Branch Manager, Magma General Insurance Company Limited Vs Brihaspati Bai

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2025:CGHC:35397

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NAFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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MAC No. 924 of 2025

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Branch Manager, Magma General Insurance Company Limited (Earlier Magma H.D.I.), Office At First Floor 646/1 Near H.D.F.C. Bank, Power House Road, Opposite Sharda Colony, Korba, District Korba, Chhattisgarh.

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--- Appellant/ Non-applicant No. 3

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versus

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Brihaspati Bai W/o Late Sitaram Aged About 46 Years

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Balram Dhivar S/o Sitaram Aged About 30 Years

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Tikam Dhivar S/o Sitaram Aged About 26 Years All R/o Suvabhodi, Present R/o Hardibazar, Tehsil- Hardibazar, Pali, District Korba, Chhattisgarh.

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Priti Dhivar D/o Late Sitaram, W/o Dinesh Kumar Dhivar Aged About 24 Years R/o Chandipara, Janjgir, District Janjgir-Champa, Chhattisgarh. Present R/o Hardibazar, Tehsil- Hardibazar, Pali, District Korba, Chhattisgarh.

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…. applicants/ claimants

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Mukesh Kumar S/o Jankuram Aged About 23 Years R/o Reki, P.O. Chainpur, District Korba, Chhattisgarh. ( non-applicant No. 1 / Driver )

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Amarnath Marar S/o Jankuram Aged About 35 Years R/o Reki, P.O. Chainpur, District Korba, Chhattisgarh. ( non-applicant No. 2/Owner )

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--- Respondents/ Non-applicants

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For Appellant : Ms. Aditi Diwan, Advocate For Respondents No. 1 to 4 : Mr. Abhijeet Sarkar, Advocate

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PAWAN KUMAR JHA Digitallysigned by Hon'ble Shri Justice Parth Prateem Sahu PAWAN KUMAR JHA

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Judgment On Board

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23/07/2025

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Appellant-insurance company has filed this appeal under Section 173 of the

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Motor Vehicles Act, 1988 (for short “Act of 1988”), challenging the award

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dated 22.01.2025 passed by Learned First Additional Motor Accident Claims Tribunal, Katghora, District Korba, Chhattisgarh (for short “Claims Tribunal”) in Claim Case No. 152/2022, whereby learned Claims Tribunal allowed the application filed by applicants-claimants therein under Section 166 of the Act, 1988 in part and awarded total sum of ₹ 87,89,017.75/- as compensation.

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On 23.07.2022 at about 12:50 pm when Sitaram went to purchase vegetable near college chowk (square), one motorcycle bearing number CG12 BD 7393 (henceforth called as “offending motorcycle”) driven by non-applicant No. 1 rashly and negligently dashed Sitaram in which he suffered grievous injuries on his person. He was taken to hospital at Hardibazar, N.C.H. hospital, Gevra from where he was referred to Apollo Hospital, Bilaspur. He died during course of treatment.

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Appellants-claimants, widow and children of deceased filed an application under Section 166 of the Act of 1988 seeking compensation of ₹ 2,15,64,813.70/- pleading therein that on the date of accident deceased was about 49 years of age, was an able bodied person. Before the accident he was employed with SECL as Spot Mechanic Gr.-04 and was earning ₹ 1,47,862.2/- per month as salary.

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Respondents No. 5 & 6 / Non-applicant No. 1 & 2 – driver and owner of the offending motorcycle submitted reply to the claim application, denied all the adverse pleadings made therein and accepted the pleading with regard to issuance of insurance policy of the motorcycle.

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Appellant -Non-applicant No. 3/ Insurance Company filed its reply to the claim application, while denying all the adverse pleadings made in the application, it was further pleaded that on the date of accident deceased himself was negligent in the accident. It was stated that accident occurred on 23.07.2022 whereas the F.I.R. was lodged with inordinate delay on 18.09.2022. Non-applicant No. 1 driver of the offending motorcycle was also

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not having valid and effective driving licence. There was breach of policy conditions.

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Learned Claims Tribunal, upon appreciation of pleadings and evidence placed on record by respective parties, held that deceased- Sitaram died because of grievous injuries suffered by him in the accident arising out of rash and negligent driving of offending motorcycle driven by non-applicant No. 1. Breach of conditions of insurance policy and contributory negligence was not found to be proved, calculated the amount of compensation and awarded ₹ 87,89,017.75/- as total compensation with interest @ 7% p.a. from the date of filing of claim application till its realization and fastened liability upon non-applicant No. 3/ Insurance Company.

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Learned counsel for appellant-insurance company would submit that the appellant-Insurance company has filed this appeal on the grounds, that the offending motor cycle and its driver has been implanted in the said case. She submits that for making such an argument and defence, relevant consideration is that there was delay in lodging of F.I.R of 56 days and further as per the evidence of AW-2, she was aware of the person, who was driving the motor cycle at the time of accident, however, she had not named the said person for last about 56 days. She next contended that the Claims Tribunal treating claimant No. 4 (married daughter) to be dependent upon the deceased has applied deduction of 1/4, whereas if the name of claimant No. 4 was not to be considered as dependent, appropriate deduction would be 1/3 which will substantially affect the quantum of compensation. She lastly contended that Claims Tribunal has taken into consideration entire earning of deceased for computing compensation including wages paid for the holidays and overtime. It is contented that work in the holidays and overtime is not regularly available and therefore it cannot be treated as regular income of deceased and hence those income would not have been considered as

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income for the purpose of computing the amount of compensation. She places reliance upon the decision in the case of Anil and others vs. New India Assurance Company Limited and others reported in (2018) 2 SCC 482 .

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Learned counsel for Respondents No. 1 to 4-claimants- would oppose the submission of learned counsel for appellant and would submit that from the evidence available in record it is appearing that immediately after accident looking to the grievous injuries suffered by late Sitaram, he was taken to Primary Health Centre, Hardibazar, from where, deceased being employed in SECL, was referred to Apollo Hospital, where during course of treatment he died. He further submits that the F.I.R. was registered based on the enquiry on the morgue intimation and therefore delay occurred in lodging F.I.R. cannot be said to be willful or inordinate delay. The amount of compensation computed by the Claims Tribunal is just and proper, it does not call for any interference.

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

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So far as the first ground raised by learned counsel for the appellantinsurance company stating that the offending motorcycle and name of owner, driver of the vehicle have been implanted and is afterthought, perusal of record would show that the accident occurred on 23.07.2022. From the impugned award it is appearing that after receiving motor accidental injuries, deceased was taken to hospital at Hardibazar, from where he was referred to hospital at Gevra and thereafter to Apollo Hospital, Bilaspur. Late Sitaram died on 26.07.2022 at Apollo Hospital, while treatment. In para-14 of the award there is observation by the Tribunal that the morgue was registered at police station Kusmunda bearing morgue intimation No. 108/22 on 29.08.2022 based on the memo produced by the security guard of the Apollo

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Hospital and after morgue enquiry, F.I.R. was registered on 18.09.2022. Claimants who are widow and children of deceased were in grief of losing their loved one, husband of claimant No. 1 and father of claimants No. 2 to 4 and therefore it is not expected from the family members of the deceased who were in grief to approach police station immediately and lodge the report. The report was registered following due process of law.

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It is not in dispute that deceased suffered motor accidental injury, he was admitted to hospital at Hardibazar and Gevra and from where he was admitted to Apollo Hospital, where he was given treatment for couple of days. It is not a case that it is the family members of the deceased who had lodged report after 56 days, however, according to the procedure, memo of morgue intimation was forwarded by the hospital on 29.08.2022 where the deceased breathed last during treatment and the delay, if any, in lodging F.I.R. would be on the part of hospital and it cannot be attributed upon the claimants. Impugned award further mentioned that after morgue intimation, the report was lodged on 18.09.2022. No submission by the counsel for appellant has been made for the aforementioned dates and facts recorded by the Claims

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Tribunal in impugned award.

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Hon’ble Supreme Court in the case of Ravi vs. Badrinarayan and others reported in (2011) 4 SCC 693 has has observed thus:

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“ 17. It is well settled that delay in lodging the FIR cannot be a ground to doubt the claimant's case. Knowing the Indian conditions as they are, we cannot expect a common man to first rush to the police station immediately after an accident. Human nature and family responsibilities occupy the mind of kith and kin to such an extent that they give more importance to get the victim treated rather than to rush to the police station. Under such circumstances, they are not expected to act mechanically with promptitude in lodging the FIR with the police. Delay in lodging the FIR thus, cannot be the ground to deny justice to the victim. 18. x x x x

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19. Lodging of FIR certainly proves the factum of accident so that the victim is able to lodge a case for compensation but delay in doing so cannot be the main ground for rejecting the claim petition. In other words, although lodging of FIR is vital in deciding motor accident claim cases, delay in lodging the same should not be treated as fatal for such proceedings, if claimant has been able to demonstrate satisfactory and cogent reasons for it. There could be a variety of reasons in genuine cases for delayed lodgement of FIR. Unless kith and kin of the victim are able to regain a certain level of tranquillity of mind and are composed to lodge it, even if, there is delay, the same deserves to be condoned. In such circumstances, the authenticity of the FIR assumes much more significance than delay in lodging thereof supported by cogent reasons.”

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In the case at hand, as observed above and aforementioned decision of Hon’ble Supreme Court, in the opinion of this Court, the submission of the counsel for appellant that delay in lodging of F.I.R. makes the claim of the claimants against the offending motor cycle and its owner suspicious, is not sustainable and accordingly it is repelled. The decision relied by learned counsel for appellant in the case of Anil (supra) is based on different set of facts and is not applicable to the facts of present case.

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So far the other submission made by counsel for appellant-insurance company that married daughter cannot be treated as dependent on deceased, this issue has been well settled by the Hon’ble Supreme Court that after marriage, a woman lives in her matrimonial home in the company of her husband and depends upon income of her husband and her family members. Claims Tribunal overlooked the description of claimant No. 4 wherein she has been made party showing the name of her husband also, but treated her to be dependent upon deceased father and accordingly applied deduction of 1/4. Leaving apart claimant No. 4, there are only 3 claimants and therefore in accordance with the decision of Hon’ble Supreme Court in the case of Sarla Verma & others v. Delhi Transport Corp. & anr.

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reported in (2009) 6 SCC 121 , appropriate deduction would be 1/3. It is ordered accordingly.

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So far as the last submission of counsel for appellant with respect to assessing income of deceased for the purpose of computing the amount of compensation on gross salary, including income of holidays wages and overtime wages is concerned, true it is that the holidays wages and overtime wages are not regular income, at the same time, it cannot be lost sight of the fact that deceased was an employee in mines. He was working as Operator/ Mechanic and for the employee like him, if he is interested to do extra work even in the holidays or overtime on the regular days, work for them are available and therefore I am of the considered view that the wages which is computed for holidays wages and overtime can be treated as an income to the extent of 50% and for the purpose of assessing income to compute the amount of compensation and therefore, I find it appropriate to hold that the income of deceased for the holidays wages and overtime wages can be safely determined as 50% of the wages as mentioned in the salary slip, Ext. P-6. Holidays wages as mentioned in Ext. P-6 is ₹ 6562.66 and overtime wages is ₹ 820.33, total of which will come to ₹ 7382.99, rounded off to ₹ 7383, half of which will be ₹ 3691.5 rounded off to ₹ 3692 ie., annual income from holidays and overtime wages comes to ₹ 44,304. Upon deducting aforementioned half amount towards holidays wages and overtime wages from the annul income (less tax) as computed by the Tribunal as ₹ 6,76,530, the annual income of deceased will be ₹ 6,32,226 [₹ 6,76,530-₹ 44,304].

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Further, Claims Tribunal added 30% of the assessed income towards future prospects, applied multiplier of 13. Tribunal further by enhancing 10% of the amount of compensation towards loss of estate (₹ 15,000), funeral expenses (₹ 15,000) and loss of consortium (₹ 40,000), awarded ₹ 16,500 towards loss of estate and ₹ 16,500 towards funeral expenses and ₹ 44,000 each towards

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loss of consortium, which are correctly awarded in view the decision of Hon’ble Supreme Court in the cases of Sarla Verma (supra), National Insurance Company Limited vs. Pranay Sethi & ors , reported in (2017) 16 SCC 680 and Magma General Insurance Company vs. Nanu Ram alias Chuhuru Ram and others reported in (2018) 18 SCC 130. In addition to that ₹ 5,000 is awarded towards conveyance expenses.

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For the foregoing discussion, the amount of compensation to be awarded to

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claimants requires re-computation, which is as under.

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Particulars	Compensation
• Annual Loss of income = ₹ 6,32,226	₹ 71,23,077/-
• Addition towards loss of future prospects @ 30% (₹ 6,32,226 + 30% of ₹ 6,32,226 = ₹ 8,21,894) • Deduction of 1/3 towards personal and living expenses( ₹ 8,21,894x 1/3= ₹ 2,73,965); ₹ 8,21,894 - ₹ 2,73,965 = ₹ 5,47,929/- • Multiplier of 13 ₹ 5,47,929 x 13 = ₹ 71,23,077/-
Loss of Spousal Consortium to Appellant No. 1	₹ 44,000/-
Loss of parental consortium to Appellants No. 2 & 3 (₹ 44,000 each)	₹ 88,000/-
Loss of estate	₹ 16,500/-
Funeral Expenses	₹ 16,500/-
Conveyance Expenses	₹ 5,000/-
Total	₹ 72,93,077/-

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Now the appellants/claimants shall be entitled for total sum of compensation of ₹ 72,93,077/- instead of ₹ 87,89,017.75/- as awarded by learned Claims Tribunal. The amount of compensation shall carry interest @ 7% p.a. from the date of filing of claim application till its realization.

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