The Oriental Insurance Company Limited Vs Smt. Soga Bai

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1

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 256 of 2017

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The Oriental Insurance Company Limited Through Its Divisional Manager, Divisional Office, Ist Floor, Rama Trade Centre, Near Bus Stand, Bilaspur, Civil And Revenue District Bilaspur, Chhattisgarh, Pin 495001, Chhattisgarh

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---- Appellant (Non-Applicant No.2)

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Versus

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1. Smt. Soga Bai Wd/o Late Mahendra Singh, Aged About 57 Years

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2. Ribhu Kumar S/o Late Shri Mahendra Singh, Aged About 33 Years

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3. Kamlesh Kumar S/o Late Mahendra Singh, Aged About 31 Years All are R/o Village Sonpuri, P.O. Bhatgaon, P.S. Patharia, Distt. Mungeli, Chhattisgarh ................Claimants

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4. Malik Ram Sahu S/o Pusau Ram Sahu, Aged About 55 Years R/o Village Maro, P.S. Nanghat, Distt. Durg, Chhattisgarh, Address As Per Driving Licence At Kharsola, P.O. Pauli, Patharia, Distt. Mungeli, Chhattisgarh ...............Driver

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5. Netaji Road Lines, Khamtarai, Raipur, Metal Compound, Raipur, Distt. Raipur, Chhattisgarh ...............Owner

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---- Respondents

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along with

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MAC No. 423 of 2017

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1. Smt. Sogabai W/o Late Shri Mahendra Singh, Aged About 52 Years

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2. Ribhu Kumar S/o Late Shri Mahendra Kumar, Aged About 28 Year

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3. Kamlesh Kumar S/o Late Shri Mahendra Singh, Aged About 26 Years All are R/o Village- Sonpuri, Post Bhatgaon, Thana And Tahsil Pathariya, Revenue Distt. Mungeli, Civil Distt. Bilaspur, Chhattisgarh ................Claimants

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---- Appellants

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Versus

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1. Malikram Sahu S/o Shri Pusau Ram Sahu, Aged About 50 Years R/o Village Maro, Thana Nanghat, Distt. Durg, Chhattisgarh, As Per Driving License Address Village Kharsola, Post Bawali, Thana Pathariya, Distt. Mungeli, Chhattisgarh .................Driver Of Vehicle No. C.G.04-J C-4217,

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2. Netaji Road Lines, Khamtarai Raipur Mental Compound Raipur, Distt. Raipur, Chhattisgarh .................Owner Of Vehicle No. C.G.04-J C-4217

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3. Branch Manager, The Oriental Insurance Company Limited, Divisional Office Fafadih Chowk Raipur, Distt. Raipur, Chhattisgarh .................Insurer Of Vehicle No. C.G.04-J C-4217

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---- Respondents

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2

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(Cause Title taken from Case Information System)

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For Insurance	:	Shri Akash Shrivastava, Advocate appears on
Company		behalf of Shri R.N. Pusty, Advocate
For Claimants	:	Shri Rajendra Patel, Advocate appears on behalf of Shri Sunil Sahu, Advocate
For Owner	:	Ms. Dhaneshwari Patel, Advocate appears on behalf of Shri Pushpendra Kumar Patel, Advocate

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Hon'ble Shri Justice Sachin Singh Rajput, J.

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Order on Board

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19.06.2024

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1. These appeals are arising out of common award, therefore, these are heard and decided together by this common order.

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2. The MAC 256/2017 has been filed by the appellant Insurance Company challenging the liability fastened upon it by the impugned award whereas the MAC No.423/2017 has been filed by the claimants for enhancement of compensation. The parties are referred to their status as per the learned Tribunal.

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3. Both the appeals are arising out of the award dated 28.11.2016 passed in Claim Case No.12/2012 by Additional Motor Accident Claims Tribunal, Mungeli (CG). By the impugned award, against a claim of Rs.28,96,970/-, the learned tribunal has awarded compensation of Rs.3,67,730/- in favour of the claimants on account of death of the deceased- Mahendra Singh in an accident which had occurred on 24.11.2011 by rash and negligent driving of the offending vehicle Tata 1109 bearing registration No. CG 04 JC 4217 driven by driver owned by the owner and insured with the appellant Insurance Company.

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4. As per pleadings of claim application filed under Section 166 of Motor

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Vehicles Act, 1988 (for short “MV Act”), the deceased Mahendra Singh was riding on his motor-cycle Honda Splender bearing Number CG 10 EB 8579 and was going towards Pathariya turning to Bundelikhar. On the way, he was hit by the offending vehicle, as a result, he sustained injuries and died. Further pleadings reflects that he was aged about 61 years and had 50 acres of land and was earning Rs.3 Lakhs per month. The claim application was resisted by the driver and owner including insurance company taking a plea that the driver of the offending vehicle was not holding a valid and effective Driving license.

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5. The learned tribunal on the basis of pleadings of the parties framed issues and awarded above-stated compensation holding insurance company to pay the compensation.

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6. Learned counsel for the Insurance Company vehemently argued that though the driving license of the driver was renewed from RTO Raipur but his original driving license issued from RTO Jhansi which was found to be fake on the verification done by the investigator of the Insurance Company. He further submits that the investigation report and the report obtained from the RTO Jhansi was placed on record and duly proved by the witnesses of the Insurance Company. However, when the Insurance Company wanted to examine RTO Jhansi, on commission its application filed under Order 26 Rule 4 of the CPC was rejected by the learned Tribunal. He further submits that the due opportunity has not been afforded to lead the evidence to substantiate the defence taken by it. Therefore, he submits that the appeal may be allowed either the matter may be remanded back for reconsideration on this issue or the appellant insurance company may be exonerated from payment of compensation.

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7. Shri Rajendra Patel and Ms. Dhaneshwari Patel, learned counsels

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appearing for the claimants and owner vehemently oppose the submission made by Shri Akash Shrivastava, Counsel for the appellant. They submit that the application filed under Order 26 Rule 4 of the CPC was rejected way back in the year 2015 and they have not challenged that order before any other higher Courts and therefore the order has attained the finality. Apart from this, they submit that several opportunities were granted to the appellant to call the witnesses and it cannot be said that they were deprived of proper opportunity of examining their witnesses. Apart from this, they submit that until and unless the author of the document purportedly issued by RTO Jhansi, examined and proves such document, it cannot form basis to hold that driver of the offending vehicle was not holding the valid and effective driving license. Apart from this, they submit that the learned Tribunal has applied the multiplier of 6 instead of 7, as the deceased was of the aged of 61-63 years.

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8. I have heard learned counsel for the parties, considered their rival submissions made and perused the material evidence available on record.

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9. This Court would first like to deal whether the insurance company was able to prove its defence and it can be exonerated from payment of compensation. Though the insurance company has examined some witnesses to suggest that the original license issued from RTO Jhansi was found to be fake but the record reflects that their application to call the witness from Jhansi on commission under Order 26 Rule 4 of the CPC was rejected on 02.12.2015 and it does not appear or brought to the notice of this Court whether that order was challenged before the higher Court. Apart from this, the record also reflects that sufficient opportunity was granted to the appellant. The Tribunal, after meticulous examination decided the issue of violation of terms and conditions of policy against the

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insurance company. The findings so recorded appears to be based on proper appreciation and does not appear to be contrary to the record, and as such, there was no violation of terms and conditions of the insurance policy, therefore, the submission of Shri Shrivastava is rejected.

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10. This leads to me the second submission with regard to the just compensation to be awarded. The tribunal found the monthly income of the deceased to Rs.4,000/- which is not challenged by counsel for the claimant. However, the learned tribunal fell in error in applying a multiplier of 6 whereas the deceased was found to be aged between 61-63 years, therefore, this Court reassesses the compensation in the following manner:-

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S. No.	Description	Amount
1.	Monthly income	Rs.4,000/- assessed by Tribunal)	(as the
2.	Total Yearly Income (4,000/-x12)	Rs.48,000/-
3.	1/3 Deduction for personal expenses of deceased	Rs.32,000/- (Rs.48,000/- Rs.16,000/-)	-
4.	Net income	Rs.32,000/-
5.	Multiplier of 7 applied to assess total loss of dependency	Rs.32,000/- x 7 Rs.2,24,000/-
6.	Funeral Expenses	Rs.15,000/-
7.	Loss of estate	Rs.15,000/-
8.	Spousal consortium to appellant No.1	Rs.40,000/-
9.	Parental Consortium to appellant Nos. 2 & 3	Rs.80,000/-
10	Damage to vehicle of	Rs.21,230/-

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. deceased
Total compensation	Rs.3,95,230/-

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11. For the forgoing reasons, the appeal is allowed in part. The amount of compensation of Rs.3,67,730/- awarded by learned tribunal is enhanced to Rs.3,95,230/-. Hence, after deducting the amount of Rs.3,67,730/-, the claimants are held entitled for an additional amount of Rs.27,500/-. The additional amount shall carry interest @ 6% per annum from the date of filing of the appeal i.e. 28.02.2017. The impugned award stands modified to the above extent.

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12. The Insurance Company is directed to deposit the enhanced amount of compensation within 60 days from the date of receipt of this order. The entire amount of compensation shall go to the appellant No.1.

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13. In the result, the appeal filed by the Insurance Company (MAC No.256/2017) being without any substance is liable to be and is hereby dismissed whereas, the appeal filed by the claimants (MAC No.423/2017) is allowed in part to the extent indicated herein above. Rest of the conditions of the impugned award shall remain intact.

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14. No order as to cost(s).

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Sd/- (Sachin Singh Rajput) Judge

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Vishakha

The Oriental Insurance Company Limited v. Smt. Soga Bai

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The Oriental Insurance Company Limited v. Smt. Soga Bai

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