Aafak Khan v. Girdhar Kumar Netam And ORS.
NAFR HIGH COURT of CHHATTISGARH, BILASPUR MAC No. 361 of 2015
1. Girdhar Kumar Netam S/o Late Kantu Ram Aged About 26 Years
2. Girwar Kumar S/o Late Kantu Ram Aged About 21 Years
3. Kumari Geeta Netam D/o Late Kantu Ram Aged About 16 Years
4. Girvesh Kumar Netam S/o Late Kantu Ram Aged About 13 Years Respondents No. 3 & 4 are Minor Through Their Natural Guardian Grandfather Shri Bisru Ram Netam.
All R/o Village- Thanabodi, Tehsil Narharpur, Civil and Revenue District Dhamtari, Chhattisgarh.
---- Appellants
Versus
1. Dushyant Sharma S/o Ghansyam Sharma Aged About 21 Years R/o Village- Banraud, Tehsil Nagri, District Dhamtari, Chhattisgarh.
2. Aafak Khan S/o Elias Khan R/o Village- Tirra, House No. 107, Post Mategahan, Tehsil And District Dhamtari, Chhattisgarh.
3. Branch Manager The Oriental Insurance Company Limited, M.B. Trade Center, Shashtri Chowk Dhamtari, Tehsil And District Dhamtari, Chhattisgarh.
4. Bali Ram Dhruv S/o Devi Ram Dhruv R/o Village And Post Banraud, Tehsil Nagri, District Dhamtari, Chhattisgarh.
---- Respondents MAC No. 371 of 2015
1. Girdhar Kumar Netam S/o Late Kantu Ram Aged About 26 Years
2. Girwar Kumar S/o Late Kantu Ram Aged About 21 Years
3. Kumari Geeta Netam D/o Late Kantu Ram Aged About 16 Years
4. Girvesh Kumar Netam S/o Late Kantu Ram Aged About 13 Years Respondents No. 3 & 4 are Minor Through Their Natural Guardian Grandfather Shri Bisru Ram Netam.
All R/o Village- Thanabodi, Tehsil Narharpur, Civil and Revenue District Dhamtari, Chhattisgarh.
5. Smt. Shambai W/o Bisaru Ram Netam Aged About 70 Years
6. Bisaru Ram Netam S/o Late Mahesh Netam Aged About 75 Years Respondents No. 5 & 6 are R/o Village Thanabodi, Tehsil Narharpur, District Dhamtari Chhattisgarh.
---- Appellants
Versus
1. Dushyant Sharma S/o Ghansyam Sharma Aged About 21 Years R/o Village- Banraud, Tehsil Nagri, District Dhamtari, Chhattisgarh.
2. Aafak Khan S/o Elias Khan R/o Village- Tirra, House No. 107, Post Mategahan, Tehsil And District Dhamtari, Chhattisgarh.
3. Branch Manager The Oriental Insurance Company Limited, M.B. Trade Center, Shashtri Chowk Dhamtari, Tehsil and District Dhamtari, Chhattisgarh.
4. Bali Ram Dhruv S/o Devi Ram Dhruv R/o Village And Post Banraud, Tehsil Nagri, District Dhamtari, Chhattisgarh.
---- Respondents
MAC No. 445 of 2015 Aafak Khan S/o Elias Khan Aged About 35 Years R/o Village- Tirra, Qtr. No. - 107, Post Mategahan, Tahsil And District- Dhamtari, Chhattisgarh. ---- Appellant
Versus
1. Girdhar Kumar Netam S/o Late Kantu Ram Aged About 26 Years
2. Girwar Kumar S/o Late Kantu Ram Aged About 21 Years
3. Kumari Geeta Netam D/o Late Kantu Ram Aged About 16 Years
4. Girvesh Kumar Netam S/o Late Kantu Ram Aged About 13 Years Respondents No. 3 & 4 are Minor Through Their Natural Guardian Grandfather Shri Bisru Ram Netam.
5. Smt. Shambai W/o Bisaru Ram Netam Aged About 70 Years
6. Bisaru Ram Netam S/o Late Mahesh Netam Aged About 75 Years All R/o Village Thanabodi, Tehsil Narharpur, District Dhamtari Chhattisgarh.
7. Dushyant Sharma S/o S/o Ghanshyam Sharma Aged About 21 Years R/o Village Banroud, Tahsil Nagri, Distt.- Dhmtari, Chhattisgarh.
8. Branch Manager The Oriental Insurance Company Limited, M.B. Trade Center, Shashtri Chowk Dhamtari, Tehsil And District Dhamtari, Chhattisgarh.
9. Baliram Dhruv S/o S/o Deviram Dhruv R/o Village And Post Banroud, Tahsil Nagri, District Dhamtari, Chhattisgarh. ---- Respondents MAC No. 466 of 2015 Aafak Khan S/o Elias Khan Aged About 35 Years R/o Village- Tirra, Qtr. No. - 107, Post Mategahan, Tahsil And District- Dhamtari, Chhattisgarh. ---- Appellant
Versus
1. Girdhar Kumar Netam S/o Late Kantu Ram Aged About 26 Years
2. Girwar Kumar S/o Late Kantu Ram Aged About 21 Years
3. Kumari Geeta Netam D/o Late Kantu Ram Aged About 16 Years
4. Girvesh Kumar Netam S/o Late Kantu Ram Aged About 13 Years Respondents No. 3 & 4 are Minor Through Their Natural Guardian Grandfather Shri Bisru Ram Netam.
All R/o Village Thanabodi, Tehsil Narharpur, District Dhamtari Chhattisgarh.
5. Dushyant Sharma S/o S/o Ghanshyam Sharma Aged About 21 Years R/o Village Banroud, Tahsil Nagri, Distt.- Dhmtari, Chhattisgarh.
6. Branch Manager The Oriental Insurance Company Limited, M.B. Trade Center, Shashtri Chowk Dhamtari, Tehsil And District Dhamtari, Chhattisgarh.
7. Baliram Dhruv S/o Deviram Dhruv R/o Village And Post Banroud, Tahsil Nagri, District Dhamtari, Chhattisgarh.
---- Respondents For Claimants :
Shri RK Pali and Shri Amit Kumar Sahu, Advocates.
For Respondent Driver and Subsequent Purchaser :
Shri AS Rajput, Advocate.
For owner :
Shri Anil Gulati, Advocate.
For Insurance Company :
Shri RN Pusty, Advocate.
SB: Hon'ble Shri Justice P. Sam Koshy Judgment On Board 08.03.2018
1. These are four appeals under Section 173 of the Motor Vehicles Act against the award dated 15.01.2015 passed by the Chief Motor Accident Claims Tribunal, Dhamtari, (in short the Tribunal) in two Claim Cases i.e. 162 of 2013 and 163 of 2013. In Claim Case No. 162 of 2013, the Tribunal has awarded a compensation of Rs.3,66,000/- whereas, in Claim Case No. 163 of 2013, the Tribunal has awarded compensation of Rs. 3,52,000/- along with interest @ 6 percent per annum from the date of application in both the cases.
2. While passing the award, the Tribunal has exonerated the insurance company of its liability and has fastened the same upon the owner and driver of the offending vehicle.
3. MAC No.361 of 2015 and MAC No.466 of 2015 both arise out of Claim Case No.162 of 2013 where MAC No.361 of 2015 is by the claimants seeking enhancement of compensation and MAC No.466 of 2015 is by the owner challenging liability part. Likewise, MAC No.371 of 2015 and MAC No. 445 of 2015 arise out of Claim Case No.163 of 2013 where again MAC No.371 of 2015 is by the claimants seeking enhancement and MAC No. 445 of 2015 is by the owner.
4. The claimants have questioned the quantum of compensation awarded alleging that the income assessed is extremely low and the same deserve to be enhanced. Likewise, the aspect of future prospects also have not been taken into consideration while
quantifying the compensation. Further, the compensation awarded under conventional heads are also too meager an amount. Thus prayed for suitable enhancement of compensation in both the appeals filed by the claimants.
5. So far as the appeals of owner is concerned, the contention of the owner is that the issue raised by the owner in the two appeals i.e. MAC Nos.466 of 2015 and MAC No.445 of 2015 are squarely covered by the recent larger Bench decision of Supreme Court in case of Mukund Dewangan Vs. Oriental Insurance Co. Ltd, AIR 2017 SC 3668, wherein it has been held that merely because there is no endorsement on the licence of the driver who otherwise has a licence to drive the Light Motor Vehicle by itself would not absolve the insurance company of its liability. Therefore, prayed for the award to be suitably modified.
6. According to counsel for the owner, it is a case where the insurance company was exonerated only on the ground that the vehicle involved in the accident i.e. Jeep bearing registration No.CG-04-T5626 was being used for Taxi purpose and was being driven by a person who did not have a valid license. This, according to counsel for the owner is not a proper reasoning, as admittedly the driver Dushyant Sharma had a license to drive light motor vehicle. There is no dispute so far as the vehicle involved. The offending vehicle falling within the category of light motor vehicle is also not in dispute. In the light of decision of Supreme Court in case of Mukund Devangan (Supra) the endorsement for granting permission to drive a transport
vehicle is no longer required. Thus, prayed that both the appeals preferred by the owner be allowed and the liability be shifted upon the insurance company which has insured the vehicle involved in the accident.
7. Dealing with the appeals filed by the owner, the counsel for the insurance company opposing the appeals submits that though the ground raised of the driver not having valid license has dealt by the Supreme Court in case of Mukund Devangan (Supra), but the fact remains that the offending vehicle on the date of accident did not have a valid permit or fitness from the concerned transport authority as is required under the provisions of the Motor Vehicles Act. Therefore, there would still be a breach of policy conditions and the insurance company would still be required to exonerate of its liability.
8. Having heard the contentions put forth on either side and on perusal of records, what reflects is that the so far as the issue of breach of policy conditions raised by the insurance company is concerned, the insurance company has laid evidence of two witnesses namely Pradeep Kumar Biswas, NAW-1 and Jai Prakash Sahu, NAW-2. The former being the Officer of the insurance company and the latter being the witness from the RTO. So far as the witness from the RTO, NAW-2 is concerned, has deposed only in respect of driver Dushyant Sharma not having a license to drive transport vehicle. So far as permit and fitness part is concerned, the only witness adduced was the oral statement of Pradeep Kumar Biswas, NAW-1 who had relied upon the report of Investigator of the insurance company wherein it
has been stated that the owner did not have a permit on the said date. However, the Investigator's report has not been proved by the author of the report i.e. by examining the Investigator himself before the Tribunal. Unless the report is proved by the author of the report, it cannot be accepted to be a genuine proof of the insurance company discharging its burden so far as permit and fitness is concerned. Thus, the ground raised by the insurance company is not acceptable and the same deserves to be and is hereby negated. So far as the issue of license is concerned, the same is squarely covered by the decision in the case of Mukund Devangan (Supra).
9. Thus, the two appeals filed by the owner i.e. MAC Nos. 445 of 2015 and MAC No. 466 of 2015 deserve to be and are hereby allowed and the liability of payment of compensation shall fall jointly and severally upon the driver, owner and the insurer of the vehicle and the responsibility of payment of compensation shall be that of the insurance company.
10. Any amount, if any, deposited by the owner before the Tribunal shall be refunded back to him on the insurance company depositing the entire amount of compensation before the Tribunal.
11. Now coming to the appeals of the claimants, the income assessed by the Tribunal in both the cases is Rs.3000/- per month. It is anybody's guess that at the relevant point of time i.e. in September, 2013, the minimum income of even an unskilled labour was between Rs.150200/- per day i.e. Rs.4500-6000/- per month. This court, thus, has no hesitation in accepting the contention of the claimants that the
deceased were earning Rs.150/- per day. Thus, this court assesses the monthly income of both the deceased at Rs.4500/- which would bring the yearly income at Rs.54,000/-. Further, keeping in view the decision of Supreme Court in case of National Insurance Co. Ltd. Vs. Pranay Sethi, decided on 31.10.2017 in SLP(C)No.25590 of 2014, the claimants would be further entitled for 25 percent of their income towards future prospects which comes to Rs.13,500/-. Thus, total yearly income would bring to Rs.67,500/-. Taking into consideration total number of claimants, the deduction towards personal expenses would be 1/4th in both the cases. After deducting the same, the yearly income would come to Rs.50,625/-in both the cases.
12. In case of death of deceased Kanturam in MAC No.371 of 2015, if the said amount of Rs.50,625/- is multiplied by applying the multiplier of 13, the amount would come to Rs. 6,58,125/-. Thus, the claimants are entitled for Rs.6,58,125/- towards loss of dependency. In addition, they are further entitled for a lump sum compensation of Rs.70,000/- under the conventional heads to make the total compensation payable at Rs.7,28,125/- instead of Rs.3,66,000/- as awarded by the Tribunal.
13. Likewise, in case of death of deceased Mangli Bai in MAC No.361 of 2015, if the said amount of Rs.50,625/- is multiplied by applying the multiplier of 14, the amount would come to Rs. 7,08,750/-. Thus, the claimants are entitled for Rs.7,08,750/- towards loss of dependency. In addition, they are further entitled for a lump sum compensation of Rs.70,000/- under the conventional heads to make the total
compensation payable at Rs.7,78,750/- instead of Rs.3,52,000/- as awarded by the Tribunal.
14. The above amount of compensation enhanced in both the appeals shall also carry the same rate of interest as has been awarded by the Tribunal. The responsibility of payment of aforesaid amount shall be upon the insurance company.
15. Thus, the four appeals, two preferred by the claimants i.e. MAC Nos. 361 of 2015 and 371 of 2015, so also the two appeals preferred by the owners i.e. MAC Nos. 466 of 2015 and 445 of 2015 all stand allowed and disposed of.
Sd/- (P. Sam Koshy) Judge inder