Smt. Rameshwari Khairwar Vs Chandresh Rajput

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1

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2025:CGHC:24191

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 758 of 2020

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1 - Smt. Rameshwari Khairwar W/o Late Jagdish Khairwar Aged About 30 Years R/o Village Salihabhatha, Police Station Kartala, Tahsil And District Korba, Chhattisgarh

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2 - Ku. Kanupriya S/o Late Jagdish Khairwar Aged About 15 Years Minor Through Mother Rameshwari Khairwar, R/o Village Salihabhatha, Police Station Kartala, Tahsil And District Korba, Chhattisgarh

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3 - Ku. Preeti S/o Late Jagdish Khairwar Aged About 12 Years Minor Through Mother Rameshwari Khairwar, R/o Village Salihabhatha, Police Station Kartala, Tahsil And District Korba, Chhattisgarh

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4 - Subhau Khairwar S/o Bodhram Aged About 55 Years R/o Village Salihabhatha, Police Station Kartala, Tahsil And District Korba, Chhattisgarh

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5 - Shukwara Bai W/o Subhau Khairwar Aged About 55 Years R/o Village Salihabhatha, Police Station Kartala, Tahsil And District Korba, Chhattisgarh

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--- Appellants

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Versus

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1 - Chandresh Rajput S/o Rajput Singh Aged About 30 Years R/o Village Farkapahri, Police Station Urga, Tahsil And District Korba, Chhattisgarh, (Driver)

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2 - Prafulla Tiwari S/o B.L. Tiwari R/o Quarter No. Mig-Ii-3, Pt. Ravishankar Shukla Nagar, Near Shiv Mandir, Korba, Tahsil And District Korba, Chhattisgarh, (Owner)

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3 - National Insurance Company Limited Through The Branch Office-13, Meenu Complex, Kosabadi, Tahsil And District Korba, Chhattisgarh, (Insurer)

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--- Respondents

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SHUBHAM DEY Digitally signed by SHUBHAM DEY

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2

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MAC No. 507 of 2020

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1 - National Insurance Company Limited Through Office 13 Meenu Complex Kosabadi Tah. And District Korba, C.G., District : Korba, Chhattisgarh

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---Appellants

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Versus

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1 - Smt. Rameshwari Khairwar W/o Late Jagdish Khairwar Aged About 30 Years Village Saliha Bhatha, Thana Kartala, Tah. And District Korba, C.G., District : Korba, Chhattisgarh

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2 - Ku. Kanupriya D/o Late Jagdish Khairwar Aged About 15 Years Village Saliha Bhatha, Thana Kartala, Tah. And District Korba, C.G., District : Korba, Chhattisgarh

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3 - Ku. Preeti D/o Late Jagdish Khairwar Aged About 12 Years Village Saliha Bhatha, Thana Kartala, Tah. And District Korba, C.G., District : Korba, Chhattisgarh

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4 - Subhau Khairwar S/o Bodhram Aged About 55 Years Village Saliha Bhatha, Thana Kartala, Tah. And District Korba, C.G., District : Korba, Chhattisgarh

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5 - Shukwara Bai W/o Subhau Khairwar Aged About 55 Years Village Saliha Bhatha, Thana Kartala, Tah. And District Korba, C.G., District : Korba, Chhattisgarh

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6 - Chandresh Rajpoot S/o Rajpat Singh Aged About 30 Years R/o Village Farkapahri, Thana Urga, Tah And District Korba, C.G. (Vehicle Driver), District : Korba, Chhattisgarh

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7 - Prafull Tiwari S/o B.L. Tiwari Resident Qua. No. Mig-Ii-3, Pandit Ravishankar Shukl Nagar, Near Shiva Mandir, Korba Tah. And District Korba, C.G. (Vehicle Owner), District : Korba, Chhattisgarh

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		---Respondents
		MAC No. 758/2020
For Appellants	:	Mr. Aditya Khare, Advocate
For Respondent No.	3 :	Mr. Sudhir Agrawal, Advocate along with Ms. Prerna Agrawal, Advocate
For Respondent No.	1 :	Mr. T.R. Patel, Advocate MAC No. 507/2020
For Appellant	:	Mr. Sudhir Agrawal, Advocate along with Ms. Prerna
		Agrawal, Advocate
For Respondent No.	1 :	Mr. Aditya Khare, Advocate
to 5

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3

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For Respondent No. 6 : Mr. T.R. Patel, 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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16/06/2025

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This appeal is filed by the Appellant/Insurance Company in MAC No. 507/2020 challenging the impugned award passed by the learned Claims Tribunal in its award dated 30.09.2019 passed by the Additional Motor Accident Claims Tribunal, Fast Track Court, Korba, District – Korba (C.G.) in Claim Case No. 66/2015 whereby, the learned Claims Tribunal has awarded Rs. 8,76,400/- as compensation to the respondents/claimants and the claimants have filed appeal bearing MAC No. 758/2020 seeking enhancement of the amount of compensation awarded by the learned Claims Tribunal.

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Facts of the case in brief are that, on 03.11.2013, police of P.S. Kartala, Korba conducted raid and caught Kitnami Yadav, Shanti Khairwar, Bhola, Ramdhan Khairwar who were involved in gambling, they were arrested and taken to P.S. Kartala in a vehicle i.e. Bolero bearing registration no. CG 12 T 0319 (hereinafter referred to as the offending vehicle). On the way, Non-Applicant No. 1/Driver drove the offending vehicle in a rash and negligent manner due to which, rear door of the Bolero got opened due to which, Jagdish Khairwar (since deceased) fell down suffered serious injuries, he was taken to P.S. Kartala. Father of deceased Jagdish Khairwar took him to District Hospital, Korba where, during the course of treatment, he succumbed to his injuries on 04.11.2013.

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Mr. Sudhir Agrawal, learned counsel for the appellant/Insurance Company in MAC No. 507/2020 submits that while challenging the

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award dated 30.09.2019 passed in Claim Case No. 66/2015 has put three fold submissions. The offending vehicle is not involved in the accident, the Insurance Company has been deprived to take proper defence as provided under Section 149 of the Motor Vehicles Act, 1988 because, the police has not seized the registration certificate, permit of the offending vehicle, the driver did not possess valid driving license and therefore, the Insurance Company could not get an opportunity to verify the correctness/genuineness of the aforementioned documents if any, available with the Non-Applicant No. 1 & 2 (Driver and Owner of the offending vehicle). The Non-Applicant no. 1 & 2 could not be held liable to pay compensation in absence of proof of rash and negligent driving and therefore, the very basis to maintain the claim application under Section 166 of the Motor Vehicles Act, 1988 i.e. the rashness and negligence of the driver of the offending vehicle is not proved.

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On the other hand, learned counsel for the respective respondents raised an objection to the grounds raised by the counsel for the appellant. From the pleadings and the documents available on record of the claims case, it is apparent that at the time of accident, the offending vehicle bearing registration no. CG 12 T 0319 driven by the Respondent No. 1 and owned by the Respondent No. 2 is being used by the police on hire. Police was taking the persons allegedly involved in the commission of some other offence.

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The deceased met with an accident due to the rash and negligent driving of the offending vehicle by the Non-Applicant No. 1, deceased fell from the vehicle as the place of accident is within the jurisdiction of the same police station which is using the offending vehicle, therefore,

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offense has not been registered and the legal representatives of the deceased has also filed a case before the Court of competent jurisdiction and prima facie, the Court has found the involement of the offending vehicle in the said accident. After recording the preliminary statement of the witnesses to the complaint case, he also submits that one Ajay Khairwar is examined as eye-witness to the incident as AW-1 and therefore, there is sufficient evidence available before the Learned Claims Tribunal to arrive at a conclusion that due to the negligence of the driver of the offending vehicle, the accident occurred.

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It is also submitted that the copy of the registration certificate of the offending vehicle, the permit, certificate of fitness, copy of the license is forming part of the record as Ex. D/30. The copy of the Insurance Policy (Ex. D/31). When once the documents of the offending vehicle as also, the license of the driver forming part of the record, the submission of counsel for the appellant that the Insurance Company could not get the proper opportunity to take defence under Section 149 is not sustainable.

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Mr. Aditya Khare, learned counsel for the Respondents/Claimants would submit that the claimants have also filed an appeal bearing MAC No. 758/2020 challenging the same impugned award seeking enhancement of the amount of compensation on the grounds that the income of the deceased has not been properly assessed by the learned Claims Tribunal and have awarded meagre sum under the other conventional heads and thereby, awarding less amount of compensation.

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Mr. Sudhir Agrawal, learned counsel for the appellant/Insurance Company as also, Mr. T.R. Patel, learned counsel for the owner and

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driver would support the award of compensation on the ground that the amount of the compensation computed by the learned Claims Tribunal is just and proper and does not call for any interference.

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I have heard learned counsel for the parties and perused record of the claim case.

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To appreciate the submission of Mr. Sudhir Agrawal, learned counsel for the appellant/Insurance Company that the vehicle was not involved in the accident and therefore, the police has not registered the F.I.R. and seized the vehicle and the relevant documents like registration certificate, insurance policy, driving license, fitness and permit is concerned, from the pleadings made in the claim application of the claimant and the reply submitted by the owner and driver, it is apparent that the vehicle, registered in the name of Non-Applicant No. 2 was being hired and used by the police department i.e. P.S. Kartala, District – Korba. From the reply of the driver and owner of the offending vehicle, it is also apparent that the deceased along with other persons were arrested under the Prevention of Gambling Act, 1887 and all the persons have been taken in the offending vehicle which were more than the sitting capacity of the vehicle. The vehicle was being driven by the Non-Applicant No. 1 slowly and while the vehicle was in running condition, the deceased fell down from the offending vehicle.

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Though, they have taken the plea that the deceased fell down on the basis of his own negligence, however, from the said pleading of the driver and owner of the offending vehicle, it is apparent that the deceased while being carried by the police in the offending vehicle fell down from the vehicle, met with an accident, suffered grievous head injuries and succumbed to the injuries suffered by him. In the

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aforementioned evidence, the finding recorded by the learned Claims Tribunal that in the above facts of the case, it cannot be ruled out that the police knowing all the facts have avoided the registration of the First Information Report/Criminal case as the police of the concerned police station itself, was a user and in the command of the offending vehicle. For the foregoing discussion, the submission made by the counsel for the appellant/Insurance Company that the vehicle was not involved in the accident and false case is projected, in the opinion of this Court, is not sustainable and is accordingly, repelled . The finding of the learned Claims Tribunal that the offending vehicle is involved in the accident is correct and is hereby, affirmed .

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So far as the other ground raised by the counsel for the appellant/Insurance Company that rash and negligent driving of the driver of the offending vehicle has not been proved in absence of examination of any reliable witness is concerned, from the record of the claim case, it is appearing that the claimants have examined Smt. Rameshwari Khairwar (who is the widow of the deceased Jagdish Khairwar) as AW -1, Shri. Ajay Khaiwar as AW -2 to prove the fact of motor vehicular injuries suffered by deceased Jagdish Khairwar due to his fall from Bolero Vehicle bearing registration no. CG 12 T 0319 (offending vehicle) due to rash and negligent driving of the Nonapplicant No. 1 (Driver). These witnesses were extensively crossexamined by the Non-applicants No. 2 & 3 both. The suggestion given by the counsel for the Insurance Company appearing before the Claims Tribunal that at the time of accident, the deceased was under influence of liquor was denied. Nothing adverse has come in his evidence, in cross-examination to controvert the case of the claimants

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that the deceased suffered motor vehicular injuries caused in the accident while traveling in the offending vehicle.

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Further, the Insurance Company has examined R.L. Maravi, the Inspector of Police Station – Kartala, District – Korba. This witness has stated in his evidence that on 04.11.2023, the deceased fell sick, therefore, he was admitted in District Hospital Korba, where he died during the course of treatment. As per opinion of the treating doctor, the cause of death of deceased was injury in the head. In crossexamination, this witness has admitted that it was nowhere mentioned in the morgue or F.I.R. that the deceased died due to motor vehicle accident. However, this witness has further admitted that on 05.08.2018, he was not posted at Police Station – Kartala. He has admitted that he has not conducted investigation in the matter and he is stating about the accident on the basis of records available with him.

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Thus, from the evidence of witness NAW-3/1, it is clear that he is neither writer of F.I.R. nor investigator of the accident in question and Non-applicant No. 3 for the reasons best known to it have not examined the writer of F.I.R. to prove its contents. Hence, the testimony of NAW-3/1 is not sufficient to prove the involvement of the offending vehicle in the accident.

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The other witnesses examined by the Appellant/Insurance Company is NAW-3/2, John Toppo, Assistant Manager, National Insurance Company Ltd., Branch – Korba. He is not witness to the accident, however, from his evidence, it is only appearing that he has made an attempt to prove the policy. He however, made the statement that at the time of accident, more persons than the seating capacity were traveling in the offending vehicle and therefore, there was breach of

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policy conditions. However, he admitted that the Insurance Company has not placed any documentary evidence to prove that on the date of accident, more persons than the seating capacity were traveling. In view of the evidence of John Toppo, Assistant Manager (NAW-3/2), it is clear that he could not be able to prove the defence taken by the Insurance Company that at the time of accident, more persons than the seating capacity was traveling. From the discussion as made above, it is evident that the defence taken by the Appellant/Insurance Company that the vehicle was not involved in the accident and more persons than the seating capacity were traveling at the time of accident is not proved by cogent and clinching evidence. For the foregoing discussion, I do not find any infirmity or perversity in the finding recorded by the learned Claims Tribunal that the offending vehicle was involved in the accident and the insurance company failed to prove the breach of conditions of insurance policy and the said finding of the learned Claims Tribunal is hereby, affirmed . Hence, the said ground taken by the Appellant/Insurance Company is not acceptable and it is accordingly, repelled .

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Now, I will consider the grounds of the appeal filed by the appellants/claimants i.e. MAC No. 758/2020 seeking enhancement of the amount of compensation.

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Mr. Aditya Khare, learned counsel for the appellants has submitted that the income of the deceased has been assessed less and further, the amount of compensation awarded under the other conventional heads is also on lower side.

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So far as the first ground raised by Mr. Aditya Khare, counsel for the appellant in MAC No. 758/2020 with respect to the assessment of the

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income by the learned Claims Tribunal is concerned, undisputedly, the date of accident is 03.11.2013, the deceased was a married person, aged about 31 years. He was having 05 other persons in the family to maintain from his earning. Claimants in their claim application have pleaded the occupation of the deceased as Fitter and doing the centreing work in the civil construction site. They further pleaded his income as Rs. 12,000/- per month. Learned Claims Tribunal upon appreciation of the pleadings and evidence brought on record has recorded a finding that the applicants/claimants failed to prove the nature of occupation and the income of the deceased by placing cogent and admissible piece of evidence. To prove the nature of occupation and the income of the deceased, the claimants have examined, widow of the deceased (AW-1). Except her self-serving oral statement, no evidence has been brought on record, nor any document or any independent witness has been examined by the claimants. In the aforementioned facts and evidence available on record, in the opinion of this Court, learned Claims Tribunal has correctly recorded a finding that the claimants have failed to prove the nature of occupation and income of the deceased and the said finding does not call for any interference and is hereby, affirmed .

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So far as the assessment of the income of the deceased is concerned, the learned Claims Tribunal has assessed the income of the deceased on notional basis assessing his income as Rs. 4,000/- per month. For assessing the income on notional basis, the Courts/Tribunal are required to take into consideration the age of the deceased, cost of living, price index, wage structure prevailing in the place of his residence and can also take the help of the notification issued by the

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competent authority under the Minimum Wages Act, 1948. As the there is no suggestive evidence of wage structure prevailing in the place of residence of the deceased, the learned Claims Tribunal ought to have taken the help of the minimum-wages as fixed and prevailing within the State. In absence of proof of nature of occupation of the deceased, in the opinion of this Court, the occupation of the deceased can be taken as Unskilled Labourer. On the date of accident i.e. November, 2013, the minimum-wages of the Unskilled Labourer as fixed by the competent authority was Rs. 5,163/- and therefore, in the opinion of this Court, wages of the deceased can be assessed as Rs. 5,163/- per month. It is ordered accordingly.

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The learned Claims Tribunal has rightly deducted 1/4th and applied the multiplier of 16 which is in consonance with the decision of the Hon’ble Supreme Court in the case of Sarla Verma & Ors. Vs. Delhi Transport Corporation & Anr. reported in 2009 (6) SCC 121. Learned Claims Tribunal has added 40% of the assessed income towards the loss of future prospects and awarded Rs. 15,000/- towards the loss of estate and Rs. 15,000/- towards the funeral expenses and Rs. 40,000/- towards loss of consortium. The amount awarded towards loss of future prospects and towards the other conventional heads is in the tune of the decision of Hon’ble Supreme Court in the case of National Insurance Company Ltd. vs. Pranay Sethi , reported in (2017) 16 SCC 680 which does not call for any interference.

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Hon’ble Supreme Court in the case of Magma General Insurance Co. Ltd. vs. Nanu Ram @ Chuharu Ram , reported in (2018) 8 SCC has explained the types of consortium and held that the there are three types of consortium i.e. spousal consortium for wife/husband, parental

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consortium to children and filial consortium to parents. In the case at hand, the Appellant No. 1 is wife of the deceased and the Appellants No. 2 & 3 are the minor children of the deceased and Appellants No. 4 & 5 are the parents of the deceaseed. In view of the decision of the Hon’ble Supreme Court in the case of Nanu Ram (Supra), the Appellants No. 2 to 5 are also held entitled for amount of compensation under the head of loss of parental and filial consortium of Rs. 40,000/- each (total Rs. 1,60,000/-). It is ordered accordingly.

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Accordingly, the monthly income of the deceased is taken as Rs.5,163/- and since at the time of death, the deceased was 31 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.7,228.2/- (5163+2065.2). Thus annual income of the deceased for the purpose of calculating the compensation comes to Rs.86,738.4/(7,228.2 x 12). Out of this amount, 1/4th is to be deducted towards personal and living expenses of the deceased and after deducting 1/4th of the annual income, annual loss of dependency would come to Rs.65,053.8/- (86,738.4 – 21684.6). By applying multiplier of 16, as applied by the Claims Tribunal, to annual loss of dependency, total loss of dependency would come to Rs.10,40,860.8/- (65,053.8 x 16). Besides this, Appellants No. 1 to 5 are entitled for a sum of Rs. 40,000/- each towards spousal, filial and parental consortium. Further, they are also entitled for Rs. 15,000 for funeral expenses and Rs. 15,000 for loss of estate awarded by the learned Claims Tribunal.

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Thus, total amount of compensation comes to Rs.12,70,860.8/- (10,40,860.8 + 40,000 + 40,000 + 40,000 + 40,000 + 40,000 + 15,000

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- 15,000). This amount of compensation shall carry interest @ 7% 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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Any amount already paid to Claimants/Appellants No. 1 to 3 as compensation shall be adjusted from the total amount of compensation as calculated above.

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For the foregoing discussion, MAC No. 507/2020 filed by the Insurance Company being sans merit is hereby, dismissed and MAC No. 758/2020 filed by claimants is allowed in part . In the result, the impugned award stands modified to the extent indicated above.

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Certified copy as per rules.

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

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Dey

Smt. Rameshwari Khairwar v. Chandresh Rajput

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Smt. Rameshwari Khairwar v. Chandresh Rajput

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