Partly allowed

Divisional Manager, The Oriental General Insurance Company Limited v. Smt. Jainibai

Chhattisgarh HC11 Oct 2023MAC/181/2017

Case brief

AI extract

What is this about?

The High Court allowed the appeal partially. It rejected the insurer's claim of contributory negligence because the deceased was not driving. However, it reduced the compensation under non-dependency heads to Rs. 1.20 lakhs as per Pranay Sethi and Magma Insurance precedents, adjusting the total award.

What did the court decide?

Appeal allowed partially; compensation modified to Rs. 45,25,515; interest fixed at 6% per annum from date of filing of claim petition till actual payment.

Divisional Manager, The Oriental General… — Motor Accident Claims | Chhattisgarh HC (2023)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

MAC No. 181 of 2017

¶5

Divisional Manager, The Oriental General Insurance Company Limited Divisional Office, Parmanand Bhavan, Near To Rajendra Park G.E.Road, Durg, Tehsil And District Durg, Chhattisgarh ...............Insurer

¶6

---- Appellant

¶7

Versus

¶8

Smt. Jainibai W/o Late Netram Padoti, Aged About 45 Years

¶9

Kalicharan S/o Late Netram Padoti, Aged About 28 Years Both R/o Village Sankari, Thana And Tehsil Gundardehi, District Balod, Chhattisgarh ...............Claimants

¶10

Shailesh Yadav S/o Bismbhar Yadav, Aged About 28 Years R/o Village- Sagar, Thana And Tahsil Chhuria, District Rajnandgaon, Chhattisgarh, Present Address- Dallirajahra Manpur Chowk, Thana Dallirajhara, District Balod, Chhattisgarh ................Driver

¶11

Ranjeet Singh Rana S/o Gurudayal Singh, Aged About 47 Years R/o Gurunanak Nagar, Dallirajhara, Thana And Tehsil Dallirajhara, District Balod, Chhattisgarh ................Owner

¶12

---- Respondents

¶13

For Appelant : Shri Sudhir Agrawal, Advocate For Respondent No.1 & 2 : Shri A.D.Kuldeep,Advocate For Respondent No.3 & 4 : Shri Vipin Tiwari, Advocte

¶14

Hon’ble Shri Justice Sachin Singh Rajput

¶15

Order On Board

¶16

11/10/2023

¶17

In this appeal under Section 173 of the Motor Vehicles Act, 1988 (for short “the Act of 1988”), the appellant/Insurance Company has challenged the award dated 23.07.2016 passed in Claim Case No.10/2016 by the Motor Accident Claims Tribunal, Balod. Parties are hereinafter referred to as status in the trial court.

¶18

¶19

By the impugned award, the learned Tribunal partly allowed the application under Section 166 of the Motor Vehicles Act filed by the respondent No.1 seeking compensation to the tune of Rs.1,19,47,072/- on account of death of deceased Netram in an unfortunate accident that took place on 15.05.2015 by rash and negligent driving of the offending vehicle Highwa truck bearing registration No. CG 07 -E-1245.

¶20

Learned Tribunal awarded total compensation of Rs. 46,45,515/- in favour of the claimants.

¶21

As per pleading of the claim application, deceased was working as Assistant Lineman in the CG State Electricity Distribution Company and earning Rs. 47,808/- per month and was aged about 50 years. They also pleaded that the alleged accident occurred due to the rash and negligent driving of the driver of the offending vehicle. Their claim application was resisted by the respondent No.1 & 2 driver and owner i nter alia pleading that the accident did not occur due to negligent driving of driver, driver had valid and effective driving license and the vehicle was insured.

¶22

Insurance Company also registered the claim inter alia pleading that it was a case of contributory negligence as there was a head on collusion between the offending vehicle and the motorcycle in which the deceased was riding the amount claimed is exaggerated and there is violation of insurance policy on account of valid and effective driving license, Learned Tribunal having framed four issues decided the same in favour of the appellants/claimants and awarded the compensation as stated above.

¶23

¶24

Shri Sudhir Kumar Agrawal, learned counsel appearing for the Insurance Company would submit that the finding of the learned Tribunal with regard to issue No.1 is erroneous and contrary to the evidence on record. He submits that from the statement of the eyewitness and the respondent No.2/claimant-Kalicharan, it is established on record that there was a head on collusion between the motor cycle driven by Kalicharan and the offending vehicle. He would further submit that the road on which the accident had occurred is a wide road and therefore naturally the driver of the offending vehicle cannot be blamed in its entirety for the accident. Hence, 50% amount of compensation ought to have been deducted by the Tribunal on account of contributory negligence. He would next submit that though the compensation awarded on account of loss of dependency appears to be reasonable but the Tribunal has awarded Rs. 2,25,000/- under the other admissible heads which is in direct contravention of the judgment of the Hon’ble Supreme Court in the case of National Insurance Co. Ltd vs Pranay Sethi & others, (2017) 16 SCC 680 and according to which the claimants are only entitled to Rs. 40,000/therefore the amount of compensation may be reduced suitably.

¶25

To buttress his submission, Shri Agrawal placed reliance upon the judgment of the Hon’ble Supreme Court in the matter of APSRTC rep. By its Regional Manager Vs. Mallagundla Nagarjuna and Others, 2022 (1)TAC 19(SC) and judgment of this Court in United India Insurance Co. Ltd. Vs. Smt. Sunita Giri and Others reported in 2011 (IV) MJPR-CG 26. Shri Agrawal, submits that the Tribunal has also erred in awarding 8% interest since the date of accident till today as normally 6% interest is being awarded. So the amount of

¶26

¶27

interest may be reduced.

¶28

Shri Kuldeep learned counsel for respondent No.1 & 2 would support the award and submits that the deceased was not driving the motorcycle and therefore he cannot be said to have contributed in any manner in the occurrence of the accident. He would further submit that the offending vehicle was a Highwa truck whereas the deceased was a pillion rider in the motor cycle driven by the respondent No.2/claimant and under any stretch of imagination, it cannot be assumed that the driver of the motor cycle would have contributed in commission of the accident therefore he submits that the submission made by counsel for the appellant is liable to be rejected. He would next submit that the award of Rs. 2,25,000/- is absolutely justified and it does not require any interference and the appeal deserves to be dismissed.

¶29

Shri Vipin Tiwari, counsel for respondent No.1 & 2 supports the impugned award.

¶30

Heard counsel for the parties and considered their rival submissions.

¶31

This Court would like to deal with the first submission with regard to contributory negligence. It is admitted fact in this case that there was head on collusion between the offending vehicle and the motorcycle. As per the statement of the respondent No.2/claimantKalicharan is also very wide. However the submission is liable to be rejected in the light of the judgment of the Hon’ble Supreme Court in the matter of T.O.Anthony Vs. Karvarnan ( 2008) 3 SCC 748 wherein

¶32

¶33

the Hon’ble Supreme Court has differentiated the cases of composite negligence and contributory negligence. In order to establish a case under contributory negligence, one of the vehicle involved in the accident ought to have driven by the deceased/injured whereas in the case of composite negligence the deceased/injured is not in any way connected with the affairs of driving of any of the vehicle involved. The law is very much settled that where the deceased is not driving any of the offending vehicle involved, cannot be a case of contributory negligence it would be the case of composite negligence and the claimants are entitled to claim the compensation from any of the vehicle involved in the accident. Looking to the above, the contention so recorded is liable to be rejected. The reliance placed in the judgment of United India Insurance Corporation (supra) was highly misplaced because the facts in the present case is distinguishable from the fact of the case cited above. In the above cited case, there is head on collusion between two trucks but in the case in hand,. there is a collusion between a motorcycle that too, driven by the respondent No.2/claimant-Kalicharan and not by the deceased therefore it is not applicable in the present case.

¶34

Likewise the case cited by learned counsel for the appellant in APSRTC rep. by its Regional Manager (supra) is also with due respect not applicable as it is also distinguishable in the facts of the present case , therefore this submission is rejected .

¶35

So far as the reduction of the amount with regard to other admissible heads is concerned, in view of the judgment of the Supreme Court in the case of Pranay Sethi (supra) the compensation has to be determined. In the case of Pranay Sethi, the following compensation has been determined with regard to other admissible heads like Funeral Expenses, Loss of Estate and Loss of

¶36

¶37

Consortium to Rs. 70,000/-.

¶38

However, at the same time, this Court cannot loose sight of the fact that the Hon’ble Supreme court in the case of Magma General Insurance Company Limited versus Nanu Ram alias Chuhru Ram

¶39

and others, (2018) 18 SCC 130, has held that the claimants are also entitled for filial compensation which in this case, if it is applied, the amount of compensation on other heads would come to Rs. 40,000/-+ Rs.80,000/-= Rs. 1,20,000/-. Time and again, Hon’ble Supreme Court as well as other High Courts of this country had laid down a law that compensation should not be meager amount of compensation nor a bonanza. The compensation has to be just and proper under the facts and circumstances of the case. The Tribunal in this case has already awarded Rs. 44,20,515/-, for loss of dependency Rs. 2,50,000/- was awarded under other heads, thus awarded total Rs. 46,45,515/- as total compensation. However, under other heads the claimants are entitled to Rs. 1,20,000/- and therefore Rs. 1,30,000/- is required to be reduced. Hence, after subtracting the same, appellants are entitled to Rs. 45,15,515/- (i.e. Rs. 46,45,515-Rs.1,30,000). Thus, the impugned award is modified to the extent that the appellant/claimant shall be entitled to compensation of Rs. 45,25,515/- with a payment of interest on the amount of compensation @ 6% per annum from the date of filing of the claim petition till the date of actual payment.

¶40

10. Appeal is thus, partly allowed.

¶41

Sd/(Sachin Singh Rajput) Judge

¶42

suguna

Divisional Manager, The Oriental General Insurance Company Limited v. Smt. Jainibai

Case brief

What is this about?

What did the court decide?

Divisional Manager, The Oriental General Insurance Company Limited v. Smt. Jainibai

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt. Vidya Sahu Vs Anil Kumar Yadav

Rabul Barik Vs Smt. Shanti Devi

Purushottam Jaltare Vs Smt. Ramayan Bai

Nohar Lal Sahu Vs Pradeep Thakare

Amit Kumar Vs Prakash Chandra

Kalpna Singh Vs Shrawan Kumar Gupta