Partly allowed

The Oriental Insurance Co. Ltd. v. Smt. Anjani

Chhattisgarh HC1 Dec 2024MAC/832/2016

Case brief

AI extract

What is this about?

The High Court dismissed the insurance company's appeal challenging liability despite alleged policy violation and allowed claimants' cross-appeals. The Court recomputed compensation for two deceased persons, increasing awards by applying a future prospects multiplier and adjusting dependency deductions based on the number of claimants.

What did the court decide?

Insurance company's appeals dismissed; Claimants' cross-appeals allowed with enhanced compensation of Rs.9,13,741 and Rs.9,59,256 respectively, plus 6% interest.

The Oriental Insurance Co. Ltd. Vs Smt. Anjani — Motor Accident Claims | Chhattisgarh HC (2024)

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Digitally signed by BHOLA NATH KHATAI Date: 2024.12.05 15:37:35 +0530

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2024:CGHC:47413

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 832 of 2016

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The Oriental Insurance Co. Ltd. Through Its Divisional Manager, Divisional Office, 1st Floor, Rama Trade Centre, Near Bus Stand, Bilaspur, Civil And Revenue District Bilaspur, Chhattisgarh PIN 495001

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---- Appellant

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versus

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1. Smt. Anjani Wd/o Late Manohar Nishad, Aged About 23 Years R/o Village Mohgaon, P.S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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2. Ku. Sandhya Nishad D/o Late Manohar Nishad, Aged About 3 Years Minor Represented Through Her Mother And Natural Guardian Respondent No. 1 Smt. Anjani Wd/o Late Manohar Nishad, Aged 23 Years, R/o Village Mohgaon, P. S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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3. Sirmati Bai Wd/o Late Shiv Prasad Nishad, Aged About 56 Years R/o Village Mohgaon, P. S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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4. Pradeep Nishad S/o Late Shiv Prasad Nishad, Aged About 16 Years Minor, Represented Through Mother And Natural Mother And Natural Guardian Smt. Sirmati Bai Wd/o Shiv Prasad (Respondent No. 3) R/o Village Mohgaon, P. S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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5. Murli Nishad S/o Late Shiv Prasad Nishad, Aged About 33 Years R/o Village Mohgaon, P. S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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6. Smt. Pratima W/o Murli Nishad, Aged About 28 Years R/o Village Mohgaon, P. S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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7. Ku. Soniya D/o Murli Nishad, Aged About 8 Years Minor And Represented Through Mother And Natural Guardian Namely Smt. Pratima W/o Murli Nishad, Aged About 28 Years, R/o Village Mohgaon, P.S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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8. Raj Nishad S/o Murli Nishad, Aged About 6 Years Minor And Represented Through Mother And Natural Guardian Namely Smt. Pratima W/o Murli Nishad, Aged About 28 Years, R/o Village Mohgaon, P. S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh ..… Claimants

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9. Teerathram Thakur S/o Sambhar Singh Thakur, Aged About 53 Years R/o Near Holy Cross School, Kawardha, P. S. Kawardha, Tahsil Kawardha, District Kabirdham ...… Driver

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10. Janki Bai Chandravanshi W/o Tihari, Aged About 56 Years R/o Dewangan Para, Kawardha, P. S. And Tahsil Kawardha, District Kabirdham, Chhattisgarh ......… Owner

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---- Respondents

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MAC No. 840 of 2016

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The Oriental Insurance Co. Ltd. Through Its Divisional Manager, Divisional Office, 1st Floor, Rama Trade Centre, Near Bus Stand, Bilaspur, Civil And Revenue District Bilaspur, Chhattisgarh, PIN495001

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---- Appellant

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Versus

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1. Indrani Bai Wd/o Late Banshi Nishad, Aged About 21 Years, R/o

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Village Mohgaon, P.S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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2. Ku. Seema D/o Late Banshi Nishad, Aged About 2 Years Minor, Represented Through Mother And Natural Guardian Indrani Bai Wd/o Late Banshi Nishad (Respondent No.1) R/o Village Mohgaon, P.S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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3. Sirmati Bai Wd/o Late Shiv Prasad Nishad, Aged About 56 Years R/o Village Mohgaon, P.S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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4. Pradeep Nishad S/o Late Shiv Prasad Nishad, Aged About 16 Years Minor, Represented Through Mother And Natural Guardian Smt. Sirmati Bai Wd/o Shiv Prasad (Respondent No.3) R/o Village Mohgaon, P.S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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5. Murli Nishad S/o Late Shiv Prasad Nishad, Aged About 33 Years R/o Village Mohgaon, P.S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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6. Smt. Pratima W/o Murli Nishad, Aged About 28 Years R/o Village Mohgaon, P.S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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7. Ku. Soniya D/o Murli Nishad, Aged About 8 Years Minor And Represented Through Mother And Natural Guardian Smt. Pratima W/o Murli Nishad, Aged About 28 Years, R/o Village Mohgaon, P.S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh

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8. Raj Nishad S/o Murli Nishad, Aged About 6 Years Minor And Represented Through Mother And Natural Guardian Smt. Pratima W/o Murli Nishad, Aged About 28 Years, R/o Village Mohgaon, P.S. Pipariya, Tahsil Kawardha, District Kabirdham, Chhattisgarh .............… Claimants

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9. Teerathram Thakur S/o Sambhar Singh Thakur, Aged About 53 Years R/o Near Holy Cross School, Kawardha, P.S. Kawardha, Tahsil Kawardha, Distt. Kabirdham, Chhattisgarh .......... Driver

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10. Janki Bai Chandravanshi W/o Tihari, Aged About 56 Years R/o Dewangan Para, Kawardha, P.S. And Tahsil Kawardha, Distt. Kabirdham, Chhattisgarh ........… Owner

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---- Respondents

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For Appellant(s) : Mr. Akash Shrivastava, Advocate, on behalf of Mr. R. N. Pusty, Advocate For Respondents 1 to 4 : Mr. Sunil Sahu, Advocate

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( Hon'ble Shri Justice Sanjay Kumar Jaiswal, J. )

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Order On Board

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02/12/2024

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1. Both the appeals have been preferred by the Insurance Company under Section 173 of the Motor Vehicles Act, 1988, challenging the award dated 03.03.2016 passed by the Motor Accident Claims Tribunal, Kabirdham (Kawardha), Chhattisgarh in Claim Case Nos. 38/2015 & 39/2015. Since both the appeals arise out of the same accident, they are being disposed of by this common order.

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2. MAC No.832/2016 has been preferred against the award passed in Claim Case No.38/2015 in respect of death of Manohar Nishad and MAC No.840/2016 has been preferred against the award passed in Claim Case No.39/2015 in respect of death of Banshi Nishad. Both the appeals have been preferred for exoneration of the Insurance Company from its liability of payment of compensation.

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3. The facts, in brief, necessary for disposal of both the appeals, are that on 14.03.2015, deceased Banshi Nishad and Manohar Nishad were returning from Bhoramdev on a motorcycle. When they reached Baghutola, Teerathram Thakur driving the offending vehicle i.e. tractor bearing registration No.CG 09 C 5710 & trolley No. CG 09 C 5711 rashly and negligently dashed their motorcycle, due to which they suffered grievous injuries. They were taken to

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District Hospital Kabirdham for treatment where both were declared dead. Upon report being made in this regard, crime was registered against the driver of the offending vehicle at PS Bhoramdev, District Kabirdham (CG).

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4. In Claim Case No.38/2015, preferred by the claimants who are the wife, daughter, mother, minor brother, elder brother, sister-in-law (Bhabhi), nephew & niece of the deceased Manohar Nishad, the Tribunal has awarded total compensation of Rs.4,58,000/- with interest @ 7% per annum, from the date of application till its realization, in favour of only four persons. In Claim Case No.39/2015 , preferred by the claimants who are the wife, daughter, mother, minor brother, elder brother, sister-in-law (Bhabhi), nephew & niece of the deceased Banshi Nishad, the Tribunal has awarded total compensation of Rs.4,82,000/- with interest @ 7% per annum, from the date of application till its realization, in favour of only four persons.

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5. While passing the impugned awards, the Tribunal has held the owner, driver and insurance company of the offending vehicle jointly or separately liable for payment of compensation. It is this fastening of liability of payment of compensation upon the Insurance Company against which both the appeals have been preferred by the Insurance Company seeking exoneration from its liability.

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6. Learned counsel for the appellant insurance company argues that according to the insurance policy Ex. NA-3, the offending tractortrolley was insured for agricultural purposes. But according to the First Information Report Ex. A-2 lodged by Kanhaiyalal, at the time of the accident, the offending vehicle was carrying hotel goods to the fair. Thus, contrary to the policy by transporting hotel goods for the fair other than agricultural purposes, the insurance conditions have been violated. Therefore, the insurance company is not liable for payment of compensation.

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7. On the other hand, learning counsel appearing for the respondents 1 to 4 submits that in the facts and circumstances of the case, the finding of the Tribunal holding the Insurance Company liable for payment of compensation is just and proper and requires no interference.

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

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9. In the case, no eye-witness has been examined from the claimants side. In its reply, the insurance company has taken the plea/ground that at the time of accident, the offending vehicle was carrying hotel goods for the fair, which was different from agricultural purpose. It is also noteworthy that in the reply of the registered owner and driver of the offending vehicle, it has been stated that at the time of accident, the offending vehicle was going to the house of Suklal Gond, resident of Bhoramdev, to get cow dung manure. Considering the evidence presented in this regard, it is noteworthy that in the First Information Report Ex.A-2, it has been mentioned that the offending vehicle was going to Bhoramdev fair carrying hotel goods. But the lodger of the said FIR Kanhaiyalal has not been examined by any party. The burden of proof of violation of insurance conditions was on the appellant/insurance company. Vijay Kumar examined on behalf of the insurance company has stated that investigation has been conducted in the case but no investigation report has been presented, which goes against the insurance company.

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10. On the other hand, Tirathram has been examined as the driver of the offending vehicle who confirming the pleadings in the written statement of the owner has stated that he was taking the offending vehicle to collect cow dung manure at the time of the accident, which could not be refuted. Thus, the insurance company has failed to prove the violation of its policy and the conclusion given by the Tribunal in this regard is found to be appropriate, in which no interference is required. Therefore, both the appeals of the

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appellant insurance company are dismissed finding them not acceptable.

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Cross-Appeals

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11. Cross-appeals have been filed by the claimants in both the cases for enhancement of the compensation whereas the contention of the Insurance Company is that excessive compensation has been awarded in favour of the claimants.

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12. Now this Court shall examine as to whether the compensation awarded by the Tribunal is just and proper compensation in the given facts and circumstances of the case.

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13. In the cross-appeal filed by the claimants of deceased Manohar Nishad it is claimed that at the time of accident, the deceased was aged about 26 years. He was a skilled cook and operated a hotel in Milan Chowk, Navghata Mohgaon from which he was earning Rs.700-800 per day. Apart from this, he used to earn Rs.50,000 by taking orders from parties on marriage and other occasions working on contract. However, the Tribunal has assessed the income of deceased Manohar Nishad at Rs.3,000 per month as there was no documentary evidence presented regarding income of the deceased. The accident occurred on 14.03.2015 and as per the notification by Labour Department, the minimum wages of even an unskilled labour at that point of time was Rs.5517. Hence, the income of the deceased is assessed at Rs.5517 per month instead of Rs.3000 as assessed by the Tribunal. Accordingly, the annual income comes to Rs.66204. The Tribunal has not considered future prospects while calculating compensation. In the light of the judgment of Hon’ble Supreme Court in the case of National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 , the future prospects would be 40% of the income and after adding 40% of the income towards future prospects i.e.

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Rs.26481.6, the amount comes to Rs.92685.6.

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14. The respondent Nos.5 to 8 are the deceased’s elder brother and his wife and children and they were not directly dependent on the deceased. Respondent Nos.1 to 4 are the wife, daughter, mother and minor brother of the deceased who were dependent on the deceased. Considering the fact that there are total 4 claimants, the deduction towards personal expenses would be 1/4th instead of 1/3rd as wrongly held by the Tribunal. After deduction of 1/4th of the income i.e. Rs.23171.4, the annual dependency comes to Rs.69514.2. In view of judgment of the Hon’ble Supreme Court in the case of 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 to be 26 years at the time of accident, the multiplier would be 17 as rightly held by the Tribunal. After applying the said multiplier, the total loss of dependency works out to Rs.1181741.4 (69514.2 x 17) in round figure Rs.1181741. The claimants are also entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- for funeral expenses. As per ' Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189 , the four claimants are further entitled for Rs.40,000/- each totaling Rs.1,60,000/towards consortium and love and affection. The claimants would become entitled for total compensation in the following manner:-

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Heads	Calculation
Compensation towards dependency	11,81,741
For loss of estate	15,000
For consortium, love and affection to 4 claimants @ Rs. 40,000/- each	1,60,000
Funeral Expenses	15,000
Total compensation	Rs.13,71,741

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15. Thus, the total compensation is recomputed as Rs.13,71,741/- from

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which after deduction of Rs.4,58,000/- as awarded by the Tribunal, the enhanced compensation would be Rs.9,13,741/-.

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16. Accordingly, the claimants of deceased Manohar Nishad shall be entitled for the enhanced amount of Rs.9,13,741/- in addition to what is already awarded by the Claims Tribunal.

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17. In the cross-appeal filed by the claimants of deceased Banshi Nishad it is claimed that at the time of accident, the deceased was aged about 24 years and he was a skilled cook. He used to sell Gupchup Chaat in the nearby markets from which he was earning Rs.500-600 per day. Apart from this, he used to earn Rs.25,000 by taking orders from parties on marriage and other occasions working on contract.

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18. Deceased Manohar Nishad and Banshi Nishad are real brothers. Both the claim cases arose out of the same incident and the nature of their business was almost similar. Therefore, the income of deceased Banshi Nishad is assessed at Rs.66204 per annum. The Tribunal has not considered future prospects while calculating compensation. Considering the judgment of Hon’ble Supreme Court in the case of National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 , the future prospects would be 40% of the income. After adding 40% towards future prospects, the amount comes to Rs.92685.6. Considering the fact that there are 4 claimants as has been held in the case of deceased Manohar Nishad, the deduction towards personal expenses would be 1/4th of the income instead of 1/3rd as wrongly held by the Tribunal and after deduction of 1/4th of the income, the annual dependency comes to Rs.69514.2.

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19. Considering the age of deceased Banshi Nishad to be 24 years at the time of accident and in view of judgment of the Hon’ble Supreme Court in the case of Sarla Verma (Smt.) and others vs. Delhi Transport Corporation and another reported in (2009) 6

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SCC 121 and National Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 , the multiplier would be 18 as rightly held by the Tribunal. After applying the said multiplier, the total loss of dependency works out to Rs.1251255.6 (69514.2 x 18) in round figure Rs.1251256. The claimants are also entitled for Rs.15,000/- towards loss of estate and Rs.15,000/- for funeral expenses. As per ' Magma General Insurance Co. Ltd. Vs. Nanu, reported in AIR Online 2018 SC 189 , the four claimants are further entitled for Rs.40,000/- each totaling Rs.1,60,000/- towards consortium and love and affection. The claimants would become entitled for total compensation in the following manner:-

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Heads	Calculation
Compensation towards dependency	1251256
For loss of estate	15,000
For consortium, love and affection to 4 claimants @ Rs. 40,000/- each	1,60,000
Funeral Expenses	15,000
Total compensation	Rs.14,41,256

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20. Thus, the total compensation is recomputed as Rs.14,41,256/- from which after deduction of Rs.4,82,000/- as awarded by the Tribunal, the enhanced compensation would be Rs.9,59,256/-.

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21. Accordingly, the claimants of deceased Banshi Nishad shall be entitled for the enhanced amount of Rs.9,59,256/- in addition to what is already awarded by the Claims Tribunal.

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22. The enhanced amount in both the cross-appeals will carry interest @ 6% per annum from the date of enhancement of the awards till its realization. The impugned awards stand modified to the above extent and rest of the conditions shall remain intact.

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23. In the result, both the appeals of the appellant Insurance Company stand dismissed and both the cross-appeals of the claimants stand allowed to the extent indicated herein-above.

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24. The Registry is directed to communicate the claimants in writing

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“the enhanced amount” in these appeals as against the awards made by the Tribunal. The said communication be made in Hindi Deonagri language and the help of paralegal workers may be availed with a co-ordination of Secretary, Legal Aid of the concerned area wherein the claimants reside.

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Sd/-

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(Sanjay Kumar Jaiswal) Judge

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Khatai

The Oriental Insurance Co. Ltd. v. Smt. Anjani

Case brief

What is this about?

What did the court decide?

The Oriental Insurance Co. Ltd. v. Smt. Anjani

Case brief

What is this about?

What did the court decide?

What the court decided

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