1 2025:CGHC:16046 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No.625 of 2017 Judgment reserved on : 27.02.2025 Judgment delivered on : 04.04.2025 1 - The Oriental Insurance Company Limited by Branch Manager at Madina Building, Jail Road, Raipur (C.G.), Through Its Divisional Manager, Divisional Office, 1st Floor, Rama Trade Centre, Near Bus Stand, Bilaspur, Civil and Revenue Distt. Bilaspur, Chhattisgarh, Pin- 495001 ...........Non-Applicant No.3 Appellant versus 1 - Smt. Dheera Majhi Wd/o Late Meenaketan @ Jeetan Majhi, Aged About 22 Years 2 - Pappu Majhi S/o Meenaketan @ Jeetan Majhi, Aged About 3 Years Minor, Represented Through Mother And Natural Guardian Smt. Dheera Majhi, Wd/o Late Meenaketan @ Jeetan Majhi 3 - Smt. Baal Majhi Wd/o Late Kasti Majhi, Respondent Nos.1 to 3 are R/o Krishak Nagar, Jora, P.S. Telibandha, Distt. Raipur, Chhattisgarh 4 - Sundar Yadav S/o Prabhu Yadav, R/o Krishak Nagar, Jora, P.S. Telibandha, Distt. Raipur, Chhattisgarh ...............Driver 5 - Vishal Yadav S/o Vinod Yadav, At Agrawal Tanker Service, Ring Road No.2, Tatibandh, P.S. Amanaka, Distt. Raipur, Chhattisgarh ...............Owner Respondent(s) For Appellant : Mr. Akash Shrivastava, Advocate Digitally signed by RAMAKANT NIRALA 2 For Respondent Nos.1 to 3 : Mr. A. L. Singroul, Advocate For Respondent Nos.4 & 5 : None Hon’ble Smt. Justice Rajani Dubey CAV Judgment 1. This appeal under Section 173 of the Motor Vehicles Act, 1988 has been preferred by the appellant insurance company against the award 03.01.2017 passed by the learned Additional Motor Accident Claims Tribunal, Raipur in Claim Case No.334/2015, whereby claim of the claimants has been partly allowed and they were awarded Rs.3,93,500/- as compensation and the liability to pay compensation has been fastened upon the appellant insurance company. 2. The claimants/respondent Nos.1 to 3 have also filed cross appeal challenging the impugned award on the ground that they have been awarded less amount by the learned Tribunal. 3. Brief facts of the case are that the deceased Meenaketan was working as a Helper/Cleaner in Tanker bearing No.CG04-JD- 7320 and the said tanker had gone to Pooja Solvent Pvt Ltd. Jainpur (Kanpur) which was carrying oil. After delivery of the said oil at Pooja Solvent Pvt. Ltd., Jainpur on 16.4.2015, when the deceased helper/cleaner had entered into the tanker for cleaning the same, he fainted due to asphyxia on account of suffocation occasioned due to poisonous gas. He was thereafter taken to Distt Hospital, Akbarpur wherefrom he was referred to Kanpur Hailar Hospital and there he breathed his last on 17.4.2015. 3 Thereafter the claim petition was filed by the family of the deceased i.e. the claimants, which was partly allowed and Rs.3,93,500/- was awarded in their favour and liability to pay the said amount was fastened upon the appellant insurance company, against which the present appeal has been filed. 4. Learned counsel for the appellants submits that the impugned award is perverse, illegal and contrary to law. The finding recorded by the learned Tribunal suffers from perversity being contrary to pleadings and evidence on record and as such the same is liable to be set aside. The learned Claims Tribunal ought to have appreciated the fact that death of the deceased had occurred due to suffocation caused by poisonous substance/gas inside the tanker. The said fact is established from the own admission of the claimants and from the FIR and the postmortem report (Exhibits P/1 and P/2). In any event, the helper should not have gone inside the tanker without wearing gas mask and other security apparels. Hence, there was contributory negligence on the part of the deceased also. The learned Tribunal ought to have seen that in the above circumstances as the insured vehicle did not have a permit for transportation of hazardous goods, there was breach of policy on the part of the insured. The learned Tribunal should further have seen that the driver of the insured vehicle also did not have a valid and effective driving licence with endorsement to drive a vehicle carrying hazardous goods. Therefore, the appeal deserves to be allowed. Reliance has been 4 placed on the judgment dated 09.06.2020 passed in MAC No.1255/2012 by this Court in The Oriental Insurance Company Ltd vs Smt. Parwati Sharma and others and judgment dated 19.11.2020 passed in MAC No.1289/2014 in between Adesh Kumar and another vs Smt. Satarupa Bai Yadav and others. 5. Learned counsel for the respondent Nos.1 to 3/claimants strongly opposes the prayer of the appellant’s counsel and submits that the claimants have also filed cross appeal on this ground that the learned Claims Tribunal has wrongly applied multiplier of 16 instead of 18, as the deceased was aged about 23 years at the time of incident, and the learned Tribunal has only awarded simple interest 9% pa, instead it should be 12% pa, therefore, the awarded amount is liable to be enhanced. He opposes the prayer of the appellant insurance company’s on this ground that the learned Tribunal has minutely appreciated the oral and documentary evidence and Issue No.2 was minutely appreciated by the learned Tribunal based on the oral and documentary evidence and found that the driver of vehicle was having effective and valid licence. Therefore, the appeal filed by the insurance company is liable to be dismissed. Reliance has been placed on the judgments rendered by this Court in the matter of Dulasia Bai and others vs Shikari Uraon and others, reported in 2015 (2) TAC 470 (Chhatt), National Insurance Company Ltd vs Smt. Sukriti Sahu and others, reported in 2019 ACJ 2362 5 (CG). 6. No one appears on behalf of the respondent Nos.4 & 5 despite service of notice. 7. Heard learned counsel for the parties and perused the material available on record. 8. As per statement of NAW-2 Ramchandra Kunjam, a person who has licence of heavy goods and transport vehicle can drive hazardous and inflammable vehicle. The learned Trial Court also found that it is not proved by the insurance company that on the date of incident oil was being carried in vehicle and due to poisonous gas in the oil, the deceased died due to suffocation. The learned Trial Court also found that the vehicle was not being driven without any valid and effective driving licence and rightly decided issue No.2 in favour of claimants and against the insurance company. The learned Tribunal has minutely appreciated the oral and documentary evidence available on record and has rightly passed award in favour of the claimants and held insurance company liable for compensation. The finding recorded by the learned Tribunal is neither perverse nor contrary to the record. 9. Consequently, the appeal filed by the appellant insurance company is liable to be and is hereby dismissed accordingly. 10. As regards cross appeal filed by the claimants/respondent Nos.1 to 3, it is clear that the deceased was working as cleaner and his income was rightly assessed as Rs.3,000/- per month and since 6 he has three dependents, deduction of 1/3rd from his income was rightly applied by the learned Tribunal. As per documents, deceased was aged about 20 years which was rightly assessed by the learned Tribunal as 20 years and multiplier of 16 was applied, but as per the guidelines of the Hon’ble Apex Court in the matter of National Insurance Company Ltd vs Pranay Sethi, reported in 2017 (16) SCC 680, right multiplier is 18 considering the age of the deceased as 20 years. The learned Tribunal awarded total Rs.,3,93,500/- in favour of the claimants, but less amount was awarded on other heads, thus the amount awarded by the learned Tribunal needs to be enhanced in the following manner:- Sr. No. Head Amount awarded by the Tribunal Amount awarded by this Court 1. Loss of dependenc y Rs.3,84,000/- {(Rs.3000x12=36000/-), 1/3rd of Rs.36,000/- is Rs.24,000) (Rs.24000x 16 = Rs.3,84,000/-)}. Rs.4,32,000/- {Rs.3,000x12=36000), 1/3rd of Rs.36,000/- is Rs.24,000/- (Rs.24,000x18=4,32,000)} 2. Loss of estate Rs.2500/- Rs.15,000/- 3. Loss of love and affection Rs.5000/- Rs.80,000/- (Rs.40,00/- each to respondent Nos.2 & 3). 4. Funeral Expenses Rs.2000/- Rs.15,000/- 5. Total Rs.3,93,500/- Rs.5,42,000/- 11. Thus, the claimants/respondent Nos.1 to 3 are entitled to total compensation of Rs.5,42,000/-, but since the 7 claimants/respondent Nos.1 to 3 have already been awarded Rs.3,93,500, thus they are liable to be paid Rs.1,48,500/- (Rs.5,42,000 – 3,93,500) after deduction, which shall be paid by the insurance company with 9% interest per annum from the date of filing of the claim petition before the learned Tribunal. 12. Consequently, the cross appeal filed by the claimants/respondent Nos.1 to 3 is partly allowed. Sd/- Rajani Dubey Judge Nirala