Kripa Shankar Prajapati Vs Ganpat Rajwade

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2025:CGHC:20754

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 24 of 2021

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Kripa Shankar Prajapati S/o Late Prayag Prajapati, Aged About 46 Years R/o Village Jarhi, P.S. Bhatgaon, District Surajpur, Chhattisgarh. ( Owner )

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Saabir Ali, S/o Ashraf Ali, Aged About 24 Years R/o Badhor, P.S. Badhani, District Sonbhadra, (U.P.), Presently Residing At Village Jarhi, P.S. Bhatgaon, District Surajpur Chhattisgarh. ( Driver )

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... Appellants

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VERSUS

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Ganpat Rajwade S/o Somar Sai Rajwade, Aged About 55 Years R/o Village Podi, P.S. Bhatgaon, District Surajpur Chhattisgarh. ( Applicant/claimant )

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Shriram General Insurance Company Through Branch Manager Shriram General Insurance Company Ltd. Main Road, Ambikapur, District Surguja Chhattisgarh. (Insurance Company) (Non-Applicant No. 3). ... Respondents PAWAN KUMAR JHA with Digitally signed by PAWAN MAC No. 1007 of 2018 KUMAR JHA

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Ganpat Rajwade S/o Shri Somar Sai Rajwade, Aged About 55 Years R/o Village Podi, P.S. Bhatgaon, District Surajpur Chhattisgarh. (Claimant), District : Surajpur, Chhattisgarh

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... Appellant

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VERSUS

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Shriram General Insurance Company Through Branch Manager, Shri Ram General Insurance Company Limited, Main Road, Ambikapur District Sarguja Chhattisgarh. (Insurer Of Truck No. CG 15A/7990).

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Kripashankar Prajapati, S/o Late Prayag Prajapati, Aged About 46 Years R/o Village Jarhi, P.S. Bhatgaon, District Surajpur Chhattisgarh. (Owner Of Truck No. CG 15A/7990).

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Sabir Ali, S/o Shri Ashraf Ali, Aged About 24 Years R/o Badhore, Police Station Babhni, District Sonbhadra (UP), Presently R/o Village Jarhi, P.S. Bhatgaon, District Surajpur Chhattisgarh. (Driver Of The Truck No. CG 15A/7990).

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... Respondents

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For Appellants in MAC No. 24/2021; : Ms. Smriti Ekka, Adv. on behalf For Resp. No. 2 & 3 in MAC No. of Mr. Mahesh Pandey, Adv. 1007/2018 For Resp. No. 1 in MAC No. 24/2021;^: Mrs. Dhaneshwari Patel, Adv.

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For Appellant in MAC No. 1007/2018 For Resp. No. 2 in MAC No. 24/2021; For Resp. No. 1 in MAC No. 1007/2018

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: Mr. Prashant Sahu, Adv. on behalf of Mr. Sangeet Kumar Kushwaha, Adv.

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Hon'ble Shri Sachin Singh Rajput, Judge ORDER ON BOARD

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06/05/2025

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As both the appeals are arising out of award dated 18.05.2018 passed in Motor Accident Claim Case No. 52/2015 by learned First Additional Motor Accident Claims Tribunal, Surajpur, District Surajpur (for short “Claims Tribunal”), they are being heard together and disposed of by this common order.

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MAC No. 1007/2018 has been filed by the appellant-claimant seeking enhancement of compensation whereas MAC No. 24/2021 has been filed by the appellants/ owner and the driver of the offending vehicle. Parties hereinafter referred as to their status before the learned Claims Tribunal.

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Facts of the case necessary for disposal of these appeals are that a claim application under Section 166 of the Motor Vehicles Act, 1988 (for short “Act of 1988”) was filed by claimant-Ganpat Rajwade seeking compensation to the tune of ₹ 25,00,000/- on account of injuries sustained by him in an motor vehicle accident occurred on 05.08.2014 by rash and negligent driving of vehicle-Truck bearing registration number CG15 A 7990 (henceforth “offending vehicle”) driven by driver-Saabir Ali, owned by Kripa Shankar Prajapati and insured by Shriram General Insurance Company Ltd.

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As per the pleadings in the claim application, claimant-Ganpat Rajwade was going to Vishrampur along with his friend Rampyare Rajwade riding on a motorcycle on 05.08.2014. At that time, offending vehicle was driven by driver-Sabir Ali rashly and negligently and dashed with the motorcycle of claimant, as a result to which, right leg of claimant-Ganpat Rajwade

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came beneath the tyre of the offending vehicle and was amputated. Appellant-claimant suffered severe injuries on his head and other parts of the body. The accident was reported to the police station Bhatgaon, upon which crime was registered against the driver-Sabir Ali and after completion of investigation, charge-sheet was filed before Judicial Magistrate First Class, Surajpur. Further pleadings reflect that immediately after the accident, claimant was admitted in Mission Hospital, Ambikapur, where his right leg was amputated. He sustained 90% permanent disability. He treated himself from 05.08.2014 to 19.08.2014 in the aforesaid hospital and still continuing with the treatment. As a result to the injuries suffered by the claimant-Ganpat Rajwade he has become differently able and bedridden. It is further pleaded that at the time before accident he was earning ₹ 6,000/- per month as an agriculturist and labourer. Therefore, claiming the above compensation, the claim application was filed.

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Claim application was resisted by the Insurance Company, pleadings made in the claim application was denied and it was further pleaded that on the date of accident three persons were travelling on motorcycle and the accident was occurred on account of self negligence of claimant. Driver of the motorcycle was minor, he was not possessing licence to drive. The insurance policy of the offending vehicle was admitted under the terms and conditions of the policy. It was pleaded that the offending vehicle was being driven without valid registration, fitness and permit, therefore, there was violation of terms and conditions of insurance policy.

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Driver and the owner of the offending vehicle remained ex parte before the Tribunal and did not file written statement.

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Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties framed issues and decided the same in favour of claimant and the issue with respect to violation of terms of the

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insurance policy, the same was held to be proved and the insurance company was exonerated from payment of compensation and the driver and the owner were held to be liable to pay compensation. Learned Claims Tribunal awarded total compensation of ₹ 4,78,427/-.

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Mrs. Dhaneshwari Patel, learned counsel appearing for claimant-Ganpat Rajwade submits that the amount of compensation awarded by learned Claims Tribunal is meagre. The income of claimant was wrongly assessed and the compensation on all other admissible heads is also on lower side and she prays that the amount of compensation be suitably enhanced.

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Ms. Smriti Ekka, learned counsel appearing for driver and the owner of the offending vehicle submits that the driver and the owner remained ex parte before the learned Tribunal and exoneration of insurance company is on the ground that the offending vehicle on the date of accident had not valid and effective permit. She submits that the driver and the owner have also filed an application under Order 41 Rule 27 of CPC appending the certificate issued by the RTO, Ambikapur, Surguja dated 25.03.2021 which indicates that there was temporary permit issued of the offending vehicle for the period from 13.05.2014 to 12.08.2014. She submits that initially an application to set aside the ex parte award was filed before the Tribunal and the same was dismissed and thereafter this appeal was filed along with above application. She submits that the controversy involved is with respect to existence of valid and effective permit, therefore, in the interest of justice the application may be allowed and the matter may be remanded back to the learned Tribunal for its determination.

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Mr. Prashant Sahu, learned counsel appearing for the insurance company submits that before the learned Tribunal no such document was placed by the driver and the owner of the offending vehicle and the document which is said to be filed as an additional evidence with the application is only a

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certificate issued by the RTO, Ambikapur, whereas copy of temporary permit allegedly said to have been issued is not filed along with application. He submits that the respondents-driver and the owner had ample opportunities to place it on record before the Tribunal either with the claim application or an application filed for setting aside the ex parte award. He submits that the ingredients of Order 41 Rule 27 CPC have not been satisfied in the application and therefore the application may be dismissed. He further submits that the Tribunal has rightly exonerated the insurance company for payment of compensation as on the date of accident the offending vehicle was being driven without valid and effective permit.

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I have heard learned counsel for the parties and also perused the record.

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Before delving into the the submission of learned counsel for driver and the owner, this court deems it appropriate to ascertain as to what would be the just compensation to be awarded to the claimant. As per the pleadings of the claim application, the claimant was aged about 55 years on the date of accident. Learned Claims Tribunal on assessment of evidence available on record has awarded the compensation in the following manner.

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The Tribunal found the monthly income of claimant to ₹ 3,000/- and holding him to be 100% disabled, assessed loss of yearly income to the tune of ₹ 36,000/-. On applying multiplier of 11 awarded compensation of ₹ 3,96,000/as loss of earning and further awarded ₹ 21,427/- as medical expenses. ₹ 3000/- was awarded for attendant, ₹ 3,000/- for travelling and transportation, ₹ 5,000/- is awarded towards nutritional diet and ₹ 50,000/- was awarded towards pain and sufferings. In sum and substance, total compensation of ₹ 4,78,427/- was awarded in favour of appellant claimant.

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The date of accident is 05.08.2014. The claimant claimed himself to be a labourer and agriculturist and pleaded monthly income of ₹ 6,000/-. Barring the oral evidence, no documentary evidence is available on record. However,

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considering the appellant found to be 55 years of age and nature of job as also the minimum wages prevailing in the State on the date of accident, this court deems it appropriate to ascertain the monthly income of appellantclaimant as ₹ 5,000/- on notional basis. Taking into consideration the decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. v. Pranay Sethi reported in (2017) 16 SCC 680 , there shall be addition of 10% of his income. Therefore, this Court is reassessing the compensation in the following manner.

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Income of appellant claimant is assessed as ₹ 5,000/- per month. Upon adding 10% of the income of the deceased towards future prospects total montly income will come to ₹ 5,500/- and yearly income of will come to ₹ 66,000/-. Upon applying multiplier of 11 to the annual loss of earnings as per the decision of Hon’ble Supreme Court in the case of Sarla Verma & others v. Delhi Transport Corp. & anr. reported in (2009) 6 SCC 121 as the deceased was held 55 years of age on the date of accident, total loss of earnings will come to ₹ 7,26,000/- [₹ 66,000x11]. Besides the above amount of compensation, appellant-claimant shall be entitled for ₹ 10,000/- towards attendant, ₹ 10,000/- towards transportation, ₹ 10,000/- towards nutritional diet. The amount of ₹ 21,427/- towards medical expenses and ₹ 50,000/towards pain and sufferings as awarded by learned Claims Tribunal is maintained.

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Now the appellant-claimant shall be entitled for total sum of compensation of ₹ 8,27,427/- [₹ 7,26,000 + ₹ 10,000 + ₹ 10,000 + ₹ 10,000 + ₹ 21,427 + ₹ 50,000] instead of ₹ 4,78,427/- as awarded by learned Claims Tribunal. On reducing the amount as awarded by the Claims Tribunal i.e. ₹ 4,78,427/-, the additional amount comes to ₹ 3,49,000/- . Aforesaid amount of compensation shall carry interest @ 6% p.a. from the date of filing of claim

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application till its realization. Other conditions of the impugned award shall remain intact.

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Now this court will determine as to whether the application under Order 41 Rule 27 CPC can be allowed or not? Along with the application a certificate is appended purportedly issued from the RTO, Ambikapur. The contents of the certificate reveal that a temporary permit No. 36/2014 dated 12.05.2014 valid from 13.05.2014 to 12.08.2014 was issued for the vehicle No. CG15 A 7990 from that office. This certificate is dated 25.03.2021. The award was passed in the 2018 and from the document appended, it appears that an application was filed for setting aside the ex parte award which was dismissed as submitted by the counsel for appellants/ driver and the owner. The appeal was filed on 05.01.2021 and it appears that thereafter the certificate was prepared. If the certificate is issued by the RTO then naturally the copy of permit could have been obtained, therefore, in the opinion of this Court, the ingredients of Order 41 Rule 27 CPC has not been satisfied and this application deserves to be dismissed.

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Learned Claims Tribunal has held that on the date of accident, there was no permit and exonerated the insurance company from its liability to satisfy the amount of compensation. Appellants/ driver and the owner herein in this case failed to place on record any permit much less than temporary permit which purportedly issued by the RTO, therefore, the finding recorded by the Claims Tribunal cannot be found foul with in light of decision of Hon’ble Supreme Court in the case of National Insurance Co. Ltd. v. Challa Bharathamma

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and others reported in ( 2004) 8 SCC 517 and Amrit Paul Singh and another v. Tata AIG General Insurance Company Limited and others reported in (2018) 7 SCC 558 and accordingly the application is dismissed.

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As a result, appeal filed by claimant-Ganpat Rajwade is allowed in part , the appeal filed by the driver-Saabir Ali and the owner-Kripa Shankar Prajapati is dismissed and the impugned award is modified to the extent as indicated herein-above. The driver and the owner of offending vehicle ie., Saabir Ali and Kripa Shankar Prajapati are granted 60 days time to satisfy the amount of compensation as calculated above in favour of claimantGanpat Rajwade.

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Sd/-

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( SACHIN SINGH RAJPUT ) JUDGE

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pwn

Kripa Shankar Prajapati v. Ganpat Rajwade

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Kripa Shankar Prajapati v. Ganpat Rajwade

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