The Oriental Insurance Co. Ltd. Vs Smt. Vandana Kochar

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Digitally signed by SMT NIRMALA RAO

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2025:CGHC:513

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 559 of 2020

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1 - Smt. Vandana Kocher W/o Late Lalit Kocher Aged About 41 Years R/o Near Jalaram Kiraya Bhandar, Sadar Bazaar, Raipur Chhattisgarh, District : Raipur, Chhattisgarh.

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2 - Divyansh Kocher R/o Late Lalit Kocher Aged About 19 Years R/o Near Jalaram Kiraya Bhandar, Sadar Bazaar, Raipur Chhattisgarh, District : Raipur, Chhattisgarh.

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3 - Naman Kocher S/o Late Lalit Kocher Aged About 15 Years Appellants No. 3 Minor Represented Through Natural Guardian Mother Smt. Vandana Kocher, Aged About 41 Years W/o Late Lalit Kocher, R/o Near Jalaram Kiraya Bhandar, Sadar Bazaar, Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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4 - Sanyam Kocher S/o Late Lalit Kocher Aged About 12 Years Appellants No. 4 Minor Represented Through Natural Guardian Mother Smt. Vandana Kocher, Aged About 41 Years W/o Late Lalit Kocher, R/o Near Jalaram Kiraya Bhandar, Sadar Bazaar, Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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... Appellants/ Claimants

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versus

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1 - Romlal Nishad S/o Lekhram Nishad Aged About 26 Years R/o Near Jait Khamb, Chandnidih, Thana Amanaka, Raipur Tahsil And District Raipur Chhattisgarh .......... (Driver Of Tata Winger No. O. R. 26/9268) , District : Raipur, Chhattisgarh.

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2 - Punit Ram Yadav S/o Shri Ghasiram Yadav R/o Village Tarbod, Thana Komna District Nuvapada Odisha, .......... (Owner Of Tata Winger No. O. R. 26/9268)

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3 - The Oriental Insurance Company Limited Through Divisional Manager, Divisional Office, Madina Manzil, Kutchery Chowk, Jail Road, Raipur Chhattisgarh .......... (Insurer Of Tata Winger No. O. R. 26/9268)

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4 - Motilal Kocher S/o Late Sohan Lal Kocher Aged About 75 Years R/o Near Jalaram Kiraya Bhandar, Sadar Bazar, Raipur Tahsil And District Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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5 - (Deleted) Smt. Jatin Bai Kocher As Per Honble Court Order Dated 1901-2024.

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6 - Shantiswaroop @ Lala Sahu S/o Late Jugat Ram Sahu Aged About 31 Years R/o Mahamayi Para, Saraswati Chowk, Purani Basti, Raipur Chhattisgarh, District : Raipur, Chhattisgarh

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---- Respondents

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WITH

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MAC No. 889 of 2020

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1 - The Oriental Insurance Co. Ltd. Through - Divisional Manager, Divisional Office, Madina Manzil Kachheri Chowk, Jail Road, Raipur Chhattisgarh - Insurer Tata Winger No. O.R. No. 26/9268--, District : Raipur, Chhattisgarh ... Appellant/ Insurer

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versus

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1 - Smt. Vandana Kochar W/o Late Shri Lalit Kochar Aged About 34 Years R/o Near Jalaram General Store, Sadarbazar, Raipur, Tahsil And District- Raipur Chhattisgarh., District : Raipur, Chhattisgarh/ Claimant No.1.

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2 - Diviyans Kochar S/o Late Shri Lalit Kochar Aged About 16 Years Minor Through Natural Guardian Mother Smt. Vandana Kochar, Aged About 34 Years W/o Late Shri Lalit Kochar, R/o Near Jalaram General Store, Sadarbazar, Raipur, Tahsil And District- Raipur Chhattisgarh., District : Raipur, Chhattisgarh/ / Claimant No.2.

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3 - Naman Kochar S/o Late Shri Lalit Kochar Aged About 12 Years Minor Through Natural Guardian Mother Smt. Vandana Kochar, Aged About 34 Years W/o Late Shri Lalit Kochar, R/o Near Jalaram General Store, Sadarbazar, Raipur, Tahsil And District- Raipur Chhattisgarh., District : Raipur, Chhattisgarh/ / Claimant No.3.

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4 - Sanyam Kochar S/o Late Shri Lalit Kochar Aged About 10 Years Minor Through Natural Guardian Mother Smt. Vandana Kochar, Aged About 34 Years W/o Late Shri Lalit Kochar, R/o Near Jalaram General Store, Sadarbazar, Raipur, Tahsil And District- Raipur Chhattisgarh., District : Raipur, Chhattisgarh/ Claimant No.4 .

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5 - Romlal Nishad S/o Lekhram Nishad Aged About 33 Years R/o Near Jait Khamb, Chandnidih, P.S. - Amanaka, Raipur, Tahsil And DistrictRaipur Chhattisgarh., District : Raipur, Chhattisgarh (Driver)

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6 - Punit Ram Yadav S/o Shri Ghasiram Yadav R/o Village - Tarboad, P.S. - Komma, District - Nuwapada (Orissa). (Previous Owner)

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7 - Motilal Kochar S/o Late Sohan Lal Kochar Aged About 72 Years R/o Near Jalaram General Store, Sadar Bazar, Tahsil And District- Raipur

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3

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Chhattisgarh., District : Raipur, Chhattisgarh (Father of the deceased)

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8 - (Deleted) Smt. Jatin Bai Kochar As Per Honble Court Order Dated. 06/02/2024. (Mother of the deceased)

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9 - Shantiswarup @ Lala Sahu S/o Late Jugat Ram Sahu Aged About 28 Years R/o Mahamai Para Saraswati Chowk, Purani Basti, Raipur Chhattisgarh., District : Raipur, Chhattisgarh (Present Owner)

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---- Respondents

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For Appellants/Claimants No.1 to 4 : Mr. Vivek Chopda, Advocate. For the Oriental Insurance Company : Mr. Raj Awasthi, Advocate.

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Hon'ble Shri Justice Rakesh Mohan Pandey Order on Board

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03.01.2025

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Both the appeals are being decided by this common order as they arise out of the same award.

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The appellants/claimants have filed MAC No.559 of 2020 under Section 173 of the Motor Vehicles Act against the award dated 7.12.2019 passed in Claim Case No. 516 of 2017 by the Principal Motor Accidents Claims Tribunal, Raipur, District Raipur, whereby the learned Tribunal has awarded Rs.32,20,000/- along with interest @ 9% per annum in favour of the appellants/claimants against the Insurance Company.

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The facts of the present case are that the appellants/claimants in MAC No. 559 of 2020 filed a claim case under Section 166 of the Motor Vehicles Act on account of the death of one Lalit Kocher in an accident that occurred on 24.2.2014. They pleaded that on the date of the accident, the deceased was returning home after closing his cloth shop situated at Mahalaxmi Cloth Market, Pandri, Raipur by driving his TVS Motorcycle No. C.G.-04-DR-8061. At

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about 11:00 pm, while crossing a small railway crossing, the respondent – Romlal Nishad (Driver) driving the Tata Winger No. O.R. 26/9268 rashly and negligently dashed the TVS Motorcycle from behind. Consequently, the deceased fell onto the street and the offending vehicle crushed his head. The pillion rider of the motorcycle, namely, Vasu Goswami suffered serious injuries. The matter was reported to Police Station Civil Lines, Raipur and Crime No.97 of 2014 was registered against the respondent – Romlal Nishad (Driver) for the commission of offences punishable under Sections 304(A), 279 & 338 of the Indian Penal Code. It was further pleaded in the claim petition that the deceased was 39 years old and was indulged in cloth business under the name “Jainam Clothing Private Limited”. According to the Income-Tax Return for the year 2013-14, the gross income of the deceased was Rs.13,29,655/-. The appellants in MAC No.559 of 2020 and claimants No.1 to 4 in MAC No.889 of 2020 claimed compensation to the tune of Rs.3,64,50,000/-. The driver and owner of the vehicle filed their written statement denying the allegations made in the claim application. The Insurance Company also filed a written statement raising the plea of contributory negligence and stated that the claimants had exaggerated the amount of claim. The Learned Claims Tribunal decided most of the issues in favour of the appellants/claimants and passed an award of Rs.32,20,000/-.

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Learned counsel appearing for the appellants/claimants No.1 to 4 would submit that the learned Claims Tribunal committed an error of law by ignoring the annual income of the deceased according to

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ITR of 2013-14 which was Rs.13,29,655/- per annum. He would further contend that the learned Tribunal has not awarded proper compensation on conventional heads. He would pray to enhance the amount of compensation.

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On the other hand, Mr. Raj Awasthi, learned counsel appearing for the Insurance Company would oppose the submissions made by counsel for the appellants/claimants No.1 to 4. He would submit that the deceased was driving his motorcycle in the middle of the road and was thus negligent. He would contend that the Insurance Company has raised a specific plea in the written statement, but the learned Tribunal failed to consider the issue of contributory negligence. He would further submit that the claimants have produced three different Income-Tax Returns (ITRs) from different firms, and as such, those ITRs were not taken into consideration by the learned Tribunal. He would also submit that the documents regarding the income of the deceased were unreliable, and therefore, the learned Tribunal discarded them. He would further argue that in the financial year 2011-12, the gross income of the deceased was Rs.8,64,225/-, in financial year 2012-13, it was Rs.7,81,018/- and in the financial year 2013-14, it was Rs.13,29,655/-. He would contend that due to the lack of consistency in the deceased's income and the mention of different firms and companies, the Tribunal did not rely on those documents. He would state that the learned Tribunal has awarded just and proper compensation to the appellants/claimants No.1 to 4 and the appeal filed by the appellants in MAC No.559 of 2020 deserves to be dismissed.

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I have heard learned counsel for the parties and perused the documents present on the record with utmost circumspection.

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According to the provisions of Section 166 of the Motor Vehicles Act, the income at the time of the accident should be taken into account to assess the dependency part. Admittedly, in the financial year 2013-14, the gross income of the deceased was Rs.13,29,655/- but the learned Tribunal failed to assess the loss of dependency on the basis of the last income of the deceased. A perusal of the income-tax return of 2013-14 (Ex.P/17) would show that the deceased paid income-tax of Rs.2,13,359/-. Learned Tribunal has not assigned any sufficient reason for ignoring the ITR placed on record by the claimants.

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In the matter of Sarla Verma (Smt) and Others, vs. Delhi Transport Corporation and Another, (2009) 6 SCC 121 , the Hon’ble Supreme Court has held in para 20 that the actual income of the deceased less income tax should be the starting point for calculating the compensation. The relevant para 20 is reproduced herein below:-

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“20. Generally the actual income of the deceased less income tax should be the starting point for calculating the compensation. The question is whether actual income at the time of death should be taken as the income or whether any addition should be made by taking note of future prospects.”

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In the matter of Malarvizhi and Others vs. United India Insurance Company Limited and Another , (2020) 4 SCC 228 , the Hon’ble Supreme Court has held that the income tax return is a statutory document on which reliance may be placed to determine the annual income of the deceased. The relevant para 10 is

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reproduced herein below:-

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“10. The Tribunal proceeded to determine the agricultural income arising from 36.76 acres of land on the basis of two judgments of the High Court. The Tribunal arrived at two different figures by applying the decisions and proceeded to determine the agricultural income on an average of the two amounts. The Tribunal superimposed a possible value of income from agricultural land despite a clear indication in the income tax returns of the income from agricultural land. The method adopted by the Tribunal is not sustainable in law. On the other hand, the High Court has proceeded on the basis of the income reflected in the income tax returns for the assessment year 19971998. The relevant portion of the return reads:

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“Income from House property – Rs. 1,920 Business profit (other than 14.b) – Rs. 1,21,071 Net Agricultural income – Rs. 88,140”

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The tax return indicates an annual income of Rs 2,11,131 in the relevant assessment year. Mr Jayanth Muth Raj, learned Senior Counsel appearing on behalf of the appellant contended that other documents were marked which reflected the income of the deceased. We are in agreement with the High Court that the determination must proceed on the basis of the income tax return, where available. The income tax return is a statutory document on which reliance may be placed to determine the annual income of the deceased. To the benefit of the appellants, the High Court has proceeded on the basis of the income tax return for the assessment year 1997-1998 and not 1999-2000 and 2000-2001 which reflected a reduction in the annual income of the deceased.”

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In the present case, the learned Tribunal failed to assess the compensation based on the ITRs, therefore, the approach taken by the learned Tribunal appears to be erroneous in this regard.

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With regard to the contention raised by the Insurance Company that the deceased was negligent while driving the vehicle and therefore, the learned Tribunal ought to have considered the issue of contributory negligence on the part of the deceased; a perusal of map (Ex.P/3) would show that while the deceased was riding his

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motorcycle, the offending vehicle/Tata Winger bearing registration No. O.R. 26/9628 dashed his motorcycle from behind. It can safely be concluded that the deceased was not negligent in this instance. As per the contents of the FIR and the evidence of the appellants/claimants, while the deceased was crossing railway line the offending vehicle collided with his motorcycle. It can reasonably be presumed that when the deceased was crossing the railway line, the speed of his vehicle would have been very slow and the driver of the offending vehicle while driving the vehicle rashly and negligently dashed the motorcycle of the deceased, therefore, the issue of contributory negligence would not arise and the contention made by counsel for the Insurance Company is hereby rejected.

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Now coming to the calculation of the compensation. The annual gross income of the deceased was Rs.13,29,655/- - income-tax Rs. 2,13,369/- = Rs.11,16,306/-. There are four dependents in the claim petition, therefore, the deduction would be 1/4th.

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13.Complete Assessment of Compensation Entitlement for the appellants/ Claimants:-

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(i) Annual Dependency:-

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Annual Gross income of the deceased = Rs. 13,29,655/Income – Tax paid for the financial year (2013-14) = 2,13,359/Net annual Income for the financial year (2013-14) =

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Rs.13,29,655 – 2,13,359/- = 11,16,296/-.

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Future Prospects:- 40% of annual income Rs.11,16,296 x 40% = Rs.4,46,518/Rs.11,16,296 + 4,46,518/- = 15,62,814/-

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Deduction of 1/4^th for personal expenses:Rs.15,62,814 x 1/4 =Rs.3,90,704/-. Rs.15,62,814 – 3,90,704/- = Rs.11,72,110/-

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Net annual dependency:- Rs. 11,72,110/-

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(ii) Multiplier:-

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Considering the age of the deceased (39y), a multiplier of 15 is appropriate.

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Total dependency compensation:-

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Rs. 11,72,110 x 15 = Rs. 1,75,81,650/-.

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(iii) Additional Compensation:-

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Loss of spousal consortium for Claimant No. 1 (wife):Rs.40,000/Loss of parental consortium for Claimants No. 2 to 4 (sons):- Rs. 40,000 x 3 = Rs. 1,20,000/Funeral expenses:- Rs. 15,000/Loss of estate:- Rs. 15,000/- Total Additional Compensation:- Rs. 40,000 + Rs. 1,20,000 + Rs. 15,000 + Rs.15,000 = Rs. 1,90,000/-

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(iv) Total Compensation Amount:-

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Dependency compensation:- Rs. 1,75,81,650/Additional compensation:- Rs. 1,90,000/-

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Thus, total Compensation:- Rs. 1,77,71,650/-

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As the learned Tribunal has already awarded compensation of

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Rs.32,20,000/-, the further enhanced amount will be Rs.1,45,51,650/-, which is to be paid alongwith @ 9% per annum from the date of filing of the application till its realization. The award passed by the learned Tribunal is modified up to the extent indicated above.

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Accordingly, MAC No.559 of 2020 is allowed . Consequently, MAC

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No.889 of 2020 filed by the insurance company is dismissed .

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Sd/- (Rakesh Mohan Pandey) Judge

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Nimmi

The Oriental Insurance Co. Ltd. v. Smt. Vandana Kochar

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The Oriental Insurance Co. Ltd. v. Smt. Vandana Kochar

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