Patna High Court
Chairman, Reliance General Insurance … vs Kaushalya Devi And Ors on 25 June, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.712 of 2018
======================================================
Chairman, Reliance General Insurance Company Limited Appeal and
Appellant through the Manager Legal and authorized signatory, Reliance
General Insurance Company Limited, Himalaya House, 38B Jawahar Lal
Nehru Road, Chaurangi, Kolkata West Bengal.
... ... Appellant/s
Versus
1. Kaushalya Devi and Ors w/o Lt. Sitaram Sah
2. Rita Devi w/o Lt. Saini Sah
3. Simpee Kumari d/o Lt. Saini Sah
4. July Kumari d/o Lt. Saini Sah
5. Sitaram Sah s/o Lt. Dorik Sah Res. No. 3 & 4 are Minor and under the
guardianship of natural guardian mother Res All the above are resident of
village - Baihri, P.S. - Singheshwar, Dist. Madhepura.
6. M/S Deol Tailor Service, Road No. 2, Transport Nagar, Tati Branch, Raipur,
Chhatisgarh Owner of t
... ... Respondent/s
======================================================
Appearance :
For the Appellant/s : Mr. Durgesh Kumar Singh, Advocate
: Mr. Abhijeet Kumar Singh, Advocate
For the Respondent/s : Mr. Surya Narayan Yadav, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA
CAV JUDGMENT
Date: 24-06-2025
Heard the learned counsel for the appellant as
well as the learned counsel for the respondents.
2. Miscellaneous Appeal No. 712 of 2018 has
been filed under Section 173 of the Motor Vehicles Act, 1988
(hereinafter referred to as "Act") on behalf of the
appellants/Insurance Company against the judgment and award
dated 28.02.2017 and 07.06.2017 passed by the learned District
Judge-cum-Motor Vehicle Accident Claim Tribunal, Madhepura
(hereinafter referred to as "Learned Tribunal") in M.V. Claim
Case No. 35 of 2011 (CIS No. 532 of 2013) wherein learned
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Tribunal allowed the claim application and awarded Rs.
18,83,000/- as compensation along with 9% per annum as an
interest from the date of filing of the claim case till realization
of the compensation amount after adjusting the amount, if
already paid to the applicants as interim compensation under
Section 140 of the Act.
3. The learned Tribunal held that the appellants
are entitled to receive Rs. 18,83,000/- as compensation and
accordingly the Reliance General Insurance Company limited /
respondent no. 2 has been directed to make payment of the
compensation amount as per the order forthwith, along with simple
interest 9% interest per annum from the date of filling of the case.
4. The details of the calculation of compensation
amount made by the learned Tribunal are as under:
Sr. Heads Calculation Net Amount
No.
1. Monthly income Rs. 6000/-
2. Annual Income 12 * 6000 Rs. 72,000/-
3. 1/4th deduction Rs, 18,000
towards personal
and living expenses
4. Future prospect 50% Rs. 81,000/-
Deceased aged Rs.14,58,000/-
about 30 years Rs. 81,000*18
Multiplier of 18 is
applicable
6. Los of consortium Rs. 1,00,000/-
7. Loss of Estate Rs. 1,00,000/-
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8. Loss of Rs. 1,00,000/-
Guardianship, love
and affection
9. Loss of Funeral Rs. 25,000/-
10. Total amount of Rs.18,83,000/-
compensation
5. The brief facts of the case as per the claimants
are that the deceased, Shaini Sah, was employed as a handyman
(khalasi) under the Opposite Party No. 1. On 13.07.2011, while
discharging his duties, he was accompanying a vehicle
transporting EFSW pipes from Shivsagar to Duliaganj (Assam)
via National Highway No. 37. During transit, the loaded pipes
became loose and struck the driver's cabin with considerable
force, resulting in the instantaneous death of both the driver, Raj
Kishore Sah @ Kumar, and the handyman, Shaini Sah, near
Tiloi, close to Kali Mandir (Assam). Further, the incident was
reported and registered on dated 13.07.2011 bearing Moran P.S.
Case No. 318 of 2011. The postmortem of the deceased was
conducted at Assam Medical College, Dibrugarh, by an
Assistant Professor from the Department of Forensic Medicine.
The dead body was subsequently handed over to the family
members. The Motor Vehicle Inspector (MVI) from the District
Transport Office, Dibrugarh, conducted an inspection on the
same day and confirmed the occurrence of the accident in his
report dated 13.07.2011. Additionally, the Forensic Department
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issued a certificate following the postmortem, and the Officer-
in-Charge of Moran Police Station prepared an Accident
Information Report, which recorded the particulars of the
accident, vehicle involved, and identification details of the
deceased.
6. Claimant No.1 (mother), Claimant No.2
(wife), Claimant No.3 and 4 (minor daughter of deceased)
through their mother, and Claimant No. 5 (Father) have filed
petition bearing M.V. Claim Case No. 35 of 2011 before Motor
Vehicle Accident Claim Tribunal, Madhepura claiming that the
accident took place due to rash and negligent driving which
resulted in death of the deceased Shaini Sah. It is further
claimed that the deceased has good sound health was aged about
30 years old, working as handyman and he had earning of Rs.
6,000/- per month by which he was maintaining his family. The
claimants claimed Rs.13,96,000/- as loss of dependency, loss of
love and affection, loss of consortium and funeral expenses
along with interest @ 12% per annum.
7. O.P. No.1 is owner of the vehicle and O.P. No.
2 is the Insurance Company have not appeared in the case and
they were proceeded ex-parte. On the basis of pleading and
submissions advanced on behalf of the parties, the learned
tribunal framed the following issues:
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(i)Whether the claims filed is maintainable
under Motor Vehicle Act. 1988?
(ii) Whether both deceased had died on
13.07.2011
at Tiloi, P.S. Moran, District-
Dibrugarh (Assam) in an accident arising
out of use of Motor Vehicle bearing
registration No. CG-04-JA-0864 Trailor on
duty under the employment of the O.P. No.
1?
(iii) What was the age and income of the
deceased at the time of death?
(iv) Whether the O.P. No. 1 deserves to be
indemnified by the O.P. No. 2 as per policy
of insurance?
(v) How much compensation the applicants
deserve to be granted on account of the
death?
8. In support of the claim petition, the claimants
has examined three witnesses and they have also filed
documentary evidence in support of their claim petition i.e.,
accident information report (Ext.-1), postmortem report (Ext.-2),
photocopy of death certificate (Ext.-3), photocopy of death
certificate (Ext.-3/a), photocopy of police report (Ext.-4),
photocopy of driving license (Ext.-5), photocopy of report of
M.V.I. (Ext.-6), photocopy of certificate of registration (Ext.-7),
photocopy of insurance paper (Ext.-8), photocopy of road
permit for vehicle (Ext.-9), photocopy of authorization
certificate of goods (Ext.-10) and photocopy of certificate of
fitness (Ext.-11).
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9. After hearing the claimant and the material
available on record the learned tribunal held that the deceased
died in an accident arising out of truck bearing registration No.
CG-04JA-0867 due to breaking of chain by which pipes were
tied loaded on the said truck and awarded the aforesaid amount
of Rs. 18,83,000/- along with simple interest @ 9% per annum
from the date of filing of the claim case i.e., 16.08.2011 till its
realization to be paid by the appellant-Insurance Company to
the handyman (Khalasi). The appellant being not satisfied and
aggrieved by the impugned judgment and award filed the
present appeal for setting aside the judgment/order dated
28.02.2017.
10. Learned Counsel on behalf of appellant-
Insurance Company has submitted that save and except the oral
evidence there is no material in respect to source of income. He
further submitted that in those days compensation was being
calculated taking into consideration the notional income of Rs.
3,000/- per month in view of the law laid down by the Apex
Court in the case of Laxmi Devi & Ors. v. Md. Tabbar and Anr.
reported in 2008 0 ACJ 1488 or at best it can be calculated
taking into consideration the minimum wages which was less
than Rs. 100/- per day for the handy man and less than Rs. 120
for the driver on the day of accident. The principle has been
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reiterated by the Apex court in the case of Kirti and Anr. v.
Oriental Insurance company Ltd. reported in 2021 0 ACJ 1.
Hon’ble court in catena of decisions has held that in absence of
any documentary evidence notional income or minimum wages
would be taken into consideration for calculating compensation
and some of those are Sanichari Devi & Anr. v. Sanjay Kumar
Yadav & Anr. 2012 4 BBCJ 429; 2012 0 Supreme (Pat) 685 &
Dukhni Devi v. Branch Manager, National Insurance
Company Ltd. 2019 0 ACJ 2691. As per the case of the claimant
the deceased at best would be an unskilled labour. He further
contended that multiplier applied is incorrect and appropriate
multiplier would be 17 instead of 18 as applied by the Learned
Tribunal. The Learned Tribunal has wrongly applied Rs. 6000/-
as income and has wrongly applied 50% under the head future
prospect instead of 40%.
10.i. He further submitted that spousal
consortium of Rs. One Lac has wrongly been allowed to the
wife and Rs. One Lac in the name of Respondent 3 & 4 has
wrongly been allowed under the head Loss of Estate. Rs. One
Lac each has wrongly been allowed to Respondent 3 & 4 under
the head loss of love and affection, guardianship. The future
prospect as applied, loss of estate and love and affection allowed
is against the mandate of Constitution Bench decision of the
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Apex Court in the case of National Insurance Company Ltd. v.
Pranay Sethi 2018 SCC Online SC 1270. Further, funeral
expense allowed is on the higher side.
10.ii. It is well settled that compensation should
be just and not a bonanza. It has been further held that no
interest can be awarded on the amount under the head future
prospect. He relied upon the judgment passed by the Hon’ble
Apex Court in United India Insurance company Ltd. v.
Inderjeet & Ors., 2024 0 Supreme (J&K) 170 & judgment
passed by Gauhati High Court in Oriental Insurance Company
Ltd. v. Smt. Rumi Barman & Ors., MAC App. 77 of 2017.
10.iii. He further submitted that, excess
compensation would be calculated as Rs. 3000 * 12 = Rs.
36,000/-, Rs. 36,000 divided by ¼ = 27,000/-, Rs. 27,000 * 17 =
Rs. 6,03,000, Rs. 6,03,000 + 40% = Rs. 8,44,200/-, Rs. 8,44,200
+ Rs. 48,000/- (consortium) + Rs. 18,000/- (funeral expense) +
Rs. 18,000/- (loss of Estate) = Rs. 9,28,600/-. The interest @ 6%
would be applicable on Rs. 6,03,000/- and not on future
prospect or amount under conventional head.
10.iv. There is no LIS between claimant and
insurance company. LIS is between claimant and owner. There
is a difference when insurer is not a party and has been noticed
by the Tribunal and when insurer is a party in the claim
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application itself. Nicolletta Rohatagi case did not consider
what will be the position when insurer is a party in the claim
application itself. In the case of United India Insurance
Company Ltd. v. Shila Dutta & Ors., 2011 (7) Supreme 129
considered this issue and held that insurer would be permitted to
contest all available grounds including quantum of
compensation. The principle laid down in the case of Shila
Datta (supra) was affirmed in Bajaj Allianz General Insurance
Company Ltd. v. Kamla Sen reported in 2014 0 ACJ 2369,
National Insurance Company Ltd. v. Manju Majumder & Anr.
reported in Civil Appeal No. 7632 of 2012 & The New India
Assurance Company Ltd. v. Krishna Sakharam Baing & Ors.
reported in Civil Appeal No. 252 of 2025 decided on
08.01.2025.
10.v. Learned counsel further submits that the
tribunal has allowed future prospect @ 50% which is not in
accordance with the Constitution Bench judgment of the
Hon’ble Supreme Court in the case of National Insurance
Company Limited vs. Pranay Sethi and others reported in
(2017)16 SCC 680. His further submission is that tribunal had
allowed excessive and higher sum of money on account of loss
of love and affection and guardianship of minor applicants, loss
of consortium, loss of estate and funeral expenses. It is his
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submission that on all these counts the compensation allowed by
the tribunal is liable to be interfere with.
11. Mr. Surya Narayan Yadav, learned counsel
for respondents submitted that the Insurance Company has filed
the appeal challenging quantum of compensation without the
permission of tribunal under section 170 of the MV Act and has
relied upon the judgments of three Judges Bench of Hon’ble
Apex Court in National Insurance Company Limited vs.
Nicolleta Rohtagi and others reported in 2002 ACJ 1950 has
held that the insurance company cannot challenge the quantum
of compensation unless they have obtained permission under
Section 170 of M.V. Act. Another three Judges bench of Hon’ble
apex Court in United India Insurance Company Limited vs
Shila Dutta and others reported in 2011(7) SCC 129 has
doubted on the Nicolletta Rohtagi judgment and Hon’ble Court
has held that where the Insurance Company has been made
party in claim petition the permission under 170 of the Act not
required and also held that in Nicolletta Rohtagi case these
points were not raised. It is relevant to mention here that in
Nicolletta Rohtagi case this point was considered which is
evident from Para-13, 14, 15, 16 of the judgment.
11.i. Learned Counsel further relied on the
decision of Hon’ble Apex Court in Shankarayya and another
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vs. United India Insurance Company Limited and another
reported AIR 1998 SC 2968 has held that mere impleading the
Insurance Company as a party in claim petition cannot have
larger defence unless they have not obtained permission from
the Tribunal under Section 170 of the Act. Consequently, in
present case, Insurance Company was not entitled to file an
appeal on merits of the claim which was awarded by the
Tribunal.”
11.ii. Learned Counsel also submitted that the
Nicolleta Rohtagi Judgment approved the Shankarayya Case
and further in Para-15 held that
“It is relevant to note that Parliament while
enacting sub section (2) of Section 149 only
specified some of the defenses which are
based on conditions of the policy and
therefore, any other breach of conditions of
the policy by the insured which does not
find place in Sub Section (2) of Section 149
cannot be taken as a defence by the insurer.
If we permit the insurer to take any other
defence other than these specified in Sub
Section (2) of Section 149, it could mean we
are adding more defenses to insurer in the
statue which is neither found in the Act nor
was intended to be included.”
11.iii. He further submitted that section 149 (2)
(7) of the M.V. Act clearly bars the insurance company to take
larger defence unless they have obtained permission under
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Section 170 of the Act. This Hon’ble Court in the Chairman
I.C.I.C.I. Lombard General Insurance Company Ltd Vs Ranju
Devi reported in 2023 ACJ 363 in Para 24 held that the Appeal
is not maintainable without obtaining permission under Section
170 of the M.V. Act.
11.iv. He further submitted that a decision cannot
be over ruled by equal strength of Bench. Coordinate bench has
to respect the judgment and order passed earlier by another
Coordinate Bench for this he relied on judgment of the Hon’ble
Apex Court in state of Bihar Versus Kalika Kuer (2003)5 SCC
448 held that:-
“The earlier judgment may seem to be not
correct yet it will have the binding effect on
the later Bench of coordinate jurisdiction.
Easy course of saying that earlier decision
was rendered per in curium is not
permissible and the matter will have to be
resolved only in two ways either to follow
the earlier decision or refer the matter to a
larger Bench to examine the issue, in case it
is left that earlier decision is not correct on
merits.”
11.v. He further submitted that the claim of
appellant that no notice has been served ever is false, the order
dated 12.03.2013 the learned Tribunal ordered to send notice
and fixed the date for attendance on 12.04.2013 and transferred
the case in learned A.D.J-4 Court which is evident from Lower
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Case Record. Further on 13.03.2013 the case record was
received in learned A.D.J.-4 Court and by order dated
12.04.2013 and 13.05.2013 the learned A.D.J.-IV Court put up
the case for appearance of opposite parties but none of them has
appeared. He also submitted that law on this point is very clear
when notice has been served on the correct address by registered
post and it has not been returned back, it will be deemed that
service of notice has been served satisfactory.
11.vi. He further submitted that the deceased
Shaini Sah was engaged by opposite party no. 1 as Khalasi and
for this he was paid Rs.6,000\- per month remuneration and this
fact has been supported in the deposition of CW-1, CW-2 and
CW-3. The oral evidence of these claimant witnesses has not
been discarded by the appellant. The appellant Insurance
Company only denied that the deceased was not Khalasi but has
brought nothing on record to prove this. On the point of income
of the deceased he rely on the judgment of Hon’ble Apex Court
in Sanjay Kumar Versus Ashok Kuamr 2014(1) BBCJ 273
(SC) held in Para 8 that:-
“The minimum wages in Delhi for a skilled
worker as on 01.08.2005 was 3589.90 per
month. The appellant has claimed that he
was earning Rs. 4500/- per month from his
work as an embroiderer. We will accept his
claim as it is not practical to expect a
Patna High Court MA No.712 of 2018 dt.24-06-2025
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documentary evidence of his monthly
income.”
11.vii. Further in the said decision referring its
earlier judgment of Ramchandrappa v. Manager Royal
Sundaram Alliance Insurance Company Limited (2011) 13
SCC 236 the Hon’ble court quoted the findings as follows:-
“In the instant case, it is not in dispute that
the appellant was aged about 35 years and
was working as a coolie and was earning
Rs. 4500 per month at the time of the
accident. This claim is reduced by the
Tribunal to a sum of Rs. 3000 only on the
assumption that the wages of a labourer
during the relevant period viz. in the year
2004 was Rs. 100/-per day. This assumption
in our view has no basis. Before the
Tribunal, though the Insurance Company
was served, it did not choose to appear
before the court nor did it repudiate the
claim of the claimant. Therefore, there was
no reason for the Tribunal to have reduced
the claim of the claimant and determined
the monthly earning to be a sum of Rs. 3000
per month. Secondly the appellant was
working as a coolie and therefore, we
cannot expect him to produce any
documentary evidence to substantiate his
claim, in our view in the facts of The
present case. The tribunal should have
accepted the claim of the claimant.”
11.viii. He further submitted that Hon’ble apex
Court in the case of Chameli Devi v. Jivrail Mian reported in
2019 ACJ 3011 while considering the income of a carpenter
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held that:
“The tribunal and high Court held that no
proof of income has been produced to show
that the deceased was alleged to be a
carpenter. We failed to understand what
proof a carpenter can lead except to lead
oral evidence.”
12. Having heard learned counsel for the parties
and perused the records. In the present case the appellant is not
seeking to avoid or exclude its liability but merely wants
determination of the extent of the liability. The restrictions
imposed upon the insurers will apply only if it wants to file an
appeal to avoid liability and not when it admits its liability to
pay the amount awarded. Thus, this Court finds that the present
appeal is maintainable. In the present case, the occurrence of the
accident and liability of the Insurance Company is not in
dispute. The only issue to be decided before this court is
whether the quantum of compensation awarded by the Learned
Tribunal is rightly awarded or liable to be set aside or modified?
13. The term compensation is a comprehensive
term which includes a claim for the damages. The claimant in a
claim for award of compensation under Section 166 of the Act,
is entitled for just compensation which has to be equitable and
fair. The loss of life and limb can never be compensated in an
equal measure but the Act is a social piece of legislation with
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object to facilitate the claimants to get redress the loss of the
member of family, compensate the loss in some measure and
compensate the claimants to a reasonable extent.
14. In the present case the employer of deceased
has not been examined with respect to the employment and
monthly income of the deceased, the monthly income of the
deceased which has been claimed to be Rs. 6,000/- per month is
not proved. It is well settled law that if income of the deceased
is not established, the loss of dependency can be calculated as
per the minimum wages law fixed for unskilled labors which
appears to be approximately Rs. 3,000/- per month. The
submission made by the learned counsel for the respondent and
the judgement refereed by him on regard to salary of the
deceased khalasi is not relevant as in the said judgment of
Chameli Devi v. Jivrail Mian (supra) the deceased was a
skilled person i.e. carpenter but in the present case the deceased
is an unskilled person and his employment is also not
sufficiently proved by the prosecution and his salary was also
not proved by the prosecution that he was getting Rs. 6,000.
15. Considering the monthly income of the
deceased to be Rs. 3,000/-, the annual income of the deceased
shall be calculated to be Rs. 36,000 (Rs.3,000 x 12). As the
deceased was of 30 years and it was not established that he was
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a permanent employee. Hence, future prospects to the tune of
40% must be paid as in accordance with para 59.4 of National
Insurance Co. v. Pranay Seti & Ors reported in (2017) 16 SCC
680. Since, there were five dependents, 1/4th of the calculated
annual income shall be deducted towards personal and living
expenses. The learned tribunal held that the age of deceased was
30 years at the time of his death accordingly in view of
National Insurance Co. v. Pranay Seti & Ors reported in
(2017) 16 SCC 680 and Sarla Verma and Ors v. Delhi
Transport Corporation and Anr. reported in (2009) 6 SCC 121
the multiplier applicable according to his age range (26 to 30) of
deceased would be 17.
16. Further, there is no dispute in this regard on
behalf of the parties and it is now well-settled and not disputed
that loss of consortium would be awarded to each claimants.
The deceased left behind his wife, two minor children, mother
and father as his dependents. On basis of the judgments
delivered by Hon’ble Supreme Court in Pranay Sethi (supra)
Magma General Insurance Co. Ltd. v. Nanu Ram reported in
(2018) 18 SCC 130, United India Insurance Company Ltd. v.
Satindar Kaur @ Satwinder Kaur and Ors. reported in (2021)
11 SCC 780 and Rojline Nayak and Ors. Ajit Sahoo and Ors.
reported in 2024 SCC OnLine SC 1901, the following amounts
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are awarded as compensation under the conventional head :
sr. Heads Calculation Compensatio
no. n Amount
1. Loss of Estate Rs.15,000/- + enhance Rs.18,150/-
10% twice
2. Loss of Rs.40,000/- + enhance Rs.2,42,800/-
Consortium 10% twice each (Rs.48,400/- X 5)
multiplied by No. of
Dependents
3. Funeral Rs. 15,000 + enhance Rs.18,150/-
Expenses 10% twice
17. Thus, total amount of compensation payable
are as follow:
Sr. no. Heads Compensation
Awarded
1. Annual Income Rs. 36,000/-
(Rs. 3000/- * 12)
2. Addition of 40% towards future Rs.50,400/-
prospects
(Rs.14,400 +
Rs.36,000)
3. 1/4th deduction towards personal Rs. 12,600/-
and living expenses
4. Annual income after deduction Rs.37,800/-
towards personal and living
expenses (Rs.50,400 -
Rs.12,600)
5. Multiplier 17.
6. Loss of Dependency Rs.6,42,600/-
(Rs.37,800 X 17)
7. Loss of Estate Rs.18,150/-
8. Loss of Consortium Rs.2,42,800/-
9. Funeral Expenses Rs.18,150/-
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10. Total Compensation Rs.9,21,700/-
18. The Judgment dated 28.02.2017 and Award
dated 07.06.2017 passed by the learned Tribunal stands
modified to the aforesaid extent with 9% interest only on
income from the date of the filing of the claim petition.
Accordingly, this appeal is disposed of with the aforesaid
modification in the impugned Judgment and award.
19. Pending applications, if any, shall stand
disposed of.
20. Office is directed to send back the trial court
records and proceedings along with a copy of this judgment to
the trial court, forthwith, for necessary compliance, if any.
(Ramesh Chand Malviya, J)
Sunnykr/-
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