Smt. Sonmati Kashyap Vs Naresh Kumar Kumhar

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SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI

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2025:CGHC:38214

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 272 of 2020

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Smt. Sonmati Kashyap W/o Late Itwari Aged About 54 Years R/o Village Dheka, Police Station- Torwa, Tahsil And DistrictBilaspur, Chhattisgarh

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Harish Kumar S/o Late Hiralal Aged About 19 Years R/o Village Dheka, Police Station- Torwa, Tahsil And DistrictBilaspur, Chhattisgarh, District : Bilaspur, Chhattisgarh

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Rahul Kumar S/o Late Hiralal Aged About 16 Years Minor Through The Grand-Mother (Natural Guardian) Smt Sonmati Kashyap, All R/o Village Dheka, Police Station- Torwa, Tahsil And District- Bilaspur, Chhattisgarh

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Pankaj Kumar S/o Late Hiralal Aged About 13 Years Minor Through The Grand-Mother (Natural Guardian) Smt Sonmati Kashyap, All R/o Village Dheka, Police Station- Torwa, Tahsil And District- Bilaspur, Chhattisgarh.

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... Appellants-claimants

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versus

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Naresh Kumar Kumhar S/o Mangaluram Aged About 24 Years R/o Village And Post- Birgahni Chowk, Champa, Police Station Champa, Tahsil & District Janjgir-Champa (CG)

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Md. Hanif Khan S/o Kamruddin Khan Aged About 49 Years R/o Village- Birgahni Chowk, Champa, Police StationChampa, Tahsil & District- Janjgir-Champa, Chhattisgarh,

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The Oriental Insurance Company Limited Through- Branch Manager, Branch Office- 1st Floor, Rama Trade Centre, Near

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Rajiv Plaza, Old Bus Stand, Bilaspur, Tahsil And DistrictBilaspur, Chhattisgarh.

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... Respondent(s)

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For Appellant : Mr. Anand Kesharwani, Advocate.
For Respondent No.1& 2 : None
For Respondent No.3 : Ms. M. Asha, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu Order on Board

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17/7/2025

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Appellants-claimants have filed this appeal seeking enhancement of compensation awarded by learned 8^th Motor Accident Claims Tribunal, Bilaspur (for short ‘the Claims Tribunal’) vide award dated 11.9.2019 in Claim Case No.108/2019 for the death of deceased Hiralal Kashyap in a road traffic accident.

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Facts of the case, in brief, are that appellants-claimants filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘the Act of 1988’) seeking compensation to the tune of Rs.43,65,000/- under various heads, against death of Hiralal Kashyap in a motor vehicular accident. According to claimants, who are mother and children of deceased, on 5.1.2019 at about 7:00 p.m. when Hiralal Kashyap reached near Electricity Office, Saragaon on his motorcycle, one Hywa Truck bearing CG11-AB-2545, which was driven in a rash and negligent manner by its driver (non-applicant No.1), dashed motorcycle of Hiralal Kashyap as a result he sustained

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grievous injuries and died. It was further pleaded that at the time of accident, deceased was 39 years old, working as Patroler in Vodafone Company and earning Rs.20,000/- per month.

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Driver and owner of offending motorcycle jointly filed reply to application and denied the averments made therein. It was pleaded that alleged accident was by some unknown vehicle and not due to rash and negligent driving by non-applicant No.1. In case the claimants are found entitle to get compensation, then the non-applicant No.3 being insurer is liable to pay the same.

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Non-applicant No.3-Insurance Company also filed a separate reply and denied the occupation and income of deceased as pleaded by claimants. It was further pleaded that accident occurred due to negligent driving of motorcycle by the deceased himself. It was also pleaded that driver of offending vehicle was not holding a valid and effective driving licence at the time of the accident and even there was no valid permit and fitness certificate in favour of offending vehicle. Thus, there was violation of essential conditions of insurance policy and therefore, insurance company is not liable to indemnify the insured.

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The Claims Tribunal upon analyzing the pleadings and evidence brought on record by the parties, came to the

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conclusion that accident occurred due to rash and negligent driving of motorcycle by non-applicant No.1 which resulted in death of deceased; disbelieved version of claimants that deceased was earning Rs.20,000/- per month by recording that, claimants’ failed to prove occupation and income of deceased by placing any documentary evidence in that regard. It was also held that there was no violation of any of the conditions of insurance policy. Consequently, the Claims Tribunal allowed application in part, awarded compensation of Rs.16,74,570/- and fastened liability upon the non-applicants, jointly and severally, to satisfy the award.

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Learned counsel for claimants/appellants submits that income of deceased has not been properly assessed by the Claims Tribunal. He next contended that learned Claims Tribunal erred in adding 25% towards future prospects and applying multiplier of 15, when the age of deceased was specifically pleaded to be 39 years. He next contended that the Claims Tribunal erred in not awarding amount towards loss of consortium to all the dependent family members of deceased.

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On the other hand, learned counsel appearing on behalf of respective respondents supporting the award passed by the Claims Tribunal, submitted that the compensation awarded by the Claims Tribunal is just and proper.

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I have heard learned counsel for the respective parties and

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perused record of claim case including impugned award.

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The claimants/appellants have specifically pleaded in the claim application that the deceased was earning Rs.20,000/per month by working in Vodafone Company and in support thereof they have produced Safety Passport (Ex.P-14) ID Card (Ex.P-15) and bank pass book (Ex.P-16). However, since in aforementioned document there was no mention about the employment of deceased with Vodafone Company and income of Rs.20,000/- per month, the Claims Tribunal held that the claimants failed to substantiate their claim with respect to occupation and income of deceased by leading cogent admissible evidence and proceeded to assess the income of deceased taking resort to minimum wage notified by the Competent Authority under the Minimum Wages Act, 1948. In the given facts of the case, the Claims Tribunal was right in assessing monthly income of the deceased on notional basis by taking resort to minimum wage rate prescribed by the Competent Authority under the Minimum Wages Act, 1948 for the relevant period and the area where deceased was residing. Hence, fixation of income of Rs.9,390/- on notional basis by the Claims Tribunal needs no interference.

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It is stated that the deceased was aged about 39 years at the time of accident. Appellants have not filed any documentary

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proof of age of deceased. The Claims Tribunal relying on the postmortem report of deceased which mentions his age to be 40 years, has treated the deceased to be 40 years age. The age mentioned in postmortem report is normally based on approximation and not on any scientific determination/ documentary proof of the age of the deceased. In case at hand, the deceased was survived by his mother and three sons. Age of mother of deceased is mentioned as 54 years and age of eldest son is mentioned as 19 years. Thus, considering the age of the mother and son of deceased and taking into consideration the pleadings in claim application where age of deceased is mentioned as 39 years, it can be safely assumed that on the date of accident, deceased was 39 years of age. Hence, the finding of the Claims Tribunal that at the time of accident, deceased was 40 years of age is not sustainable and it is set aside. It is held that on the date of accident, deceased was 39 years of age and being so, the claimants are entitled for an addition of 40% towards future prospects and not 25% as was done by the Claims Tribunal. It is ordered accordingly.

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Deduction towards personal expenses of deceased and multiplier applied by the Claims Tribunal to assess the loss of dependency is in consonance with the law in this regard and the same need no interference.

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Perusal of impugned award would show that the Claims Tribunal has awarded a sum of Rs.40,000/- to the mother of deceased only. As per decision of Hon’ble Supreme Court in case of Magma General Insurance Company Ltd. vs. Nanu Ram alias Chuhru Ram & others , (2018) 18 SCC 130 , the children and parents of victim died in a road accident are also entitled for consortium at the rate of Rs.40,000/- each under the head ‘parental consortium’. Thus, other claimants being children of the deceased would also be entitled to parental consortium in the sum of Rs.40,000/- each. It is ordered accordingly.

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Further, in case of National Insurance Company Ltd. vs. Pranay Sethi and others , reported in (2017) 16 SCC 680, the Hon’ble Supreme Court has approved Rs.15,000/- each for the conventional heads i.e. loss of estate and funeral expenses, and therefore, the amount awarded by the Claims Tribunal under the head ‘funeral expenses’ and ‘loss of estate’ is on lower side and requires to be enhanced accordingly. Further, in vie of decision in case of Pranay Sethi (supra), the amount under aforesaid heads is required to be enhanced at the rate of 20%. It is ordered accordingly.

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14.For the foregoing, this Court proposes to recalculate amount of compensation payable to the claimants/appellants.

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15.Accordingly, income of deceased is taken as Rs.9,390/- per

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month and after adding 40% towards future prospects, monthly income of deceased would come to Rs.13,146/- and annual income would be Rs.1,57,752/-. Out of this amount, one-fourth is to be deducted towards personal and living expenses of deceased, as deducted by the Claims Tribunal, and after deducting one-fourth, loss of dependency would come to Rs.1,18,314/-. Applying multiplier of 15, as applied by Claims Tribunal, the loss of dependency would be Rs.17,74,710/-. Besides this, appellant No.1 is entitled for a sum of Rs.40,000/- towards filial consortium; appellant No.2 to 4 are entitled for a sum of Rs.40,000/- each towards parental consortium. In addition to aforesaid amount, appellants are also entitled to get a sum of Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate. As per decision of Hon’ble Supreme Court in case of Pranay Sethi (supra), the amount of compensation under the aforesaid heads i.e. loss of consortium, funeral expenses and loss of estate is to be increased @ 20%, which will make the compensation under the head of loss of consortium as Rs.48,000/- each (20% of 40000 + 40000); loss of estate as Rs.18,000/- (20% of 15000 + 15000) and funeral expenses as Rs.18,000/- (20% of 15000 + 15000). Thus, total amount of compensation for which now appellants-claimants are entitled, comes to Rs.20,62,710/- This enhanced amount of

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compensation shall carry interest @ 8% p.a. from the date of application till actual payment is made. Rest of the conditions mentioned in the impugned award shall remain intact. Any amount disbursed to appellants pursuant to impugned award will be adjusted from the amount of compensation as awarded above.

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16.In the result, both the appeals are allowed in part and the impugned award stands modified to the extent indicated above.

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Sd/- (Parth Prateem Sahu) Judge

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roshan/

Smt. Sonmati Kashyap v. Naresh Kumar Kumhar

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Smt. Sonmati Kashyap v. Naresh Kumar Kumhar

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