Savitribai Lahare Vs Pintu Kesharwani

Sher Singh, S/o Late Shri Teejram Lahare, aged about 14 Years, Appellant Nos. 4 & 5 are minor through Natural Guardian Mother Savitribai Lahare, W/o Late Shri Teejram Lahare, aged about 40 Years, All are R/o Village Baradwar Basti, P.S. Baradwar, Tahsil Sakti, District Janjgir-Champa, Chhattisgarh (Claimants) ... Appellants

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versus

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Pintu Kesharwani, S/o Rajaram Kesharwani, aged about 30 Years, R/o Baradwar Basti, P.S. Baradwar, Tahsil Sakti, District Janjgir-Champa, Chhattisgarh (Driver),

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Ramesh Kumar Gupta, S/o Bedprakash Gupta, R/o Baradwar Basti, P.S. Baradwar, Tahsil Sakti, District Janjgir-Champa, Chhattisgarh (Owner)

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Branch Manager, Shreeram General Insurance Co. Ltd., Plot No.1, 4th Floor Behind Maruti Height M.K.Y. Auto Maruti Dealer Mohaba Bazar Raipur, District Raipur, Chhattisgarh. ... Respondents

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For Appellant	:	Mr. H.P. Agrawal, Advocate.
For Respondent Nos. 1 & 2	:	None, though served.
For Respondent No.3	:	Mr. Utsav Mahiswar and Ms. Santoshi Yadav, Advocate.

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Hon'ble Shri Justice Radhakishan Agrawal

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CAV Judgment

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This appeal has been preferred by the claimants against the award dated 15.03.2018 passed by the First Additional Motor Accident Claims Tribunal, Sakti, District Janjgir-Champa, C.G., in Claim Case No. 56/2017, whereby a total compensation of Rs.7,30,000/- has been awarded with interest at the rate of 6% per annum from the date of application till realization while fastening liability upon the driver and owner (non-applicant Nos. 1 and 2) and exonerating the Insurance Company (non-applicant No. 3).

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As per the averments made in the claim petition, on 12.06.2017, deceased- Teejram Lahare, aged about 45 years and earning Rs.6,000/- per month by working as a labourer, died in a motor vehicular accident caused due to the rash and negligent driving of Tata Magic ( Chota Hathi ) bearing registration No. CG11-AB-0466 (hereinafter referred to as the ‘offending vehicle’) by non-applicant No. 1- Pintu Kesharwani, the driver of the offending vehicle. At the time of the accident, the offending vehicle was owned by non-applicant No.2Ramesh Kumar Gupta and was insured with non-applicant No.3- Shree Ram General Insurance Company Limited.

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On claim petition being filed by the claimants, i.e., the wife and children of the deceased, under Section 166 of the Motor Vehicles Act seeking compensation to the tune of Rs.26,22,000/-, the Tribunal, after considering the evidence adduced by both parties, passed the award as mentioned above.

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Counsel for the appellants submits that the claimants had filed a claim petition against the driver, owner and insurer of the offending vehicle

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seeking just and reasonable compensation. He further submits that at the time of accident, deceased was working as a labourer and was earning Rs.6,000/- per month, but the Tribunal has wrongly assessed the monthly income of the deceased at Rs.4,500/- on notional basis, which is on the lower side, particularly when the minimum wages at the relevant time were more than Rs.6,000/- per month. He also submits that the Tribunal has wrongly deducted 1/3rd towards the personal and living expenses of the deceased, whereas, considering the number of dependents, the deduction ought to have been 1/4th. He also submits that the amount awarded by the Tribunal under the conventional heads is also on the lower side and requires suitable enhancement. Reliance has been placed on the decisions of the Hon’ble Supreme Court in National Insurance Company Limited v. Pranay Sethi and others, (2017) 16 SCC 680 ; Sarla Verma and others v. Delhi Transport Corporation and another, (2009) 6 SCC 121 ; and Magma General Insurance Company Limited v. Nanu Ram @ Chuhru Ram and others, (2018) 18 SCC 130 . Additionally, he submits that the Tribunal has wrongly exonerated the Insurance Company from its liability, whereas at the time of the accident, the offending vehicle was duly insured with the Insurance Company, as is evident from the Insurance Policy (Ex.D-1). He further submits that at the time of the accident, the deceased was working as a labourer/coolie in the offending vehicle, which is also apparent from the statements of AW-1 wife of the deceased & an independent witness, AW-2 Bhagwat Lahare, and that Insurance Company had also received an additional premium to cover the risk of a cleaner and two coolies in addition to the driver and owner, as reflected in Ex.D-1. He also submits that in their written statement,

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the driver and owner of the offending vehicle have not specifically stated that the deceased was not engaged as a labourer/coolie in the offending vehicle. Therefore, the Tribunal ought to have fastened the liability upon the Insurance Company.

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Counsel for respondent No.3/Insurance Company supports the impugned award and submits that the Tribunal, after duly considering all relevant aspects, has correctly assessed the compensation, which warrants no interference by this Court. With respect to liability, it is submitted that although the offending vehicle was insured with the Insurance Company at the time of the accident, but there was a breach of policy conditions, as the deceased was travelling in the offending vehicle, which is a goods-carrying vehicle, as a gratuitous passenger. It is further submitted that the deceased was not engaged in the offending vehicle as a labourer/coolie, and the owner of the offending vehicle has also not stated that the deceased was employed as a labourer/coolie at the time of the accident. Hence, the Tribunal, upon proper appreciation of the evidence on record, has rightly fastened the liability upon the owner and driver of the offending vehicle, and no interference is called for.

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

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It is not in dispute that at the time of the accident, the offending vehicle was owned by Ramesh Kumar Gupta (non-applicant No.2) and was insured with the Insurance Company (non-applicant No.3). Although the driver and owner of the offending vehicle denied that the accident occurred due to rash and negligent driving by the driver/non-applicant No.1, but the police, after the accident, registered an FIR and filed a

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challan against the driver of the offending vehicle for the offence under Section 304-A of the IPC and that driver/non-applicant No.1 also admitted that a case has been registered against him. Further, the offending vehicle was also seized from non-applicant No. 1, showing him to be the driver of offending vehicle at the time of the accident. Moreover, non-applicant No. 1/driver did not lodge any countercomplaint alleging his false implication. The learned Tribunal, upon appreciating the overall evidence available on record, held that the accident occurred due to the rash and negligent driving of nonapplicant No.1, the driver of the offending vehicle and I affirm the said finding of the Tribunal.

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So far as the liability part is concerned, though the learned Tribunal has exonerated the Insurance Company on the ground that non-applicant Nos. 1 & 2/driver and owner were carrying gratuitous passengers in the offending vehicle and thereby committed breach of the terms and conditions of the Insurance policy, but upon a careful examination of the Insurance Policy (Ex.D-1), it is quite vivid that the Insurance Company had received a premium of Rs.14,390/- for covering the risk of basic third party and in addition thereto, Rs.100/- for covering the risk of owner and driver; Rs.50/- for paid cleaner; Rs.100/- for covering the risk of two coolies and Rs.50/- for paid driver and thereby received total premium of Rs.14,690/-, showing that the legal liability of the Insurance Company is to cover the risk of two coolies/labourers in addition to the driver and owner. Furthermore, in their written statement, the owner and driver of the offending vehicle have also not specifically stated that the deceased was not engaged as a labourer/coolie in the offending vehicle at the time of the accident. In

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addition to this, AW-1 wife of the deceased, admitted in her crossexamination that at the time of the accident, her husband/deceased was working as a labourer/coolie in the offending vehicle. This fact is further supported by the testimony of AW-2 Bhagwat Lahare, who stated in paragraph 6 of his deposition that the deceased was working as a coolie/labourer in the said offending vehicle and that the Insurance Company had also taken an additional premium to cover the risk of two such persons.

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In view of the above, I am of the considered opinion that the learned Claims Tribunal is not justified in fastening liability upon the owner and driver of the offending vehicle. Accordingly, the finding recorded by the Tribunal in this regard is hereby set aside. Since the offending vehicle was duly insured with the Insurance Company (respondent/nonapplicant No.3), it is held that the Insurance Company is liable to pay compensation to the claimants and respondent/non-applicant Nos. 1 and 2, the driver and owner of the offending vehicle, stand exonerated from such liability.

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Now, I shall consider the appeal with regard to the enhancement of compensation.

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As regards the income of the deceased- Teejram Lahare, though the claimants in the claim petition have pleaded that the deceased was earning Rs.6,000/- per month by working as a labourer/coolie, but no documentary evidence in support thereof has been adduced by the claimants to substantiate the said pleading. However, the Tribunal assessed the monthly income of the deceased at Rs.4,500/- per month on notional basis, which in the considered opinion of this Court, is not correct. Therefore, considering the facts of the case and the nature of

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work of the deceased, I propose to recompute the monthly income of the deceased at Rs.6,000/- per month as pleaded by the claimants.

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So far as dependency upon the deceased is concerned, the Tribunal erred in deducting 1/3rd towards the personal and living expenses of the deceased. In view of the judgment of the Hon’ble Supreme Court in Sarla Verma (supra), where there are five members in the family, the appropriate deduction should be ¼. Accordingly, in the present case, the deduction towards personal and living expenses of the deceased would be ¼. 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 recomputes the compensation in the following manner:-

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Sl. No.	Heads	Calculation (in rupees)
01.	Income of the deceased @ Rs.6,000/- per month	Rs.72,000/- per annum
02.	25% of (i) above to be added towards future prospects.	Rs.18,000/- Rs.72,000/- + Rs.18,000/- = Rs.90,000/-
03.	¼ deduction towards personal and living expenses of the deceased	Rs.22,500/- Rs.90,000/- - Rs.22,500/- = Rs.67,500/-
04.	Multiplier of 14 to be applied	Rs.67,500/- x 14 = Rs.9,45,000/-
05.	Towards loss of consortium (Rs.40,000/- to appellant No.1 towards spousal	Rs.2,00,000/-
	consortium & Rs.40,000/- each to appellant Nos. 2 to 5 towards parental consortium)
06.	Towards loss of estate	Rs.15,000/-
07.	Towards Funeral Expenses	Rs.15,000/-
	Total Compensation	Rs.11,75,000/-

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Since the Tribunal has already awarded Rs.7,30,000/-, after deducting the same from Rs.11,75,000/-, the claimants/appellants are entitled for an additional compensation of Rs.4,45,000/- , which shall carry interest as awarded by the Tribunal. However, rest of the conditions of the impugned award shall remain intact.

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As this Court, in the foregoing paras, has already held the Insurance Company/non-applicant No.3 liable to pay compensation to the claimants, it is directed that the Insurance Company/non-applicant No. 3 shall deposit the entire amount of compensation with interest within a period of 45 days from the date of passing of this judgment.

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In the result, the appeal is allowed in part with the modification in the impugned award to the above extent.

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Sd/- (Radhakishan Agrawal) Judge

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Akhilesh

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Savitribai Lahare v. Pintu Kesharwani

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Savitribai Lahare v. Pintu Kesharwani

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