Allowed

The Oriental Insurance Co. Ltd. v. Smt. Sunita Sinha

Chhattisgarh HC19 Nov 2024MAC/985/2016

Case brief

AI extract

What is this about?

Insurer appealed two motor accident awards for deaths caused by a dumper truck. The High Court held the driver had no valid driving licence on the accident date, reduced future prospects to 40%, recomputed compensation, and shifted liability to owner and driver, with pay-and-recover by insurer.

What did the court decide?

Appeals allowed in part; award modified reducing compensation and shifting liability from insurer to driver/owner, with insurer permitted pay-and-recover; interest retained as Tribunal ordered.

The Oriental Insurance Co. Ltd. Vs Smt. Sunita Sinha — Insurance | Chhattisgarh HC (2024)

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2024:CGHC:45406

NAFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

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Digitally signed by PRAKASH KUMAR

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Date: 2024.11.22 14:40:17 +0530

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MAC No. 985 of 2016

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The Oriental Insurance Co. Ltd. Parmanand Bhawan, Rajendra Park Chowk, Tahsil and District- Durg, Chhattisgarh,.........Insurer of Vehicle Dumper Truck No. CG-07-C-7118,

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---- Appellant

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Versus

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1. Smt. Sunita Sinha W/o Late Shiv Kumar Sinha, aged about 23 years,

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2. Lalit Kumar Sinha, S/o Shiv Sinha, aged about 3 years, Both are R/o – Village - Tarrighat, Tahsil - Patan, P.S.- Patan, DistrictDurg, Chhattisgarh, Through mother being natural gardian, Smt. Sunita Sinha (respondent No.1),.......Claimants,

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3. Santosh Kumar Verma, S/o Kalanath Verma, aged about 23 years, R/o- Village - Funda, P.S. and Tahsil - Patan, District- Durg, Chhattisgarh,.....Driver of Vehicle Dumper Truck No. CG-07-C-7118,

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4. Chanakya Kumar Sahu, S/o Shatruhan Sahu, aged about 23 years R/o – Village - Achanakpur, Tahsil- Patan, District- Durg, Chhattisgarh, Owner of Vehicle Dumper Truck No. CG-07-C-7118,

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---- Respondents

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AND

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MAC No. 986 of 2016

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The Oriental Insurance Co. Ltd. Through Manager, Parmanand Bhawan, Rajendra Park Chowk, G.E. Road, Durg, Tahsil and DistrictDurg, Chhattisgarh, ……….Insurer of Vehicle Dumper Truck No. CG07-C-7118,

---- Appellant

Versus

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1. Smt. Sunita Yadav W/o Late Shri Santosh Kumar Yadav, aged about 24 years,

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2. Sumit Yadav, S/o Late Shri Santosh Kumar Yadav, aged about 2.5 years, No.2 Through Guardian Mother Smt. Sunita Yadav, W/o Late Shri Santosh Kumar Yadav,

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3. Dharm Dev Yadav, S/o Late Shri Suraj Dev Yadav, aged about 48 years,

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4. Smt. Radhika Devi, W/o Shri Dharam Dev Yadav, aged about 45 years,

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All are R/o- Village- Joratarai, P.S.- Bhilai Bhatti, Tahsil and DistrictDurg, Chhattisgarh, Permanent R/o - Dr. Rajendra Nagar, Urla, Raipur, Tahsil and District - Raipur, Chhattisgarh,......Claimants,

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5. Santosh Kumar Verma, S/o Kalanath Verma, aged about 23 years, R/o- Village - Funda, P.S. and Tahsil - Patan, District- Durg, Chhattisgarh,.....Driver of Vehicle Dumper Truck No. CG-07-C-7118,

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6. Chanakya Kumar Sahu, S/o Shatruhan Sahu, aged about 23 years, R/o- Village - Achanakpur, Tahsil- Patan, District- Durg, Chhattisgarh, Owner of Vehicle Dumper Truck No. CG-07-C-7118,

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---- Respondents

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For Appellant/Insurance Co.	: Mr. RajAwasthi, Advocate
For Claimants	: Mr. Jitendra Gupta, Advocate
For Driver and Owner of	: Mr. Prakash Goswami, Advocate on
Offendingvehicle	behalf of Mr. Tarun Dadsena, Advocate

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Hon'ble Shri Justice Radhakishan Agrawal,

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Judgment on Board 20/11/2024

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1. Both the above appeals arise out of common award dated 29.04.2016 therefore, they are being heard together and disposed of by this common judgment.

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2. These appeals have been filed by the appellant – The Oriental Insurance Company Limited against the award dated 29.04.2016 passed by the 6^th Additional Motor Accident Claims Tribunal, District –

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Durg, Chhattisgarh (in short ‘the Tribunal’) wherein in Claim Case Nos.132/2013, the learned Tribunal has awarded Rs.11,53,000/- and in Claim Case No.181/2013 awarded Rs.14,07,000/- in favour of the claimants and against the non-applicant No.1, 2 & 3 jointly and severally, along with interest @ 9% per annum from the date of filing of claim petition till its realisation.

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3. As per averments made in the claim petitions, on 09.05.2013, Shiv Kumar Sinha (deceased in MAC No.985/2016) and Santosh Kumar Yadav (deceased in MAC No.986/2016) were going to Durg on motorcycle CD Deluxe bearing registration No.CG-07-LC-2795. On the way, non-applicant No.1/driver of a Dumper Truck bearing registration No.CG-07-C-7118 (hereinafter referred to as ‘the offending vehicle’) who was driving the said vehicle in a rash and negligent manner dashed the motorcycle of the deceased persons, as a result of which the deceased persons sustained grievous injuries and died. At the time of accident, the offending vehicle was owned by non-applicant No.2 – Chanakya Prasad Sahu and insured with non-applicant No.3 – the Oriental Insurance Company Limited. As per the claim petitions, deceased Shiv Kumar Sinha used to work in motorcycle repairing shop from where he used to earn Rs.10,000/- per month, whereas deceased Santosh Kumar Yadav had a private job and was earning Rs.10,000/- per month.

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4. Being aggrieved with the impugned award, the insurer - The Oriental Insurance Company Limited has preferred these appeals. Shri Raj Awasthi, learned counsel for the insurance company vehemently submits that though the offending vehicle was insured with the insurance company but it was plied in contravention of the terms and

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condition of the insurance policy and provisions of Motor Vehicle Act. He further contended that the offending vehicle was plied without valid driving license and valid permit. At the time of accident, although the driver was possessing the driving license but it was not renewed, in as much as the future prospects assessed by the learned Tribunal is not in accordance with the law and that, the compensation awarded under the other conventional heads are also on higher side. Therefore, on these premises, it was urged by him that the insurance company may be exonerated. Reliance has been placed on the decisions of Supreme Court in the matter of National Insurance Company Vs. Pranay Sethi reported in (2017) 16 SCC 680 and Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others reported in (2018) 18 SCC 130.

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5. Learned Counsel appearing for the claimants submits that he has not filed any appeal against the impugned award seeking enhancement. He further submits that that the award passed by the learned Tribunal is just and proper. The learned Tribunal, after proper appreciation of the evidence available on record, has rightly passed the impugned order and the same does not call for any interference.

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6. Learned counsel appearing for owner and driver of the offending vehicle, submits that the offending vehicle was insured with the appellant - insurance company. Further, the insurance company has failed to prove that the driver of the offending vehicle was not having valid driving license. Further, as per Ex.D-6, the owner of the offending vehicle was having permit which was issued on 13.09.2012 and was effective upto 13.09.2017. Therefore, the learned MACT has rightly fastened the liability upon the insurance company.

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7. Heard learned counsel for the parties and perused the material available on record.

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8. In order to deal with the contentions of the parties, it would be apt to discuss the evidence of Saiyyad Safique [NAW-3 (1)], Assistant Grade II in the Office of RTO, Raipur, who has stated that driver of the offending vehicle, namely, Santosh Kumar Verma (non-applicant No.1) was possessing the driving license effective from 31.12.2009 to 30.12.2029 to drive MCWG and MLV Car only. However, in his crossexamination, he admitted that according to Ex.D-5 which is a extract of driving license wherein it is shown that the on dated 01.08.2011 the license for category non-transport (NT) has already expired and was not renewed. He further submitted that the said license was not valid from 02.08.2011 to 25.06.2013. However, he admitted that heavy driving license was issued on 02.08.2008, and on the basis of being not renewed, he admitted that license was not effective from 02.08.2011 till 25.06.2013. Further, as per Ex.D-5, driving licence for transport (TR) was effective from 26.06.2013 to 25.06.2016 . From the above statement, it is clear that the driver of the offending vehicle, namely, Santosh Kumar Verma has not possessed valid and effective driving license to drive the transport vehicle on the date of accident.

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9. As regards, non-production of permit at the time of accident, Saiyyad Safique [NAW-3 (1)] has admitted that there was permit of the offending vehicle which was effective from 13.09.2012 to 13.09.2017 and the same is evident from Ex.D-6 whereas the accident occurred on 09.05.2013. Moreover, the non-applicants No.1 & 2, the driver and owner respectively were not examined before the Tribunal. Thus, from

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the above document (Ex.D-6), it is clear that at the time of accident, offending vehicle was being plied with valid permit.

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10. Moreover, there is no dispute with regard to the monthly income of the deceased persons which has been assessed to Rs.4,500/-. However, the Tribunal has erred in granting 50% amount towards loss of future prospects of the deceased persons, which in the considered opinion of this Court is not just and proper. The Hon’ble Supreme Court in the matter of Pranay Sethi (supra) has considered 40% towards loss of future prospects for the self-employed persons who are below 40 years of age. Therefore, looking to the age of the deceased persons who are below 40 years of age, the applicable percentage towards their future prospects would be 40%. Further, taking the guidance from the decisions of the Hon'ble Supreme Court in Smt. Sarla Verma and others VS. Delhi Transport Corporation and another, (2009) 6 SCC 121 , Pranay Sethi (supra) & Magma General Insurance Co. Ltd. (supra) , this Court re-computes the compensation in the following manner:-

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MAC No.985/2016 (Shiv Kumar Sinha - Deceased)

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Sl. No.	Heads	Calculation (in rupees)
01.	Income of the deceased @ Rs.4,500/-per month	Rs.54,000/- per annum
02.	40% of (1) above to be added towards futureprospects.	Rs.21,600/- Rs.54,000 + Rs.21,600= Rs.75,600/-
03.	1/3 deduction towards personal and living expenses of the deceased	Rs.25,200/- Rs.75,600 – Rs.25,200 = Rs.50,400/-
04.	Multiplier of 17 to be applied	Rs.50,400 x 17 = Rs.8,56,800/-
05.	Towards Conventional Heads (loss of estate, funeral expenses and loss of consortium)	Rs.1,10,000/-
	Total Compensation	Rs.9,66,800/-

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MAC No.986/2016 (Santosh Kumar Yadav - Deceased)

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Sl. No.	Heads	Calculation (in rupees)
01.	Income of the deceased @ Rs.4,500/-per month	Rs.54,000/- per annum
02.	40% of (1) above to be added towards futureprospects.	Rs.21,600/- Rs.54,000 + Rs.21,600= Rs.75,600/-
03.	1/3 deduction towards personal and living expenses of the deceased	Rs.25,200/- Rs.75,600 – Rs.25,200 = Rs.50,400/-
04.	Multiplier of 17 to be applied	Rs.50,400 x 18 = Rs.9,07,200/-
05.	Towards Conventional Heads (loss of estate, funeral expenses and loss of consortium)	Rs.1,90,000/-
	Total Compensation	Rs.10,97,200/-

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11. In view of above discussion, the claimants i.e. respondent Nos.1 & 2 (in MAC No.985/2016) are now entitled to get a total sum of Rs.9,66,800/ - instead of Rs.11,53,000/- as awarded by the Tribunal. Likewise, the claimants i.e. respondent Nos.1 to 4 (in MAC No.986/2016) are now entitled to a total sum of Rs.10,97,200/- instead of Rs.14,07,000/- as awarded by the Tribunal However, the above amount shall carry interest as awarded by the Tribunal, from the date of filing of claim petition till its realisation.

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12. In the present case, admittedly, no material has been brought on record by the driver and owner of the offending vehicle to prove that on the date of accident the driver was in possession of the valid and effective driving license, further, the driver and owner of the offending vehicle have not been examined before the Tribunal and in absence of such evidence, oral or documentary, I am of the considered opinion

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that the Tribunal was not rightly justified in fastening liability upon the appellant-insurance company and accordingly, it is held that the insurance company has fully discharged its case in proving the fact that on the date of accident the offending vehicle was plied in absence of valid and effective driving license. Hence, the finding recorded by the Tribunal in fastening the liability upon the appellant-insurance company is set aside and it is further held that now the non-applicants No.1 & 2 shall satisfy the amount of compensation to the claimants. However, since the offending vehicle is insured with the appellantinsurance company, therefore, the insurance company is required to pay the compensation amount as awarded by the Tribunal and then it is entitled to recover the same from the owner and driver of the offending vehicle, as laid down by the Supreme Court in its judgment in the matter of National Insurance Company Limited vs. Swaran Singh reported in (2004) 3 SCC 297.

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13. In the result, the appeal is allowed in part and the impugned award is modified to the extent as indicated above. Rest of the conditions of the impugned award shall remain in tact.

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Sd/-

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(Radhakishan Agrawal) Judge

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Prakash

The Oriental Insurance Co. Ltd. v. Smt. Sunita Sinha

Case brief

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The Oriental Insurance Co. Ltd. v. Smt. Sunita Sinha

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