Partly allowed

Smt. Parwati v. Mahendra Markandey

Chhattisgarh HC3 Mar 2024MAC/289/2020

Case brief

AI extract

What is this about?

High Court allowed part of appeals challenging an Accident Claims Tribunal award in a motor vehicle accident death case. Court enhanced total compensation to Rs. 6,39,200/- for claimants parents of deceased student. Held Insurance Company liable to pay first under 'pay and recover' principle before recovering from owner/driver due to lack of evidence regarding valid driving license or rider presen

What did the court decide?

Enhanced compensation to Rs. 6,39,200/- with 6% interest; Insurance Company directed to pay first and recover from owner/driver.

Smt. Parwati Vs Mahendra Markandey — Insurance | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 289 of 2020

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Smt. Parwati W/o Dilip Kumar Ratre Aged About 45 Years

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Dilip Kumar Ratre S/o Sundar Lal Ratre Aged About 48 Years

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Both are R/o Village Bordehi, Police Station Nawagarh, District (Revenue And Civil) Bemetara, Chhattisgarh. At Present Jareli, Police Station Takhatpur, District Bilaspur, Chhattisgarh.

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---- Appellants

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Versus

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Mahendra Markandey S/o Hirman Markandey Aged About 27 Years R/o Village Jewra (S), Police Station Nawagarh, District (Revenue And Civil) Bemetara, Chhattisgarh.

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IFFCO Tokyo General Insurance Company Limited Through Manager Near I.C.I.C.I. Bank, Behind Of Sanjay Apartment, Vyapar Vihar, Bilaspur, District Bilaspur, Chhattisgarh.

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Hiraman Markandey S/o Fattelal Markandey, R/o Village Jewra, Police Station Nawagarh, District Revenue And Civil) Bemetara, Chhattisgarh.

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---- Respondents

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For Appellants : Mr. Anand Kesarwani, Advocate For Respondent No.1 & 3 : None present. For Respondent No.2 : Mr. P.R.Patankar, Advocate

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MAC No. 626 of 2020

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IFFCO Tokiyo General Insurance Company Limited ThroughLegal Manager, Now Current Address 205, 2nd Floor, M.M. Silver Plaza, In Front Of Udyog Bhawan, Near Mining Office, Ring Road No. 1, Raipur, District- Raipur, Chhattisgarh

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---- Appellant

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Versus

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Smt. Parvati W/o Dilip Kumar Ratre Aged About 45 Years

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Dilip Kumar Ratre S/o Sunder Lal Ratre Aged About 48 Years

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Both are R/o Village- Bordehi, P.S.- Nawagarh, DistrictBemetara, Chhattisgarh Presently R/o Village Jareli, P.S.Takhatpur, District- Bilaspur, Chhattisgarh

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Mahendra Markandey S/o Hiraman Markandey Aged About 27 Years R/o Village Jevra (S), P.S.- Nawagarh, District- Bemetara, Chhattisgarh

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Hiraman Markandey S/o Fattelal Markandey R/o Village Jevra, P.S.- Nawagarh, District Bemetara, Chhattisgarh

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---- Respondents

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For Appellant	: Mr. P.R.Patankar, Advocate
For Respondent No.1 &2	: Mr.Anand Kesarwani, Advocate
For Respondent No. 3 & 4	: None present

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Hon’ble Shri Justice Arvind Kumar Verma

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Order On Board

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04/03/2024

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Since the above mentioned appeals arise out of a common award, they are being heard and decided together.

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Both the above appeals are preferred by the appellants challenging the impugned award dated 17.10.2019 passed by the Additional Motor Accident Claims Tribunal, (henceforth ‘the Act’) Bilaspur, (CG) in Claim Case No. 132/2018.

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Miscellaneous Appeal (C) No. 289 of 2020 has been preferred for enhancement of the compensation amount and Miscellaneous Appeal (C) No.626 of 2020 has been preferred by the Insurance Company seeking exoneration from any liability to pay the compensation.

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Miscellaneous Appeal No. 626 of 2020 has been filed against the impugned award whereby the learned Tribunal allowed the application filed by respondent Nos. 1 & 2/claimants under Section 166 of the M.V.

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Act claiming compensation to the tune of Rs. 38,50,000/- on account of death of deceased Purushottam, son of respondents No.1 & 2 who are the father and mother, in an unfortunate accident that took place on 17.11.2017 by the rash and negligent driving of respondent No.3/driver of the offending vehicle tractor bearing registration No. CG-28-H-2731. On the basis of the pleadings of the parties, learned Tribunal framed issues and decided in favour of appellants/respondent No.1 & 2/claimants however, with regard to issue No.3 as to the offending vehicle was being driven by respondent No.3/driver in violation of the terms and conditions of the Insurance Policy on the date of incident has not been proved. This categorical finding was given and the appellant/Insurance Company was exonerated from paying the compensation. However, the learned Tribunal has held that all the respondents i.e. owner, driver and Insurance Company were held liable jointly and severally to pay the compensation.

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Facts of the case in brief are that the appellants/claimants in MAC No. 289 of 2020 have filed an application under Section 166 of the Motor Vehicles Act (hereinafter referred to as MV Act), claiming compensation on account of death of their son Purushottam Kumar Ratre in an accident that took place on 17.11.2017 at about 5.15 p.m. by rash and negligent driving of the offending vehicle tractor bearing No. CG 28 H.2731 by respondent No.1/driver owned by respondent No.2 and insured with respondent No.2. The claim application was filed inter alia pleading that on the date of incident i.e. 17.11.2017 deceased Purushottam was trying to climb the tractor/offending vehicle which was being driven rashly and negligently by respondent No.1 and unfortunately got entrapped in the rotavetor as a result of which he

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sustained injuries and died on the spot. The accident was reported to the police station City Kotwali, Mungeli upon which Crime No. 667/2017 was registered under Section 304 (A) of the Indian Penal Code and after due investigation the charge sheet was filed. The total compensation of Rs. 38,50,000/- was claimed on account of his death.

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In MAC No. 289 of 2020, it has been alleged by the claimants/ parents of the deceased that at the time of accident, the deceased was a student aged about 16 years, was helping the parents by doing agricultural work and he would have definitely earned and helped his parents with his income in future if he would have been alive. The application was resisted by the respondents on various grounds and the learned Tribunal framed issues on the basis of the above pleadings and decided the same in favour of the claimants however, with regard to issue No.3 as to the offending vehicle was being driven by respondent No.3/driver in violation of the terms and conditions of the Insurance Policy on the date of incident has not been proved.

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Learned counsel for the appellants/claimants submits that the appellant was a bright student, he would have definitely a bright future ahead and would have contributed in livelihood of his family and since he was the only son, the compensation cannot be equated in terms of money. However, the learned Tribunal has wrongly assessed the monthly income of the deceased to Rs. 3,000/-, it should have been at least the minimum wages of Rs. 4,000/-. He submits that the amount towards other conventional heads is also on the lower side and the same may be enhanced.

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Opposing the submission, learned counsel for the respondent

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No.2/Insurance Company submits that since the deceased was a student, therefore the finding is based on proper appreciation of evidence and no fault can be found in the assessment of the income of the deceased made by the learned Tribunal.

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Shri Patankar, learned counsel for the appellant/Insurance Company in MAC No. 626/2020 submits that once the Insurance Company gave a categorical finding that there is violation of terms and conditions of the Insurance Policy and the Insurance Company is not liable to pay the compensation. He however submits that the driver of the tractor was not having valid and effective driving license and the deceased was sitting on the tractor attached to the rotavetor which is a breach of policy condition. He submits that the learned Tribunal has fastened the primary liability upon the appellant jointly and severally with the owner and driver of the tractor, though the deceased was not a third party and as such fastening the liability on the Insurance Company to pay compensation is bad in the eye of law. The deceased was trying to climb the tractor attached to the rotavetor and sustained injuries which was negligence on the part of the deceased himself therefore no covering the risk of occupants/passenger was received by the appellant Insurance Company. He was not the third party therefore risk of the deceased was not covered under the Insurance Policy and the appellant/Insurance Company was not liable to pay compensation. The Tribunal did not appreciate oral and documentary evidence properly therefore, the appeal of the Insurance Company may be allowed and the Insurance Company may be exonerated from the liability to pay compensation.

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Learned Counsel appearing for Respondents No.1 & 2 also supported the above arguments raised by learned Counsel appearing for the Appellant/insurance Company.

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Heard learned counsel for the parties and and perused the material available on record.

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Learned Tribunal framed issues on the basis of the pleadings of the parties and decided the same in favour of the appellants/claimants and awarded the compensation as under:

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Sl.No.	Compensation under conventional heads	Awarded Amount
1.	Monthly income	Rs. 3,000/-
2.	Loss of yearly income and After adding future prospects of 40%	Rs. 36,000/- ( 36,000x40%) =Rs. 14,400/-
3.	Yearly income	Rs 36,000/- +14,400= Rs. 50,400/-
4.	After deduction of ½ of the amount	Rs. 25,200/-
5.	Loss of income assessed after applying multiplier of 18	Rs. 25,200x18= Rs. 4,53,600/-
6.	Loss of estate and pain and suffering	Rs. 10,000/-
7.	Funeral expenses	Rs. 10,000/-
	Total	Rs. 4,73,000/-

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Thus, considering the facts and circumstance on record and after relying upon the judgments of the Hon’ble Supreme Court in the matter of National Insurance Co. Ltd vs Pranay Sethi & others, (2017) 16 SCC 680; Sarla Verma and others Vs Delhi Transport Corporation and another (2009) 6 SCC 121 and Magma General Insurance Company Limited Vs. Nanhu Ram alias Chuhru Ram and others,

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(2018) 18 SCC 130 , this Court assess the compensation payable in respect of the deceased looking to the age of the deceased at the time of accident (ie 17.01.2017) and the minimum wages prevailing at that point of time and that he was a student, the yearly income of the deceased is taken to Rs. 3,500/- per month.

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So far as the deduction 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 Consortium to Rs. 80,000/-, 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 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.40,000/-= Rs. 80,000/-. 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. Thus, this Court reassess the amount in the following manner:

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Sl.No.	Compensation under conventional heads	Awarded Amount
1.	Monthly income assessed as	Rs. 3500/-

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2.	Loss of yearly income	Rs. 42,000/-
3.	40% future prospects added	Rs. 42,000 x 40%= Rs. 16,800/-
4.	Yearly income would come to	Rs. 42,000+Rs. 16,800/- = Rs. 58,800/-
5.	Deceased was unmarried so 50% deduction which would come to	Rs. 29,400/-
6.	income assessed after applying multiplier of 18	Rs. 29,400x18= Rs. 5,29,200/-
7.	Loss of filial consortium (Rs. 40,000/- each to appellant No.1 & 2)	Rs. 80,000/-
8.	Loss of Estate and funeral expenses(Rs. 15,000 + Rs. 15,000)	Rs.30,000/-
	Total	Rs. 6,39,200/-

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The claims Tribunal has given a finding that the cause of death

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of deceased was due to rash and negligent driving by the respondent No.3 but it was found that the offending vehicle was insured with the Insurance Company and premium was paid for 1+0 person and fastened the liability on the Insurance Company and the driver and owner jointly and severally. Naveen Soni (NAW-2) the witness of the appellant/Insurance Company has stated that the vehicle was insured with the Insurance Company and this is third party policy and they have not paid premium for occupant and therefore the Insurance Company is not liable for paying compensation.

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After going through the records, the First Information Report (Ex.P-21) and the merg intimation (Ex.P-3), it is clear that the deceased was sitting on the tractor itself and the registration certificate shows that the sitting capacity of the tractor is mentioned as only one

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meaning thereby only for the driver hence there was a breach of policy condition.

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The witness to Insurance Company Naveen Soni has admitted the fact that as per RC book, the seating arrangement of the vehicle is 1+0 and has denied this fact that the premium was paid for the occupants of the offending vehicle. In the package policy Ex.D-1, it is not written that any premium for occupant was paid by the owner. Hon’ble Apex court in the matter of Manuara Khatun & Others reported in (2017) 4 SCC 796, has held that :

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“15. This question also fell for consideration recently in National Insurance company Limited Vs. Saju P. Paul (2013) 2 SCC 41 wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of Section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment (2011) SCC Online Ker 3791:2012 ACJ 1852 of the High Court, it was held on facts that since the victim was traveling in offending vehicle as “gratuitous passenger” and hence, the insurance company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy.

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However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the insurance company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of “pay and recover”.”

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In the instant case also, the Insurance Company being the insurer of the offending vehicle which was found involved in causing the accident due to negligence of its driver, is directed to first pay the awarded sum to the respondents 1 & 2(claimants) and then to recover

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the said amount from the owner and driver of the offending vehicle.

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Reiterating the judgment of Swaran Singh case (supra), in (2018) 9 SCC 650 (Shamanna Vs. Divisional Manager, Oriental Insurance Company Limited), it is held by the Supreme Court as follows:

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"6. As per the decision in National Insurance Company Limited Vs. Swaran Singh, (2004) 3 SCC 297, onus is always upon the insurance company to prove that the driver had no valid driving license and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, "pay and recover" can be ordered in case of third-party risks. The Tribunal is required to consider "as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver ... does not fulfill the requirements of law or not will have to be determined in each case".

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Recently, in the matter of Kurvan Ansari alias Kurvan Ali Vs. Shyam Kishore Murmu, (2022) 1 SCC 317 it is held by the Supreme Court as under:

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"17. Accordingly, the appellants are entitled for a sum of Rs.4,70,000 (Rupees four lakhs seventy thousand only) towards total compensation with interest @ 6% p.a. from the date of claim petition till the date of realization. The enhanced compensation shall be apportioned between the appellants as ordered by the Tribunal. The entire compensation shall be paid to the appellants by Respondent 2 insurance company, and we keep it open to the insurance company to recover the same from Respondent 1 owner of the motorcycle by initiating appropriate

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proceedings as the motorcycle was driven by the driver who was not possessing valid driving licence on the date of the accident."

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Keeping in view the decisions rendered by the Supreme Court in the above mentioned cases, in the instant case also, it would be appropriate to order the principle of "pay and recover" and direct the appellant/insurer to first pay the compensation amount and the same can be recovered from the respondent No. 3 & 4/driver and owner herein of the offending vehicle by initiating an appropriate execution proceeding. Ordered accordingly.

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Thus, the appeal filed by the claimants/appellants for enhancement of the awarded compensation in MAC No. 289 of 2020 is partly allowed and the impugned award is modified to the extent that the appellants/claimants are entitled for total compensation of Rs. 6,39,200/-.

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The Tribunal in this case has already awarded Rs. 4,53,600/-, and Rs. 10,000/- for loss of filial consortium and Rs. 10,000/- funeral expenses under other heads, thus awarded total Rs. 4,73,600/- as total compensation. Hence, after enhancing the amount as assessed above, appellants are entitled to Rs. 6,39,200/-. Thus, the impugned award is modified to the extent that the appellant/claimant shall be entitled to compensation of Rs.6,39,200/-. This enhanced amount of Rs. 1,65,600/- shall carry interest @ 6% from the date of claim application till its realization. After the amount is deposited, the amount be paid to appellants/claimants through bank transaction/account payee cheque. The respondent No.2 is directed to deposit the enhanced amount with

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interest within a period of 60 days to the claimants/appellants by way of compensation in addition to the amount awarded by the learned Tribunal within 60 days from the date of receipt of the order.

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So far as MAC No. 626 of 2020 is concerned, the appeal is allowed and the appellant/Insurance company is exonerated from the liability. However, it is directed that the appellant/Insurance Company shall pay the compensation awarded to the claimants first and then to recover the same from the driver and owner of the offending vehicle (respondents 3 & 4) in the same proceedings by applying the principle of “pay and recover”.

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Consequently, the appeals are allowed in part to the extent shown above.

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Sd/(Arvind Kumar Verma) Judge

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suguna

Smt. Parwati v. Mahendra Markandey

Case brief

What is this about?

What did the court decide?

Smt. Parwati v. Mahendra Markandey

Case brief

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What did the court decide?

What the court decided

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