Partly allowed

Rajiv Kumar Patel v. Tilak Panagar

Chhattisgarh HC20 Mar 2024MAC/53/2020

Case brief

AI extract

What is this about?

The High Court enhanced compensation for death in a motor accident arising from the Supreme Court's ratio on future prospects for the deceased and awarded separate damages for the unborn child. It held the insurer exempt from direct liability due to commercial use breach but ordered it to pay on a 'pay and recover' basis from the owner.

What did the court decide?

Total compensation enhanced to Rs. 12,55,680/-; Insurance Company directed to pay the difference amounting to Rs. 3,89,280/- to the successful claimant before recovering from the vehicle owner.

Rajiv Kumar Patel Vs Tilak Panagar — Insurance | Chhattisgarh HC (2024)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 53 of 2020

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Rajiv Kumar Patel S/o Late Damodar Mandal Aged About 49 Years Through Rodik Consultant Private Limited, Tahsil Chowk Lormi, Police Station And Tahsil And Lormi, District (Revenue And Civil) Mungeli Chhattisgarh, District : Mungeli, Chhattisgarh

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---- Appellant

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Versus

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Tilak Panagar S/o Kanhaiya Panagar Aged About 21 Years R/o Tulsaghat Ward No. 10, Tahsil Lormi, Police Station And Tahsil And Lormi, District (Revenue And Civil) Mungeli Chhattisgarh .........Driver Of The Car No. C. G. 28, E. 9640), District : Mungeli, Chhattisgarh

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Rahul Panagar S/o Kanhaiya Panagar Aged About 24 Years R/o Tulsaghat House No. 91, Ward No. 10, Tahsil Lormi, Police Station And Tahsil And Lormi, District (Revenue And Civil) Mungeli Chhattisgarh .........Owner Of The Car No. C. G. 28, E. 9640), District : Mungeli, Chhattisgarh

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The New India Insurance Company Limited Through Brancha Manager Branch Office 2nd Floor, Rama Trade Centre, Near Rajiv Plaza, Old Bud Stand, Bilaspur Tahsil And District (Revenue And Civil Bilaspur ) Chhattisgarh...........Insurer Of The Car No. C. G. 28, E. 9640), District : Bilaspur, Chhattisgarh

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---- Respondents

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MAC No. 15 of 2020

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New India Insurance (Correct Name As Assurance) Company Limited Through Branch Manager, Branch Office 2nd Floor, Rama Trade Centre, Infornt Of Rajeev Plaja, Old Bus Stand, Bilaspur, Tahsil And District Bilaspur, Chhattisgarh (Insurer Of Offending Car Bearing No. C.G. 28-E9640), District : Bilaspur, Chhattisgarh

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---- Appellant

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Versus

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Rajeev Kumar Patel S/o Late Damodar Mandal Aged About 49 Years R/o Through Rodik Consultant Private Ltd. Tahsil Chowk, Lormi, Police Station And Tahsil Lormi, District- Mungeli, Chhattisgarh, District : Mungeli, Chhattisgarh

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Tilak Panagar S/o Kanhaiya Panagar Aged About 21 Years R/o Tulsaghat, Ward No.10 Lormi, Police Station And Tahsil Lormi, DistrictMungeli, Chhattisgarh (Driver Of Offending Car Bearing No. C.G. 28-E9640), District : Mungeli, Chhattisgarh

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Rahul Panagar S/o Kanhaiya Panagar Aged About 24 Years R/o Tulsaghat, Ward No.10 Lormi, Police Station And Tahsil Lormi, DistrictMungeli, Chhattisgarh (Registered Owner Of Offending Car Bearing No.

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C.G. 28-E-9640), District : Mungeli, Chhattisgarh

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---- Respondents

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For Appellant in MAC No.53/2020	: Shri Anand Kesharwani, Advocate.
For Respondent No.3 in MAC No. 53/20	20:Ms. Swati Agrawal, Advocate appears on behalf of Shri Pankaj Agrawal.
For Appellant in MAC No. 15/2020	: Ms. Swati Agrawal, Advocate appears on behalf of Shri Pankaj Agrawal.
For Respondents in MAC No. 15/2020	:Shri Anand Kesharwani, Advocate.

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Hon'ble Shri Arvind Kumar Verma, Judge

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Order on Board

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21.03.2024

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MAC No. 53/2020 preferred by the claimant and MAC No. 15/2020 preferred by the appellant/Insurance Company are being decided by this common order as they arise out of the Claim Case No. 285/2018 passed by 5^th Additional Motor Accident Claims Tribunal, Bilaspur on 30.09.2019.

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MAC No. 53/2020

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The facts of the case are that on the date of the incident i.e. on 22.01.2018, the deceased along with her husband (Appellant) and one other person i.e. Deepak including the driver of the offending vehicle i.e. car bearing Registration No. CG. 28 E 9640 were going from Bilaspur to Lormi at about 03:00 AM in night respondent No. 1 was driving the said vehicle rashly and negligently and dashed his vehicle against the unknown truck which was parked besides the road near Bhawani Rice Mill Khapri. As a result of the accident Rachna Devi Patel sufferred grievous injuries on her head and other parts of the body. After the accident she was brought to the Community Health Centre, Takhatpur where she was declared brought dead. The deceased was carrying seven months pregnancy and because of the accident child in her womb also died. Report of the accident was lodged against respondent No.1 under Crime No. 39/2018 for offence under Section 279, 337 and 304A of the IPC.

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It was further stated that at the time of the accident the deceased was 34 years of age. She was running a beauty parlour and thereby she was earning Rs. 10,000/- per month. It was also stated that the deceased was carrying seven months pregnancy. The appellant in his claim petition has prayed for compensation of Rs. 28,50,000/-.

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The Respondent Nos. 1 & 2 have jointly filed their written statement and while denying the averments made in the claim petition it was stated that no accident has occurred from the vehicle bearing Registration No. CG.28.E.9640 nor the accident has occurred on account of rash driving of Respondent No. 1. The vehicle in question was duly insured with Respondent No.3/Insurance Company during the period 24.07.2017 to 23.07.2018. Respondent No.1 was having valid driving license and was in possession of all the relevant documents i.e. RC Book, effective driving license etc. For all the aforesaid reasons respondent Nos. 1 & 2 are not liable to pay any compensation and it is the Insurance Company who is liable to pay the compensation.

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The respondent No.3/Insurance Company had also filed its written statement denying the averments made in the claim petition stating that the deceased was married and she was not doing any work and the deceased was dependant on his husband. It was also stated that on the date of the accident Respondent No. 1 was not having any valid driving license and the owner of the vehicle has allowed him to drive the said vehicle at his own risk and such conditions of the policy was flouted. The alleged accident has happened as the truck was standing besides the road, neither of the indicators of the truck were On nor any sign was there. The owner of the vehicle deliberately allowed his vehicle to be used for the commercial purposes whereas the vehicle was for the private use and thereby the policy conditions have been flouted. For all the aforesaid reasons, the Insurance Company is not liable to pay any compensation and the claim petition moved by the appellants deserves to be dismissed.

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After hearing learned counsel for the Parties, learned Claims Tribunal framed as many as six issues. For issue No. 1, 2 & 5 the learned Claims Tribunal has recorded its finding in affirmative, whereas issue No. 6 was decided partly issue No. 3 & 4 were not found proved.

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The Tribunal after hearing the learned counsel for the parties and on the basis of material available on record has allowed compensation of Rs. 8,66,400/- in favour of the appellant on account of the death of the deceased Rachna Patel.

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I have heard learned counsel for the parties at length and perused the record with utmost circumspection.

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It was alleged that at the time of accident the deceased was aged about 34 years, however the appellant did not produce any documentary evidence to prove the same. But in the application for post mortem (Ex.P/6) her age was mentioned as 35 years which was accepted by the Tribunal. So far as the income of the deceased is concerned, it is stated that the deceased was running a beauty parlour and thereby was earning Rs. 10,000 per month but in this regard no documentary evidence was produced by the appellant. The Tribunal as per the Collector rate has assessed Rs. 200/per day as her salary and thereby has assessed the income of the deceased as Rs. 6,000/- per month. The deceased was running a beauty parlour and as per the minimum wages prevailing during the relevant period i.e. during 2017-2018 the monthly income of the deceased should have been taken as Rs. 8450/-. Therefore this Court is of the opinion that the monthly income of the deceased be taken as Rs. 8,450/- instead of Rs. 6,000/-, on the face of which his annual income would come to Rs. 1,01,400/-.

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In the matter of Lalan D. Alias Lal Vs. Oriental Insurance Company Ltd . {AIR Online 2020 SC 734, decided on 17^th September, 2020}, applying the ratio given in the matter of National Insurance Company Ltd Vs. Pranay

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Sethi and Others {(2017) 16 SCC 680}, it was observed that where the victim had no permanent job and self employed, the loss of future prospects at the rate of 40% is to be added for below the age of 40 years.

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In the present case also the tribunal has rightly applied the same. However this Court has already assessed the annual income of the deceased as Rs. 1,01,400/- and therefore increase in income of the deceased would thus be Rs. 40,560/-, hence total annual income of the deceased comes to Rs. 1,41,960/-. Since the deceased was married and has only one dependant the loss of annual dependency would come to Rs. 70980/-. At the time of accident the deceased was aged about 34 years and therefore multiplier of 16 would have to be applied. On applying multiplier of 16 loss of dependency in favour of the appellant would come to Rs. 11,35,680/-. the tribunal has awarded Rs. 10,000/- towards loss of estate/pain and suffering and Rs. 10,000/- towards the funeral expenses. Considering the facts and circumstances of the case this Court deems it appropriate to award Rs. 15,000/- on each head. The learned tribunal has not awarded any amount regarding the death of the unborn child. This Court is of view that Rs. 50,000/- is to be granted towards the death of the seven months child in the womb.

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12. The reassessment of the compensation:-

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S.No.	Particulars	Awarded by this Court
1.	Monthly income of the deceased	Rs. 8,450/-
2.	Future Prospects @ 40 %	Rs. 3,380/-
3.	Total Income	Rs. 11,830/-
4.	Personal Expenditure (½)	Rs. 5,915/-
5.	Total Yearly income	Rs. 5915 X 12 =
		Rs.70,980/-
6.	Multiplier of 16 applied to assess	Rs. 11,35,680/-

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	total loss of dependency
7.	Death of Unborn Child	Rs. 50,000/-
8.	Spousal Loss of Consortium	Rs. 40,000/-
9.	Funeral expenses	Rs. 15,000/-
10.	Loss of Estate	Rs. 15,000/-
	Total Compensation	Rs. 12,55,680/-

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MAC No. 15/2020

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The Appellant Insurance Company in its written statement has mentioned that the driver owner and Insurance Company of the standing truck were necessary party and in their absence the claim petition could not have been decided, however the said ground has been dealt with by the Claims Tribunal while deciding the Issue no. 4 and the said ground was not found proved by the Tribunal for the reason that respondent No.1, was driving the car was not examined and secondly no evidence was adduced by the appellant Insurance Company to show that the incident has happened because the truck was parked on the road without any indicator light or any sign board.

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Further the ground raised by the appellant Insurance Company that the calculation made by the Tribunal from Para 25 to 31 while taking into account the age and income of the deceased and the multiplier used are on higher side deserves to be rejected. As this Court has already enhanced the award amount passed in favour of the claimants in MAC No. 53/2020 in preceding paragraph.

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Learned counsel for the appellant Insurance Company contended that there is fundamental breach of policy conditions of Insurance Policy (Ex. N.A2) , which shows that the vehicle was insured under “Private car enhancement policy”, but the vehicle was being used for commercial purpose at the time of

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accident, therefore exonerate the Insurance Company from payment of compensation.

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I have perused the record with utmost circumspection.

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The deceased was not a driver of the vehicle she was one of the occupants at the time of accident, therefore claimant has right to claim driver, owner and Insurance Company of both the vehicle or driver, owner and Insurance Company of any of the vehicle.

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The Tribunal has framed an issue regarding breach of policy conditions vide Issue No. 3 which was found not proved. In this regard the Tribunal has examined Vincent Tirkey, who has stated in his evidence that the car in question was booked for a consideration of Rs. 1,400/- and at about 2 to 3 in the night the deceased persons along with driver proceeded from Bilaspur Railway Station and were going to Lormi. The said fact was mentioned by claimant Rajiv Kumar while lodging the FIR (Ex. D/1) as well as Merg Intimation (Ex. AN.3). The ‘A’to’A’ portion of FIR as under:-

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“svkt fn~ukad 22-01-2018 /kje iRuh ds lkFk gk;j dh xbZ dkj ua CG 28 E 9640 ftls esa 1400 : esa fcykliqj ls yksjeh tkus ds fy, cqd fd;k FkkA”

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The ‘A’to’A’ portion of Merg Intimation as under:-

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“,d jsukYV Doh³ dzekad CG 28 E 9640 dks cqd djk;k FkkA”

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Therefore, it is proved that the vehicle was being used for commercial purpose, whereas the vehicle was to be used for private purpose. Hence this Court finds that there was fundamental breach in policy condition, therefore , Insurance company is exonerated from liability to pay compensation. However as per the judgment of the Hon’ble Supreme Court in the matter of National Insurance Company Ltd. v. Swaran Singh and others , (2004) 3 SCC 297:2004 (1) T.A.C 321, even after the Insurance Company successfully establishes breach of policy conditions, the insurance company would be liable under the policy and the insurer may recover the amount from the

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owner in the same execution proceeding without filing a separate suit. As such this Court deems it appropriate to fasten the liability upon the owner i.e. Respondent No. 2.

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In view of the finding arrived at by this Court in the preceding paragraphs, The Insurance company/Appellant is exonerated from payment of liability, but as per principle of pay and recover, it is directed that the Insurance Company shall first pay the amount of compensation i.e. {(Rs. 12,55,680 – 8,66,400 = Rs. 3,89,280 (Three lakh eighty nine thousand two hundred and eighty only) } which has been arrived at in MAC No. 53/2020 the amount of compensation with 6% interest per annum from the date of filing of claim petition till its realization within a period of 60 days and thereafter shall recover the same from the owner in the same execution proceeding without filing separate suit. If Insurance Company has deposited some portion of award amount it should be adjusted.

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Resultantly, MAC No. 53/2020 is partly allowed and MAC No. 15/2020 preferred by the Insurance Company is disposed of.

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Sd/- (Arvind Kumar Verma) Judge

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Shoaib

Rajiv Kumar Patel v. Tilak Panagar

Case brief

What is this about?

What did the court decide?

Rajiv Kumar Patel v. Tilak Panagar

Case brief

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What did the court decide?

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