The New India Assurance Company Ltd. v. Smt. Prabha Sahu

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Misc. Appeal (C) No.1082 of 2015

1. Smt. Prabha Sahu W/o Late Ritesh Kumar Sahu, Aged About 27 Years R/o Village- Fingeshwar, P. S.- Fingeshwar, Tahsil- Rajim, Civil Distt. Raipur, Revenue Distt. Gariyaband, Chhattisgarh.

2. Pawan Kumar Sahu, S/o Late Ritesh Kumar Sahu, Aged About 6 Years Minor Through Appellant No. 01 Mother Smt. Prabha Sahu, W/o Late Ritesh Kumar Sahu, R/o Village- Fingeshwar, P.S.- Fingeshwar, Tahsil- Rajim, Civil Distt. Raipur, Revenue Distt. Gariyaband.

3. Bhuneshwar Sahu, S/o Late Ritesh Kumar Sahu, Aged About 4 Years Minor Through Appellant No. 01 Mother Smt. Prabha Sahu, W/o Late Ritesh Kumar Sahu, R/o Village- Fingeshwar, P.S.- Fingeshwar, Tahsil- Rajim, Civil Distt. Raipur, Revenue Distt. Gariyaband, Chhattisgarh.

4. Bisauha Sahu, S/o Late Dhansai Sahu, Aged About 56 Years R/o Village- Fingeshwar, P. S.- Fingeshwar, Tahsil- Rajim, Civil Distt. Raipur, Revenue Distt. Gariyaband, Chhattisgarh.

5. Smt. Gaindi Bai, W/o Shri Bisauharam Sahu, Aged About 49 Years R/o Village- Fingeshwar, P. S.- Fingeshwar, Tahsil- Rajim, Civil Distt. Raipur, Revenue Distt. Gariyaband, Chhattisgarh ---- Appellants

Versus

1. Surendra Kumar Satnami S/o Shri Ramprasad Ram Satnami, Aged About 29 Years R/o Surar, Post Biroura, P. S. Navin Nagar, Aourangabad, Distt. Aourangabad Bihar At Present Address Jain - Transport, Pachpedi - Naka, Ring - Road No.01, P. S. Purani - Basti, Raipur, Distt.- Raipur, Chhattisgarh (Driver Of Hywa - Truck No. C. G. 04 / J C / 1701)

2. M / S - Mahavir Enterprises, Through Shri Praveen Jain, Age- 35 Years, Jain - Transport, Pachpedi - Naka, Ring - Road No.01, P. S. Purani - Basti, Raipur, Distt.- Raipur, Chhattisgarh (Owner Of Hywa - Truck No. C. G. 04 / J C / 1701)

3. The New India Insurance Company Ltd., Divisional - Office At Madina Building, Jail Road, Raipur, Distt. Raipur, Chhattisgarh (Ins. Com. Hywa - Truck No. C. G. 04 / J C / 1701) ---- Respondents AND

Misc. Appeal (C) No.1194 of 2015 • The New India Assurance Company Ltd. Through Its Divisional Manager, Divisional Office, Madina Building, Jail Road, Raipur, Zilla- Raipur, Chhattisgarh , Insurer Of Hiva Truck No.- C. G. - 04, J C - 1701 By Policy No. 45030131120 - 1000007286 Insured For The Period From 29 / 01 / 2013 To 28 / 01 / 2014 ..............(Respondent No.3) ---- Appellant

Versus

1. Smt. Prabha Sahu W/o Ritesh Kumar Sahu, Aged About 26 Years R/o Village- Phigenshvar, Thana- Phigenshvar, TahsilRajim, Zilla- Gariyabandh, Chhattisgarh ...........( Claimant No.1)

2. Minor Pawan Kumar Sahu S/o Ritesh Kumar Sahu, Aged About 5 Years Through Natural Guardian Mother Respondent No.1 / Claimant No. 1 Smt. Prabha Sahu, R/o Village- Phigenshvar, Thana- Phigenshvar, Tahsil- Rajim, Zilla- Gariyabandh, Chhattisgarh ............(Claimant No.2)

3. Minor Bhuvneshwar S/o Ritesh Kumar Sahu, Aged About 3 Years Through Natural Guardian Mother Respondent No.1 / Claimant No. 1 Smt. Prabha Sahu, R/o Village- Phigenshvar, Thana- Phigenshvar, Tahsil- Rajim, Zilla- Gariyabandh, Chhattisgarh ............(Claimant No.3)

4. Bisauha Sahu S/o Dhansay Sahu, Aged About 55 Years R/o Village- Phigenshvar, Thana- Phigenshvar, Tahsil- Rajim, ZillaGariyabandh, Chhattisgarh ............(Claimant No.4)

5. Gaidee Bai W/o Bisauha Ram Sahu, Aged About 48 Years R/o Village- Phigenshvar, Thana- Phigenshvar, Tahsil- Rajim, ZillaGariyabandh, Chhattisgarh ............(Claimant No.5)

6. Surendra Kumar Satnami S/o Ram Prasad Ram Satnami, Aged About 28 Years R/o Surar, Post- Berora, Thana- Naveenagar Aurangabad, Zila- Aurangabad, Bihar , Present Address- Jain Transport, Panchpedi Naka, Ring Road Number- 01, ThanaPurani Basti, Zila- Raipur, Chhattisgarh (Driver Of Truck No.- C. G. - 04, J C - 1701) ............(Non - Appellant No.1)

7. M / S Mahaveer Enterprises, Through Praveen Jain Transport, Ring Road No.-01, Pachpedi Naka, Raipur, Zilla- Raipur, Chhattisgarh (Registered Owner Of Vehicle No.- Truck No.- C. G. - 04, J C - 1701) ............(Non - Appellant No.2) ---- Respondents

For Appellants/ Claimants : Shri JA Lohani, Advocate For respondent/The New India Assurance Co. Ltd. : Smt. Chitra Shrivastava, Advocate Hon'ble Shri Justice Ram Prasanna Sharma Order on Board 16.03.2018.

1.

As both above mentioned appeals arise out of same judgment, both are being heard and disposed of by a common order.

2.

These two miscellaneous civil appeals arise out of award dated 05.5.2015 passed by Additional Motor Accidents Claims Tribunal, Gariyaband, Civil District Raipur (Chhattisgarh) in Claim Case N0.10/2014 awarding compensation of Rs.7,23,000/- to the claimants with interest thereon.

3.

Facts of the case in brief are that deceased Ritesh Kumar Sahu was driving motor cycle bearing registration No.CG-04-KV1815, when he reached near canal of village Kirwai a Hyva Truck bearing registration No.CG-04 JC 1701 driven by Surendra Kumar dashed the motor cycle causing instant death of Ritesh Kumar Sahu. The deceased was operating food counter and was earning Rs.15,000/- per month. The claimants being wife, children, father and mother of the deceased filed claim application before the Tribunal in which the respondent-Insurance Company/Owner/Driver of the offending vehicle denied the allegations.

4.

It is contended on behalf of the Insurance Company that the driver of the offending vehicle was not having valid driving licence to drive the said vehicle, which is breach of insurance contract, therefore, the Company is not liable to pay the compensation. In view of this Court, breach of Policy condition has to be proved by the Insurance Company but from the record of the Tribunal, it appears that the Company has laid no evidence to establish the breach of policy conditions. It is contended on behalf of the Company that the Tribunal has not provided opportunity to lead the evidence but from the record of the Tribunal, it appears that the Tribunal granted time to adduce evidence to the Insurance Company on 11.02.2015, 24.3.2015, 16.4.2015 and 29.4.2015, but no evidence was adduced by the Insurance Company. Therefore, contention of the Insurance Company is not acceptable as per the record of the Tribunal. The Insurance Company has failed to establish breach on the part of insured, i.e. owner of the offending vehicle.

5.

In National Insurance Company Limited vs. Swaran Singh and others,reported in (2004(3) SCC 297, it is held by the Hon'ble Apex Court as under:

"(i) Chapter XI of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third party risks is a social welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The provisions of compulsory insurance coverage of all vehicles are with this

paramount object and the provisions of the Act have to be so interpreted as to effectuate the said object. (ii) Insurer is entitled to raise a defence in a claim petition filed under Section 163 A or Section 166 of the Motor Vehicles Act, 1988 inter alia in terms of Section 149(2)(a)(ii) of the said Act.

(iii) The breach of policy condition e.g., disqualification of driver or invalid driving licence of the driver, as contained in sub-section (2)(a)(ii) of section 149, have to be proved to have been committed by the insured for avoiding liability by the insurer. Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by duly licensed driver or one who was not disqualified to drive at the relevant time. (iv) The insurance companies are, however, with a view to avoid their liability must not only establish the available defence(s) raised in the said proceedings but must also establish 'breach' on the part of the owner of the vehicle; the burden of proof where for would be on them".

Therefore, the Company cannot be absolved from the liability to pay compensation to the third party.

6.

The Tribunal has considered the income of the deceased as Rs.4500/- per month. In the present case date of incident is 21.01.2014 and minimum wages prevailing at the time of the incident was Rs.200/- per day. Therefore, income of the deceased cannot be calculated less than minimum wages, hence,

the annual income of the deceased comes out to Rs.72,000/- and after deduction of 1⁄4 as personal expenses of the deceased, it comes out to Rs.54,000/-; after applying multiplier of 16, as the age of the deceased was between 30-35 years, it comes out to Rs.8,64,000/-. The Tribunal has also awarded Rs.75,000/- on conventional heads and the same is as per the law settled on the point. Thus, the claimants are now held entitled for a total sum of Rs.9,39,000/- (Rs.8,64,000/- + Rs.75,000/-) from the date of filing of the application i.e. 11.01.2014.

7.

In the result, MAC No.1194/2015 filed on behalf of the Insurance Company is dismissed and MAC No.1082/2015 filed on behalf of the claimants is allowed in part. It is ordered that the Insurance Company shall pay the claimants an amount of Rs.9,39,000/- from the date of filing of the application, i.e. 11.01.2014 and shall also pay interest @ 9% till realization of the amount. The Tribunal will disburse the amount as directed in the award. Thus, the appeal of the claimants is allowed in part and the impugned award is modified to the extent indicated above. All other findings are upheld being not under challenge. Sd/- (Ram Prasanna Sharma) JUDGE Bini