offending vehicle was carrying any inflammable or explosive or hazardous goods at the time of accident. Rather, from the evidence available on record, it is established that at the time of accident, the offending vehicle tanker was returning in empty condition. Therefore, there was no need for any endorsement in the driving licence of the driver of the offending vehicle as argued by Learned Counsel for the insurance company. Thus, in my considered view, the insurance company has totally failed to establish that any breach of the insurance policy was committed by the owner of the offending vehicle. Therefore, the Tribunal has rightly fastened the liability of compensation on the insurance company.

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For the reasons stated above, I do not find any substance in the appeal preferred by the insurance company and, therefore, Miscellaneous Appeal (C) No.538 of 2015 is dismissed.

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Miscellaneous Appeal (C) No.684 of 2015 preferred by the claimants is allowed in part to the extent indicated above. The claimants are entitled to get total compensation of Rs.12,61,000 instead of Rs.6,42,000 awarded by the Tribunal. The compensation of Rs.12,61,000 shall be paid to the claimants along with interest @ 9% per annum from the date of filing of the claim petition before the Tribunal till final payment of the compensation. Rest of the impugned award shall remain intact.

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Sd/-

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( Arvind Singh Chandel ) JUDGE

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Gopal

National Insurance Company Limited v. Smt. Seema Sarkar And Ors.

Case brief

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National Insurance Company Limited v. Smt. Seema Sarkar And Ors.

Case brief

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