Partly allowed

The Oriental Insurance Company Limited v. Ku. Archana And Ors.

Chhattisgarh HC10 Aug 2023MAC/693/2015

Case brief

AI extract

What is this about?

The Hon'ble High Court of Chhattisgarh, relying on the Supreme Court in Deepal Girishbhai Soni, held that a claim under Section 163-A is not maintainable when the deceased's income exceeds Rs. 40,000. The appeals regarding relief and exoneration were accordingly decided.

What did the court decide?

Miscellaneous Appeal (C) No. 456 of 2015 dismissed; Miscellaneous Appeal (C) No. 693 of 2015 allowed; impugned award set aside and claim petition rejected as not maintainable.

The Oriental Insurance Company Limited Vs Ku. Archana And Ors. — Insurance | Chhattisgarh HC (2023)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Miscellaneous Appeal (C) No.693 of 2015

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The Oriental Insurance Company Limited, Resident Branch OfÏce Raigarh, Chhattisgarh,

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---- Appellant

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Versus

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Ku. Archana, D/o Late Shankar Ram, Aged About 18 Years, R/o Village Nagartoli, Sanna, Tehsil Bagicha, District Jashpur, Chhattisgarh,

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Minor Ankit, S/o Late Shankar Ram, Aged About 17 Years, Minor Through Next Friend Respondent No. 1 Archana, R/o Village Nagartoli, Sanna, Tehsil Bagicha, District Jashpur, Chhattisgarh,

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Kallu Ram, S/o Late Ramratan Ram, Aged About 47 Years, R/o Village Nagartoli, Sanna, Tehsil Bagicha, District Jashpur, Chhattisgarh,

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Smt. Gotiyari, W/o Shri Kallu Ram, Aged About 45 Years, R/o Village Nagartoli, Sanna, Tehsil Bagicha, District Jashpur, Chhattisgarh,

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Basant Gupta, S/o Late Ramadhar, Aged About 44 Years, Caste – Kamalapuri Vaishya, Occupation – Business, Resident Village – Sanna, Tehsil – Bagicha, District – Jashpur, Chhattisgarh

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---- Respondents

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AND

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Miscellaneous Appeal (C) No. 456 of 2015

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Ku. Archana, D/o Late Shankar Ram, Aged About 18 Years, R/o Village Nagartoli, Sanna, Tahsil Bagicha, P.S. Sanna, District Jashpur, Civil And Revenue District Jashpur, Chhattisgarh,

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Minor Ankit, S/o Late Shankar Ram, Aged About 17 Years, Minor Through Mother Next Friend Archana Appellant No. 1 R/o Village Nagartoli, Sanna, Tahsil Bagicha, P.S. Sanna, District Jashpur Civil And Revenue District Jashpur, Chhattisgarh,

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Kallu Ram, S/o Late Ramratan Ram, Aged About 47 Years, R/o Village Nagartoli, Sanna, Tahsil Bagicha, P.S. Sanna, District Jashpur, Civil And Revenue District Jashpur, Chhattisgarh,

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Smt. Gotiyari W/o Kallu Ram, Aged About 45 Years, R/o Village Nagartoli, Sanna, Tahsil Bagicha, P.S. Sanna, District Jashpur Civil And Revenue District Jashpur, Chhattisgarh,

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---- Appellants/Claimants

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Versus

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Basant Gupta, S/o Late Ramadhar, Aged About 44 Years, Occupation Business, Caste – Kamalpuri Vaisa, R/o Village Sanna, Tahsil Bagicha, District Jashpur, Chhattisgarh,

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The Oriental Insurance Company Limited, Local Branch OfÏce Raigarh, Tahsil and District Raigarh, Chhattisgarh,

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---- Respondents

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For Oriental Insurance Co. Ltd. : Shri Sudhir Agrawal & Shri H.S. Patel , Advocate, For Claimants : Shri Rishikant Mahobia, Adv. For Owner/Driver : None

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Hon'ble Shri Justice Arvind Singh Chandel

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Order on Board

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10/08/2023

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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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Both the above appeals are preferred by the appellants challenging the impugned award dated 18.02.2015 passed by the Additional Motor Accidents Claims Tribunal, Jashpur, District – Jashpur, Chhattisgarh (henceforth ‘the Tribunal’) in Claim Case No.09 of 2014 wherein the Tribunal has allowed the claim petition filed by the claimants under Section 163-A of the Motor Vehicles Act, 1988 (henceforth ‘the Act’) and passed an award of Rs.4,04,505/- and fastened the liability on the Insurance Company i.e. appellants in Miscellaneous Appeal ( C) No.693 of

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Miscellaneous Appeal (C) No.456 of 2015 has been preferred for enhancement of the compensation amount and Miscellaneous Appeal (C) No.693 of 2015 has been preferred by the Insurance Company seeking exoneration from any liability to pay the compensation.

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The claim petition preferred by the claimants under Section 163A of the Motor Vehicles Act, 1988 is on the allegations interalia, that on the date of accident i.e. 23.04.2010, Shankar Ram (henceforth ‘the deceased’) was driving the Tractor along with Trolley bearing registration No.CG 14 A 0517 & CG 14 A 0518 respectively (in short ‘the offending vehicle’) which belongs to respondent No.1 - Basant Gupta i.e. owner of the offending vehicle (in MAC No.456/2015) in the mines area. However, all of a sudden, the tractor turned turtle in a pit, due to which the deceased sustained injuries and died. The offending vehicle was insured with the appellant/Oriental Insurance Company Limited in Miscellaneous Appeal (C) No.693 of 2015. At the time of accident, the deceased was working as a driver for which he used to earn Rs.3,300/- per month and was getting allowance per day for his meals @ Rs.100/-. The Tribunal while assessing the income of the deceased has held that the deceased was getting monthly salary of Rs.2,640/- and in addition also getting Rs.2,400/- monthly as food allowance (24 days x 100). However, considering the provisions under Section 163-A of the Act, the

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Tribunal has finally assessed the yearly income of the deceased to Rs.40,000/- and passed the impugned award.

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The Insurance Company has preferred Miscellaneous Appeal (C ) No.693 of 2015 on the ground that the offending vehicle was used for commercial purpose. That, without any permit the said offending Tractor Trolley was used for commercial purpose for transportation of stone, hence, the Insurance Company is not liable to pay the compensation.

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Learned Counsel for the appellant/claimants in Miscellaneous Appeal (C) No.456 of 2015, submitted that the Tribunal has erred in assessing the monthly income of the deceased. It is further argued that the Tribunal has not granted appropriate amount on other conventional heads and the same are required to be enhanced suitably.

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Learned Counsel for the appellant/Insurance Company in Miscellaneous Appeal (C ) No.693 of 2015 submitted that the claimants in their claim petition have pleaded that the deceased was getting monthly salary of Rs. 3,300/- and was also getting Rs.100/- per day as food allowance. Upon calculating the yearly income, taking the above mentioned amount, the amount would come more than Rs.40,000/-. The learned Tribunal has also assessed the monthly salary of the deceased to Rs.2,640/- and also held that he was getting Rs.2,400/- monthly as food allowance. However, the Tribunal on the basis of provisions under Section 163-A of the Act, finally assessed the monthly

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salary of deceased to Rs.2,640/- and Rs.2,400/- monthly as dearness allowance. On calculating the above amount, the yearly income would come more than Rs.60,000/-. Therefore, the claim petition filed by the claimants under Section 163-A of the Act is not maintainable. Reliance has been placed on a judgment passed by the Hon’ble Supreme Court in the case of Deepal Girishbhai Soni v. United India Insurance Co. Ltd., Baroda, (2004) 5 SCC 385, which has been also relied by the Division Bench of this Court in Miscellaneous Appeal No.216 of 2006 (Oriental Insurance Company Limited v. Swatantra Kumar Verma and Others), in Miscellaneous Appeal No.706 of 2014 (Smt. Sunita Gupta v. Gurusharan and Others), and Miscellaneous Appeal No.1122 of 2005 (Smt. Kala Bai v. Rajendra Jain). To counter the above argument, learned Counsel for the claimants submitted that these grounds were not taken by the Insurance Company in the appeal preferred by them, therefore, now the Insurance Company is not permitted to take these grounds in its support. Again to counter the above argument, it is submitted by learned Counsel for the Insurance Company that this question is a purely question of law and it can be taken at any stage of the proceedings.

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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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Bare perusal of pleadings of the claimants shows that the

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deceased was working as a driver and was getting monthly salary of Rs.3,300/- and was getting daily allowance for food i.e. Rs.100/- which clearly shows that deceased was getting yearly income more than Rs.72,000/-. The Tribunal in paragraph 18 of its award, assessed the monthly salary of the deceased to Rs.2,640/- on the basis of the order passed by the Collector, Jashpur (Annexure P-5), considering the deceased as a skilled labour, and also arrived on the conclusion that the deceased was getting Rs.2,400/- monthly as food allowance. Thus, as per the above assessment also, deceased was getting more than Rs.60,000/- yearly which is more than Rs.40,000/- yearly. In the case of Deepal Girishbhai Soni (supra), the Supreme Court has held that the provision for getting compensation under Section 163-A of the Act is totally different from Section 166 of the Act. When a claim petitioner files a petition under Section 166 of the Act, he is required to prove negligence, but under Section 163-A of the Act, no negligence is required to be proved and it amounts to no fault liability. In conclusion, the Supreme Court has held as follows:

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“67. We, therefore, are of the opinion that Oriental Insurance Co. Ltd. v. Hansrajbhai V. Kodala, (2001) 5 SCC 175 has correctly been decided. However, we do not agree with the findings in Kodala that if a person invokes provisions of Section 163-A, the annual income of Rs.40,000 per annum shall be treated as a cap. In our opinion, the proceeding under Section 163-A being a social security provision, providing for a distinct scheme, only those whose annual

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income is up to Rs.40,000 can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act.”

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The above judgment of the Supreme Court in Deepal Girishbhai Soni (supra), has been also followed by the Division Bench of this Court in the case of Miscellaneous Appeal No.216 of 2006 (Oriental Insurance Company Limited v. Swatantra Kumar Verma and Others) and in Miscellaneous Appeal No.706 of 2014 (Smt. Sunita Gupta v. Gurusharan and Others), and Miscellaneous Appeal No.1122 of 2005 (Smt. Kala Bai v. Rajendra Jain).

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In the light of the judgment and the law laid down by the Supreme Court in Deepal Girishbhai Soni (supra), which is also followed by the Division Bench of this Court and on a close scrutiny of the material available on record, it is clear that the claimants have pleaded that the yearly income of the deceased would be more than Rs.40,000/-. On perusal of the impugned award shows that the Tribunal has also assessed the yearly income of the deceased more than Rs.60,000/-. Since, as per the pleadings and as held by the Tribunal also, the deceased was getting yearly income more than Rs.60,000/-, the claim petition filed by the claimants under Section 163-A of the Act is not maintainable. With regard to the argument regarding maintainability of claim petition which was not taken by the Insurance Company is concerned, the said ground is a purely

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question of law and it can be taken at any stage of the proceedings. Thus, I do not find any substance in the argument of learned Counsel for the claimants.

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In this view of the above discussion, Miscellaneous Appeal (C ) No.456 of 2015 preferred by the claimants, the same is dismissed, since the claim petition under Section 163-A of the Act is not maintainable. Miscellaneous Appeal No.693 of 2015 preferred by the Insurance Company is allowed. The award dated 18.02.2015 passed by the Additional Motor Accidents Tribunal, Jashpur, in Claim Case No.09 of 2014 is set aside and the claim petition filed by the claimants is rejected as not maintainable. No order as to costs.

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Prakash

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Sd/(Arvind Singh Chandel) Judge

The Oriental Insurance Company Limited v. Ku. Archana And Ors.

Case brief

What is this about?

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The Oriental Insurance Company Limited v. Ku. Archana And Ors.

Case brief

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