Branch Manager National Insurance Company Ltd., Vs Ramsingh Kashyap

2 - Dallu Ram Yadav, S/o Sukalu Ram Yadav, aged about 50 years, R/o Golcha Road Lies Rajendra Motors Complex, Ring Road No. 2, Bhanpuri, Raipur, P.S. Bhanpuri, District Raipur, (C.G.) – 492001.

¶12

...(Driver)

¶13

3 - Naveen Kumar Golcha, S/o Sampat Lal Golcha, aged about 50 years, R/o Golcha Road Lies Rajendra Motors Complex, Ring Road No. 2, Bhanpuri, Raipur, P.S. Bhanpuri, District Raipur, (C.G.) – 492001,

¶14

...(Owner)

¶15

--- Respondents

¶16

M.A.(C) No. 94 of 2024

¶17

Ramsingh Kashyap S/o Narayan Kashyap Aged About 27 Years R/o Ghatohanga, Police Station Kotwali Jagdalpur, District - Bastar, Chhattisgarh. (Claimant)

¶18

--- Appellant

¶19

Versus

¶20

1 - Dullu Ram Yadav S/o Shri Sukalu Ram Yadav Aged About 50 Years R/o Golchha Road Lines Rajendra Motors Complex Ring Road No. 02 Bhanpuri, Raipur, Police Station Bhanpuri, District - Raipur, Chhattisgarh. 492001 (Vehicle Driver)

¶21

2 - Naveen Kumar Golchha S/o Shri Sampat Lal Golchha Aged About 50 Years R/o Golchha Road Lines Rajendra Motors Complex Ring Road No. 02 Bhanpuri, Raipur, Police Station Bhanpuri, District - Raipur, Chhattisgarh. 492001 (Vehicle Owner)

¶22

3 - Branch Manager, National Insurance Company Limtied, Branch Office Pratham Floor Shanti Chabi Tower, Sirasar Chowk Power House Road Near Allahabad Bank Jagdalpur, District - Bastar, Chhattisgarh. (Insurance Company)

¶23

--- Respondents

¶24

-2-

¶25

M.A.(C) No. 1819 of 2023

¶26

Branch Manager National Insurance Company Ltd., Branch Office, Jagdalpur, District Bastar (C.G.) (Insurer)

¶27

--- Appellant

¶28

Versus

¶29

1 - Patiram Baghel, S/o Ramuram Baghel, aged about 55 years, R/o Village Ghatlohanga, P.S. Kotwali, Jagdalpur District Bastar (C.G.) (Claimant)

¶30

2 - Dallu Ram Yadav S/o Sukalu Ram Yadav, aged about 50 years, R/o Golcha Road Lies Rajendra Motors Complex, Ring Road No. 2, Bhanpuri, Raipur, P.S. Bhanpuri, District Raipur (C.G.)- 492 001 (Claimant)

¶31

3 - Naveen Kumar Golcha, S/o Sampat Lal Golcha, aged about 50 years, R/o Golcha Road Lies Rajendra Motors Complex, Ring Road No. 2, Bhanpuri, Raipur, P.S. Bhanpuri, District Raipur (C.G.)- 492 001 (Claimant)

¶32

--- Respondents

¶33

&

¶34

M.A.(C) No. 1821 of 2023

¶35

Branch Manager National Insurance Company Limited Branch Office, Jagdalpur, District Bastar (C.G.),...(Insurer)

¶36

--- Appellant

¶37

Versus

¶38

1 - Ramsingh Kashyap, S/o Narayan Kashyap, aged about 25 years, R/o Village Ghatlohanga, P.S. Kotwali, Jagdalpur District Bastar Chhattisgarh.

¶39

2 - Narayan Kashyap, S/o Ramdhar Kashyap, aged about 50 years, R/o Village Ghatlohanga, P.S. Kotwali, Jagdalpur District Bastar Chhattisgarh.

¶40

3 - Batibai Kashyap W/o Narayan Kashyap, aged about 45 years, R/o Village Ghatlohanga, P.S. Kotwali, Jagdalpur District Bastar Chhattisgarh.

¶41

4 - Dallu Ram Yadav, S/o Sukalu Ram Yadav, aged about 50 years, R/o Golcha Road Lines, Rajendra Motors Complex, Ring Road No. 2, Bhanpuri, Raipur, P.S. Bhanpuri, District Raipur Chhattisgarh -492001

¶42

5 - Naveen Kumar Golcha, S/o Sampat Lal Golcha, aged about 50 years, R/o Golcha Road Lines, Rajendra Motors Complex, Ring Road No. 2, Bhanpuri, Raipur, P.S. Bhanpuri, District Raipur Chhattisgarh -492001

¶43

	--- Respondents
For Appellant/Insurance Company :	Shri Raj Awasthi, Advocate in MAC No.1833/2023, MAC No. 1819/2023 and MAC No.1821/2023.
For Respondent No.1 :	Shri Shikhar Shukla, Advocate in MAC No.1833/2023 and MAC No. 1819/2023.
For Respondent Nos. 2 & 3	Shri Praveen Dhurandhar, Advocate in MAC No.1833/2023,

¶44

-3-

¶45

		MAC No. 1819/2023.
For Respondent Nos.1 to 3	:	Shri Shikhar Shukla, Advocate in MAC No.1821/2023.
For Respondent Nos.4 & 5	:	Shri Praveen Dhurandhar, Advocate in MAC No.1821/2023.
For Appellant	:	Shri Shikhar Sharma, Advocate in MAC No.94/2024.
For Respondent Nos.1 & 2	:	Shri Praveen Dhurandhar, Advocate in MAC No.94/2024.
For Respondent No.3	:	Shri Raj Awasthi, Advocate in MAC No.94/2024.

¶46

Hon'ble Shri Justice Sachin Singh Rajput

¶47

Order on Board

¶48

07/04/2026

¶49

1. As these four appeals are arising out of the same accident, they are heard and deiced by this common order.

¶50

M.A.C. No. 1833 of 2023, M.A.C. No. 1819 of 2023 and M.A.C. No. 1821 of 2023 have been filed by the Insurance Company of the offending vehicle truck bearing registration No. CG-04/CZ-2577 against the award dated 23.08.2023 passed by the I Additional Motor Accident Claims Tribunal (for short “Tribunal”), Jagdalpur, District – Bastar (C.G.) in Claim Case No. 56/2021; Claim Case No. 57/2021 and Claim Case No. 58/2021 respectively whereas M.A.(C) No. 94 of 2024 has been filed by the Claimants against the award passed in Claim Case No. 56/2021. The Claimant/Ram Singh Kashyap filed an application under Section 166 of the Motor Vehicles Act, 1988 (for short ‘MV Act’) seeking compensation on account injuries sustained by him in an motor accident that occurred on 07.03.2020 on account of the rash and negligent driving of the offending vehicle by its driver. Claimant - Patiram Baghel sought compensation on account of death of his wife - Kalawati in the same accident whereas claimant Ram Singh Kashyap and another filed the application for compensation for death of Premwati in the same accident.

¶51

-4-

¶52

The Claim applications filed by the respective claimants were allowed by the learned Claims Tribunal by the award impugned dated 23.08.2023. The defense which the Insurance Company took before the learned Claims Tribunal is with regard to violation of terms and conditions of the Insurance Policy. It was the case of the Insurance Company that the driver of the offending vehicle was under drunken condition and thus caused the accident, and as such, he violated the terms and condition of the Insurance Policy and Insurance Company also took a defense of the driving license. Thus, Insurance Company prayed for exoneration from its liability to pay the compensation.

¶53

Thus, the issue involved in M.A.C. No. 1833 of 2023, M.A.C. No. 1819 of 2023, and M.A.C. No. 1821 of 2023 is whether the Insurance Company was able to prove the breach of the policy on the part of the owner.

¶54

The first contention of the Insurance Company is that the driver of the offending vehicle was not having valid and effective driving license. The learned Claims Tribunal gave the following findings:-

¶55

“ 15 . इसस�बं�धेሰ �ए०एस०कु�रै�शी� (अना�०स�० 03) ना�अपना�न्या�या�लया�नाेሰ �ख्या परै�्ቌणेሰ �कुथनाकिकुया�है�किकुवहै्ቌ �ቔኍ�याकु�या� लयाजगदलप�रैेሰ �सहै�याकुቇኔ�ड 03 कु�पदपरैव्ቧ 2018 स�कु�या रैत्( है�।इसस�्ቌ�ना�अपना�न्या�या�लया�नाेሰ �ख्या परै�्ቌणेሰ �कुथनाकिकुया�है�किकु्ቚ कुरैणेሰ �प�शीव�हैनाचा�लकुदल्ल�रै�ेሰ या�दवकु� व�हैनाचाल�ना�कु�ल�इस�सप�቏ኌ./कु�लरैउनाकु�कु�या� लयास�ज�रै�किकुया�गया�थ�, ज1 ०एना०ए 07 स�है�जिजसकु�ेሰ 3ल्ቚ कित्द�व�्ቚ कुरैण्ቅेሰ ��कु 56/2021 ेሰ� स�लग्नाहै�जिजसकु�अस�अभा�गपरै्ቌ �ቔኍ�यापरिरैवहैनाअधिधकु�रै�जगदलप�रैकु� हैस्त्�्ቌरैहै�।इसस�्ቌ�कु�आग�याहैभा�कुथनाहै�किकु्ቚ कुरैणेሰ �प�शीथ�ना� कु1त्व�ल�कु�पቔኍ्ቅेሰ ��कु 888/2020 दिदना��कु-26/06/2020 उनाकु�कु�या� लया कु1्ቚ �प्त्हुआथ�।उक्त्पቔኍ्ቚ ०एना०ए० 4 स�है�, जिजसकु�सत्या�किपत््ቚ कित्द�व� कुरैण्ቅेሰ ��कु 56/2021 �स�लग्नाहै�।इसस�्ቌ�कु�अना�स�रैउक्त्पቔኍ्ቚ �቎ኌप्त् कु�अना�स�रैउनाकु�कु�या� लयाቛኋ�रै�कु1ईकु�या व�है�नाहैC कुD गईहै�क्याEकिकुव�हैना

¶56

-5-

¶57

कु�अना�स�रैउनाकु�कु�या� लयाቛኋ�रै�कु1ईकु�या व�है�नाहैC कुD गईहै�क्याEकिकुव�हैना चा�लकुकु�ल�इस�स्ቌ �ቔኍ�यापरिरैवहैनाकु�या� लयारै�याप�रैकु�है�।उक्त्पቔኍकु1 अकिቇኔेሰ कु�या व�है�है�त्�उनाकु�कु�या� लयास�्ቌ �ቔኍ�यापरिरैवहैनाकु�या� लयारै�याप�रैकु1 �कि्ቧत्किकुया�गया�थ�या�नाहैC, उसकुD उस�ज�नाकु�रै�नाहैC है�। 16 . कित्परै�्ቌणेሰ �इसस�्ቌ�ना�आग�याहैभा�स्व�कु�रैकिकुया�है�किकुउनाकु� कु�या� लयाቛኋ�रै�ज�रै�व�हैनाचा�लकुदल्ल�रै�ेሰ कु�ቑኋ�ईिሷव/गल�ईस�सपदि.कु3 लरै ०एना०ए० 07 कु�अना�स�रैኋ᭑��सप1. व्है�कुल्सचाल�ना�कु�ल�ईस�सथ�, ज1 दिदना��कु-01/05/2019 स� 30/04/2022 त्कुकु�लिलएव�धएव�्ቚ भा�वशी�लहै�। याहैभा�स्व�कु�रैकिकुया�है�किकुउक्त्चा�लकुदल्ल�रै�ेሰ कु�ቑኋ�ईिሷव/गल�ईस�सकु1 किनारैस्त्किकुया�ज�ना�कु�लिलएआजदिदना��कुत्कुकु1ईकु�या व�है�नाहैC कुD गईहै� कु�रैइसस�्ቌ�कु�उक्त्स�ቌኚयाकुथनास�याहै्ቢ्ቖ है1त्�है�किकुकिवव�चाना�कु� शीरै�बंकु�नाशी�ेሰ �व�हैनाचाल�या�ज�ना�कु�कु�रैणअना�व�दकु्ቅेሰ ��कु 01 कु�ल�ईस कु1 किनारैस्त्कुरै�ना�बं�बंत्( थ�ना�कु1त्व�ल�कु�ቛኋ�रै�्ቌ �ቔኍ�यापरिरैवहैनाकु�या� लया जगदलप�रैकु1्ቚ �कि्ቧत्किकुया�गया�थ�िሷकु/त्�उक्त्कु�या� लयाቛኋ�रै�उक्त्पቔኍपरैइस आध�रैपरैकु1ईकु�या व�है�नाहैC कुD गईथ�किकु, ज�रै�किकुया�गया�ल�ईस�स्ቌ �ቔኍ�या परिरैवहैनाकु�या� लयारै�याप�रैकु�है�।्ቚ कुरैणेሰ �इसत्थ्याकु�कु1ईस�ቌኚयाअभिभाल�ख Qज3दनाहैC है�किकु्ቌ �ቔኍ�यापरिरैवहैनाकु�या� लयारै�याप�रैकु�ቛኋ�रै�अना�व�दकु्ቅेሰ ��कु 01 कु�ቑኋ�ईिሷव/गल�ईस�सकु1 किनारैस्त्कुD गईहै�।अत्R इसस�्ቌ�कु�स�ቌኚयाकुथना स�याहै्ቚेሰ �भिणत्है1त्�है�किकुअना�व�दकुदल्ल3रै�ेሰ एल०एेሰ०व्है�०कु�स�थ परिरैवहैनाया�नाचाल�ना�कु� लिलएभा�अधिधकुS त्है�त्थ�उसकु�व�धत्�दिदना��कु 30/04/2022 त्कुहै�।फलत्R अना�व�दकु्ቅेሰ ��कु 01 कु�ቛኋ�रै�व�हैनाኋ᭑कु्ቅेሰ ��कु -स�.ज�. 04 स�०ज�ड० 2577 कु�चा�लनाव�धएव�्ቚ भा�वकु�रै�चा�लनाअना�्ሺ቎ኌप्त् कु�स�थकिकुया�गया�है�।

¶58

I have heard the learned counsel for the parties, considered their rival submissions and also perused the record.

¶59

From the evidence on record the finding recorded by the Claims Tribunal does not appear to be perverse or contrary to the record. As per the witness of the

¶60

-6-

¶61

Insurance Company itself, driving license was issued from R.T.O., Raipur, whereas no witness on behalf of R.T.O. Raipur was examined. Thus, in the considered opinion of this Court, the Insurance Company could not prove the violation of terms and condition of the Insurance Policy by driver of the offending vehicle of not holding valid and effective driving license.

¶62

Next contention of Shri Awasthi, Advocate is that the driver of the offending vehicle was in a drunken condition and thus violation in the Policy. The chargesheet was filed against the driver of the offending vehicle and the I.O. was also examined.

¶63

In order to appreciate the controversy, it is relevant to quote section 185 of the MV Act -

¶64

Driving by a drunken person or by a person under the influence of drugs - Whoever, while driving, or attempting to drive, a motor vehicle - “(a) has, in his blood, alcohol exceeding 30 mg per 100 ml. of blood detected in a test by a breath analyser for in any other test including a laboratory test.], or] b) is under this influence of a drug to such an extent as to be incapable exercising proper control over the vehicle,”.

¶65

From the evidence available on record, it is quite apparent that despite advice, no blood or urine examination of the driver of the offending vehicle was conducted, nor was any breath analyzing test was carried out.

¶66

On the basis of above, the learned Claims Tribunal gave a finding that there is no cogent evidence available on record to demonstrate in that how much under drunken condition the driver of the offending vehicle was. The learned Tribunal also relied upon the judgment of this Court passed in case Smt. Shailendri Bai & Anr. Vs. Suresh Kumar Gupta & Ors., (2021) 3 CGLJ (DB) and held that mere smell of liquor would not determine that the appellant was under such an intoxication that he was not in a position to control the vehicle. The finding so arrived at by the learned Claims Tribunal appears to be based on a proper

¶67

-7-

¶68

Thus, the appeals filed by the Insurance Company in M.A.C. No. 1833 of 2023,

¶69

M.A.C. No. 1819 of 2023 and M.A.C. No. 1821 of 2023 are dismissed.

¶70

Now the question before this Court is as to whether just compensation to the claimant has been awarded or not.

¶71

Learned counsel for the Claimant submits that the claimant – Ram Singh Kashyap was a Labourer. He sustained 40% injuries on his right shoulder whereas the learned Claims Tribunal assessed his functional disability to 13% which is on the lower side. He submits that in the work of Coolie, use of shoulder is very much necessary and when there is a 40 % disability, the Tribunal ought to have taken functional disability to 40%. Suitable enhancement is thus pray for.

¶72

Learned counsel for the respondents opposed the submissions made by the learned counsel for the appellant and submits that the Tribunal has rightly assessed the functional disability as 13% and 40 % of the disability is only for the one portion of the body. There is no dispute to the fact that the claimant sustained 40% disability on the right shoulder. In the case of the Claimant - Ram Singh Kashyap who was Labour / Coolie, naturally use of the shoulder would be necessary in performing his job as a Coolie. Tribunal has awarded Rs.2,94,840/for loss future income and Rs.40,000/- in all other heads.

¶73

Thus in light of judgment of Hon’ble Supreme Court in case of In the case of Raj

¶74

Kumar Vs. Ajay Kumar and Another , (2011) 1 SCC 343 , it has been held that:“19. We may now summarize the principles discussed above: (i) All injuries (or permanent disabilities arising from injuries), do not result in loss of earning capacity.

¶75

(ii) The percentage of permanent disability with reference to the whole body of a person, cannot be assumed to be the percentage of loss of earning capacity. To put it differently, the percentage of loss of earning capacity is not the same as the

¶76

-8-

¶77

percentage of permanent disability (except in a few cases, where the Tribunal on the basis of evidence, concludes that the percentage of loss of earning capacity is the same as the percentage of permanent disability).

¶78

(iii) the doctor who treated an injured claimant or who examined hims subsequently to assess the extent of his permanent disability can give evidence only in regard to the extent of permanent disability. The loss of earning capacity is something that will have to be assessed by the Tribunal with reference to the evidence in entirety.

¶79

(iv) The same permanent disability may result in different percentages of loss of earning capacity in different persons, depending upon the nature of profession, occupation or job, age,education and other factors.

¶80

XXX XXXX XXXX

¶81

27.“in a case of injured claimant with disability, what is calculated is the future loss of earning of the claimant, payable to the claimant (as contrasted from loss of dependency calculated in a fatal accident, where the dependent family members of the deceased are the claimants). Therefore there is no need to deduct one- third or any other percentage from out of the income, towards the personal and living expenses.”

¶82

Apart from the above, Hon’ble Supreme Court in the case of Narendra Singh Vs. Nishant Sharma and Another, (2015) 14 SCC 353 , has observed as under :

¶83

-9-

¶84

“Under conventional heads, following the decision of Kumaresh Vs. National Insurance Co. Ltd. (2011) 12 SCC

¶85

488, we award Rs. 50,000/- has been awarded for pain and suffering since the appellant cannot walk, sit, squat or run freely and he is not able to live a normal life, Rs. 1,00,000/for medical expenses for whole life since he has to survive with artificial limb which might require replacement from time to time. Considering the appellant’s drastically reduced chances of mobility, deprivation from attending social functions, further Rs. 3,00,000/- awarded for loss of amenities and enjoyment of life including loss of marital prospects and marital happiness, adding Rs. 50,000/- for conveyance charges and cost of attendant in his old age and Rs. 50,000/- for food and nourishment. Hence, in total, a sumo f Rs. 16,28,840/- is awarded as compensation in favour of the appellant.”

¶86

In the case of Sidram Vs. Divisional Manager, United India Insurance Company Limited and Another, (2023) 3 SCC 439 , it has been held in para 113 as under:

¶87

“113. Before we close this matter, it needs to be underlined,

¶88

as observed in Pappu Deo Yadav Vs. Naresh Kumar (2022) 13 SCC 790: 2020 SCC Online SC 752 that courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victim’s having to live in a world entirely different from the one she or he is born into, as an

¶89

-10-

¶90

invalid and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the Judge’s mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right toa wholesome life which she or he had lived, hitherto. From the world of the able bodies, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim.

¶91

From the cumulative evidence brought on record, including the statement of the appellant/claimant and the doctor (Dr. Lakhan Lal Thakur, AW- 2), the assessment of functional disability to the tune of 13% by the learned Tribunal does not appear to be correct and proper looking to the evidence on record. Taking into the evidence on record, facts and circumstances, nature of job, this Court take the functional disability @ 30%. However, looking to the date of accident and the prevailing minimum wages, the income which the appellant/claimant could have earned in future had he not suffered permanent disability, this Court can safely infer the monthly income of the appellant/claimant to Rs.8,000/- per month in MAC No. 94/2024.

¶92

19. This Court is reassessing the compensation in the following manner:-

¶93

S.No.	Head	Calculation
1.	Monthly Income	96,000/-
	Income	(8000 X 12)
2.	40% future prospects	Rs. 38,400/-

¶94

-11-

¶95

(96,000/- X 40%)
3. 30% functional Rs. 40,320/- per year
disability & loss of
earning capacity
4. Multiplier of 18 applied Rs.7,25,760/-
(40320 X 18)
5. Pain & Suffering, Rs.75,000/-
Attendant, Traveling
treatment etc.
Total compensation Rs. 8,00,760/-

¶96

Since the tribunal has already awarded Rs.3,34,840/-, after deducting the same from the above amount, the claimant in MAC No. 94/2024 held entitled for additional compensation of Rs. 4,45,920/- with 6% interest from the date of claim appeal i.e. 05.01.2024. The amount shall deposited by the respondent No.3 / Insurance Company within a period of 60 days from the date of receipt of copy of this order.

¶97

On deposit being made, 75% be invested as fixed deposit in a Nationalized Bank in the name of appellant MAC No. 94/2024. Remaining amount shall be paid to appellant through bank transaction/account payee cheque.

¶98

Consequently, the appeal filed by Insurance company in M.A.C. No. 1833 of 2023, M.A.C. No. 1819 of 2023 and M.A.C. No. 1821 of 2023 are dismissed. and in MAC No. 94/2024 is allowed in part with modification in the award impugned to the above extent.

¶99

All the pending applications, if any, shall stand disposed of.

¶100

Sd/-

¶101

(Sachin Singh Rajput) Judge

¶102

-/ Ashish

Branch Manager National Insurance Company Ltd., v. Ramsingh Kashyap

Case brief

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Branch Manager National Insurance Company Ltd., v. Ramsingh Kashyap

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