Partly allowed

Jagdish Kumar Jayswal v. Ramkumar Sahu

Chhattisgarh HC24 Jun 2024MAC/610/2016

Case brief

AI extract

What is this about?

This High Court enhanced the compensation in a motor accident claim from Rs. 1,01,000 to Rs. 4,45,321 by correcting the calculation of dependency loss and multiplier while upholding 50% contributory negligence. The insurer was held liable to pay but allowed to recover the amount from the vehicle owner and driver.

What did the court decide?

Compensation enhanced to Rs. 4,45,321 payable by the insurance company with liberty to recover from owner and driver; interest enhanced to 6% p.a. from date of enhancement.

Jagdish Kumar Jayswal Vs Ramkumar Sahu — Motor Accident Claims | Chhattisgarh HC (2024)

¶1

¶2

NAFR

¶3

HIGH COURT OF CHHATTISGARH, BILASPUR

¶4

MAC No. 610 of 2016

¶5

Jagdish Kumar Jayswal S/o Late Shri Jhadiram, Aged About 56 Years R/o Chakarbhatha, Tahsil Mungeli, Revenue District Mungeli, Civil District Bilapsur, Chhattisgarh.

¶6

Smt. Amrika Bai Jayswal, W/o Shri Jagdish Jayswal, Aged About 56 Years R/o Chakarbhatha, Tahsil Mungeli, Revenue District Mungeli, Civil District Bilapsur, Chhattisgarh.

¶7

---- Appellants

¶8

Versus

¶9

Ramkumar Sahu S/o Shri Anturam Sahu, Aged About 36 Years R/o Nayapara Ward No. 15, Bemetara thana And Tahsil Bemetara, Chhattisgarh.

¶10

Vikram Patel S/o Bedprakash Patel, Aged About 32 Years Nayapara Bemetara, Thana And Tahsil Bemetara, Civil And Revenue District Bemetara, Chhattisgarh.

¶11

Branch Manager, National Insurance Company Limited, Branch Office Near Gurudwara Station Road, Durg Civil And Revenue District Durg, Chhattisgarh.

¶12

Branch Manager, Iffco Tokiyo General Insurance Company Limited, Sanjay Apartment Vyapar Vihar Bilaspur, P.S. Tarbahar, Civil And Revenue District Bilaspur, Chhattisgarh.

¶13

---- Respondents

¶14

For Appellants : Mr. Rajendra Patel, Advocate on behalf of Mr. Sunil Sahu, Advocate. For Respondent No. 3 : Mr. Akash Shrivastava, Advocate on behalf of Mr. R.N. Pusty, Advocate. For other respondents : None.

¶15

Hon'ble Shri Justice Sanjay Kumar Jaiswal Order on Board

¶16

(25.06.2024)

¶17

1. This appeal arises out of the award dated 25.02.2016 passed by Additional Motor Accident Claims Tribunal, Mungeli (C.G.), in Claim

¶18

¶19

Case No. 20/2014 awarding compensation of Rs.1,01,000/- with interest @ 6% per annum, from the date of application till its realization, in favour of the appellant/claimants for their irreparable loss.

¶20

2. The gist of the claim before the Tribunal, in brief, was that on 12.12.2013, Umashankar was travelling on a motorcycle as a pillion rider driven by Moolchand when they reached Temri Bandha, at that time, the driver (respondent No. 1) of the pickup vehicle driving the offending vehicle in rash and negligent manner dashed the motorcycle due to which Umashankar died on the spot and Moolchand Jayswal died during the course of treatment. The matter was reported to the Police Station Mungeli by Jagdish Jayswal, thereon a criminal case was registered against the driver/ respondent No. 1 for the offence punishable under Sections 279, 304-A of IPC and Section 56/192 of the Motor Vehicle Act. Respondent No. 1 was arrested and the offending vehicle pickup bearing registration No. CG-07-CA-2534 was seized. After completion of investigation, charge sheet was filed.

¶21

3. It is claimed that at the time of accident, deceased Umashankar was unmarried, aged about 22 years and was driver of tractor. He was earning Rs.8,000/- per month by working as a driver. Apart from this, the deceased had 8 acre of agricultural land from which he was earning Rs. 96,000/- per year. Due to the casual death of Umashankar, there is an irreparable loss to the appellant/claimants who are the parents of the deceased. Therefore, the claimants had preferred an application before the Tribunal claiming total compensation of Rs. 14,40,000/-.

¶22

4. The learned Tribunal, after considering the evidence and documents available on record, in absence of any documentary evidence regarding the income of the deceased, assessed the income of the deceased as Rs.3,000/- per month i.e. 36,000/- per annum. Further considering the age of the deceased and the fact that the claimants are the parents of the deceased, 1/3rd i.e. Rs. 12,000/- of the income was deducted towards personal expenses

¶23

¶24

and the annual dependency of the claimants was taken as Rs. 24,000/- per annum. Considering the age of the deceased, multiplier of 08 was applied and the total loss of dependency calculated to Rs.1,92,000/-. Further, a total amount of Rs.10,000/has been awarded under other heads. Accordingly, the total compensation comes to Rs.2,02,000/-. However, the Tribunal considering 50% contributory negligence on the part of the driver of the motorcycle in which the deceased was travelling as a pillion rider, awarded 50% of the total compensation amount i.e. Rs.1,01,000 /- in favour of the claimants with interest @ 6% per annum, from the date of application till its realization against respondents No. 1, 2 & 3 who are the driver, owner & insurer, respectively of the offending vehicle. Hence, this appeal for enhancement.

¶25

5. Learned counsel for the appellant/claimants submits that the compensation awarded by the Tribunal is on the lower side and needs to be enhanced suitably. He submits that the contributory negligence on the part of the deceased held by the Tribunal is erroneous. Learned counsel for appellants urged that the Tribunal erred in not assessing 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. He further submits that the tribunal has erroneously applied a multiplier of 08 where as it should be 18 as the deceased was aged about 22 years at the time of the accident. He also submits that the Tribunal has awarded lesser compensation under other heads which also needs to be enhanced suitably. Therefore, this appeal may be allowed.

¶26

6. On the other hand, so far as the quantum of the compensation is concerned, learned counsel for the Insurance Company (respondent No. 3) has argued that the tribunal has rightly assessed the compensation which needs not to interfere and supported the impugned award.

¶27

7. Heard counsel for the parties and perused the documents available

¶28

¶29

on record.

¶30

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.

¶31

9. Now this Court shall examine as to whether the compensation of Rs.1,01,000/- awarded by the Tribunal is just and proper compensation in the given facts and circumstances of the case.

¶32

10. As regards the income of the deceased, though the claimants have pleaded that the deceased was earning Rs.8,000/-. per month from his work of driver and was also earning Rs. 96,000/- per year from agriculture, but no valid 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. 5,163/- per month as minimum wages, at the relevant time of accident i.e. 12.12.2013. The annual income of deceased comes to Rs.61,956/-. As per National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680, future prospects would be 40%. Hence, after adding 40% towards future prospect i.e. Rs.24,782/-, the annual income comes to Rs.86,738/-.

¶33

11. The deceased was an unmarried person aged around 22 years and the claimants are the parents (total 2 persons) of the deceased, so deduction towards personal expenses would be 50%. After deducting 50% towards personal expenses, the annual income of the deceased comes to Rs.43,369/-. Since the deceased was unmarried and aged around 22 years, the Tribunal, considering the age of the parents of the deceased, has applied the multiplier of

¶34

¶35

However, 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 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 and also considering the age of the deceased, the multiplier would be 18. Hence, after applying multiplier of 18, the total loss of dependency works out to Rs. 7,80,642/- . The claimants are further entitled for Rs. 15,000/- towards loss of estate, Rs. 15,000/- for funeral expenses and as per ' Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189 , the appellants are also entitled for Rs. 40,000/- each i.e. Rs.80,000/- towards love and affection. Therefore, the claimants would become entitled for total compensation of Rs.8,90,642/-. Thus, the claimants are entitled for compensation in the following manner:-

¶36

Heads	Calculation
Compensation towards dependency	Rs. 7,80,642/-
Towards loss of estate	Rs. 15,000/-
Towards Love and affection to 2 claimants @ Rs. 40,000/- each	Rs. 80,000/-
Funeral Expenses	Rs. 15,000/-
Total compensation Awarded	Rs. 8,90,642/-

¶37

12. On the basis of the facts and evidence available on record, the 50% contributory negligence of the pickup driver and the motorcycle driver in which the deceased was travelling as a pillion rider, determined by the Tribunal, is justified and no need for intervention is required.

¶38

13. In the result, the appeal of appellants is partly allowed. The total compensation is recomputed as Rs. 8,90,642/-. Considering 50% contributory negligence on the part of the driver of the motorcycle in which the deceased was also travelling as a pillion rider, the appellant/claimants shall be entitled for compensation of Rs.4,45,321/- (8,90,642 x 50% = 4,45,321) instead of Rs.1,01,000/-.

¶39

¶40

After deducting Rs. 1,01,000/- as awarded by the tribunal, the enhancement would be Rs. 3,44,321/-. The amount that has already been paid shall be adjusted. The claimants shall also be entitled for interest @ 6% per annum from the date of enhancement till the date of actual payment. Accordingly, the impugned award stands modified to the above extent and rest of the conditions shall remain intact.

¶41

Cross-objection/Appeal

¶42

14. As regards the cross-objection filed by respondent No. 3/insurer of vehicle Pickup bearing registration No. CG-07-CA-2534 seeking for exoneration of liability of payment of compensation is concerned, learned counsel for respondent No. 3 submits that the claims Tribunal committed illegality in fastening liability on the respondent No. 3 despite the fact that in the instant case, it is not established that the alleged offending vehicle pickup was having any fitness effective certificate (Ex.NA-2C) on the date of accident i.e. 12.12.2013 and the vehicle pickup was valid certificate till 28.04.2013 and thereafter from 02.01.2014 to 01.01.2015. Thus, the offending vehicle was driving in breach of policy conditions as the vehicle did not have an effective valid fitness certificate on the date of the accident, therefore, the insurance company cannot be held liable to pay the compensation. In support of his argument, he placed reliance on the decision of this Court in the matter of The New India Insurance Company Ltd. vs. Jatindra Nath Mali & Others , passed in MAC No. 1206/2013 on 14.05.2019.

¶43

15. Considering the present case on the basis of the evidence available on record, it is found that the vehicle was driven by the driver of the vehicle in the breach of policy condition as the vehicle did not have valid and effective fitness certificate on the date of the accident i.e. 12.12.2013. It is clear from the charge sheet that at the time of the accident the offending vehicle did not have a valid fitness certificate, therefore, the charge of 56/192 of M.V. Act has been

¶44

¶45

added too. Thus, the insurance company is entitled and is hereby exonerated from its liability.

¶46

16. This Court in the matter of The New India Insurance Company Ltd. vs. Jatindra Nath Mali & others passed in MAC No. 1206 of 2013 on 14.05.2019 , dealt with regard to effective fitness certificate in paras 20 & 21 which reads as under:

¶47

“ 20 . In view of aforementioned facts and evidence available on record, in the considered opinion of this court, on the date of accident offending vehicle was not having valid and effective fitness certificate. Now the question arises that whether in absence of fitness certificate of a particular vehicle on the date of accident there is breach of conditions of Insurance Policy or not? Section 56 of 1988 act provides for certificate of fitness of transport vehicle. Issue of fitness certificate has been considered by five judges Bench of Hon’ble Kerala High Court in the matter of Pareed Pillai Vs Oriental Insurance Company Ltd., reported in 2019 ACJ 16 and held thus: (paras 15, 16, 17 and 21)

¶48

“15. As mentioned above, fitness of a vehicle, to be used as a transport vehicle, is of paramount importance. The necessity to have 'Fitness Certificate' is prescribed under Section 56 of the Act. Sub-section (1) of Section 56 clearly stipulates that, a transport vehicle [subject to the provisions of Section 59 (power to fix the age limit of motor vehicle) and Section 60 (registration of the vehicles belonging to the Central Government)] shall not be deemed to be validly registered for the purpose of Section 39, unless it carries a 'Certificate MACA No. 2030 of 2015 and connected cases of Fitness' as prescribed. By virtue of Section 84 (a), as mentioned already, it is a mandatory requirement of every Permit, that the vehicle to which the Permit relates, shall carry valid 'Certificate of Fitness' issued under Section 56 at all time, absence of which will automatically lead to a situation that the vehicle will not be deemed as having a Permit [if it is not having a 'Fitness Certificate' on a given date]. Using a motor vehicle in an unsafe condition in any public place itself is an offence under Section 190 of the Act. Separate penalty is prescribed under Section 192 for driving or using the motor vehicle in contravention of Section 39 of the Act [i.e. without registration]; which at the first instance by fine upto Rs.5000/[not less than Rs. 2000/-] and for the second or subsequent offences, it may be with imprisonment, which may extend to one year or fine up to Rs.10,000/- [not less than Rs.5000/-] or with both; of course, conferring power upon the Court to impose a lesser punishment, for reasons to be recorded.

¶49

¶50

Similarly, separate punishment is provided for using vehicles without 'Permit' as provided under Section 192A [first offence with fine upto Rs.5000/- which shall not be less than Rs.2000/- and for any subsequent offence with imprisonment upto one year [which shall not be less than 3 months or with fine up to Rs.10.000/- which shall not be less than Rs.5000/-] or with both; here MACA No. 2030 of 2015 and connected cases again conferring power on the Court to impose lesser punishment, for reasons to be recorded. Reference is made to the above provisions only to illustrate the utmost requirement to have a valid 'Registration, Permit and Fitness Certificate'.

¶51

Importance of the fitness/road worthiness of a vehicle, right from the time of registration of the vehicle, is further discernible from Rule 47 of the Central Motor Vehicles Rules 1989 [referred to as Central Rules]. The said Rule deals with application for registration of motor vehicles, which, among other things, stipulates that it shall be accompanied by various documents. Under sub-rule (1) (g), it is mandatory to produce road worthiness certificate in Form 22 from the manufacturers [Form 22A from the body builders]. On completing the formalities/procedures, 'Certificate of Registration' is to be issued in terms of Rule 48 of the Central Rules in Form 23/23A, as the case may be. The said Rule contains a proviso, insisting that, when Certificate of Registration pertains to a transport vehicle, it shall be handed over to the registered owner only after recording the Certificate of Fitness in Form 38. Validity of the Certificate of Fitness is only to the extent as envisaged under Rule 62 of the Central Rules, which mandates, as per the proviso, that the renewal of a Fitness Certificate shall be made only after the Inspecting Officer or MACA No. 2030 of 2015 and connected cases authorised Testing Station as referred to in sub Section 1 of Section 56 of the Act has carried out the test specified in the table given therein.

¶52

The stipulations under the above provisions clearly substantiate the importance and necessity to have a valid Fitness Certificate to the transport vehicle at all times. The above prescription converges on the point that Certificate of Registration, existence of valid Permit and availability of Fitness Certificate, all throughout, are closely interlinked in the case of a transport vehicle and one requirement cannot be segregated from the other. The transport vehicle should be completely fit and road worthy, to be plied on the road, which otherwise may cause threat to the lives and limbs of passengers and the general public, apart from damage to property. Only if the transport vehicle is having valid Fitness Certificate, would the necessary Permit be issued in terms of Section 66 of the Act and by virtue of the mandate under

¶53

¶54

Section 56 of the Act, no transport vehicle without Fitness Certificate will be deemed as a validly registered vehicle for the purpose of Section 39 of the Act, which stipulates that nobody shall drive or cause the motor vehicle to be driven without valid registration in public place or such other place, as the case may be. These requirements are quite 'fundamental' in MACA No. 2030 of 2015 and connected cases nature; unlike a case where a transport vehicle carrying more passengers than the permitted capacity or a goods carriage carrying excess quantity of goods than the permitted extent or a case where a transport vehicle was plying through a deviated route than the one shown in the route permit which instances could rather be branded as 'technical violations'. In other words, when a transport vehicle is not having a Fitness Certificate, it will be deemed as having no Certificate of Registration and when such vehicle is not having Permit or Fitness Certificate, nobody can drive such vehicle and no owner can permit the use of any such vehicle compromising with the lives, limbs, properties of the passengers/general public. Obviously, since the safety of passengers and general public was of serious concern and consideration for the law makers, appropriate and adequate measures were taken by incorporating relevant provisions in the Statute, also pointing out the circumstances which would constitute offence; providing adequate penalty. This being the position, such lapse, if any, can only be regarded as a fundamental breach and not a technical breach and any interpretation to the contrary, will only negate the intention of the law makers.

¶55

The question whether absence of valid Permit to a transport vehicle at the time of accident is a 'fundamental breach' or a 'technical breach' had come up for consideration again before the Apex Court MACA No. 2030 of 2015 and connected cases recently in Amrit paul Singh and Another Vs. TATA AIG General Insurance Co. Ltd and Others [2018 (3) KHC 197]. The factual matrix in the said case is that, the rider of the motor cycle was knocked down to death by the offending truck on 19.02.2013, which led to the claim petition preferred by the legal heirs. The claim was resisted by the insurer, mainly contending that there was violation of policy conditions in so far as the offending truck was not having a valid Permit and the driver was not having a valid driving licence. Based on the materials on record and placing reliance on the verdict passed by the Apex Court in Challa Upendra Rao's case [cited supra], the Tribunal, after fixing the quantum of compensation, directed the insurer to satisfy the same, with liberty to have it recovered from the insured. The said finding and reasoning came to be affirmed by the High Court, in turn leading to the proceedings before the

¶56

¶57

Apex Court. After exhaustive discussion on the relevant provisions of law including Section 2 (28), 2 (31), 2 (47), 66, 149 and 166 of the M.V. Act 1988 and the various judgments rendered by the Apex Court at different points of time, including in National Insurance Co. Ltd. Vs. Swaran Singh and others [(2004) 3 SCC 297] and Challa Upendra Rao's case [cited supra], the Apex Court held that the offending truck was not having a valid Permit on the date MACA No. 2030 of 2015 and connected cases of accident; which was not a technical breach to attract the dictum in Swaran Singhs' case [cited supra] [where also right of recovery was held as conferred on the insurer, once the breach was established by the insurer]. It was also observed that, it was not a case where any of the exceptions under sub-section (3) of Section 66 was attracted and further that, existence of a Permit of any nature was matter of documentary evidence. The Bench held that the exceptions carved out under Section 66 (3) of the Act are to be pleaded and proved by the insured/owner and this burden cannot be shifted to the shoulders of the insurer. It has accordingly been declared that, the use of a transport vehicle in a public place without Permit is a fundamental/statutory infraction and the principles laid down in Swaran Singh's case [cited supra] and Lakshmi Chand Vs. Reliance General Insurance [(2016) 3 SCC 100] cannot be applicable in this regard. The Apex Court held, in such circumstances, that the verdict passed by the High Court affirming the stand of the Tribunal directing the insurer to satisfy the liability and to have it recovered from the owner/insured was in consonance with the principles stated in Swaran Singh's case [cited supra] and other cases pertaining to 'pay and recover principle'. From the above, it is quite evident that the law stands settled by the Apex Court as per the MACA No. 2030 of 2015 and connected cases decision Challa Upendra Rao' case [cited supra] and the latest ruling in Amrit paul's case [cited supra]. This being the position, the dictum laid down by the Full Bench of this Court in Augustine V.M. Vs. Ayyappankutty @ Mani and others [cited supra] holding that the absence of valid Permit or Fitness Certificate is not a fundamental breach, but a technical breach and that no right of recovery can be given to the insurer is not at all correct. It accordingly stands overruled. Consequently, the dictum in Thara's case [cited supra] is restored and the contrary view expressed in Sethunath's case [cited supra] stands declared as incorrect.”

¶58

“21 . Facts of case in hand are that on the date of accident there was no valid fitness certificate of offending vehicle and no other document with respect to renewal of fitness certificate placed on record. In the facts of present case and law laid

¶59

¶60

down by five judges Bench of Kerala High Court in case of Pareed Pillai (supra), I am of the view that there is violation of conditions of Insurance Policy and finding recorded by learned Claims Tribunal that non mentioning of condition in the Insurance Policy with regard to fitness is no violation of conditions of Insurance Policy, is not sustainable and it is hereby set aside. As there is breach of conditions of Insurance Policy, Insurance Company is not having any liability to satisfy the award passed by learned Claims Tribunal.”

¶61

17. Applying the aforesaid principle in the case in hand, the breach of policy conditions is found in the absence of a valid fitness certificate of the offending vehicle at the time of the accident. Hence, the cross-objection filed by the insurance company/respondent No. 3 is allowed and the insurance company is exonerated from its liability of payment of compensation. However, since the offending vehicle was insured with the insurance company at the time of the accident, it is directed that the Insurance Company/respondent No. 3, to first pay the amount of compensation and thereafter to recover the same from the driver/respondent No. 1 and owner/respondent No. 2 of the vehicle jointly or severally.

¶62

18. Accordingly, the appeal of the claimants is partly allowed and the cross-objection/appeal filed by the insurance company/respondent No. 3 is allowed to the extent indicated herein above.

¶63

19. The record of the Tribunal along with the copy of this judgment be sent forthwith for compliance and necessary action, if any.

¶64

Sd/- (Sanjay Kumar Jaiswal) Judge

¶65

H.L. Sahu

Jagdish Kumar Jayswal v. Ramkumar Sahu

Case brief

What is this about?

What did the court decide?

Jagdish Kumar Jayswal v. Ramkumar Sahu

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Pater Sai Vs State of C.G.

Shyam Bihari Vs State of Chhattisgarh

Ram Kishor Sen Vs Shripal Prajapati

Sanjay Singh and Ors. Vs the State of C.G.

Umashankar Vs Jitendra Shukla

Kumar Singh Vs Topeshwar Verma