Smt. Lakhame Mandavi Vs Mayaram Yadav

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 1428 of 2015

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Smt. Lakhame Mandavi W/o Late Handa Mandavi, Aged About 45 Years R/o Village Pakhnar, Tahsil Darbha, District Bastar, Civil And Revenue District Bastar, Chhattisgarh.

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Faganu S/o Late Handa Mandavi, Aged About 30 Years R/ o Village Pakhnar, Tahsil Darbha, District Bastar, Civil And Revenue District Bastar, Chhattisgarh.

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---- Appellants/Claimants

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Versus

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Mayaram Yadav S/o Rasiya Yadav, Aged About 26 Years R/o Village Pakhnar, Tahsil Darbha, District Bastar, Civil And Revenue District Bastar Chhattisgarh. (Driver) .

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Shyam Sundar S/o Late Sh. Kundan Das, Aged About 52 Years R/o Bhagat Ward Pathraguda Jagdalpur, District Bastar Chhattisgarh. (Owner) .

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Branch Manager, National Insurance Company Limited, Office Above Central Bank, Near R M S Office, Jagdalpur District Bastar Chhattisgarh. (Insurer) .

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---- Respondents

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MAC No. 32 of 2016

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Branch Manager National Insurance Company Limited Office Above The Central Bank Near R. M. S. Office Jagdalpur District Bastar Chhattisgarh, Through Authorized Signatory National Insurance Company Limited, Divisional Office First Floor B-1, Taha Complex Vyapar Vihar Road, Bilaspur District Bilaspur Chhattisgarh. (Insurer) .

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---- Appellant

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Versus

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1. Smt Lakhme Mandavi Wd/o Handa Mandavi, Aged About 45 Years R/o Village Pakhnar Tehsil Darbha, District Bastar, Chhattisgarh. (Claimant).

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2. Fagnu S/o Handa Mandavi, Aged About 30 Years R/o Village Pakhnar Tehsil Darbha, District Bastar Chhattisgarh. (Claimant).

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Mayaram Yadav S/o Rasiya Yadav, Aged About 26 Years R/o Village Pakhnar, Tehsil Darbha, District Bastar, Chhattisgarh. (Driver) .

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2

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Shyam Sundar S/o Late Shri Kundan Das, Aged About 52 Years R/o Bhagat Ward Patharguda, Jagdalpur, District Bastar Chhattisgarh. (Owner) .

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---- Respondents

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For Appellants	: Mr. Vikas A. Shrivastava, Advocate, in MAC No. 1428/2015.
For Respondent No. 3	: Mr. B.N. Nande, Advocate in MAC No. 1428/2015.
For Appellant	: Mr. B. N. Nande, Advocate in MAC No. 32/2016.
For Respondent No. 4	: Mr. A.L. Singroul, Advocate in MAC No. 32/2016.

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Hon'ble Shri Justice Sanjay Kumar Jaiswal, J. Judgment on Board

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(04.04.2024)

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1. As both the appeals arises out of same judgment, they are being heard and disposed of by this common order.

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2. MAC No. 1428 of 2015 has been filed by the claimants against the award dated 31.07.2015 passed by the 2^nd Additional Motor Accident Claims Tribunal, Jagdalpur, District Bastar (C.G.) in Motor Accident Claim Case No. 04/2015, whereby the compensation of Rs. 3,47,000/along with interest @ 9% per annum has been passed in favour of the claimants/appellants for their irreparable loss.

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3. The averment in the claim petition, in brief, is that on 21.07.2013 Handa Mandavi (now deceased) had gone to Chandergiri Market with his wife, and when he was returning to his house at Pakhnar Tri-chowk he took a lift in a vehicle bearing Registration No. CG-07-ZG-6102 belonging to one of his known persons, driver Mayaram Yadav of the offending vehicle Jeep drove the vehicle in a rash and negligent manner and caused the vehicle to

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jump on pits, due to which Handa Mandavi had fallen from the jeep and sustained grievous injuries and died on the spot. Thereafter, postmortem of dead body was conducted and for that accident criminal case was registered in the police station Pakhnar. It is stated that on the date of the accident, the age of the deceased was 50 years, he was involved in the work of mason and was earning Rs. 7,000/- per month from his work. Due to the casual death of the husband and father of the appellants/ claimants, there is an irreparable loss to the appellants. Therefore, the appellants (wife & son of the deceased) preferred an application to claim a total compensation of Rs. 11,00,000/-.

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4. When the claim application for compensation was filed by widow and son of deceased Handa Mandavi before the claims tribunal against the driver, owner and insurance company of the alleged vehicle, the tribunal has taken notional income of the deceased as Rs 3,000/- per month i.e. Rs. 36,000/- per annum in absence of any documentary proof of income. The deceased was aged about 50 years and the claimants are the widow and son of the deceased so after deduction 1/3 towards personal expenses i.e. Rs. 12,000/- the annual income of the deceased was taken as Rs.24,000/- and considering the age of the deceased, after applying multiplier of 13, the total loss of dependency calculated to Rs. 3,12,000/- and on other heads Rs. 35,000/- has been calculated and awarded total compensation of Rs. 3,47,000/(3,12,000+35,000=3,47,000) with interest @ 9% per annum, in favour of the appellants/claimants. Hence, this appeal for enhancement.

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5. Learned counsel for the appellants/claimants submits that the compensation awarded by the Tribunal is on the lower side and needs to be enhanced suitably. He further submits that the claimants have pleaded the income of the deceased as Rs. 7,000/- per month, but the learned Claims Tribunal has only assessed the income of the deceased as Rs. 3,000/- per month on notional basis and total compensation of Rs. 3,47,000/- has been awarded including the amount of other conventional heads of Rs. 35,000/-. The learned counsel urged that the tribunal erred in not considering future prospects while computing compensation as it failed to appreciate that the deceased could have earned much more in the near future if he had not met with the accident as he was only aged about 50 years and could have lived for another 15-20 years. The learned counsel further submits that the tribunal has awarded lesser compensation on other heads, therefore, this appeal may be allowed and needs to be enhanced suitably.

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6. On the other hand, it has argued on behalf of the counsel for respondent No. 3 (Insurance Company) that in the facts and circumstances of case, the compensation awarded by the Claims Tribunal is just and proper and requires no further enhancement.

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7. Heard counsel for the parties and perused the documents on record.

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8. In a motor accident claim case, what is important is that, the compensation to be awarded by the Courts/Tribunals should be just and proper compensation in the facts and circumstances of the case. It should neither be a meager amount of compensation, nor a Bonanza.

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9. Now this Court shall examine as to whether the compensation of Rs.3,47,000/- awarded by the Tribunal is just and proper compensation in the given facts and circumstances of the case.

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10. As regards the income of the deceased, though the claimants have pleaded that the deceased was earning Rs.7,000/-. per month from the work of manson, but no documentary evidence in support thereof has been produced, but it cannot be said that the deceased was not earning anything from his work. Therefore, in absence of any reliable evidence regarding income of the deceased, keeping in mind the nature of occupation, date of accident, wage structure prevailing on the date of accident, price index and cost of living etc. specially notification by Labour Department for minimum wages. Upon considering the aforementioned factors, I find it appropriate to take income of deceased as Rs. 4,943/- per month as minimum wages, at the relevant time of accident i.e. 21.07.2013. The annual income comes to Rs. 59,316/- per annum. As per National

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Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 after adding 25% towards future prospects i.e. Rs. 14,829/-, the annual income comes to Rs. 74,145/-.

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11. The deceased was aged about 50 years and the claimants are the widow and son of the deceased so deduction towards personal expenses would be 1/3 which is Rs. 24,715/-, after deducting 1/3 of the income of the deceased, the annual dependency comes to Rs. 49,430/-. In view of judgment of the Hon’ble Supreme Court in Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6 SCC 121

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and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 considering the age of the deceased, after applying multiplier of 13, the total loss of dependency works out to Rs. 6,42,590/-. The claimants are further entitled for loss of estate Rs. 15,000/-, for funeral expenses Rs. 15,000/- and as per ' Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189 , the claimants are further entitled for loss of love and affection Rs. 40,000/- each i.e. Rs. 80,000/-. Therefore, the claimants would become entitled for total compensation of Rs. 7,52,590/-. Thus, the claimants are entitled for compensation in the following manner:-

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S.No.	Heads	Calculation
01	Towards loss of dependency	Rs. 6,42,590/-
02	Towards loss of estate	Rs. 15,000/-
03	Towards love and affection to all the two claimants@Rs. 40,000/-	Rs. 80,000/-
04	Funeral Expenses	Rs. 15,000/-
	Total	Rs. 7,52,590/-

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12. Thus, the total compensation is recomputed as Rs. 7,52,590/- After deducting Rs. 3,47,000 as awarded by the Tribunal, the enhancement would be Rs. 4,05,590/-

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13. In the result, the appeal (MAC No. 1428/2015) is partly allowed. The claimants shall be entitled to Rs. 4,05,590/- in addition to what is already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 6% from the date of enhancement of the award till its realization. The impugned award stands modified to the above extent.

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14.MAC No. 32 of 2016 has been filed by the Insurance

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Company against the award dated 31.07.2015 passed by the 2^nd Additional Motor Accident Claims Tribunal, Jagdalpur, District Bastar (C.G.) in Motor Accident Claim Case No. 04/2015.

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15. As against compensation of Rs.11,00,000/- claimed by the respondents No.1 & 2 herein by filing claim application under Section 166 of the Motor Vehicles Act (henceforth ‘the Act’) for death of their husband and father, due to the motor accident occurred on 21.07.2013, the Tribunal awarded a total sum of Rs.3,47,000/- along with interest at the rate of 9% per annum in favour of claimants. The driver, owner and insurance company were held liable to pay compensation jointly and severally.

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16. Learned counsel appearing for the appellant would submit that the learned claims Tribunal has failed in distinguishing the nature of insurance policy in terms of Comprehensive Package Policy and Act Only Policy and treating the deceased as a third party allowed the claim application preferred by his widow and son, under the Act only Policy. In contrast, the deceased was travelling with the private jeep and as such was an occupant of the said Jeep. At the time of the accident in question, the vehicle was covered with the Act Only Policy with a premium of Rs. 450/ for covering limited risk amounting to Rs. 1,00,000/for per passenger to the extent of 9 unnamed passengers, which is evident from the policy Ex.D-1. Thus, the liability of the insurance company is limited to the extent of Rs. 1,00,000/- whereas the Tribunal has held the insurance company jointly & severally liable for the entire award, which is not appropriate as per policy conditions. Therefore, the appeal is liable to be allowed and the

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impugned awarded is liable to be set aside. He placed reliance on the decision of the Hon’ble Supreme Court in the matter of Oriental Insurance Co. Ltd. v. Smt. Raj Kumari and others , reported in 2008 (1) T.A.C. 1 (S.C.).

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17. On the other hand, learned counsel appearing for respondents No. 4 supported the award impugned and submitted that in the facts and circumstances of the case, the Tribunal has rightly passed the award, which does not call for any interference.

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18. I have heard learned counsel for the parties and perused the record of the Tribunal including award impugned.

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19. It appears from the perusal of the records that on the date of the accident the deceased was travelling as a passenger in the vehicle in question which was insured with the appellant/insurance company with a policy premium of Rs. 450/- for 9 unnamed passengers to the extent of Rs. 1,00,000/- per person which is evident from Policy Certificate Ex. D-1, Policy No. 285302/31/12/6700005169, issued by National Insurance Company in favour of Mr. Shyam Sundar for his vehicle registration No. CG-07-ZG-6102, which was valid till 22.10.2013.

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20. Now, I shall deal with the argument advanced by the learned counsel for appellant that the deceased being the passenger of the vehicle in question does not fall under the category of 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. ,

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reported in (2009) 13 SCC 710 , has 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 as well. Para 9.8 is relevant for the purpose, is reproduced as under:

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“ 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. However, it is the case on behalf of the original claimants that there is an amendment to the 2^nd Schedule and a fixed amount of Rs. 5 lakh has been specified in case of death and therefore the claimants shall be entitled to Rs. 5 lakh. The same cannot be accepted. In the present case, the accident took place in the year 2006 and even the judgment and award was passed by the learned Tribunal in the year 2009, and the impugned judgment and order has been passed by the High Court in 10.05.2018 i.e. much prior to the amendment in the 2^nd Schedule. In the facts and circumstance of the present case, the claimants shall not be entitled to the benefit of the amendment to the 2^nd Schedule. At the same time, as observed hereinabove, the claimants shall be entitled to Rs. 1 lakh as per the terms of the contract of insurance, the driver being in the shoes of the owner of the vehicle.”

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21. Thus, from the above discussion, it is found that the liability of the insurance company is only to the extent of Rs 1,00,000/-. In this situation, the insurance company cannot be held liable to pay the entire award amount jointly & severally and as per the law laid down in the matter of Smt. Raj Kumari (supra), ordering pay and recover to the

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insurance company is not found appropriate.

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22. Accordingly MAC No. 32 of 2016 is allowed.

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23. As stated above, MAC No.1428 of 2015 of the legal representatives/claimants of the deceased is partly allowed and the awarded compensation amount by the Tribunal is hereby enhanced to Rs. 7,52,590/- from Rs. 3,47,000/- out of which, the insurance company of the offending vehicle shall be liable to pay only Rs. 1,00,000/- and driver (Mayaram Yadav) and the owner (Shyam Sunder) of the offending vehicle shall be liable to pay the remaining amount of the enhanced compensation amount. The impugned award stands modified to the above extent and the rest of the conditions shall remain intact.

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24. With the above observation and modification, the appeals stand disposed of.

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Sd/Sanjay Kumar Jaiswal Judge

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H.L. Sahu

Smt. Lakhame Mandavi v. Mayaram Yadav

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Smt. Lakhame Mandavi v. Mayaram Yadav

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