Chattisgarh High Court
Madhu Bai vs Jhangluram on 8 April, 2025
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Digitally signed by
SHUBHAM SINGH
RAGHUVANSHI
Date: 2025.04.15
18:31:41 +0530
2025:CGHC:16580
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
MAC No. 1894 of 2018
1 - Madhu Bai, Wd/o Balram Diwakar, Aged About 45 Years, R/o
Aalesur, Post Office Girra, District - Balodabazar - Bhatapara
Chhattisgarh
2 - Ajay, S/o Late Balram Diwakar, Aged About 23 Years, R/o
Aalesur, Post Office Girra, District - Balodabazar - Bhatapara
Chhattisgarh
3 - Sanjay, S/o Late Balram Diwakar, Aged About 20 Years, R/o
Aalesur, Post Office Girra, District - Balodabazar - Bhatapara
Chhattisgarh
... Appellants
versus
1 - Jhangluram, S/o Girivar Kurre, R/o Urla, District - Raipur
Chhattisgarh
2 - IFFCO Tokio General Insurance Company Ltd. Through Officer
Incharge, Lalganga Complex Raipur, District - Raipur Chhattisgarh
---- Respondents
For Appellants : Mr. Akash Shrivastava , Advocate on behalf
of Mr. Anumeh Shrivastava, Advocate
For Respondent No. 2 : Mr. Pravesh Sahu, Advocate on behalf of
Mr. P.R. Patankar, Advocate
For Respondent No.1 : None
Hon’ble Shri Justice Sanjay Kumar Jaiswal
Order on Board
(08.04.2025)
1. This appeal arises out of the award dated 31.08.2018 passed by
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learned 1st Additional Motor Accident Claims Tribunal, Raipur
(C.G.) of 4th Additional Claims Tribunal Raipur (C.G.), in Claim
Case No. 107/2013 awarding a compensation of Rs.2,33,400/-
with interest @ 6% per annum, in favour of the
appellants/claimants for their irreparable loss.
2. The averment in the claim petition, is that on 10/03/2013, at
around 12:30 PM, near Village Borsi, under Bhatapara police
station, motorcycle bearing registration number CG-04-KF-1695
(hereinafter referred to as the “offending vehicle”) owned by
Respondent no.1 was being driven by Kamlesh Kurre (son of
Respondent No.1), who had seated Sanat Kumar Diwakar
(deceased) as a pillion rider. Kamlesh Kurre was riding the
motorcycle at a high speed and negligently, when suddenly, the
front tire burst, causing the motorcycle to become unbalanced
and collide with another motorcycle–bearing registration
number CG-04-CU-0586, driven by Ashok Sahu coming from
the opposite direction. As a result of this accident, both the
riders, Kamlesh Kurre, and the pillion rider, Sanat Kumar
Diwakar, sustained grievous injuries and died. A report of the
incident was lodged, based on which offence was registered. It is
stated that deceased Sanat Kumar Diwakar was unmarried and
on the date of the accident, his age was 25 years, he was a
labour and was earning Rs. 7,500/- per month. Due to the
casual death of the deceased, there is irreparable loss to the
appellants/claimants. Therefore, the appellants (mother &
brothers of deceased Sanat Kumar Diwakar) preferred an
application before the Tribunal claiming compensation to the
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tune of Rs. 19,07,000/-.
3. Learned Tribunal, on a close scrutiny of the evidence brought
on record, assessed monthly income of the deceased to
Rs.4,000, given 40% future prospects, deducted 1/2 income
towards personal and living expenses and applied multiplier of
13 and awarded Rs. 4,36,800/-. Furthermore, Rs.30,000/- has
been awarded by the Tribunal in other heads. Thus, total
Rs.4,66,800/- has been awarded in favour of the
appellants/claimants. As the Claims Tribunal has found
contributory negligence on the part of Ashok Sahu/driver of
motorcycle CG-04-CU-0586 and driver of the offending vehicle,
therefore, 50%-50% contributory negligence has been held by
the Claims Tribunal and awarded 50% of Rs. 4,66,800/- i.e.
Rs.2,33,400/- with interest @ 6 per annum, from the date of
application till its realization in favour of the
appellants/claimants. Furthermore, the Tribunal has
exonerated the insurance company on the ground that though
at the time of accident, the offending vehicle was insured with
Respondent No.2 but, the vehicle was being driven by son of
Respondent No.1 namely Kamlesh Kurre without being any
valid and effective driving license, therefore, the Tribunal held
that there was a breach of insurance policy conditions and
hence exonerated the Insurance Company. However, an order of
pay and recover has been passed by the Claims Tribunal.
Hence, this appeal has been filed by the appellants/claimants
for enhancement of compensation.
4. Learned counsel for the appellants/claimants submits that the
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compensation awarded by the Tribunal is on the lower side and
needs to be enhanced suitably. He further submits that the
learned Claims Tribunal has wrongly held that the deceased has
also contributed to the accident and has erred in holding the
50% negligence on the part of deceased Sanat. Furthermore, the
claimants have pleaded the income of the deceased as Rs.
7500/- per month, but the learned Claims Tribunal has only
assessed the income of the deceased as Rs. 4000/- per month
and awarded the above compensation. The learned counsel
urged that the Tribunal erred in not assessing the proper
monthly income of the deceased. Learned Counsel further
submits that the Tribunal has also awarded lesser amount on
other heads, therefore, this appeal may be allowed and amount
of compensation may be enhanced suitably.
5. None appeared on behalf of respondents No. 1.
6. On the other hand, it is submitted on behalf of counsel for
respondent No.2/Insurance Company that in view of facts and
circumstances of case, an order of pay and recover may be set
aside.
7. Heard counsel for the parties and perused the documents on
record.
8. Now this Court shall examine as to whether the compensation
of Rs.2,33,400/- awarded by the Tribunal is just and proper
compensation in the given facts and circumstances of the case.
9. As regards the income of the deceased, though the claimants
have pleaded that the deceased was earning Rs.7500/-. per
month from labouring, but no documentary evidence in support
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thereof has been produced, but it cannot be said that the
deceased was not earning anything from his work. Therefore, in
absence of any reliable evidence regarding income of the
deceased, keeping in mind the nature of occupation, date of
accident, wage structure prevailing on the date of accident,
price index and cost of living etc. specially notification by
Labour Department for minimum wages. Upon considering the
aforementioned factors, I find it appropriate to take income of
deceased as Rs. 4646/- per month as minimum wages, at the
relevant time of accident i.e. 10.03.2013. The annual income
comes to Rs. 55,752/- per annum. As per National Insurance
Company Ltd., Vs. Pranay Sethi and Others, (2017) 16 SCC
680 after adding 40% towards future prospects i.e. Rs.
22,300/-, the annual income comes to Rs. 78,052/-.
10. The deceased was aged about 25 years and the claimants are
the mother and brothers of the deceased so deduction towards
personal expenses would be 1/2 i.e. Rs.39,026/- which
dependency comes to Rs. 39,026/- (78052-39026). In view of
judgment of the Hon’ble Supreme Court in 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 considering the age of the deceased, after applying
multiplier of 18, the total loss of dependency works out to Rs.
7,02,468/- (39026 x 18). The claimants are further entitled to
get Rs. 15,000/- for loss of estate, Rs. 15,000/- for funeral
expenses and as per ‘Magma General Insurance Co. Ltd. Vs.
Nanu, reported in AIR Online 2018 SC 189, they are further
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entitled to get Rs. 40,000/- each for loss of love and affection.
Therefore, the claimants would become entitled for total
compensation of Rs. 8,52,468/-. Thus, the claimants are
entitled for compensation in the following manner:-
S.No. Heads Calculation
01 Towards loss of dependency Rs. 7,02,468/-
02 Towards loss of estate Rs. 15,000/-
03 Towards love and affection to Rs. 1,20,000/-
each claimants @ Rs. 40,000/-
04 Funeral Expenses Rs. 15,000/-
Total Rs. 8,52,468/-
11. On the basis of the facts and evidence available on record, the
50% contributory negligence of the driver of motorcycle CG-04-
CU-0586 Ashok Sahu (not made party before the claims
Tribunal) and the driver of offending vehicle in which the
deceased was traveling as a pillion rider, determined by the
Tribunal in paragraph 17 of its award, is just and proper and
required no interference.
12. Accordingly, the total compensation is recomputed as Rs.
8,52,450/-. Considering 50% contributory negligence on the part
of the driver of motorcycle CG-04-CU-0586 Ashok Sahu and the
driver of offending vehicle in which the deceased was traveling as
a pillion rider, the appellant/claimants shall be entitled for
compensation of Rs.4,26,225/- (8,52,450 x 50% = 4,26,225)
instead of Rs.2,33,400/-. After deducting Rs. 2,33,400/- as
awarded by the Tribunal, the enhancement would be Rs.
1,92,825/-. The amount that has already been paid shall be
adjusted. The claimants shall also be entitled for interest @ 6%
per annum from the date of enhancement till the date of actual
payment.
13. As far as the question of ‘pay and recover’ is concerned, in the
case, the offending vehicle was found to be insured but the
insurance company was exonerated from its responsibility due to
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violation of insurance conditions. However, the order of pay and
recover has been passed which was opposed by the insurance
company.
14. 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. In light of the above, no interference is
required with the order of ‘pay and recover’ passed by the
Tribunal.
15. In the result, the appeal is partly allowed. The impugned award
stands modified to the above extent and rest of the conditions
shall remain intact.
16. The Registry is further directed to communicate the claimants
in writing “the enhanced amount” in this appeal as against the
amount awarded by the 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 resides.
Sd/-
(Sanjay Kumar Jaiswal)
Judge
Shubham
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