Nirbhay Ram Mandavi Vs Kannan @ Kanam

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2025:CGHC:15407

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 604 of 2020

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Nirbhay Ram Mandavi S/o Shri Anand Ram Mandavi Aged About 45 Years R/o Village Lilejhar Pachripara, Thana Charama, District Uttar Baster Kanker Chhattisgarh.

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Smt. Ahil Bati Mandavi W/o Shri Nirbhay Ram Mandavi Aged About 40 Years R/o Village Lilejhar Pachripara, Thana Charama, District Uttar Baster Kanker Chhattisgarh.

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Ku. Nandani Mandavi D/o Shri Nirbhay Ram Mandavi Aged About 13 Years Minor Through Father Nirbhay Ram Mandavi , Aged About 45 Years, S/o Shri Anand Ram Mandavi. All R/o Village Lilejhar Pachripara, Thana Charama, District Uttar Baster Kanker Chhattisgarh.

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... Appellants/Claimants

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versus

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Kannan @ Kanam S/o Shri Selvrasu Koundar R/o 1/18, A Kurrmaba Street, Post Methupalyam, Police Station Museri, District Tiruchi, State Tamilnaidu...(Driver),

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Smt. A. Manju W/o Shri P. Suresh R/o House No. 1/73, A. N. Padpalyam, Post Devnankuruchi Taluka, Tiruchegod, District Namakal Tamilnaidu. (Owner).

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United India Insurance Company Limited Through Branch Manager , Branch Office Arjuni Bathena Chowk, Sinha Complex, Dhamtari , District Dhamtari Chhattisgarh...(Insurer)

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... Respondents

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For Appellants : Ms. Bhavika Kotecha, Advocate. For Respondent No.3 : Mr. Abhishek Vinod Deshmukh, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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02/04/2025

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Today the matter is listed for orders on default as pointed out by the office in the cross-objection filed by respondent No.3. Defaults pointed out by the office are that respondent No.3 has not filed copy of receipt of mandatory deposit of Rs.25,000/- along with cross-objection and certified copy of the order passed under Section 170 of the Motor Vehicles Act, 19888 is also not filed.

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Learned counsel for respondent No.3 Insurance Company would submit that as per decision of Hon’ble Supreme Court in case of United Insurance Company Limited vs. Shila Datta & ors , reported in (2011) 10 SCC 509 wherein it was held that if the insurer is already a respondent (having been impleaded as a party respondent), it need not seek the permission of the Tribunal under Section 170 of the Act of 1988 to raise grounds other than those mentioned in Section 149 (2) of the Act of 1988. He further submits that on 3.6.2020 respondent No.3-Insurance Company has already deposited the entire amount of compensation before the Claims Tribunal, vide application dated 26.6.2020 filed before the Claims Tribunal along with Cheque amounting to

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Rs.9,23,931/- and the same has been placed before this Court by way of Covering Memo dated 2.4.2025.

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In light of decision of Hon’ble Supreme Court in case of Shila Dutta (supra) and considering the fact that the impugned award has already been satisfied, both the defaults, as pointed by the office, are hereby overruled.

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There is no dispute regarding the accident, cause of accident as also liability to indemnify the insured owner of offending vehicle. Sole question involves in this appeal for consideration is whether or not the Claims Tribunal has awarded adequate compensation to the claimants. In such circumstance, issuance of notice to respondent Nos.1 & 2, who are registered owner and driver of offending vehicle, is dispensed with.

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With the consent of the parties, the appeal is being heard finally at the admission stage itself.

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Appellants-claimants have filed this appeal seeking enhancement of compensation awarded by the learned 2^nd Additional Motor Accidental Claims Tribunal, Kanker, District North Bastar Kanker (for short ‘the Claims Tribunal’) vide award dated 30.1.2020 passed in Claim Case No.68/2019.

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Respondent No.3-Insurance Company has also filed crossobjection challenging the finding of the Claims Tribunal

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regarding determination of monthly income of the deceased at Rs.7800/-.

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Facts of the case, in brief, are that on 06.06.2018 Nand Kumar (since deceased) along with his friends was travelling as Labourer in the cabin of bore supporter vehicle. In the midnight at about 1:00 a.m. i.e. on 7.6.2018, when they were in village Hatai, non-applicant No.1, driver of vehicle bearing registration number TN34-Q-3007, due to rash and negligent driving lost control over the vehicle as a result the vehicle overturned and fallen to road side ditch. In the said accident, said Nand Kumar sustained grievous injuries, he was taken to the hospital where he died during course of treatment. Report of accident was lodged in concerned police station based on which case under Section 279, 337, 304A of IPC was registered. Claimants/appellants herein, who are parents and sister of deceased, filed application claiming compensation to the tune of Rs.30,00,000/- under various heads on the ground that on the date of accident, deceased was 25 years of age, he was working as Bore Digging Mechanic, earning Rs.15,000/- per month and they were dependent on earning of deceased.

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Non-applicant No.1 & 2 i.e. driver and registered owner of offending vehicle respectively, filed their reply to claim application denying averments made therein. It was further

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pleaded that on the date of accident, offending vehicle was insured with non-applicant No.3-Insurance Company; nonapplicant No.1 was having valid license and even there was permit and fitness certificate in favour of offending vehicle and therefore, in case any liability to pay compensation is fastened, then the insurance company is liable to indemnify the same.

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Non-applicant No.3- Insurance Company also submitted its written statement denying the averments made in claim application including the relationship of claimants with the deceased. It was further pleaded that the particulars of employment and income of the deceased and the documents in support thereof have not filed along with application, therefore, the application is liable to be dismissed. At the time of accident, driver of offending vehicle was not having effective and valid driving license and thus there is violation of conditions of insurance policy, therefore, insurer cannot be held liable to indemnify the insured.

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The Claims Tribunal after appreciating the pleadings and evidence placed on record (oral and documentary both) by the respective parties has arrived at a conclusion that accident was the result of rash and negligent driving of nonapplicant No.1-driver; there was no violation of any condition of insurance policy and accordingly, partly allowed claim

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application, awarded compensation Rs.8,72,400/- along with interest @ 7% p.a. by assessing monthly income of deceased as Rs.7800/- on notional basis treating the deceased as labourer.

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Learned counsel for the claimants/appellants submits that the claimants in their evidence have specifically stated that on the date of accident, deceased was working as Borewell Digging Mechanic and earning Rs.15,000/- per month, however, the Claims Tribunal recording a finding that income of deceased is not proved as per law, has assessed monthly income of deceased at Rs.7,800/- on notional basis. He submits that in absence of documentary proof of income of deceased, the income of deceased should have been assessed as per Circular under the Minimum Wages Act. She further argued that the Claims Tribunal has not added anything in the income of deceased towards future prospects and nothing has been awarded for loss of consortium. Hence, the compensation awarded by the Claims Tribunal is on lower side and therefore, she prays for suitable enhancement of the same.

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On the other hand, learned counsel for respondent opposing the submissions of learned counsel for appellants would submit that the Claims Tribunal erred in assessing monthly income of deceased at Rs.7,800/- relying on the notification issued under the Minimum Wages Act by the Competent

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Authority, Raipur. He submits that deceased was employed in the State of Rajasthan and minimum wage for unskilled labourer prevailing in the State of Rajasthan on the date of accident was Rs.6058/- per month and therefore, the Claims Tribunal ought to have taken the monthly income of deceased as Rs.6058/- and not Rs.7800/-. Therefore, he prays for reassessment of compensation by fixing monthly income of deceased at Rs.6058/-.

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Learned counsel for the appellants opposes the above submission of learned counsel for respondent No.3 and submits that looking to the nature of work of deceased i.e. engagement on Borewell Digging Machine, which is attached with a lorry and the work of digging by Borewell machine is to be performed on the customer’s site, therefore, submission of learned counsel for respondent No.3 that income of deceased ought to have been fixed based on minimum wage prescribed by the Competent Authority of State of Rajasthan is not correct.

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Heard learned counsel for the parties and perused the record of the Claims Tribunal.

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So far as submission of learned counsel for respondent No.3 regarding fixation of income of deceased by the Claims Tribunal on the basis of minimum wage prevalent in State of Chhattisgarh and not on the basis of minimum wage prevalent

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in State of Rajasthan where deceased was employed on the date of accident, is concerned, as per finding recorded by the Claims Tribunal the deceased was working as Labourer in the lorry attached with Borewell Drilling Unit because it is not proved that deceased was working as Borewell Mechanic, therefore, the deceased is treated to be unskilled labourer. It is also not in dispute that deceased was working in the lorry attached with Borewell digging unit, the work of digging borewell is to be performed at the site of the party concerned who wanted to get dug a borewell in his site. Under these circumstances, it cannot be said that the deceased was stationed and employed in State of Rajasthan. Looking to nature of work in which deceased was engaged, which was not permanent in nature, it cannot be said that the deceased for his whole life would work in Rajasthan. Hence, considering that the Act of 1988 is a beneficial piece of legislation and in the given facts and circumstances of the case, this Court is of the opinion that the Claims Tribunal has not committed any mistake in assessing income of deceased as Rs.7800/- relying on the minimum wage prevalent for an unskilled worker in the State of Chhattisgarh on the date of accident and the same is hereby affirmed.

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Perusal of impugned award would reveal that the Claims Tribunal while assessing income of the deceased has not

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added anything towards future prospects in the assessed income of the deceased, whereas as per decision of Hon’ble Supreme Court in case of National Insurance Company Ltd. vs. Pranay Sethi , reported in (2017) 16 SCC 680 , Hon’ble Supreme Court has held that in case where victim of a road accident was below 40 years of age and not in permanent employment, there should be addition of 40% of assessed income of the deceased. In case at hand, there is no dispute that on the date of accident, the deceased was below 40 years of age and was not in permanent job, hence, 40% is required to be added towards future prospects. It is ordered accordingly.

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In the present case, the Claims Tribunal has awarded Rs.15,000/- each towards loss of estate and funeral expenses, which is appropriate. However, the Claims Tribunal has not awarded any amount under the head of loss of consortium. In view of principles of awarding compensation under “loss of consortium’, as laid down by Hon’ble Supreme Court Pranay Sethi’s case (supra) and Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram and Others , reported in (2018) 18 SCC 130, appellants No.1 & 2 being parents of deceased are entitled for compensation of Rs.40,000/- each under the head of loss of consortium. It is ordered accordingly.

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In the facts of present case where the deceased was 25 years

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old bachelor, deduction of one-half amount towards his personal expenses and application of multiplier of 18 have been rightly made by the learned Claims Tribunal and the same warrants no interference.

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

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21.Accordingly, income of deceased is taken as Rs.7800/- per month and after adding 40% towards future prospects because on the date of accident, age of deceased was 25 years, as held by the Claims Tribunal based on postmortem report, the monthly income of deceased would come to Rs.10,920/- and annual income would be Rs.1,31,040/-. Out of this amount, one-half is to be deducted towards personal and living expenses of deceased being bachelor and after deducting one-half, annual loss of dependency would come to Rs.65,520/-. As the deceased was 25 years, multiplier of 18 is applicable and therefore, applying multiplier of 18, the loss of dependency would be Rs.11,79,360/-. Besides this, appellants No.1 & 2 being parents of deceased are entitled for a sum of Rs.40,000/- each (80,000/-) under the head of loss of consortium as held by Hon’ble Supreme Court in the matters of Pranay Sethi (supra) and Nanu Ram @ Chuharu Ram (supra). In addition to aforesaid amount, appellants are also entitled to get a sum of Rs.15,000/- for funeral expenses

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and Rs.15,000/- for loss of estate. Thus, total amount of compensation comes to Rs.12,89,360/- (11,79,360 + 80,000 + 30,000) recoverable from the respondents, jointly and severally. This amount of compensation shall carry interest @ 7.5% per annum from the date of application till actual payment is made.

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22.Any compensation disbursed to appellants pursuant to the impugned award shall be adjusted. Rest of the conditions mentioned in the impugned award shall remain intact.

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SYED ROSHAN ZAMIR ALI Digitally signed by SYED ROSHAN ZAMIR ALI

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23.In the result, the appeal is allowed in part and the impugned award stands modified to the extent indicated above. However, the cross-objection preferred by respondent No.3 is hereby dismissed.

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Sd/- (Parth Prateem Sahu) Judge

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roshan/-

Nirbhay Ram Mandavi v. Kannan @ Kanam

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Nirbhay Ram Mandavi v. Kannan @ Kanam

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