Branch Manager, The New India Assurance Company Limited, Vs Jhakkad Korwa Died Smt. Bilti and Others

2 - Smt. Bilti W/o Jhakkad Korwa, Aged About 48 Years Occupation- House Wife, R/o Village- Chachi Bewdapara, P. S.- Dhaurpur, Tah.- Rajpur, Distt.Surguja, Chhattisgarh ......... Applicant No.2,

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3 - Ramsundar Toppo S/o Bandhu Toppo, Aged About 41 Years CasteUraon, Occupation- Driver, R/o Village- Bakirama, P. O.- Sukhari, Sapna, P. S.- Gandhi Nagar, Ambikapur, Tah.- Ambikapur, Distt.- Surguja, Chhattisgarh ...........Non - Applicant No.1,

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4 - Pushpa Soni W/o Jawahar Soni, Aged About 43 Years Occupation- Owner Of Truck, Bearing Registration No.- C. G. 04 - J - 2641, R/o Ring Road, In Front Of Arun Sangeet Mahavidyalaya, Mohalla-Kedarpur Nagar, Ambikapur, Distt.-Surguja, Chhattisgarh .........Non - Applicant No.2, ... Respondent(s)

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For Appellant : Shri Dashrath Gupta appears along with Shri Pravesh Sahu, Advocate.
For Respondent 2 : Ms. Akanksha Vishwakarma, Advocate appears on behalf of Shri A.N.Pandey, Advocate.
For Respondents 3 & 4 : None

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(HON’BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)

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Judgment on Board

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13/04/2026

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This appeal has been filed by the appellant/insurance company against

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the impugned award dated 01/04/2015 passed by the 4^th Motor Accidents Claims Tribunal, Ambikapur, Dist. Surguja (C.G.) in Motor Accident Claim

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Case No.169/2009 whereby the learned Claims Tribunal has awarded total compensation of Rs.5,01,000/- in favour of claimants/respondent No.1 & 2 while making the Non-applicants, in particular, Non-applicant No.3/insurance company liable to indemnify the compensation, along with interest @ 6.5% per annum from the date of filing of claim petition till its realisation. Parties to this appeal shall be referred hereinafter as per their description before the learned Claims Tribunal.

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As per the averments in claim petition, on 30.10.2009 at about 12:30 pm, the deceased Dinesh was going to Rajpur Block from his side to fill up a job form by sitting as pillion rider on Karje’s bicycle, at that time, in front of Rajpur Girls Hostel, the bicycle was dashed by the Truck bearing registration No.CG/04/J/2641 (for short, the offending vehicle) being driven by its driver/Non-applicant No.1 in a rash and negligent manner, as a result of which, the deceased Dinesh died due to serious injuries sustained by him. At the time of accident, Non-applicant No.1 Ramsunder Toppo was the driver, Non-applicant No.2 Pushpa Soni was the owner whereas the appellant (Nonapplicant No.3) was insurer of the Offending Vehicle

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A claim petition was filed by the claimants – Jhakkad Korwa & Smt. Bilti seeking total compensation of Rs.29,17,800/- under various heads, pleading, inter alia, that the deceased was 19 years at the time of accident and was earning Rs.5,400/- per month by working as mason. 4. The Claim Petition was resisted by the Non-applicants on various grounds including that the appellant/insurance company taking the plea that the original insurance certificate effective from 29.08.2009 to 28.08.2010 was issued in the name of one Abdul Sattar Memon and subsequently, by an endorsement the name of Abdul Sattar Memon was deleted and inserted the name of Pushpa Soni (Non-applicant No.2) and further took a plea that a

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cheque was issued by Abdul Sattar Memon to pay the premium for the insurance of the said offending vehicle and later on, it was dishonoured by the Bank on 19.09.2009 due to insufficient funds in the account and for that reason, the appellant/Non-applicant No.3 did not receive the insurance premium, therefore, the insurance policy issued on 29.08.2009 was cancelled and the insured was notified on 22.09.2009, thus, on the date of accident, the offending vehicle was not insured.

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Learned Claims Tribunal, after appreciating the oral as well as documentary evidence, had held the driver/Non-applicant No.1 liable for accident: the deceased died of injuries received by him and that the appellant/insurer could not prove any breach of policy conditions, assessed and awarded the total compensation as mentioned in opening paragraph of this judgment.

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Being aggrieved by the impugned award dated 01.04.2015, the insurance company has filed the present appeal. Not being satisfied by the amount of compensation, the claimants also filed Cross-appeal seeking enhancement of compensation. During pendency of this appeal, respondent No.1/applicant No.1, i.e., claimant No.1 has died and his name was deleted.

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Learned counsel appearing for the appellant/insurer, submits that originally insurance policy (Ex.D.1C) was issued in favour of previous policy holder/insured, namely Abdul Sattar Memon for offending vehicle and it was effective from 29.08.2009 to 28.08.2010, but later on, the name of policy holder has been changed and the name of Pushpa Soni was inserted as policy holder, however, the cheque for payment of premium issued by the previous policy holder was dishonoured and the notice dated 19.09.2009 (Ex.D.5C) was sent to previous policy holder, therefore, the policy was not effective and on this ground, the insurance company should have been

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exonerated, but the learned Claims Tribunal has wrongly fastened liability on it. It was submitted on behalf of the counsel for the insurance company that the deceased boy was 19 years and that he was not in permanent employment, therefore, future prospects of 50% applied by the learned Claims Tribunal is on higher side and not in accordance with the decision rendered by the Supreme Court in the matter of National Insurance Company Limited vs. Pranay Sethi reported in (2017) 16 SCC 680 wherein the applicable future prospects would be 40% for the self-employed persons. On these premises, he urged that the impugned award may suitably be modified while exonerating the insurance company from its liability.

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On the other hand, learned counsel for respondent No.1/claimant – Smt. Bilti submits that the learned Claims Tribunal, after properly appreciating the evidence on record, has rightly held the appellant/insurance company to be liable for payment of compensation on the ground that the offending vehicle was insured by it. She further submits that although in Ex.D.1C (insurance policy), the name of Non-applicant No.2 Pushpa Soni was inserted by the insurance company on 31.08.2009, but no notice was given to subsequent policy holder, i.e., Pushpa Soni. She further submits that crossappeal has been filed seeking enhancement of compensation. She also submits that income of the deceased was assessed at Rs.3,000/- on notional basis, which is on lower side and considering the the minimum wages provisions, the monthly income ought to have been at Rs.3,149/-. She next submits that the amounts awarded under other conventional heads are also on lower side. On these premises, she urged that amount of compensation may suitably be enhanced by allowing the cross-appeal.

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I have heard learned counsel for the respective parties and perused the record.

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It is not disputed that on 30.10.2009 the deceased met with accident caused by Non-applicant No.1 by driving the offending vehicle in a rash and negligent manner, as a result such accident, the deceased sustained grievous injuries and died. It is also not disputed that the appellant/insurance company was insurer of the offending vehicle with effect from 29.08.2009 till 28.08.2010 as per Ex.D.1C and the previous policy holder was Abdul Sattar Memon and his name was subsequently changed and in his place, the name of Pushpa Soni was inserted vide Ex.D.1.

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A perusal of Ex.D.1 shows that name of Pushpa Soni was subsequently changed with effect from 31.08.2009. As per the statement of N.A.W.2 – Emil Ekka, Branch Manager of the appellant insurance company, the cheque issued by previous policy holder Abdul Sattar Memon was dishonoured and the notice (Ex.D.5C) dated 19.09.2009 was sent to Abdul Sattar Memon, previous policy holder, vide Ex.D.7. However, in crossexamination, he admitted that he did not file any acknowledgment of registered notice allegedly sent to Abdul Sattar Memon and it is not clear that whether the said notice was received by Abdul Sattar Memon or not, rather the insurance company has also not filed any complaint against Abdul Sattar Memon with regard to dishonour of cheque. He also admitted that notice with regard to dishonour of cheque has not been sent to subsequent policy holder Pushpa Soni, therefore, it appears that the appellant/insurance company has not issued notice to subsequent owner of the offending vehicle and policy holder Pushpa Soni with regard to non-payment of premium amount, rather the insurance company has issued policy in the name of subsequent owner Pushpa Soni with effect from 31.08.2009, however, it is not evident from the record that the appellant/insurance company has brought on record any

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evidence to show that the owner of the offending vehicle was given any notice with regard to pay the premium.

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If the above evidence is considered to be taken as it is, then it is clear that the insurance company has failed to establish as to whether the premium amount has been paid or not despite the fact that subsequently the name of Pushpa Soni has been inserted with effect from 31.08.2009. Therefore, it is held that on the date of accident, the offending vehicle was insured with the appellant/insurance company.

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Now, so far as the cross-appeal filed by respondent No.2/claimant is concerned, it is not in dispute that the deceased was 19 years of age at the time of the accident. The Tribunal assessed the monthly income of the deceased at Rs.3,000/- and computed the loss of dependency at Rs.6,48,000/-. Since the deceased was unmarried, the Tribunal deducted one-half (½) towards personal and living expenses and assessed the total loss of dependency at Rs.3,24,000/-. The Tribunal further added 50% towards future prospects. However, the approach adopted by the Tribunal in assessing the monthly income of the deceased as well as in adding 50% towards future prospects is not sustainable and requires modification. Thus, considering the facts and circumstances of the case, the nature of work of the deceased, and the prevailing minimum wages at the relevant time, the monthly income of the deceased is assessed at Rs.3,149/-, i.e., Rs.37,788/per annum. Since the deceased was self-employed at the time of the accident, the addition towards future prospects would be 40%, in view of the law laid down by the Hon’ble Supreme Court in Pranay Sethi (supra). 14. Taking guidance from the decisions of the Hon'ble Supreme Court in Sarla Verma vs. Delhi Transport Corporation reported in (2009) 6 SCC 121, Pranay Sethi (supra) and Magma General Insurance Company Limited vs.

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Nanu Ram @ Chuhru Ram and others reported in (2018) 18 SCC 130, this

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Court re-computes the compensation in the following manner :-

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Sl. No.	Description	Amount in Rs.
1.	Income of the deceased @ Rs.3,149/- per month.	37,788/-
2.	40% of (1) above to be added towards future prospects	15,115/-
3.	Total annual income of the deceased	52,903/-
4.	Multiplier of 18 applied to assess total annual income	9,52,254/-
5.	Applicable deduction would be 50% as the deceased was unmarried.	4,76,127/-
6.	Funeral expenses	15,000/-
7.	Loss of Estate	15,000/-
8.	Loss of consortium	40,000/-
	Total compensation	5,46,127/-
	Award of the learned Tribunal.(-)	5,01,000/-
	Enhanced amount by this Court	45,127/-

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Hence, the claimant/respondent No.2 is entitled for an additional amount of Rs.45,127/- with interest as awarded by the Tribunal. The enhanced amount with interest shall be deposited by the appellant/insurer. The impugned award stands modified to the above extent. Rest of the conditions of the impugned award shall remain intact.

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For the foregoing reasons, the appeal filed by the appellant/insurance company is liable to be and is hereby dismissed. The Cross-appeal filed by the claimant/respondent No.2 is also allowed in part.

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Sd/-

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(Radhakishan Agrawal) JUDGE

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Anjani

Branch Manager, The New India Assurance Company Limited, v. Jhakkad Korwa Died Smt. Bilti and Others

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Branch Manager, The New India Assurance Company Limited, v. Jhakkad Korwa Died Smt. Bilti and Others

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