Partly allowed

Shriram General Insurance Company Limited v. Smt. Bhagwati Paikra

Chhattisgarh HC10 Jun 2024MAC/1547/2015

Case brief

AI extract

What is this about?

The High Court allowed the insurance company's appeal, affirming the deduction of personal expenses but ruling contributory negligence unproven. The Court recalculated compensation by deducting income tax and adding specific statutory amounts for estate, funeral, and loss of affection.

What did the court decide?

Compensation award set at Rs. 39,92,230/- with 7% interest; original award of Rs. 41,89,693/- reduced.

Shriram General Insurance Company Limited Vs Smt… — Motor Accident Claims | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR MAC No. 1547 of 2015

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Shriram General Insurance Company Limited, 10003-E-8, EPIP, RIICO, Industrial Area Sitapura, Jaipur (Rajashthan) (Insurer)

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---- Appellant

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Versus

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Smt. Bhagwati Paikra W/o Late Ajay Kumar Paikra, Age-23 years,

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Smt. Thabi Bai W/o Shri Lal Sai, aged about 46 years, Occupation House Wife,

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Lal Sai S/o Late Ledva Ram, aged about 49 years, Occupation Agriculture and Labour

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Ku. Nandani Paikra D/o Late Ajay Kumar Paikra, aged about 4-1/2 months, Minor represented through natural guardian mother respondent No.1) Smt. Bhagwati Paikra W/o Late Ajay Kumar Paikra, Age-23 years, All R/o Village Jashvantpur, Thana and Tahsil Shankargarh, District Balrampur, Ramanujganj (C.G.). (Claimants)

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Premchand, S/o Duryodhan Ojha, Age-30 years, Occupation Driver, R/o Gurudwara Ward, Ambikapur District Surguja (C.G.) ( Driver )

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Dhananjay Dwivedi S/o Bhuvneshwar Dwivedi, aged about 45 years, Occupation Vehicle Owner, R/o Navapara Nagar, Thana and Tahsil Ambikapur, District Surguja (C.G.). (Owner)

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---- Respondents

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For Appellant	: Mr. Sourabh Sharma, Advocate with
	Mr. Chit Ram Sahu, Advocate
For Respondents No.1 to 4	: Mr. A. N. Pandey, Advocate
For respondent No.5	: Mr. Akash Shrivastava, Advocate

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board

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11.06.2024

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1. This appeal filed by the appellant/Insurance Company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “M.V. Act”) is directed against the award dated 17.07.2015 passed by the Second Additional Motor Accident

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Claims Tribunal, Ambikapur, District Surguja, Chhattisgarh (hereinafter referred to as “Claims Tribunal”) in Motor Accident Claim Case No.(C.N.) 52 of 2014, whereby learned Claims Tribunal allowed the claim petition in part filed by claimants and awarded a compensation of Rs.41,89,693/- with interest @ 7% per annum from the date of filing of claim petition till its realization.

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2. It is an undisputed fact that appellant is the insurer of offending vehicle and respondents No.5 & 6 are the driver and owner of the offending vehicle, respectively.

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3. Brief facts for disposal of this appeal, in a nutshell, are that, on 06.03.2014, at about 6.00 PM, Ajay Kumar Paikra along with Mantu Kumar and Keshav Prasad Singh was returning his village Jashwantpur from the office of Assistant Commissioner Tribal Developement, Balrampur on his motorcycle bearing registration No.CG-15-CP-9551. When he reached village Pasta, respondent No.5 while driving the Dumper bearing registration No.CG-15-A-6334 (hereinafter referred to as “offending vehicle”), rashly and negligently, dashed the motorcycle, due to which, Ajay Kumar Paikra died on the spot. Thereafter, the matter was reported to Police Station Pasta and Crime No.11 of 2014 was registered against the driver of offending vehicle i.e.

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respondent No.5 for the offence punishable under Section 304A of Indian Penal Code, 1860.

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4. After appreciating the materials available on record and after hearing both the parties, learned Claims Tribunal considered the net income of deceased Ajay Kumar Paikra as Rs.16,151/- per month i.e. Rs.1,93,812/- per annum. After applying multiplier of 18 and adding 50% towards future prospects, income of deceased was determined as Rs.52,32,924/-. Considering the number of dependents, deducted 1/4th towards personal and living expenses, total loss of dependency works out to Rs.39,24,693/-. It was further held that the claimant No.1 was entitled to Rs.1,00,000/-, claimant No.4 was entitled to Rs.1,00,000/and claimants No.2 & 3 were entitled to Rs.40,000/- towards loss of love and affection as well as awarded Rs.25,000/towards funeral expenses, as such, awarded total compensation of Rs.41,89,693/- with interest @ 7% per annum from the date of filing of the claim petition till its realization.

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5. Learned counsel for the appellant, who is insurer of the offending vehicle submits that learned Claims Tribunal has erred in deducting 1/4th towards personal and living expenses of deceased in wrongly considering the fact that

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father of the deceased was pensioner. He further submits that the deceased was driving the motorcycle along with two pillion riders, therefore, factum of contributory negligence should be applied. It is contended that learned Claims Tribunal has awarded excessive amount of compensation to the claimants by erred in not deducting any amount towards income tax, which needs to be reduced suitably. Hence, the appeal be allowed and suitable amount of compensation be awarded to the claimants.

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6. Per contra, learned counsel for respondents No.1 to 4, while supporting the impugned award, submit that after considering the materials and pleadings of both the parties, learned Claims Tribunal has passed the impugned award, which does not call for any interference. In support of his contention that deceased was not to be held liable for contributory negligence, learned counsel for respondents No.1 to 4 has placed reliance in the matter of Mohammed Siddique and Another v. National Insurance Company Limited and Others reported in (2020) 3 SCC 57 .

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7. I have heard learned counsel for the parties and perused the record of the Claims Tribunal minutely.

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8. First of all, it would be appropriate to consider the question with regard to deduction applied by learned Claims Tribunal.

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9. Perusal of the record of the claim petition as well as impugned award, it would show that on the date of accident, the deceased was aged about 25 years on the date of accident and he was a married man having 1 daughter (total 4 claimants, i.e. wife, one daughter, mother and father), so deduction towards personal and caring expenses would be 1/4th, which is just and proper in view of the dictum rendered by Hon’ble Supreme Court in Sarla Verma (Smt.) and others v. Delhi Transport Corporation and another reported in (2009) 6 SCC 121 .

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10. In view of above, I find that learned Claims Tribunal has not committed any illegality in deducting 1/4th towards personal and living expenses of deceased. The said finding is neither perverse nor contrary to the record. I hereby affirm the said finding.

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11. Secondly, I shall deal with the next question with regard to question of contributory negligence as advanced by learned counsel for the appellant.

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12. Learned counsel for the appellant submits that deceased was riding his motorcycle along with two pillion riders, hence, it is a case of contributory negligence.

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13. Perusal of the record would show that insurance company has not been able to establish any evidence on record to

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show that there was any wrongful act on the part of the deceased, who have contributed in the accident.

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14. In case of Mohammed Siddique (supra), Hon’ble Supreme Court has held that when the deceased was riding pillion on a motorcycle along with driver and another beyond the permissible limit, may not, by itself, without anything more, make him guilty for contributory negligence, unless it is established that it contributed either to the accident or to the impact of accident upon victim. Paragraph-13 of which is relevant for the purpose, which reads as follows :

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“13. Therefore, in the absence of any evidence to show that the wrongful act on the part of the deceased victim contributed either to the accident or to the nature of the injuries sustained, the victim could not have been held guilty of contributory negligence. Hence , the reduction of 10% towards contributory negligence, is clearly unjustified and the same has to be set aside.”

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15. Reverting to the facts of the case in the light of aforementioned judgment, it is quite vivid that there is noting on the record to show that deceased was responsible for the accident in any manner as well as insurance company has failed to prove the fact that deceased was either contributed to the accident or to the impact of the accident upon victim, the argument advanced by learned counsel for the appellant that factum of contributory negligence be

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applied in the case at hand, is not found justified and the same is repelled. This Court finds that deceased was not liable for the accident in any manner and the factum of contributory negligence was not applied. It is ordered accordingly.

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16. Now, I shall deal with the last argument advanced by learned counsel for the appellant that learned Claims Tribunal has erred in not deducting any amount towards income tax in the given facts and circumstances of the case.

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17. From the record, it is evident that deceased Ajay Kumar Paikra was working as Assistant Grade-III in Education Department and his income was Rs.16,151/- per month i.e. Rs.1,93,812/- per annum according to establishment pay-bill (Ex.P/13). In view of the decisions rendered by Hon’ble Supreme Court in cases of Sarla Verma (Smt.) (supra) and National Insurance Company Limited v. Pranay Sethi and Others reported in (2017) 16 SCC 680 there will be an addition of 50% of established income where the victim/deceased is less than 40 years of age and salaried employee. After adding 50% i.e. Rs.96,906/-, total annual income of the deceased Ajay Kumar Paikra comes to Rs.2,90,718/-. From the yearly income of deceased, there will be statutory deduction towards income tax. In view of

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income tax slab for the year 2013-14, income upto Rs.2,00,000/- is exempted and on the income exceeding between Rs.2,00,001/- to 5,00,000/-, 10% of the said income is required to be paid as income tax. In view of this, taxable income of deceased is taken as Rs.90,718/- and tax at the rate of 10% i.e. 9071.8 rounded off to Rs.9,072/- is to be deducted. After deduction of income tax of Rs.9,072/from total annual income i.e. Rs.2,90,718/-, annual income of deceased comes to Rs.2,81,646/-. The deceased was survived by widow, one daughter, mother and father, therefore, there shall be deduction of 1/4^th towards his personal and living expenses. After deducting 1/4^th towards personal and living expenses, annual loss of dependency will come to Rs.2,11,235/-. After applying the multiplier of 18, total loss of dependency of claimants will come to Rs.38,02,230/-.

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18. In view of above, I find force in the submission of learned counsel for the appellant that learned Claims Tribunal erred in not deducting any amount towards income tax.

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19. In view of the judgment rendered in case of Pranay Sethi (supra), the claimants are further entitled to Rs.15,000/towards loss of estate, Rs.15,000/- towards funeral expenses and as per the judgment rendered in the matter of

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Magma General Insurance Company Limited v. Nanu Ram alias Chuhru Ram and others reported in (2018) 18 SCC 130, the claimants are further entitled for loss of love and affection Rs.40,000/- each i.e. Rs.1,60,000/- (wife, mother, father and one daughter). Therefore, the claimants would become entitled for total compensation of Rs.39,92,230/-. Thus, the claimants are entitled for compensation in the following manner:-

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Sl. No.	Head	Calculation	Awarded amount
1.	Income of deceased	Rs.16,151/- per month i.e. Rs.1,93,812/- per annum
2.	50% of (1) above to be added as future prospects	1,93,812 + 96,906 = Rs.2,90,718
3.	Income tax on (2) according to tax slab of financial year 2013-14	2,90,718 – 2,00,000 = Rs.90,718/- 90,718 x 10% = 9071.8 rounded off to Rs.9072/-
4.	Total income after deducting income tax	Rs.2,90,718 – 9072 = Rs.2,81,646/-
5.	1/4th of (4) deducted as personal expenses	2,81,646 – 70,411 = Rs.2,11,235/-
6.	Compensation	2,11,235 x 18	Rs.38,02,230/-

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	after multiplier of 18 applied
7.	Towards loss of estate		Rs.15,000/-
8.	Towards funeral expenses		Rs.15,000/-
9.	Towards loss of love and affection to all the four claimants @ Rs.40,000/-		Rs.1,60,000/-
		Total Compensation Awarded	Rs.39,92,230/-

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20. In view of above, compensation awarded by learned Claims Tribunal is reduced to Rs.1,97,463/-. Now, the claimants are entitled to Rs.39,92,230/- instead of Rs.41,89,693/-. The modified amount of compensation will carry interest @ 7% per annum from the date of the award till its realization. Other conditions imposed by learned Claims Tribunal shall remain intact.

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21. With the aforementioned observation/modification, this appeal stands disposed off.

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22. The Registry is directed to communicate the claimants in writing “the modified amount” in this appeal as against the award made by the Claims Tribunal below. The said communication be made in Hindi Deonagri language and

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the help of paralegal workers may be availed with a coordination of Secretary, Legal Aid of the concerned area wherein the claimants reside.

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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Yogesh

Shriram General Insurance Company Limited v. Smt. Bhagwati Paikra

Case brief

What is this about?

What did the court decide?

Shriram General Insurance Company Limited v. Smt. Bhagwati Paikra

Case brief

What is this about?

What did the court decide?

What the court decided

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