Branch Manager Vs Vindeshwari

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2025:CGHC:32498

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 379 of 2019

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1 - Branch Manager The Oriental Insurance Company Limited, Division Office, Manendragarh Road, Ambedkar Chowk, Ambikapur, Police Station And Tahsil Ambikapur, District Surguja Chhattisgarh. (Insurer), District : Surguja (Ambikapur), Chhattisgarh

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... Applicant

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Versus

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1 - Vindeshwari Wd/o Late Umesh Kumar Aged About 30 Years R/o Village Devsrakala, Police Station And Tahsil Kusmi, District Balrampur Chhattisgarh., District : Balrampur, Chhattisgarh

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2 - Ravina Singh D/o Late Umesh Kumar Aged About 13 Years (Minor), Through Natural Guardian Mother Vindeshwari Wd/o Late Umesh Kumar, Aged About 30 Yearsm R/o Village Devsrakala, Police Station And Tahsil Kusmi, District Balrampur Chhattisgarh., District : Balrampur, Chhattisgarh

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3 - Nirmala Singh S/o Late Umesh Kumar Aged About 11 Years (Minor), Through Natural Guardian Mother Vindeshwari Wd/o Late Umesh Kumar, Aged About 30 Yearsm R/o Village Devsrakala, Police Station And Tahsil Kusmi, District Balrampur Chhattisgarh., District : Balrampur, Chhattisgarh

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4 - Ku. Pratima Singh D/o Late Umesh Kumar Aged About 9 Years (Minor), Through Natural Guardian Mother Vindeshwari Wd/o Late Umesh Kumar, Aged About 30 Yearsm R/o Village Devsrakala, Police Station And Tahsil Kusmi, District Balrampur Chhattisgarh., District : Balrampur, Chhattisgarh

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SHUBHAM DEY

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Digitally signed by SHUBHAM DEY

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5 - Ritika Singh D/o Late Umesh Kumar Aged About 6 Years (Minor), Through Natural Guardian Mother Vindeshwari Wd/o Late Umesh Kumar, Aged About 30 Yearsm R/o Village Devsrakala, Police Station And Tahsil Kusmi, District Balrampur Chhattisgarh., District : Balrampur, Chhattisgarh

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6 - Shivrani Singh D/o Late Umesh Kumar Aged About 2 Years (Minor), Through Natural Guardian Mother Vindeshwari Wd/o Late Umesh Kumar, Aged About 30 Yearsm R/o Village Devsrakala, Police Station And Tahsil Kusmi, District Balrampur Chhattisgarh., District : Balrampur, Chhattisgarh

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7 - Gouri Mar Wd/o Late Devnarayan Mar Aged About 60 Years R/o Village Devsrakala, Police Station And Tahsil Kusmi, District Balrampur Chhattisgarh. (Claimants), District : Balrampur, Chhattisgarh

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8 - Atmaram S/o Motiram Aged About 28 Years R/o Village Bagadi, Tendupara, Police Station And Tahsil Rajpur, District Balrampur Chhattisgarh. Through Owner Vehicle Mukesh Kumar Agrawal S/o Shri P.C. Mittal, Main Road, Rajpur, Ward No. 10, Police Station And Tahsil Rajpur, District Balrampur Chhattisgarh. (Driver Of Offenidn Vehicle), District : Balrampur, Chhattisgarh

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9 - Mukesh Kumar Agrawal S/o Shri P.C. Mittal Main Road, Rajpur, Ward No. 10, Police Station And Tahsil Rajpur, District Balrampur Chhattisgarh. (Owner Of Offending Vehicle), District : Balrampur, Chhattisgarh

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... Respondents

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For Appellant : Mr. Anil Gulati, Advocate For Respondent No. 1 to 7 : Mr. Aman Upadhyay, Advocate For Respondent No. 8 & 9 : Mr. Devashish Biswas, Advocate

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S.B.: Hon'ble Shri Parth Prateem Sahu, Judge

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Order On Board

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14/07/2025

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This appeal is filed by the appellant Insurance Company challenging the impugned award passed by the learned Claims Tribunal in its award dated 25.10.2018 passed by the Additional Motor Accident Claims Tribunal, Ambikapur, District – Sarguja (C.G.) in Claim Case No. 133/2018 whereby, the learned Claims Tribunal has awarded Rs. 10,37,680/- as amount of compensation to the respondents.

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Facts of the case in brief are that, on 05.05.2018, when the deceased Umesh Kumar was going towards Village Kusmi Market in his motorcycle and reached near village Karkali, the offending vehicle

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bearing registration no. CG 10 A 3061 driven by the Respondent No. 8 in a rash and negligent manner, dashed the motorcycle of Umesh Kumar from behind and caused accident. In the said accident, Umesh suffered serious injuries and he died on the spot. Subsequent to the said accident, an FIR was registered bearing Crime No. 32/2018 against the Respondent No. 8 at P.S. Kusmi for the offence punishable under Sections 304A of the Indian Penal Code, 1860. The family members/claimants of the deceased filed claim application before the learned Claims Tribunal pleading that the applicant was aged about 30 years, doing the work of vegetable vendor and earning Rs. 9,000/- per month. Due to the motor accidental death of the deceased, they have lost their sole bread-winner and claimed Rs. 31,66,000/- as compensation from the non-applicants.

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The Non-applicants No. 1 & 2 submitted their reply to the claim application jointly denying the pleadings made by the claimants/applicants and submitted that the accident occurred due to own negligence of the deceased. They pleaded that on the date of accident, the offending vehicle was insured with the Non-applicant No. 3/Insurance Company, hence, the liability to pay the amount of compensation is upon the Non-applicant No. 3/Insurance Company.

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The Non-applicant No. 3/Insurance Company also submitted reply to the claim application denying the pleadings of the claimants/applicants and pleaded that since, the applicants are residents of BalrampurRamanujganj, therefore, this Claims Tribunal is not having the jurisdiction to decide the claim application. Further, the Non-Applicant No. 3/Insurance Company have supported the contention of the Nonapplicants No. 1 & 2 that the said accident occurred due to the rash

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and negligent driving by the deceased and he was not hit by the offending vehicle. The claim application has been filed on false and fabricated grounds and further, that both the deceased and Nonapplicant No. 1 were not possessing valid and effective driving license and there was no valid fitness and permit to ply the offending vehicle. Therefore, the Non-applicant No. 3 is not liable to pay the amount of compensation.

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Learned Claims Tribunal upon appreciation of the facts and evidences brought on record have held that the motor accidental death of deceased was due to the rash and negligent driving of offending vehicle Non-Applicant No. 1. The offending vehicle was not being plied in breach of conditions of insurance policy computed compensation of Rs. 10,37,680/- and fastened liability to satisfy the amount of compensation upon the Non-applicant No.3/Insurance Company.

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Learned counsel for the Appellant/Insurance Company would submit that the learned Claims Tribunal without considering the fact that the NonApplicants No. 1 & 2 i.e. driver and owner of the offending vehicle have not produced the copy of the fitness certificate as also the permit of the offending vehicle (Truck) has fastened the liability upon the Insurance Company. The learned Claims Tribunal has erroneously held that the Appellant/Insurance Company has not discharge the burden of proof. The offending vehicle is owned by Non-applicant No. 2 and driven by Non-applicant No. 1 and therefore, it is the onus upon the Non-applicant No. 1 & 2 to produce the copy of the relevant documents of the vehicle run and owned by them. During investigation of criminal case also, though other documents relating to the offending vehicle was seized, however, neither the driver nor owner have produced the copy of fitness certificate and permit of the offending vehicle before the Investigating Officer which shows that on the date of accident, the

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driver of the offending vehicle was not having the said documents along with him while driving the offending vehicle on public road.

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He contended that Section 130 and 134 of the Motor Vehicles Act, 1988 (hereinafter for brevity referred to as the Act, 1988) mandates the driver and owner of the motor vehicle to produce the copy of the license and registration certificate as also, the certificate of fitness and permit and if the original of the aforementioned documents are not available, then to submit the photocopies of the same. It is the responsibility and liability upon the owner and driver of the offending vehicle to produce the documents of the vehicle in particular, the registration certificate, fitness certificate, permit in which, the Nonapplicant No. 1 & 2 utterly failed.

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Further, the learned Claims Tribunal has erroneously shifted the burden upon the Appellant/Insurance Company while deciding the case to prove the fact that the Non-applicant No. 1 & 2 was not having the valid and effective fitness certificate and the permit on the date of accident. It is settled law that, if some person is possessed with the relevant documents, it is the onus upon the said person to prove the fact that he was having valid and effective documents. It is only after production of documents, the onus will shift upon the other side to prove that the documents which are proved by the persons in possession of the documents, that the said document(s) is/are not valid and effective. Before this Court also, the Non-applicants No. 1 & 2/Respondents No. 8 & 9 have not produced any document to support the finding recorded by the learned Claims Tribunal. In fact, the Appellant/Insurance Company has produced the document i.e. certificate issued by the Regional Transport Authority, Ambikapur, District – Sarguja, Chhattisgarh mentioning that the fitness certificate was issued for the vehicle bearing no. CG 10 A 3061 (offending vehicle) which was valid up-till 16.09.2015, whereas, the date of accident is 05.05.2018.

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For the foregoing discussion, in the considered opinion of this Court, learned Claims Tribunal erred in fastening liability upon the Insurance Company to satisfy the impugned award, which is not sustainable. Accordingly, the said finding recorded by the learned Claims Tribunal is set-aside .

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As this Court has held that the Non-applicants No. 1 & 2/Respondents No. 8 & 9 failed to prove that the offending vehicle was running on public road with valid fitness and permit, there will be breach of conditions of the policy and therefore, the Appellant/Insurance Company is exonerated from the liability to indemnify the insured and now, it will be the Non-Applicant No. 1 & 2 to satisfy the amount of compensation as awarded by the learned Claims Tribunal or to be awarded by this Court after considering and deciding the crossobjection as filed by the applicant/claimants. It is ordered accordingly.

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11.As the claimants have also filed cross-objection seeking enhancement of the amount of compensation and it is the submission of the counsel for the appellant that in the facts of the case, if this Court comes to the conclusion that the finding recorded by the learned Claims Tribunal fastened liability upon the Insurance Company to satisfy the award is erroneous, then direction be issued to the Appellant/Insurance Company to first satisfy the amount of compensation to be awarded by this Court and thereafter, to recover the same from the Non-applicant No. 1 & 2 i.e. the Respondent No. 8 & 9 (driver and owner of the offending vehicle).

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The law with regard to issuance of direction to pay and recover is well settled when the Court/Tribunal arrived at a conclusion upon appreciation of evidence that there was valid and effective insurance

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policy on the date of accident of the offending vehicle and the breach of conditions of the policy is with regard to not having the valid and effective license or no license or the vehicle was not having the valid fitness certificate and the permit, then, direction to the Insurance Company can be issued to satisfy the award passed by the learned Claims Tribunal in favour of the third party.

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Taking into consideration the decisions of the Hon’ble Supreme Court in the cases of Shamanna & Anr. Vs. Divisional Manager, Oriental Insurance Company Ltd. reported in (2018) 9 SCC 650 , Amrit Pal Singh and Anr. Vs. Tata AIG General Insurance Company Ltd. & Ors. reported in (2018) 7 SCC 558 , National Insurance Company Ltd. Vs. Challa Upendra Rao & Ors . reported in (2004) 8 SCC 517 and the facts of the case that the Appellant/Insurance Company is exonerated on the ground that there was no valid fitness certificate and permit to ply the vehicle, I find it appropriate to direct the Appellant/Insurance Company to fist pay the entire amount of compensation to be awarded by this Court and thereafter, to recover the same from the Non-applicants No. 1 & 2 i.e. the Respondents No. 8 & 9 (driver and owner) in accordance with law. However, it is directed that for recovery of the amount from the owner and driver of the offending vehicle, the Appellant/Insurance Company will be not required to file separate proceedings and can recover the said amount in the same proceedings on adjudication as per the directives of Hon’ble Supreme Court in the case of Oriental Insurance Company Ltd. Vs. Nanjappan & Ors. reported in (2004) 13 SCC 224 .

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Now, I will consider and decide the cross-objection filed by the appellants/claimants seeking enhancement of the amount of compensation.

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Learned counsel for the Claimants has made submission that the learned Claims Tribunal erred in assessing the income of the deceased aged about 32 years as Rs. 4,500/- per month only. To appreciate the submission of the counsel for the Claimants/Respondents No. 1 to 7, perusal fo the pleadings would show that the claimants in their claim application have pleaded that the deceased on the date of accident was working as Vegetable Vendor and earning Rs. 9,000/- per month. However, they failed to prove the said pleadings made in the claim application by producing clinching evidence before the learned Claims Tribunal. In absence of the proof of nature of occupation and income of the deceased, the learned Claims Tribunal has correctly taken the step to assess the income of the deceased on notional basis. However, the Claims Tribunal erred in assessing the income as Rs. 4,500/- per month only which is erroneous in cases where the claimants/applications failed to prove the nature of occupation and the income as pleaded in the claim application, it is for the Claims Tribunal to assess the income of the deceased on notional basis taking into consideration the factors like the price index, cost of living, wage structure prevailing in the State or could have also taken the help of the minimum-wages fixed by the competent authority under the Minimum Wages Act, 1948.

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As this Court finds that there was no suggestive piece of evidence in the records to ascertain the daily-wages prevailing in the area on which, the deceased as a resident of and therefore, I find it appropriate

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to take the help of the minimum-wages as fixed by the competent authority under the Minimum Wages Act, 1948 for Unskilled Labourer. According to the notification issued by the competent authority under the Minimum Wages Act, 1948 prevailing in the State for the period from 01.10.2017 till 31.03.2018 for the ‘C’ Zone area, the minimumwages fixed is Rs. 7,930/- per month and therefore, I find it appropriate to assess the income of the deceased on the date of accident as Rs. 7,930/- per month. It is ordered accordingly.

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Learned Claims Tribunal has added 40% of the assessed income towards the loss of future prospects which is correctly added, applied multiplier of 16 which is also in consonance with the decision of the Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi , reported in (2017) 16 SCC 680, and Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in 2009 (6) SCC 121.

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Learned Claims Tribunal has rightly applied deduction of 1/5th towards the personal and living expenses of the deceased. The Claims Tribunal has further awarded Rs. 15,000/- each under the head of loss of estate and funeral expenses and have awarded Rs. 40,000/- towards the loss of consortium to the Claimant No. 1 which is also to the tune of the decision of the Hon’ble Supreme Court in the case of Pranay Sethi (Supra) . However, the learned Claims Tribunal fell into error in not awarding compensation under the head of loss of consortium to the Applicant/Claimants No. 2 to 6 who are children and Applicant/Claimant No. 7 who is the mother of the deceased. The award of consortium is further clarified by the Hon’ble Surpeme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuharu Ram ,

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reported in (2018) 8 SCC. In the said case, the Hon’ble Supreme Court has explained the types of consortium and held that the there are three types of consortium i.e. spousal consortium for widow/widower, parental consortium to children and filial consortium to parents. In the case at hand, the Respondents/Claimants No. 2 to 6 are children and Respondent/Claimant No. 7 is the mother of the deceased and therefore, they are entitled for Rs. 40,000/- each towards loss of parental and filial consortium (total Rs. 2,40,000/-) respectively. It is ordered accordingly.

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For the foregoing reason, this Court proposes to recalculate the amount of compensation payable to the appellants.

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Accordingly, the monthly income of the deceased is taken as Rs.7,930/- and since at the time of death, the deceased was 32 years old, therefore, in view of decision of Hon’ble Supreme Court in case of Pranay Sethi (Supra) , the income of deceased is required to be enhanced by 40% towards future prospects, which comes to Rs. 11,102/- (7930 + 3172). Thus annual income of the deceased for the purpose of calculating the compensation comes to Rs. 1,33,224/(11,102 x 12). Out of this amount, 1/5th is to be deducted towards personal and living expenses of the deceased and after deducting 1/5th of the annual income, annual loss of dependency would come to Rs. 1,06,579.2/- (1,33,224 – 26644.8). By applying multiplier of 16, as applied by the Claims Tribunal, to annual loss of dependency, total loss of dependency would come to Rs. 17,05,267.2/- (1,06,579.2 x 16). Besides this, Respondents No. 1 to 7 are entitled for a sum of Rs. 40,000/- each towards parental and filial consortium.

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The Hon’ble Supreme Court in the case Pranay Sethi (Supra) has observed that there shall be increase of 10% on the amount of compensation awarded under the other conventional heads and therefore, the amount of compensation awarded under the head of loss of consortium, funeral expenses and loss of estate is to be increased by 10%. It is ordered accordingly.

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Thus, total amount of compensation comes to Rs. 20,46,267.2/- (17,05,267.2 + 44,000 + 44,000 + 44,000 + 44,000 + 44,000 + 44,000 + 44,000 + 16,500 + 16,500). This enhanced amount of compensation shall carry interest @ 8% from the date of filing of claim application till its realization. Rest of the conditions mentioned in the impugned award shall remain intact.

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At this stage, learned counsel for the Appellant/Insurance Company submits that there is delay of 83 days in filing of the cross-objection and therefore, the Claimants would not be entitled for interest for the delayed period considering the decision of the Hon’ble Supreme Court in the case of Lakkamma Vs. United India Insurance Co. Ltd. reported in (2021) 20 SCC 797.

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In view of the decision of Hon’ble Supreme Court in the case of Lakkamma (Supra) , it is directed that the appellant will not be entitled for the interest on the additional amount of compensation for the delayed period, which is 83 days.

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Any amount already paid to Claimants/Respondents No. 1 to 7 as compensation shall be adjusted from the total amount of compensation as calculated above.

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In the result, appeal is allowed in part and the impugned award stands

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modified to the extent indicated above.

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Certified copy as per rules.

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Sd/-Sd/-- /-/--------/--/- (Parth Prateem Sahu) Judge

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Dey

Branch Manager v. Vindeshwari

Case brief

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Branch Manager v. Vindeshwari

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