Smt. Sarswati Gupta Vs Deenanath Sharma

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2024:CGHC:25116

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 621 of 2017

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1 - Smt. Sarswati Gupta W/o Late Narendra Kumar Gupta, Aged About 28 Years

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2 - Shahil Gupta S/o Narendra Kumar Gupta, Aged About 8 Years Minor Through His Natural Guardian Mother Smt. Sarswati Gupta W/o Late Narendra Kumar Gupta

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3 - Smt. Usha Gupta W/o Arun Gupta, Aged About 58 Years

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All R/o Tulsi Nagar Korba, Tehsil And Distt. Korba, Chhattisgarh Hal Mukam Village Chhote Devgaon Tehsil Kharsia Wrongly Mention Sarsia Distt. Raigarh, Chhattisgarh ...............Claimants

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---- Appellants

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versus

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1 - Deenanath Sharma S/o Chhandrika Sharma, Aged About 30 Years R/o Bania Kamta Gopalpur Thana Baniapur Distt. Chhapra Bihar, Bihar

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2 - Vikas Agrawal S/o Shri Ghansiram Agrawal Incomplete Address Sitapur Distt. Sarguja, Complete Address Vikas Electronics Gayatri Mandir Chowk Sitapur, P.S. And Teh. Sitapur, Distt. Sarguja, Chhattisgarh 3 - National Insurance Company Limited, Meenu Complex Main Road Kosabadi Korba, Teh. And Distt. Korba, Chhattisgarh

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4 - Smt. Pinki Gupta W/o Late Narendra Kumar Gupta, Aged About 28 Years

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5 - Ankush Gupta S/o Narendra Kumar Gupta, Aged About 6 Years Minor Through His Natural Guardian Mother Smt. Pinki Gupta W/o Late Narendra Kumar Gupta,

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Both r/o Present Residing At Purani Basti, House Of Dharamdev Chouhan, Pathalgaon, P.S. And Tahsil Pathalgaon, District Jashpur, Chhattisgarh

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---- Respondents

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MAC No. 666 of 2017

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1 - Vikas Agrawal S/o Shri Ghasiram Agrawal, Aged About 27 Years R/o Sitapur, District Surguja, Chhattisgarh ..............Non-Applicant No.2, Chhattisgarh

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----Appellant

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Versus

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1 - Smt. Sarswati Gupta W/o Late Narendra Kumar Gupta, Aged About 28 Years

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2 - Shahil Gupta S/o Late Narendra Gupta, Aged About 8 Years Minor Through Natural Guardian Mother Smt. Saraswati Gupta, W/o Late Narendra Kumar Gupta,

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Mac 621 and 666 of 2017

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3 - Smt. Usha Gupta W/o Arun Gupta, Aged About 58 Years R/o Tulsinagar Korba, Tahsil And District Korba, Chhattisgarh, Presently R/o Village Chhote Devgaon, Tahsil Sarsiya, District Raigarh, Chhattisgarh ..............Applicant

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4 - Deenanath Sharma S/o Chandrika Sharma, Aged About 30 Years R/o Baniya Kamta, Gopalpur, P.S. Baniyapur, District Chhapara Bihar

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5 - National Insurance Company Limited, Meenu Complex, Main Road, Kosabadi, Korba, Tahsil And District Korba, Chhattisgarh

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6 - Smt. Pinky Gupta W/o Late Narendra Kumar Gupta, Aged About 28 Years

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7 - Ankush Gupta S/o Late Narendra Kumar Gupta, Aged About 6 Years Minor Through Mother Smt. Pinky Gupta W/o Late Narendra Kumar Gupta Both R/o Purani Basti, House Of Dharamdev Chouhan, Patthalgaon, P.S. And Tahsil Patthalgaon, District Jashpur, Chhattisgarh ..............4 To 7 Non-Applicants

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... Respondents

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(Cause title is taken from the CIS)

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For Appellants/Claimants	: Shri Shivam Mishra, Advocate
For Respondent-Owner of the offending vehicle	: Shri CJK Rao, Advocate
For Respondent-Insurance Company	: Shri Ashish Gupta, Advocate

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Hon'ble Shri Justice Ravindra Kumar Agrawal

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Order on Board

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12.07.2024

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Both these appeals are arising out of the same accident, and common award, therefore, they are being heard and decided together.

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MAC-621 of 2017 has been filed by the claimants for enhancement of the compensation amount, whereas, MAC-666 of 2017 has been filed by the Owner of the offending vehicle challenging his liability to pay compensation to the claimants.

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These appeals are arising out of impugned award dated 28.02.2017, passed by the learned Motor Accident Claims Tribunal, Korba, CG (for short, ’Claims Tribunal’), in Claim Case- 26 of 2014,

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Mac 621 and 666 of 2017

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whereby learned Claims Tribunal has awarded Rs.4,91,000/- as compensation to the claimants, and liability to pay the same has been imposed upon the Owner and Driver of the offending vehicle.

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Brief facts of the case are that, the deceased- Narendra Gupta met with an accident on 25.06.2012 at about 10 pm, while he was going to his house by his Motorcycle bearing No.CG04-CM-2955, when he reached Gurudwara near Transport Nagar, NA1- Deena Nath Sharma, who was driving his Motorcycle bearing No.CG15-E-6714 (for short, ‘offending vehicle’), rashly and negligently, has dashed Motorcycle of the deceased. By the said accident, deceased- Narendra Gupta received grievous injuries on his body, he was immediately taken to the District Hospital, but looking to his injuries, he was referred to the Sector-9 Hospital, Bhilai. During the treatment, he died on 29.06.2012. The claimants, who are wife, son, and mother of the deceased have filed a claim case for compensation with the pleading that at the time of accident, deceased was working as Truck Driver, and was earning Rs.4,000/- per month, as salary, and in addition to it, he was receiving some allowances. All of them were dependents upon the income of the deceased, and by his death, they deprived by the same, therefore, they claimed Rs.36,38,000/- as compensation.

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NA1 and 2, Driver and Owner of the offending vehicle have remained ex-parte, and have not contested the claim.

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Mac 621 and 666 of 2017

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NA-3, Insurance Company has contested the claim, and filed their written statement with the pleading that the accident was occurred due to negligent driving of the deceased himself. The Owner and Insurance Company of the Motorcycle of the deceased have not been made as party non-applicant in the present case, therefore, the claim application is not maintainable. In the postmortem report, it is mentioned that the deceased has received injuries by assault by hands and fists, therefore, his death was not due to the motor accident, and thus, no amount of compensation can be awarded in favour of the claimants. It is also pleaded by the Insurance Company, that at the time of accident, the Driver of the offending vehicle was not having any valid and effective driving license, and since the said vehicle was being driven in violation of Policy condition, Insurance Company is not liable to pay any compensation.

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NA4 and 5, who are also claiming to be wife and son of the deceased- Narendra Gupta, have also filed their written statements, and pleaded that since they are also the legal representatives of the deceased, and dependants upon him, they are also entitled for compensation amount.

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Based on the pleadings of respective parties, learned Claims Tribunal has framed 8 issues, and after recording evidence led by the parties, and hearing them, passed an award on 18.02.2017 in favour of the claimants, and Rs.4,91,000/- Has been awarded as compensation in

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Mac 621 and 666 of 2017

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their favour, and the liability to pay compensation is fastened upon the Owner and Driver of the offending vehicle, ie NA-1 and 2.

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Learned counsel for the appellants/claimants (in MAC-621) would submit that the learned Claims Tribunal has erred in awarding very less amount towards compensation as the deceased was working as Truck Driver, and having income towards monthly salary of Rs.4,500/-, and also receiving allowances from Owner of the vehicle. While assessing compensation, future prospects have not been considered, he would further submit that the learned Claims Tribunal has wrongly held that the deceased himself was negligent to the extent of 50%, and ;therefore, deducted 50% amount from the total assessed compensation, whereas, there is no evidence from respondents-1 and 2, and the Driver of the offending vehicle has not been examined himself to rebut the contention of the claimants that the accident was caused by NA1. In absence of any evidence in rebuttal, it cannot be held that the deceased was also contributory negligent equally, as the Driver of the offending vehicle was. He would also submit that the learned Claims Tribunal has erred in awarding less amount towards conventional heads, and the amount of compensation may be enhanced suitably. It is also submitted that the Insurance Company was exonerated from payment of compensation on the ground that the Driver of the offending vehicle was not having any valid and effective driving license at the time of accident, whereas, even if it is found that Driver of the offending vehicle was not having valid and effective driving license with him at the time of accident, then direction to

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Mac 621 and 666 of 2017

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pay compensation amount shall be given to the Insurance Company, and then, it may recover the amount from the Owner and Driver of the vehicle. Claimants are legal representatives of the deceased, and they may not suffer from the dispute between the insured and the insurer of the offending vehicle.

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On the other hand, learned counsel for owner of the offending vehicle (Respondent-2 in MAC-621 of 2017), and appellant in MAC-666 of 2017) would submit that the accident was occurred due to rash and negligent driving of the offending vehicle by the deceased himself. From post-mortem report of the deceased it appears that the deceased was engaged in the incident of ‘ marpeet’ , by which he received injuries on his head, and he did not suffer accidental injuries on his body, but to obtain claim, Claimants have filed the claim case showing the death of the deceased in motor accident. He would also submit that the Driver of the offending vehicle was having a valid and effective driving license with him, and the Insurance Company should have been held liable to pay compensation but the learned Claims Tribunal has fastened the liability upon him, which is erroneous, and the impugned award may be modified to the extent that the liability should be fastened upon the Insurance Company to pay compensation.

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Learned counsel for the Insurance Company would support the impugned award and submitted that after due appreciation of evidence produced by the parties, learned Claims Tribunal has rightly assessed

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Mac 621 and 666 of 2017

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the compensation, and since it is found that there is violation of policy condition, the Insurance company has been exonerated form payment of compensation. Therefore, there is no infirmity in the impugned award passed by the learned Claims Tribunal, and both these appeal are liable to be dismissed.

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Heard learned counsel for the parties, and perused the record.

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MAC-621 of 2017, Claimants’ appeal

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The claimants, who are wife, son and mother of the deceased have claimed compensation of Rs.36,38,000/- on account of death of deceased-Narendra Gupta. NA-4 Smt Pinki Gupta, who is also claiming to be wife of the deceased, has consistently stated in her evidence that deceased was earning Rs.4,500/- per month by his profession as Driver, and stated that he was also getting additional allowances. A certificate Ex.P18 has been produced by the claimants which has been issued by the Owner of the vehicle with whom the deceased was employed as Driver, by which it reflects that the deceased was receiving a salary of Rs.4,500/- per month. Learned Claims Tribunal has also considered the monthly income of the deceased as Rs.4,500/-, which, in the opinion of this Court is not erroneous, or excessive.

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Considering the evidence with respect to the income of the deceased, his profession, and also taking guidance from the decisions of Hon'ble Supreme Court in cases of National Insurance Company

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Mac 621 and 666 of 2017

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Limited v. Pranay Sethi and Others (2017) 16 SCC 680, Magma General Insurance Company Limited Vs Nanu Ram Alias Chuhru Ram and Others (2018) 18 SCC 130 and in case of Smt Sarla Verma and others Vs Delhi Transport Corporation and others (2009) 6 SCC 121, this court is recomputing the compensation as below:

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Notional income of the deceased is taken as Rs.4,500/- per month.

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By adding 40% of the income towards future prospects as has been considered in case of Pranay Sethi (supra), monthly income of the deceased comes to Rs.6,300/- {4500 + (4500 x 40/100)}.

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Out of the above monthly income, ¼ to be deducted towards personal expenditure of the deceased. Now actual monthly income of the deceased comes to Rs.4,725/- {6300 ― (6300 x 1/4)}.

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Actual yearly income of the deceased comes to Rs.56,700/- (4725 x 12)

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Deceased was aged about 33 years at the time of accident and the accident is of the year 2012, therefore, in view of Smt Sarla Verma (supra), multiplier of 16 would be applicable to calculate the total loss of dependency, which comes to Rs.9,07,200/- (56700 x 16).

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Rs.2,00,000/- (five claimants) towards filial and parental consortium, Funeral expenses-15,000/-, Loss of estate-Rs.15,000/- in view of the case of Nanu Ram (supra), and 10% enhancement of the same in every three years comes to Rs.1,32,000/- {200000 + 15000 + 15000 + 46,000 (230000x 20/100)}.

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Now total compensation comes to Rs.11,83,200/- (907200+ 276000)

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Learned Claims Tribunal has held in para-10 of the impugned award while deciding the issue-2 that the deceased was also negligent in the accident to the extent of 50%, while deciding the issue-6, they have deducted 50% amount of compensation towards the contributory negligence of the deceased himself in the accident.

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Mac 621 and 666 of 2017

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In the case at hand, FIR for the alleged accident was registered against NA-1, who was the Driver of the offending vehicle, and after investigation, charge-sheet has also been filed against NA1-Deenanath Sharma, that he was responsible for the accident. NA1 has not contested the claim, and has not challenged the Criminal Case registered against him. Even in document Ex.P11, which is memorandum statement, he admitted that he caused the accident by his Motorcycle on 25.06.2012.

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AW-2 Laxman Gupta, who also reached to the spot, has stated in his evidence in para-6 that at the place of accident, Motorcycle of the deceased was on his left side but offending vehicle was on the wrong side.

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In the case at hand, NA1 has not been examined to rebut the contention of the claimants, by the rash and negligent driving of NA1 the accident occurred, which also finds support from the evidence of Laxman, AW2, that the Motorcycle of the deceased was on his left side, whereas the offending vehicle was on the wrong side.

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The actionable negligence consists in the neglect of the use of ordinary care or skill towards a person of whom the defendant over the duty of observing ordinary care and skill, by which negligence the plaintiff suffered injury to his person or property.

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Mac 621 and 666 of 2017

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The definition involves three constituents of negligence : 1) A legal duty to exercise due care on the part of the party, complaint of towards the party complaining the former’s conduct within the scope of the duty, 2) Breach of the said duty, and 3) Consequential damage.

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The cause of action for negligence arises, only when damage occurs; for, damage is a necessary ingredient of this thought. The negligence is an omission to do something, which a reasonable man guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do. The factor of grossness or degree does assume significance while drawing distinction in negligence, actionable in thought and negligence, punishable as a crime. In Civil proceedings, mere preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit every reasonable doubt but in criminal proceedings, the persuasion of guilt must amount to such immoral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt.

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In the present case, from the perusal of the evidence adduced by the parties, this Court is of the conclusion that negligence fixed on the deceased by the learned claims Tribunal cannot be said to be proper, hence, it is not sustainable. Therefore, in absence of any evidence in rebuttal of allegation that NA1 is responsible for the accident, the deceased cannot be held liable for contributory negligence to the extent

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Mac 621 and 666 of 2017

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of 50%, and thus, the entire liability of the accident is upon NA1 and NA2, who are owner and Driver of the offending vehicle.

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Since NA1 has not contested the claim of the claimants, the Insurance Company has contested the Claim that NA1 was driving the vehicle without any valid and effective driving license, therefore, there is breach of policy condition, and they are not liable to pay compensation. In rebuttal, NA1 has not submitted his license to prove that he was having valid and effective driving license on the date of accident.

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Considering the facts and the evidence available on record, learned Claims Tribunal has also held that there is breach of policy conditions. Since the learned Claims Tribunal has already held that the offending Motorcycle was being driven by NA1, and he was not having any valid and effective driving license on the date of accident, there is breach of policy conditions.

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In view of the finding recorded by the learned Claims Tribunal and also in view of the law laid down by the Hon’ble Supreme Court in case of National Insurance Company Vs Swaran Singh and Others, (2004) 3 SCC 29, and Amrit Paul Singh and another v. Tata AIG General Insurance Company Limited and others, (2018) 7 SCC 558, the Insurance Company is directed to deposit the entire amount of compensation first, and may recover it from the Owner and Driver of the offending vehicle, ie NA1 and NA2.

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Mac 621 and 666 of 2017

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NA3-Insurance Company is directed to deposit the entire amount of compensation within 90 days from today before the learned Claims Tribunal. The amount of compensation shall carry interest @ 6% per annum from the date of claim application till its realization.

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Out of the amount of compensation so deposited by the Insurance Company, Rs.3,00,000/- shall be deposited in name of claimant-2 Shahil Gupta and Rs.3,00,000/- shall be deposited in name of NA5 Ankush Gupta, for a period of five years in Fixed deposit in any nationalized bank, and the remaining amount shall be paid to the claimants, as well as NA-4 and 5, in equal proportion through bank transaction or a/c payee cheque.

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With this modification, the appeal filed by the claimants, MAC-621 of 2017 is partly allowed.

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MAC-666 of 2017 Appeal by the Owner

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This appeal has been filed by the Owner of the offending vehicle bearing No.CG15-E-6714, challenging his liability to pay compensation to the claimants.

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In the appeal, appellant/Owner of the offending vehicle, has filed an application under Order 41, Rule 27 of the CPC, and filed the document issued by the RTO, Ambikapur, showing that the offending vehicle (CG15-E-6714) was purchased from Laxmi Automobile, Ambikapur on 03.06.2006, wheres, on the date, when the said vehicle is said to have been purchased, he was minor, and aged about 16 years. In support of

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Mac 621 and 666 of 2017

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his submission, he also annexed the copy of his High School Certificate examination Mark-sheet, and Adhar Card. He also submitted that in fact, he was not the Owner of the offending vehicle, but the vehicle was shown to be purchased fraudulently in his name.

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From perusal of the record, it appears that despite having service of summons upon NA2, Owner of offending vehicle, through paper publication, he has not contested the claim application, and has not submitted before the learned Claims Tribunal, that he was not the owner of the offending vehicle, and the vehicle was fraudulently been purchased in his name. Even the said vehicle was seized by the Police in the offence, registered against NA1, but at that time also NA2, has not challenged that the vehicle was not purchased by him, and it has been purchased fraudulently, in his name. There is no written statement filed by NA2 and he remained ex parte, thorough out the trial of the claim case. Offending vehicle was seized in the criminal case, and it is only when the liability has been fastened upon NA2, he filed the appeal, and has taken defence that the vehicle was not purchased by him, and at the time of purchase, he was minor.

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From the aforesaid discussion in MAC-621 of 2017, it has already been directed that the Insurance Company shall first pay the compensation to the claimants, and then it may recover the same from the Driver and Owner of the vehicle ie NA1 and NA2, the Additional documents filed by the appellant in MAC-666 of 2017, cannot be taken as

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Mac 621 and 666 of 2017

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an additional evidence in absence of his written statement or evidence before the learned Claims Tribunal. However, NA2 may take his defence in the eventuality of recovery proceedings started against him by the Insurance Company. Therefore, his application under Order 41 Rule 27 of the CPC is hereby dismissed.

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Nothing remains for further adjudication in the present appeal filed by the Owner of the vehicle (MAC-666 of 2017) , and the same is hereby dismissed. However, the appellant/Owner of the offending vehicle may raise his defence in the recovery proceeding, if eventuality arises.

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No order as to costs.

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Sd/- (Ravindra Kumar Agrawal) JUDGE

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padma

Smt. Sarswati Gupta v. Deenanath Sharma

Case brief

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Smt. Sarswati Gupta v. Deenanath Sharma

Case brief

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