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Digitally signed
by BHOLA
NATH KHATAI
Date:
2024.09.30
15:16:57 +0530
2024:CGHC:38487
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 981 of 2016
Reserved on 25.09.2024
Delivered on 30.09.2024
1. Smt. Radha Bai W/o Late Bhakt Prahalad, Aged About 27 Years
R/o Village Ghutku, Nayapara, Police Station Gariyaband, District
Raipur, Chhattisgarh
2. Ku. Devhuti D/o Late Bhakt Prahalad, Aged About 10 Years,
Minor (Wrongly Stated As 1 And 2 In The Impugned Award)
Represented Through Mother Smt. Radha Bai W/o Late Bhakt
Prahalad, R/o Village Ghutku, Nayapara, Police Station
Gariyaband, Tahsil Gariyaband, District Raipur, Chhattisgarh
3. Ku. Tijeshwari D/o Late Bhakt Prahalad, Aged About 8 Years
Minor (Wrongly Stated As 1 And 2 In The Impugned Award)
Represented Through Mother Smt. Radha Bai, W/o Late Bhakt
Prahlad, R/o Village Ghutku, Nayapara, Police Station
Gariyaband, Tahsil Gariyaband, District Raipur, Chhattisgarh
4. Sunder Dhruv S/o Late Keju Ram Dhruv, Aged About 53 Years
R/o Chunkara, Tahsil, Post & District Durg, Chhattisgarh
---- Appellants
versus
1. Laxmikant Sahu S/o Shivkumar Sahu, Occupation Driver, R/o
Village Aasra, Police Station Rajim, District Raipur,
Chhattisgarh.....Driver
2. Mohammad Asraf S/o Abdul Sattar, Aged About 55 Years R/o
Ricemill, Opposite Petrol Pump, Gariyaband, Tahsil And District
Gariyaband, Chhattisgarh......Owner
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3. Manager, United India General Insurance Company Limited,
Krishna Complex, 2nd Floor, Kutchery Chowk, Raipur, Tahsil And
District Raipur, Chhattisgarh...Insurer Of Vehicle No. C G 04 D
9013
---- Respondents
MAC No. 982 of 2016
Smt. Radha Bai W/o Late Bhakt Prahalad, Aged About 27 Years
R/o- Village- Ghutku, Nayapara, Police Station- Gariyaband,
Tahsil- Gariyaband, District- Raipur, Chhattisgarh
----Appellant
Versus
1. Laxmikant Sahu S/o Shivkumar Sahu, Occupation- Driver, R/o-
Village- Aasra, Police Station- Rajim, District- Raipur,
Chhattisgarh,......Driver
2. Mohammad Asraf S/o Abdul Sattar, Aged About 55 Years R/o-
Ricemill, Opposite Petrol Pump, Gariyaband, Tahsil And District-
Gariyaband, Chhattisgarh.......Owner
3. Manager, United India General Insurance Company Limited,
Krishna Complex, 2nd Floor, Kutchery Chowk, Raipur, Tahsil And
District- Raipur, Chhattisgarh .....… Insurer Of Vehicle No. Cg-04-
D / 9013
---- Respondents
For Appellant/Claimants : Mr. Siddharth Rathod, Advocate
For Respondent No.1/Driver : Mr. Rajesh Kumar Tiwari, Advocate
For Respondent No.2/Owner : Mr. Raj Kumar Pali, Advocate
For Respondent no.3/Insurer : Mr. Dashrath Gupta, Advocate
MAC No. 1125 of 2016
United India Insurance Company Limited Through Its Divisional
Manager, Divisional Office-Krishna Complex, 2nd Floor, Kutchery
Chowk, Raipur, District- Raipur, Chhattisgarh
----Appellant
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Versus
1. Smt. Radha Bai Wd/o Bhakt Prahlad, Aged About 27 Years R/o-
Village- Ghutku, Nayapara, P.S.- Gariyaband, Tahsil- Gariyaband,
District- Gariyaband, Chhattisgarh
2. Ku. Devhuti D/o Late Bhakt Prahlad, Aged About 10 Years Minor
Through Mother Smt. Radha Bai Respondent No.1, R/o- Village-
Ghutku, Nayapara, P.S.- Gariyaband, Tahsil- Gariyaband, District-
Gariyaband, Chhattisgarh
3. Ku. Tijeshwari D/o Late Bhakt Prahlad, Aged About 8 Years Minor
Through Mother Smt. Radha Bai Respondent No.1, R/o- Village-
Ghutku, Nayapara, P.S.- Gariyaband, Tahsil- Gariyaband, District-
Gariyaband, Chhattisgarh
4. Sundar Dhruv S/o Late Keju Ram Dhruv, Aged About 53 Years
R/o- Chunkara, Tahsil, P.O. And District- Durg, Chhattisgarh
5. Laxmikant Sahu S/o Shivkumar Sahu, Occupation- Driver, R/o-
Village- Aasara, P.S.- Rajim, District- Gariyaband, Chhattisgarh
6. Mohammad Asaraf S/o Abdul Sattar, Aged About 55 Years R/o-
Rice Mill, In Front Of Petrol Pump, Gariyaband, Tahsil-
Gariayaband, District- Gariyaband, Chhattisgarh
---- Respondents
MAC No. 1126 of 2016
United India Insurance Company Limited Through Its Divisional
Manager, Divisional Office- Krishna Complex, 2nd Floor, Kutchery
Chowk, Raipur, District- Raipur, Chhattisgarh
----Appellant
Versus
1. Smt. Radha Bai Wd/o Bhakt Prahlad, Aged About 27 Years
Village- Ghutku, Nayapara, P.S.- Gariyaband, Tahsil- Gariyaband,
District- Gariyaband, Chhattisgarh
2. Laxmikant Sahu S/o Shivkumar Sahu, Occupation- Driver, R/o-
Village- Aasara, P.S.- Rajim, District- Gariyaband, Chhattisgarh
3. Mohammad Asaraf S/o Abdul Sattar, Aged About 55 Years R/o-
Rice Mill, In Front Of Petrol Pump, Gariyaband, Tahsil-
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Gariayaband, District- Gariyaband, Chhattisgarh
---- Respondents
For Appellant/Insurer : Mr. Dashrath Gupta, Advocate
For Respondent/claimants : Mr. Siddharth Rathod, Advocate
For Respondent/Driver Mr. Rajesh Kumar Tiwari, Advocate
For Respondent/Owner : Mr. Raj Kumar Pali, Advocate
( Hon'ble Shr i Justice Sanjay Kumar Jaiswal, J .)
C A V O R D E R
1. Since these four appeals have arisen out of award dated
30.04.2016 passed by 5th Additional Motor Accident Claims
Tribunal, Raipur, Chhattisgarh in Claim Case Nos. 50/2013 &
51/2013, they are being disposed of by this common order.
2. MAC Nos.981/2016 & 982/2016 have been preferred by the
claimants for enhancement of compensation awarded in Claim
Case Nos. 50/2013 & 51/2013 respectively. MAC Nos.1125/2016 &
1126/2016 have been preferred by the Insurance Company against
the award passed in Claim Case Nos.50/2013 & 51/2013
respectively praying for exonerating from the liability of payment of
compensation.
3. The facts necessary for disposal of these four appeals, in short, are
that on 01.11.2010 at about 1:10 p.m., deceased Bhakt Prahlad
was coming towards Gariaband with his daughter Kumari
Dileshwari sitting in front of the bicycle and his wife Smt. Radha Bai
sitting behind in the bicycle. It is alleged that respondent Laxmikant
Sahu driving the offending vehicle i.e. truck bearing registration
No.CG 04 D 9013 in a rash and negligent manner hit them very
hard, as a result of which, Bhakt Prahlad and his daughter Kumari
Dileshwari died on the spot and his wife Smt. Radha Bai fell away
due to the jolt. Upon report being made in this regard, crime was
registered against driver Laxmikant Sahu at PS Gariyaband,
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District Raipur.
4. In Claim Case No.50/2013, it was claimed that at the time of
accident, deceased Bhakt Prahalad was aged about 32 years and
was working as a mason. Apart from this, he used to work in Tendu
leaf godown and earn Rs.250 per day. Due to the casual death of
Bhakt Prahalad, there is an irreparable loss to the claimants who
are the wife, children & father of the deceased. Therefore, the
claimants preferred an application before the Tribunal claiming total
compensation of Rs.22,25,000/-.
5. Learned Tribunal, after considering the evidence and documents
brought on record, assessed the income of the deceased at
Rs.3,000 per month i.e. Rs.36,000 per annum. 50% of the income
i.e. Rs.18,000 was added for future prospects and after adding, the
amount became Rs.54,000. Since there were 4 claimants, 1/4th of
the income was deducted towards personal expenses. After
deduction, the amount comes to Rs.40,500/-. Considering the age
of deceased Bhakt Prahlad, multiplier of 16 was applied and the
total loss of dependency worked out to Rs.6,48,000/-. In addition,
Rs.90,000/- has been awarded under other heads. Accordingly, the
Claims Tribunal has awarded total compensation of Rs.7,38,000/-
in favour of claimants with interest @ 6% per annum, from the date
of application till its realization. Hence, MAC No.981/2016 is for
enhancement.
6. In Claim Case No.51/2013, it was claimed that at the time of
accident deceased Kumari Dileshwari was aged about 7 years.
Due to the casual death of Kumari Dileshwari, there is an
irreparable loss to the claimant who is the mother of the deceased.
Therefore, the claimant preferred an application before the Tribunal
claiming total compensation of Rs.6,25,000/-.
7. Learned Tribunal, after considering the evidence and documents
brought on record, held the age of the deceased at the time of the
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accident to be 4 years. The Tribunal has assessed an estimated
income of the deceased to be Rs.30,000 per annum. Considering
the age of the parents of the deceased, multiplier of 16 was applied
and the total compensation worked out to Rs.4,80,000/-. In
addition, Rs.30,000/- has been awarded under other heads.
Accordingly, the Claims Tribunal has awarded total compensation
of Rs.5,10,000/- in favour of claimant with interest @ 6% per
annum, from the date of application till its realization. Hence, MAC
No.981/2016 is for enhancement.
8. The Tribunal has concluded in issue No.2 that the driver of the
offending vehicle Laxmikant Sahu had a valid and effective driving
licence. On consideration of the evidence, it was found that in the
seizure memo of the criminal case, driver's licence No. L/4860/R is
stated to have been seized, which was in the name of Laxmikant
Sahu. Its photocopy was enclosed in the record. For evaluation of
the validity, the register of the above mentioned licences was called
for by the appellant insurance company from the Regional
Transport Office, Raipur, which was produced by R. K. Khalkho
(Assistant Grade III), according to which, it was found that the
driving licence at the above mentioned number was not issued in
the name of Laxmikant Sahu, but was issued in the name of some
other L. A. Ansari. The Tribunal has also found that the insurance
company has not produced any evidence to prove that the
registered owner of the vehicle has intentionally violated the
conditions of the insurance policy. The Tribunal held that before
getting the driving licence verified from the Regional Transport
Office, it could not have been known that the said driving licence
was fake. Therefore, the negligence of the registered owner was
not considered and the insurance conditions were also not found to
have been violated. This conclusion of the Tribunal has been
challenged by the appellant insurance company in their appeals.
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MAC Nos. 1125/2016 & 1126/2016
9. The Insurance Company has filed both these appeals challenging
firstly the liability part and secondly the quantum part of the
impugned awards.
10. So far as the liability is concerned, learned counsel for the
appellant insurance company argues that first of all the registered
owner of the vehicle should establish that he has got the vehicle
driven by a driver having a valid driving licence. Only after this is
established, the burden of proof will be upon the insurance
company that the insurance conditions have been violated in
driving the vehicle. In support of his argument, the insurance
company placed reliance on the judgment of the Hon’ble Supreme
Court in the case of Pappu and Others Vs. Vinod Kumar Lamba
and Another reported in 2018 (3) SCC. 208. In the said case, the
Apex Court has expressed its concept in paragraphs-12 & 13 in
respect of the burden of proof regarding a valid license, which is as
follows:
“12. This Court in the case of National Insurance Co.
Ltd. Vs. Swaran Singh and Ors., (2004) 3 SCC 297,
has noticed the defences available to the Insurance
Company under Section 149(2)(a)(ii) of the Motor
Vehicles Act, 1988. The Insurance Company is entitled
to take a defence that the offending vehicle was driven
by an unauthorised person or the person driving the
vehicle did not have a valid driving licence. The onus
would shift on the Insurance Company only after the
owner of the offending vehicle pleads and proves the
basic facts within his knowledge that the driver of the
offending vehicle was authorised by him to drive the
vehicle and was having a valid driving licence at the
relevant time.
13. In the present case, the respondent No.1 owner of
the offending vehicle merely raised a vague plea in the
Written Statement that the offending vehicle DIL-5955
was being driven by a person having valid driving
licence. He did not disclose the name of the driver and
his other details. Besides, the respondent No.1 did not
enter the witness box or examine any witness in
support of this plea. The respondent No.2 Insurance
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Company in the Written Statement has plainly refuted
that plea and also asserted that the offending vehicle
was not driven by an authorised person and having
valid driving licence. The respondent No.1 owner of
the offending vehicle did not produce any evidence
except a driving licence of one Joginder Singh, without
any specific stand taken in the pleadings or in the
evidence that the same Joginder Singh was, in fact,
authorised to drive the vehicle in question at the
relevant time. Only then would onus shift, requiring the
respondent No.2 Insurance Company to rebut such
evidence and to produce other evidence to
substantiate its defence. Merely producing a valid
insurance certificate in respect of the offending Truck
was not enough for the respondent No.1 to make the
Insurance Company liable to discharge his liability
arising from rash and negligent driving by the driver of
his vehicle. The Insurance Company can be fastened
with the liability on the basis of a valid insurance policy
only after the basic facts are pleaded and established
by the owner of the offending vehicle - that the vehicle
was not only duly insured but also that it was driven by
an authorised person having a valid driving licence.
Without disclosing the name of the driver in the Written
Statement or producing any evidence to substantiate
the fact that the copy of the driving licence produced in
support was of a person who, in fact, was authorised
to drive the offending vehicle at the relevant time, the
owner of the vehicle cannot be said to have extricated
himself from his liability. The Insurance Company
would become liable only after such foundational facts
are pleaded and proved by the owner of the offending
vehicle.”
11. On the other hand, learned counsel for the owner of the vehicle has
argued that if the driver's license does not appear to be illegal or
forged at first sight, the vehicle owner cannot be held guilty of
negligence. In this case also, the driver's license which is said to
have been seized in the criminal case was in the name of driver
Laxmikant, therefore, the registered owner of the vehicle cannot be
held guilty of negligence. Hence, the insurance company will be
responsible. He placed reliance on the decision of the Division
Bench of this Court in the matter of National Insurance Company
Limited and others Vs. Lebho Mahanand and others, 2010 (1)
ACCD, 190 (CG). In the said judgment, the Division Bench of this
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Court has determined the burden of proof in relation to driving a
vehicle under a valid driving license or violation of insurance
conditions in clause 12 as follows.
“12. In the present cases, the Insurance Company, by
way of evidence of N.A.W. 1, has brought on record
that the licence said to be held by the driver of the
Truck was a fake licence as on their enquiry it was
found that the said licence was never issued from the
concerned licensing authority, Kanpur (U.P.). We have
seen the photocopy of the licence has been shown to
be issued in Form-6 under the concerned Rule 16(1).
It also bears the photograph of the driver at the
appropriate place and illegible signatures with dates
shown to the that of the licensing authority. This
licence was shown to be issued for driving light motor
vehicle, medium goods vehicle and heavy goods
vehicle and it was further shown to be lastly renewed
upto 16th November, 1994. Even assuming that it was
a fake licence, but the insurance company did not
discharge its burden by proving that the insured was
guilty of negligence and he failed to exercise
reasonable care in the matter of fulfilling the conditions
of the policy regarding use of vehicle by duly licensed
driver. We presume that the said licence must have
been produced before the owner and by exercising
reasonable care, the owner must have handed over
the vehicle to the driver taking into consideration that
he was having a valid driving licence. If the alleged
licence would not have been in statutory proforma or it
would be showing some irregularity on the face of it, or
there would have been some indication of the fake
character of the licence in its appearance which a
normal man must notice after seeing the licence in first
sight or by applying his common sense with due
diligence, then only it would be said that the insured
was guilty of negligence and he failed to exercise
reasonable care in the matter of fulfilling the condition
of the policy regarding use of vehicle by a duly
licensed driver. But nothing as above could be brought
on record. Even the witness of the Insurance
Company A. Kujur (N.A.W. 1) categorically admitted
vide Para 4 of his evidence (on a question by the
Presiding Officer of the Tribunal) that "before receiving
the letters Ext. D-2 & Ext. D-3, which relate to the
verification regarding validity of the driving licence, it
was not possible to say that the licence was a fake
driving licence". This shows that even the Insurance
people could not say that it was a fake licence on the
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face of it. It is for all these reasons, the Tribunal held
that the Insurance Company was liable to pay
compensation in the matters and the same cannot be
exonerated. In the facts, and circumstances of the
case, we do not find any fault in such approach of the
Tribunal. The arguments advanced by the learned
Counsel for the appellants/Insurance Company,
therefore, cannot be sustained."
12. Learned counsel for the claimants submits that the finding of the
Tribunal regarding liability is proper and does not require any
interference. However, learned counsel for the claimants prays for
issuance of an order of “pay and recover” in case breach of
insurance conditions is found by this Court.
13. Heard learned counsel for the parties and perused the record.
14. If we consider the case in hand in the light of the arguments of the
parties and the judgments cited, it is clear that a joint written
statement had been submitted by the driver and the registered
owner of the offending vehicle. There is no clear mention in the
said written statement as to whether that driver had a valid driving
license or not. In the written statement, the defence taken is
basically that no accident took place with the offending vehicle, and
they have been implicated in a false case. No evidence was
presented on behalf of the driver or the registered owner. The
claimant party submitted the certified copy of the documents of the
criminal case, in which it was found from the seizure Exhibit P-7
that the duplicate driving license of the driver was seized. When the
validity of that license was investigated by the insurance company,
it was found that the said license number was not issued in the
name of driver Laxmikant from the Regional Transport Office, but
was issued in the name of someone else. Thus, the license was
found to be a fake license.
15. The registered owner of the vehicle has neither made any
statement as to who was the driver at the time of the accident nor
has made any clear statement that the driver had a valid license at
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the time of the accident. The driver of the offending vehicle
Laxmikant and the registered owner Mohammed Ashraf have not
even come in the witness box and they have not established that
while hiring the driver to drive the offending vehicle, the owner of
the vehicle had taken care to ensure that the driver was a valid
license holder.
16. Thus, in the absence of the statement or evidence of the vehicle
owner, it has not been proved that the owner had taken sufficient
care and appointed Laxmikant as the driver after finding him to be a
valid driving license holder. In this situation, the registered owner
would not get the benefit of the judgment relied upon by him in the
case of Lebho Mahanand (supra).
17. In the light of the concept expressed by the Hon'ble Apex Court in
the case of Pappu (supra), it is found that the registered owner of
the offending vehicle had not taken adequate care at the time of
appointing the driver to ensure that the driver was a valid license
holder. Therefore, the registered owner is found to have been
negligent in appointing the driver of the offending vehicle. Thus, it is
proved that the insurance conditions have been violated as the
license of the driver has been found to be fake.
18. Therefore, the argument of the insurance company regarding
breach of insurance conditions is found to be acceptable. The
conclusion of the Tribunal that the breach of insurance conditions
has not been proved is not sustainable. Hence, the insurance
company is exonerated from its liability after finding the violation of
insurance conditions.
19. As regards quantum part, in a motor accident claim case, what is
important is that the compensation to be awarded by the
Courts/Tribunals should be just and proper compensation in the
facts and circumstances of the case. It should neither be a meager
amount of compensation, nor a Bonanza.
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20. Now this Court shall examine as to whether the compensation
awarded by the Tribunal in MAC Nos.981/2016 & 982/2016 is just
and proper in the given facts and circumstances of the case.
MAC No.981 of 2016
21. Learned counsel for the claimants submits that the income of
deceased Bhakt Prahlad assessed by the Tribunal is on the lower
side and the same needs to be enhanced. He next submits that
the amount awarded under other heads is also on the lower side
and needs to be enhanced suitably.
22. On the other hand, learned counsel for the Insurance Company
submits that the Tribunal has added 50% of the income towards
future prospects whereas it should be 40% and based on which the
calculation made by the Tribunal is excessive which needs to be
reduced.
23. Learned Tribunal has assessed the income of deceased Bhakt
Prahladat at Rs.3,000/- per month as no documentary evidence
regarding income of the deceased has been brought on record.
The accident occurred on 01.11.2010 and as per the notification by
Labour Department, the minimum wages of even an unskilled
labour at that point of time was Rs.3926. Hence, the income of the
deceased is assessed at Rs.3926 per month as minimum wages at
that time instead of Rs.3000 as held by the Tribunal. Accordingly,
the annual income comes to Rs.47112. The Tribunal has added
50% of the income towards future prospects whereas in the light of
the judgment of Hon’ble Supreme Court in the case of National
Insurance Company Ltd., Vs. Pranay Sethi and Others, (2017)
16 SCC 680, the future prospects would be 40% of the income
instead of 50% as wrongly held by the Tribunal. After adding 40%
of the income for future prospects i.e. Rs.18844.8, the amount
comes to Rs.65956.8. The deceased was aged about 32 years and
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there are 4 claimants who are the wife, children and father of the
deceased, so deduction towards personal expenses would be 1/4th
of the income as rightly held by the Tribunal. After deduction of
personal expenses, the amount comes to Rs.49467.6. In view of
judgment of the Hon’ble Supreme Court in the case of Sarla Verma
(Smt.) and others vs. Delhi Transport Corporation and another
reported in (2009) 6 SCC 121 and National Insurance Company
Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC 680 and also
considering the age of the deceased, the multiplier would be 16 as
rightly held by the Tribunal. After applying the said multiplier, the
total loss of dependency works out to Rs.791481.6 (49467.6 x 16)
in round figure Rs.7,91,482/-. The claimants are also entitled for
Rs.15,000/- towards loss of estate and Rs.15,000/- for funeral
expenses. As per 'Magma General Insurance Co. Ltd. Vs. Nanu,
reported in AIR Online 2018 SC 189, the claimants are further
entitled for Rs.40,000/- each totalling Rs.1,60,000/- towards loss of
spousal consortium and love and affection. Accordingly, the
claimants would become entitled for total compensation in the
following manner:-
Heads Calculation
Compensation towards dependency 7,91,482
For loss of estate 15,000
For consortium, love and affection to 1,60,000
the claimants @ Rs. 40,000/- each
Funeral Expenses 15,000
Total compensation Rs.9,81,482
24. Thus, the total compensation is recomputed as Rs.9,81,482/- from
which after deduction of Rs.7,38,000/- as awarded by the Tribunal,
the enhanced compensation would be Rs.2,43,482/-.
25. Accordingly, MAC No.981/2016 preferred by the claimants is partly
allowed. As a consequence, MAC No.1125/2016 preferred by the
Insurance Company also stands partly allowed. The claimants
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shall be entitled for the enhanced amount of Rs.2,43,482/- in
addition to what is already awarded by the Claims Tribunal. The
enhanced amount will carry interest @ 6% per annum from the
date of enhancement of the award till its realization.
MAC No.982 of 2016
26. Learned counsel for the claimants submits that the compensation
awarded by the Tribunal in Claim Case No.51/2013 is on the lower
side and needs to be enhanced. He relies upon a judgment of the
Co-ordinate Bench of this High Court in the case of Om Prakash
Vs. Shilchand Pradhan & others passed in MAC No.767/2017 on
10.01.2024.
27. Insurance Company has filed MAC No.1126/2016 against the
award passed in Claim Case No.51/2013 contending that the
Tribunal has awarded excessive compensation in respect of death
of a 4 year old minor child which needs to be reduced suitably.
28. In the case of Puttamma and Others Vs. K. L. Narayana Reddy
and Another reported in (2013) 15 SCC 45, in respect of the
demise of children up to age of 5 years, a fixed compensation of
Rs.1,00,000 has been determined. In the matter of National
Insurance Company Ltd., Vs. Pranay Sethi and Others, reported
in (2017) 16 SCC 680, Hon’ble the Supreme Court has laid down
the reasonable figures on conventional heads, namely, loss of
estate, loss of consortium and funeral expenses at Rs. 15,000/-,
Rs. 40,000/- and Rs. 15,000/- respectively. In view of the same,
considering the facts of the case and also the age of the deceased
who was about 4 years old at the time of accident, it would be
appropriate to award an amount of Rs.2,50,000/- as compensation
in favour of the claimant instead of Rs.5,10,000 as awarded by the
Tribunal. The judgment relied upon by the claimant in the case of
Om Prakash (supra), on the ground of difference in facts, would not
be applicable in the present case.
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29. Accordingly, MAC No.982/2016 preferred by the claimant is
dismissed. As a consequence, MAC No.1126/2016 preferred by
the Insurance Company stands allowed. The claimant Smt. Radha
Bai in Claim Case No.51/2013 shall now be entitled for
compensation of Rs.2,50,000/- instead of Rs.5,10,000 as awarded
by the Tribunal.
30. So far as the prayer for issuing an order of “pay and recover” is
concerned, in the present case, admittedly, the offending vehicle
was insured with United India General Insurance Company Limited
but due to breach of policy conditions, the insurance company has
been exonerated. However, considering the principles laid down by
the Hon’ble Supreme Court in the case of Amrit Paul Singh &
another. Vs. Tata AIG General Insurance Company Limited &
others reported in (2018) 7 SCC 558 ordering the insurance
company to pay first and then recover and also taking note of the
facts and circumstances of the present case, particularly the fact
that at the time of accident the vehicle was insured with insurance
company, it is directed that the insurance company shall first pay
the amount of compensation awarded to the appellant/claimants in
both the claim cases and then jointly or severally recover the same
from the driver and the registered owner of the offending vehicle.
31. In the result, MAC Nos.981/2016 preferred by the claimants is
partly allowed to the extent indicated herein-above whereas MAC
No.982/2016 preferred by the Claimant stands dismissed (the
compensation awarded by the Tribunal has been reduced from
Rs.5,10,000 to Rs.2,50,000). MAC Nos.1125/2016 & MAC
No.1126/2016 filed by the Insurance Company accordingly stand
disposed of in the aforesaid terms.
32. The Registry is directed to communicate the claimants in writing
“the enhanced amount” in the appeal as against the award made
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by the Claims Tribunal. The said communication be made in Hindi
(Deonagri) language and the help of paralegal workers may be
availed with a co-ordination of Secretary, Legal Aid of the
concerned area wherein the claimants reside.
Sd/-
(Sanjay Kumar Jaiswal)
Judge
Khatai