Partly allowed

The National Insurance Company Limited v. Smt. Rita Kumari

Chhattisgarh HC2 May 2024MAC/770/2016

Case brief

AI extract

What is this about?

The High Court disposed of two appeals arising from the same motor accident. It held that the Insurance Company is exonerated from direct liability due to the absence of a valid fitness certificate but directed it to first pay compensation to claimants before recovering from the insured. The court also enhanced compensation for the minor's death from Rs. 1,50,000 to Rs. 2,00,000.

What did the court decide?

Insurance company directed to pay Rs. 2,00,000 total (enhanced from Rs. 1,50,000) to claimants first, then recover from insured. Claimants' appeal allowed with enhancement of Rs. 50,000.

The National Insurance Company Limited Vs Smt. Rita… — Cheque Dishonour | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MAC No. 770 of 2016

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The National Insurance Company Limited, Middle Town Street Post Box No.9229 Kolkata - 700071, Service Office Bilaspur, Division B-1, Taha Complex, Ring Road - 1, Priyadarshni Nagar, Bilaspur Chhattisgarh Pincode - 495001.

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---- Appellant

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Versus

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Smt. Rita Kumari W/o Ramprasad, Aged About 30 Years, Caste Rajwar, Occupation Housewife.

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Ramprasad S/o Atibal Ram, Aged About 35 Years, Caste Rajwar, Occupation Agriculture. Both are R/o village Devnagar, Police Station Surajpur, Tahsil Ramanujnagar, District Surajpur (C.G.).

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Havaldas S/o Tublu Das, Aged About 45 Years, Caste Panika, Occupation Driver, R/o Village Harratikra, Police Station Jainagar, Tahsil and District Surajpur Chhattisgarh.

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Roopnarayan Rajwade, S/o Bandhan Ram Rajwade, Aged About 37 Years, R/o Village Harratikra, Police Station Jainagar, Tahsil and District Surajpur Chhattisgarh.

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---- Respondents

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MAC No. 1435 of 2016

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Smt. Reeta Kumari W/o Ramprasad, Aged About 30 Years, Caste- Rajwar, Occupation- Housewife,

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Ramprasad S/o Atibal Ram, Aged About 35 Years, CasteRajwar, Occupation- Agriculture Both R/o Village- Devnagar, P.S. Surajpur, TahsilRamanujnagar, District- Surajpur, Chhattisgarh.

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---- Appellants

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Versus

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Hawaldas S/o Tubalu Das, Aged About 45 Years, CastePanika, Occupation- Driver, R/o Village- Harratikara, P.S.Jainagar, Tahsil and District Surajpur, Chhattisgarh .

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Roopnarayan Rajwade S/o Bandhan Ram Rajwade, Aged About 37 Years, R/o Village- Harratikara, P.S.- Jainagar, Tahsil and District- Surajpur, Chhattisgarh.

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National Insurance Company Limited, Middle Town Street, Post Box No.9229, Kolkata, 700071, Service Office, Bilaspur Division B-1 Taha Complex, Ring Road No.1, Priyadarsani Nagar, Bilaspur, Chhattisgarh, Pin 495001.

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---- Respondents

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MAC No.770 of 2016

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For Appellant : Mr. Qamarul Aziz, Advocate For Respondents No.1 & 2 : Mr. Divyanand Patel, Advocate on behalf of Mr. A. K. Prasad, Advocate For Respondents No.3 & 4 : Mr. Shakti Raj Sinha, Advocate

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MAC No.1435 of 2016

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For Appellants : Mr. Divyanand Patel, Advocate on behalf of Mr. A. K. Prasad, Advocate For Respondents No.1 & 2 : Mr. Shakti Raj Sinha, Advocate For Respondent No.3 : Mr. Qamarul Aziz, Advocate

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Hon'ble Shri Justice Sanjay Kumar Jaiswal

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Judgment on Board

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03.05.2024

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1. By this common judgment, MAC No. 770 of 2016 and MAC No.1435 of 2016 are being disposed of as the same are arising out of same accident.

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2. MAC No.770 of 2016 has been filed by the appellant/insurance company under Section 173 of the Motor Vehicles Act, 1988 (hereinafter referred to as “M.V. Act”) arises out of the award dated 18.02.2016 passed by the Motor Accident Claims Tribunal, Surajpur, District Surajpur (C.G.) (hereinafter referred to as “Claims Tribunal”) in Motor Accident Claim Case No.76 of 2014 on the ground that insurance company be exonerated to satisfy its liability

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to pay the amount of compensation as there was breach of conditions of insurance policy.

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3. MAC No.1435 of 2016 has been filed by the appellants/claimants under Section 173 of the M.V. Act arises out of the award dated 18.02.2016 passed by the Claims Tribunal in Motor Accident Claim Case No.76 of 2014 on the ground that learned Claims Tribunal has awarded meagre amount of compensation on the death of minor, which needs to be enhanced suitably.

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4. Brief facts for disposal of both the appeals, are that, on 29.04.2014, deceased Ku. Amravati (aged about 4 to 5 years) along with her grandmother come to village Ramanujnagar from village Devnagar for treatment of her grandmother. After treatment, they were waiting for a bus on main road of Surajpur-Premnagar on the side of the road, at that relevant time, a Truck bearing registration No.CG-15AC-0589 driven by respondent- Hawaldas rashly and negligently, dashed Ku. Amravati, due to which, she suffered grievous injuries over her legs and other parts of the body. She was taken to the Community Health Centre, Ramanujnagar, where during the course of treatment, she died. Thereafter, Crime No. 68 of 2014 was registered against Hawaldas at Police Station Ramanujnagar, District

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Surajpur, Chhattisgarh for the offence punishable under Section 304A of the Indian Penal Code, 1860 and Sections 56/177 and 66/192 of the M.V. Act. After completion of the investigation, charge-sheet was filed.

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5. In MAC No.1435 of 2016 arising out of Motor Accident Claim Case No.76 of 2014, appellants/claimants being mother and father of deceased Ku. Amravati filed a claim petition under Section 166 of M.V. Act seeking total compensation of Rs.10,00,000/- pleading therein that deceased Ku. Amravati was aged about 4 years, studied at Aganbadi Kendra, Devnagar and due to the casual death of Ku. Amravati, there is an irreparable loss to the claimants.

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6. After appreciating the evidence available on record as well as after hearing learned counsel for the parties as also considering the pleadings made in the claim petition, learned Claims Tribunal considered that on the date of accident, deceased was aged about 4 to 5 years and on account of her accidental death, claimants have suffered mental agony as well as loss of love and affection and awarded a lumpsum compensation of Rs.1,50,000/- along with interest @ 8% per annum from the date of filing of claim petition till its realization. Learned Claims Tribunal further held that on the date of accident, there was no

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breach of conditions of insurance policy as the offending vehicle was not having fitness certificate, as such, insurance company was liable to satisfy the amount of compensation.

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7. Learned counsel for the insurance company submits that the finding recorded by the Claims Tribunal that the insurance company has failed to prove that the offending vehicle was being used in violation of the insurance policy is contrary to law. He further submits that the offending vehicle was a “goods vehicle” and being “goods vehicle” valid permit and fitness certificate were to be obtained, but on the date of accident, the offending vehicle was not having any valid fitness certificate. He also submits that absence of fitness certificate for a goods transport vehicle is a fundamental breach of policy condition. Reliance has been placed on the judgment rendered by Kerala High Court in case of Pareed Pillai v. Oriental Insurance Company Limited, Ernakulam reported in AIR 2019 Kerala 9 (Full Bench) , to buttress his submission.

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8. On the other hand, learned counsel for the claimants submits that in the facts and circumstances of case, learned Claims Tribunal has erred in awarding meagre amount of compensation on the casual death of 4 years aged child in the motor accident, which needs to be enhanced suitably.

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9. Learned counsel for driver and owner while supporting the impugned award, submits that in the facts and circumstances of the case, learned Claims Tribunal has awarded just amount of compensation and rightly fastened the liability to pay the amount of compensation upon the insurance company, which requires no interference.

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10. I have heard the learned counsel appearing for the parties and perused the record of claim case with minute circumspection.

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MAC No.770 of 2016

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11. Learned Claims Tribunal in paragraph-16 of its award has discussed the issue of “fitness” and given its finding that driver and owner have not produced any document to show that on the date of accident, offending vehicle was having fitness certificate. Roopnarayan Rajwade (owner of the offending vehicle) in his cross-examination has admitted that offending vehicle was a goods vehicle and being “goods vehicle” valid fitness certificate was to be obtained, but he has not produced any fitness certificate. Learned Claims Tribunal further held that as the charge-sheet was filed for the offence punishable under Sections 56/177 and 66/192 of the M.V. Act, which are with regard to absence of

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fitness. Learned Claims Tribunal relied upon the judgment of Kerala High Court in case of V. M. Augustine, Vattakayumkal v. Ayyappankutty alias Mani & Another reported in AIR 2015 Kerala 131 [overruled by Pareed Pillai (supra)] and concluded in paragraph-17 that on the date of accident, there was no fitness certificate of the offending vehicle and as such, insurance company would not be exonerated to satisfy its liability to pay the amount of compensation.

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12. This Court in MAC No.1289 of 2014, Adesh Kumar and Another v. Smt. Satarupa Bai Yadav and Others and connected cases decided on 19.11.2020 , has considered the issue with regard to breach of policy conditions for not having valid fitness certificate, taking note of ruling of five Judges' Bench of Kerala High Court in case of Pareed Pillai (supra) wherein it has been held that absence of fitness certificate for a Transport vehicle to be a fundamental breach of policy conditions. Paragraphs-16 and 17 are relevant for the purpose, is reproduced hereunder:-

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“16. 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

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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 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.

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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 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 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

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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.”

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13. In view of aforementioned facts and circumstances of the case in the light of ruling by the High Court of Kerala in the case of Pareed Pillai (supra), I find force in the submission advanced by learned counsel for insurance company that insurance company be exonerated to satisfy its liability as on the date of accident, the offending vehicle was not having valid fitness certificate.

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14. Considering the matter in its entirety and taking note of the aforementioned ruling of the Kerala High Court, I am of the considered opinion that finding recorded by learned Claims Tribunal that insurance company was responsible to pay the amount of compensation as there was no breach of policy

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conditions on the date of accident is hereby set aside and insurance company is exonerated to satisfy its liability to pay the amount of compensation, but keeping in mind the beneficial object of M.V. Act, Hon'ble Supreme Court in the

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matters of National Insurance Co. Ltd. v. Challa Bharathamma and Others reported in (2004) 8 SCC 517 , Manuara Khatun and Others v. Rajesh Kumar Singh and Others reported in (2017) 4 SCC 796 and Amrit Paul Singh and another v. Tata AIG General Insurance Company Limited and Others reported in (2018) 7 SCC 558 , this Court has directed the insurance company to first pay the amount of compensation and then to recover the same from insured (driver and owner) of the offending vehicle.

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15. Considering the ratio laid down in above decisions of the Hon'ble Supreme Court and keeping in mind the beneficial object of M.V. Act as well, this Court is of the view that though insurance company is exonerated to satisfy its liability but a direction is issued to insurance company to first compensate the claimants and then same be recovered from the insured (driver and owner) of the offending vehicle.

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MAC No.1435 of 2016

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16. The claimants in the claim petition has pleaded the age of deceased child to be 4 years and was a student of Aganbadi Kendra, Devnagar. The child of such tender age cannot have any earning so as to calculate the amount of compensation by applying multiplier system. Life of child cannot be estimated in terms of money, but then some reasonable amount of compensation is to be awarded to unfortunate parents who have lost their daughter aged about 4 to 5 years. Learned Claims Tribunal has awarded a lumpsum amount of Rs.1,50,000/- on account of casual death of Ku. Amravati, which in the opinion of this Court is on lower side and requires some enhancement.

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17. On a casual death of Ku. Amravati, aged about 4 to 5 years, claimants being mother and father of deceased have suffered loss of love and affection. It is the fact that deceased was a student and if she had not met with the accident, she would have definitely do something in future. Taking into consideration overall facts and circumstances of the case, this Court is of the opinion that claimants are further entitled to lumpsum amount of Rs.50,000/- in addition to what is already awarded by the Claims Tribunal.

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18. Thus, total compensation is recomputed as Rs.2,00,000/-. After deducting Rs.1,50,000/- as awarded by the Claims Tribunal, the enhancement would be Rs.50,000/-.

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19. In the result :-

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(i) MAC No.1435 of 2016 filed on behalf of the claimants is allowed in part . The claimants shall be entitled to Rs.50,000/- in addition to what is already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 6% per annum from the date of enhancement of the award till its realization.

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(ii) MAC No.770 of 2016 filed on behalf of the insurance company is allowed in part. Insurance company is though exonerated from its liability to pay the amount of compensation to the claimants, but keeping in mind the beneficial object of M.V. Act as also the dictum of Hon'ble Supreme Court in the above-referred case, this Court directs the insurance company to first compensate the claimants and have the said sum recovered from the driver and owner of the offending vehicle. Other conditions imposed by

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the learned Claims Tribunal shall remain intact.

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20. The Registry is directed to communicate the claimants in writing “the enhanced amount” in these appeals as against the award made by the learned Claims Tribunal. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a coordination of Secretary, Legal Aid of the concerned area wherein the claimants reside.

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Sd/- - /-/- (Sanjay Kumar Jaiswal) Judge

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Yogesh

The National Insurance Company Limited v. Smt. Rita Kumari

Case brief

What is this about?

What did the court decide?

The National Insurance Company Limited v. Smt. Rita Kumari

Case brief

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What did the court decide?

What the court decided

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