Branch Manager, Iffco Tokio General Insurance Company Limited Vs Mst. Hinda @ Chhinda Bai

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2025:CGHC:38579

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 879 of 2020

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SYED ROSHAN ZAMIR ALI

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Digitally signed by SYED ROSHAN ZAMIR ALI

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Branch Manager, Iffco Tokio General Insurance Company Limited 1st Floor Galaxy Hieghts, Near Icici Bank Vyapar Vihar, Sanjay Apartment, Bilaspur, Tahsil And District Bilaspur Chhattisgarh. (Insurer), District : Bilaspur, Chhattisgarh

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... Appellant

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versus

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Mst. Hinda @ Chhinda Bai W/o Late Malik Ram Dhurve Aged About 32 Years R/o Village Parselkhar, Police Station Kukdoor, Tahsil Pandariya, District Kabirdham Chhattisgarh.

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Ku. Rajina D/o Late Malik Ram Dhurve Aged About 15 Years Minor, Through Natural Guardian Mother Hinda Bai, W/o Malik Ram Dhurve, R/o Village Parselkhar, Police Station Kukdoor, Tahsil Pandariya, District Kabirdham Chhattisgarh.

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Ku. Yashoda D/o Late Malik Ram Dhurve Aged About 10 Years Minor, Through Natural Guardian Mother Hinda Bai, W/o Malik Ram Dhurve, R/o Village Parselkhar, Police Station Kukdoor, Tahsil Pandariya, District Kabirdham Chhattisgarh.

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Ku. Ritika D/o Late Malik Ram Dhurve Aged About 4 Years Minor, Through Natural Guardian Mother Hinda Bai, W/o Malik Ram Dhurve, R/o Village Parselkhar, Police Station Kukdoor, Tahsil Pandariya, District Kabirdham Chhattisgarh.

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Mst. Fulbasiya Bai W/o Late Siddhram Dhurve R/o Village Parselkhar, Police Station Kukdoor, Tahsil Pandariya, District Kabirdham Chhattisgarh.

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Raj Kumar Sakat S/o Motilal Sakat, Aged About 40 Years R/o Village Taregaon Jungle, Police Station Taregaon Jungle, District Kabirdham Chhattisgarh. (Owner),

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Nandkishore S/o Ram Singh Thakur Aged About 42 Years R/o Village Pondi, Near Bijli Office, Police Station And Tahsil Bodla, District Kabirdham Chhattisgarh. (Driver)

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... Respondents

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For Appellant :Mr. Pravesh Sahu, Advocate on behalf of Mr. P.R. Patanakar, Advocate

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For Respondent No.1 to 5 : Mr. Keshav Dewangan, Advocate

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Hon'ble Shri Justice Parth Prateem Sahu

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Order On Board

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23/7/2025

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Appellant-Insurance Company has filed this appeal questioning the liability fastened upon it by the learned Motor Accidental Claims Tribunal, Kabirdham (for short ‘the Claims Tribunal’) to pay the amount of compensation awarded to claimants vide award dated 11.2.2020 in Claim Case No.27/2018.

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Facts of the case, in brief, are that on 25.1.2018 Malik Ram Dhurve and Saroj Kumar were returning to Lalpur from village Parselakhaar on their respective motorcycle, when they reached near Vedanta School, Village Khadodakhurd, one Bolero pick-up bearing registration number CG09-JD-4536 (for short ‘offending vehicle’), driven by non-applicant No.1 in a rash and negligent manner, dashed motorcycle of Malik Ram

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and caused accident. In said accident, Malikram sustained grievous injuries on various parts of body and died on spot. Report of accident was lodged in Police Station Bodla based on which crime bearing No.20/2018 for alleged commission of offence under Section 304A of IPC was registered against nonapplicant No.1.

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Claimants/ respondents No.1 to 5 herein, who are widow, children and mother of deceased, filed application claiming compensation to the tune of Rs.41,50,000/- under various heads on the ground that on the date of accident, deceased was 35 years of age, he was earning Rs.18,000/- per month by doing work of Mason. They were dependent on earning of deceased and on account of his untimely death, they suffered loss of income.

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Non-applicant No.1-owner-cum-driver of offending vehicle was proceeded ex-parte before the Claims Tribunal.

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Non-applicant No.2, driver of offending vehicle, filed reply to claim application and denied the averments made therein. It was pleaded that accident did not occur from offending vehicle and only on suspicion, the offending vehicle was seized by police after six days of accident. On the date of accident, offending vehicle was parked in the house. Written report regarding false implication has also been made to the Superintendent of Police, Kabirdham. At the time of accident,

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the offending vehicle was insured with non-applicant No.3, it was not plied on road in breach of any o f the conditions of insurance policy, therefore, if it is found that claimants are entitled for amount of compensation then non-applicant No.3 is liable to pay the same being insurer of offending vehicle.

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Non-applicant No.3- Insurance Company submitted its written statement denying the averments made in application including the fact of involvement of offending vehicle in accident. It was further pleaded that in the merg intimation, inquest, application for postmortem examination or spot map, there is no mention that accident is caused by offending vehicle. Offending vehicle is involved in accident in question just to get the amount of compensation. It is not proved from the documents on record that on the date of accident, offending vehicle was being plied as per terms and conditions of insurance policy i.e. under valid permit, fitness and driving license.

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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 a result of rash and negligent driving of non-applicant No.1-driver; there was no violation of any condition of insurance policy and accordingly, partly allowed claim application and awarded compensation of Rs.9,77,200/- along with interest @ 6% p.a. by taking monthly income of deceased

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as Rs.4,500/- on notional basis treating the deceased as labourer.

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Learned counsel for appellant Insurance Company would submit that the Claims Tribunal failed to properly appreciate the evidence of eyewitness namely Saroj (PW-2) from whose statement it is apparent that accident is caused by a white colour Bolero pick-up having full body and not the offending vehicle. Evidence of Hinda Bai (PW-1) also shows noninvolvement of offending vehicle in the accident in question. He next contended that offending vehicle has been involved in accident in question to gain illegal benefits from the appellant. He also contended that quantum of compensation awarded by the Claims Tribunal is on higher side and is liable to be reduced suitably.

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On the other hand, learned counsel appearing on behalf of claimants/ respondents No.1 to 5 opposing the submissions of learned counsel for appellant, would submit that the insurance company failed to prove non-involvement of the offending vehicle by leading cogent admissible evidence. He next contended that claimants have filed cross-appeal seeking enhancement of quantum of compensation awarded by the Claims Tribunal on the ground that income of deceased determined by Claims Tribunal is on lower side and amount of compensation awarded under other heads is also less.

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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 appellant insurance company that offending vehicle was not involved in the accident, is concerned, it has been specifically pleaded by the claimants in their claim application that pick-up Bolero bearing registration number CG09-JD-4536 was involved in the accident. In order to establish involvement of the offending vehicle, the claimants have examined one Saroj Kumar Sindram (AW-2), an eyewitness of accident. This witness has deposed that on 25.1.2018 at about 7:00 p.m. he and Malikram were coming to Lalpurkhurd from village Parselkhaar on their respective motorcycle. Seeing a full body pick-up Bolero vehicle, Malikram, who was moving ahead, stopped his motorcycle and stood aside. However, driver of said pick up vehicle by driving it rashly and negligently dashed Malikram and caused accident. After causing accident, driver fled from spot with vehicle. In the cross-examination this witness stated that in the light of electricity pole he had seen that ‘Sakat Transport’ is written at the side of vehicle that caused accident.

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FIR of the accident was lodged in police station in which identify of the driver was not mentioned. During investigation, police found that accident was caused by offending vehicle and non-applicant No.2 was its driver. Pursuant to notice under

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Section 91 CrPC, owner of offending vehicle appeared and admitted that on 25.1.2018 non-applicant No.1 was driving the offending vehicle and he informed him that the offending vehicle met with an accident with a motorcycle near village Khadodakhurd.

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The owner was the best person to prove non-involvement of the offending vehicle or the driver of offending vehicle could prove that such vehicle was not involved in the accident. Appellant-insurance company, was granted leave under Section 170 of the Act of 1988 and as such, it was the duty of insurance company to summon the owner and driver of offending vehicle to appear as witness for disputing allegation of claimants regarding involvement of offending vehicle, but no such steps were taken by appellant-insurance company. Since appellantinsurance company in spite of grant of leave under Section 170 of the Act of 1988 failed to adduce evidence of owner or driver of the offending vehicle to establish its defence of noninvolvement of the vehicle, hence it will be a travesty of justice to disbelieve the eyewitness namely PW-2 examined on behalf of the claimants in this regard.

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In case of The New India Assurance Co. Ltd. vs. Mita Samanta and others , reported in MANU/WB/0172/2009 , the Division Bench of High Court of Calcutta has observed thus:-

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“23. It appears that the eyewitnesses of the incident

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have deposed that the truck in question had really struck the victim while he was driving his motorcycle as a result he collided with the light post standing by the side of the road. We do not find any substance in the contention of Mr. Das, the learned advocate for the appellant, that simply because in the F.I.R. there was no reference of any truck that statement is binding upon the claimants. The person who made the F.I.R. is not an eyewitness. After coming to know that his brother died, he reported to the police about the death due to the accident and it is the definite case of the claimant that the truck had run away immediately after the accident. In such circumstance, unless the owner of the truck or the driver thereof comes forward before the Court to defend themselves the Tribunal was left with no other alternative but to accept the testimony of the eye witnesses. We have gone through their depositions; there is nothing to disbelieve their version.”

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In view of the above discussions, the argument advanced on behalf of the appellant-insurance company of non-involvement of the offending vehicle in the said accident has no merit and the same is repelled. Consequently, the appeal filed on behalf of appellant insurance company is liable to be and is hereby dismissed.

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As regards the cross-appeal filed on behalf of claimants for enhancement of quantum of compensation, the Claims Tribunal has assessed income of deceased on notional basis and reason assigned by Claims Tribunal for fixing income of deceased as Rs.4,500/- per month on notional basis appears to be justified, which does not call for interference. However, the notional income so fixed by the Claims Tribunal appears to be on lower side. It is well settled that where claimants failed to

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prove income of the deceased in accordance with law, the Claims Tribunal should determine income on the basis of wages prevailing in area, price index, cost of living or can take help of the wage rate notified under the Minimum Wages Act. In case at hand, the Claims Tribunal, on guess work assessed income of deceased to be Rs.4,500/- per month and did not resort to circulars / notifications issued by the Competent Authority under the Minimum Wages Act, 1948 notifying wage rate for skilled, unskilled and high skilled workers and therefore, fixation of income of deceased at Rs.4,500/- per month by learned Claims Tribunal is not proper.

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Accident in question occurred on 25.1.2018 and at that moment, deceased was residing in District Kabirdham, which comes in the category of ‘C’ Zone area. On the date of accident, wage rate fixed for a unskilled labourer of the area falling within ‘C’ Zone area by the Competent Authority under the Minimum Wages Act, 1948 was Rs.7,930/- per month. Thus it is clear that the Claims Tribunal has taken lesser notional income of deceased. Hence, this Court finds it appropriate to re-assess notional income of the deceased at Rs.7930/- p.m. instead of Rs.4,500/- p.m. as assessed by the Claims Tribunal. It is ordered accordingly.

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18.Deceased was survived by five dependent family members, who are respondents No.1 to 5 before this Court. Perusal of

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impugned award would show that Claims Tribunal awarded only a sum of Rs.40,000/- for loss of consortium, which is not correct. The amount of compensation to be awarded as consortium will be governed by the principles of awarding compensation under "loss of consortium" as laid down in the matter of National Insurance Company Ltd. vs. Pranay Sethi , reported in (2017)16 SCC 680 and Magma General Insurance Co. Ltd. vs. Nanu Ram alias Chuhru Ram and Others , reported in (2018) 18 SCC 130 . In case of Pranay Sethi (supra) Hon’ble Supreme Court has dealt with various heads under which compensation is to be awarded in a death case. One of these heads is Loss of Consortium and the amount to be awarded under this head is fixed as Rs.40,000/-. In case of Nanu Ram (supra) Hon’ble Supreme Court after referring to the decision of Constitution Bench in case of Pranay Sethi (Supra), has explained about granting the compensation under the head of loss of consortium and also categorized the loss of consortium as 'spousal consortium', 'parental consortium' and 'filial consortium' in case the claimants are widow/husband, children and parents respectively. Thus, appellants herein being the widow, children and mother of deceased are entitled for Rs.40,000/- each towards loss of consortium. It is ordered accordingly.

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Considering the age of deceased and number of dependent

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members, addition of 40% towards loss of future prospects, deduction of one-fourth for personal expenses of deceased and application of multiplier ‘15, is in consonance with the principles settled by Hon’ble Supreme Court in regard to awarding compensation and need not be interfered with.

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For the foregoing, this Court proposes to recalculate amount of compensation payable to the claimants/respondents No.1 to 5 herein.

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21.Accordingly, income of deceased is taken as Rs.7,930/- per month and after adding 40% towards future prospects, the monthly income of deceased would come to Rs.11,102/- and annual income would be Rs.1,33,224/-. Out of this amount, one-fourth is to be deducted towards personal and living expenses of deceased and after deducting one-fourth, annual dependency would come to Rs.99,918/-. Applying multiplier of 16, as applied by Claims Tribunal, the loss of dependency would be Rs.15,98,688/-. Besides this, appellant No.1 is entitled for a sum of Rs.40,000/- towards spousal consortium; appellant No.2 to 4 are entitled for Rs.40,000/- each for loss of parental consortium and appellants No.5 is entitled for Rs.40,000/- for filial consortium, as held by Hon’ble Supreme Court in the matters of Nanu Ram @ Chuharu Ram (supra). In addition to aforesaid amount, appellants are entitled to get a sum of Rs.15,000/- for funeral expenses and Rs.15,000/- for

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loss of estate. However, 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 @ 10% after every three years, therefore, the compensation under the head of loss of consortium works out as Rs.44000/- (10% of 40000 + 40000); loss of estate as Rs.16,500/- (10% of 15000 + 15000) and funeral expenses as Rs.16,5000/- (10% of 15000 + 15000). Thus, total amount of compensation comes to Rs.18,51,688/-. This enhanced amount of 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 claimants/respondent No.1 to 5 pursuant to impugned award will be adjusted.

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22.In the result, appeal preferred by the appellant Insurance Company is dismissed. Cross appeal filed on behalf of claimants-respondents No.1 to 5 is allowed in part.

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23.The impugned award is modified to the extent as indicated above.

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sd/-

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(Parth Prateem Sahu) Judge

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roshan/-

Branch Manager, Iffco Tokio General Insurance Company Limited v. Mst. Hinda @ Chhinda Bai

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Branch Manager, Iffco Tokio General Insurance Company Limited v. Mst. Hinda @ Chhinda Bai

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