1 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 1760 of 2016 • The Oriental Insurance Company Limited, Through Its Division 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. Mahesh Ramteke, S/o Jheeru Ramteke, Aged About 30 Years, 2. Smt. Padmani Ramteke, W/o Mahesh Ramteke, Aged About 29 Years, Both are R/o Jhodipara Geedam, Tahsil and P.S. Geedam, Distt. South Bastar, Dantewada, Chhattisgarh ................Claimants, 3. Ramlal S/o Panduram, Aged About 28 Years, R/o Sonarpara, Geedam, P.S. Geedam, Distt. South Bastar, Dantewada, Chhattisgarh ................Driver, 4. Jograj Surana S/o Moolchand Surana, Aged About 42 Years, R/o Harmpara Geedam, P.S. Geedam, Distt. South Bastar, Dantewada, Chhattisgarh ................Owner, ... Respondents For Appellant : Mr. Akash Shrivastava, Advocate on behalf of Mr. R.N. Pusty, Advocate For Respondent No.1 & 2/Claimants : Mr. Praveen Dhurandhar, Advocate For Respondent No.3 & 4 : Mr. Shashi Bhusan Tiwari, Advocate Hon’ble Shri Justice Radhakishan Agrawal Judgment on Board 22/01/2025 1. This appeal has been filed by the appellant – insurance company against the award dated 03.10.2016 passed by the Additional Motor Accident Claims Tribunal, Dantewada, District – Sourth Bastar, PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2025.01.24 16:18:23 +0530 2 Dantewada, (C.G.) (in short ‘the Tribunal’) in Claim Case No.218/2014, whereby the learned Claims Tribunal has awarded total compensation of Rs.5,60,000/- in favour of the claimants and against non-applicants jointly and severally with interest @ 9% per annum from the date of filing of claim petition till its realisation, while fastening the liability primarily on non-applicant No.3 – The Oriental Insurance Company Limited. 2. As per averments made in the claim petition, on 07.12.2014 at about 06:00 PM, when son of the claimants, namely, Tilak Ramteke (deceased boy) was going on his bicycle, at that time, non-applicant No.1/driver of vehicle tractor bearing registration No.CG-17-G-2504 and trolley bearing registration No.CG-17-G-2505 (hereinafter referred to as ‘the offending vehicle) who was driving the same in a rash and negligent manner, dashed the bicycle of the deceased boy due to which he suffered grievous injuries over his body and died. At the time of accident, the offending vehicle was owned by non-applicant No.2 – Jograj Surana and insured with non-applicant No.3/The Oriental Insurance Company Limited. 3. On account of death of deceased boy – Tilak Ramteke, a claim petition was filed by his parents/claimants under Section 166 of the Motor Vehicles Act, 1988 seeking compensation to the tune of Rs.7,00,000/- inter alia pleading that at the time of accident, deceased boy was aged about 10 years. However, the learned Tribunal vide award dated 03.10.2016, awarded a compensation as mentioned in paragraph 1 of this judgment while making the appellant – insurer liable for payment of compensation. Hence, this appeal. 3 4. Learned counsel appearing for the Insurance Company/non-applicant No.3 submits that the award passed by the learned Tribunal is on higher side. He further submits that at the time of accident, the deceased boy was aged about 10 years and as per the law laid down in the matters of Kishan Gopal and Another Vs. Lala and Others, (2014) 1 SCC 244 and Meena Devi Vs. Nunu Chand Mahto @ Nemchand Mahto and Others, (2022) LiveLaw (SC) 841, the learned Tribunal ought to have awarded Rs.5,00,000/- as compensation to the claimants. This apart, rate of interest is also on higher side. He further, admits that the offending vehicle was insured with the insurance company but on the date of accident, non-applicant No.1/driver of the offending vehicle was plying the offending vehicle tractor on contravention of the insurance policy. He further submits that the tractor was insured for agricultural purpose under Kishan Package Policy but it was registered as commercial vehicle. Thus, the insurance company is not liable to indemnify the award. 5. Learned counsel appearing for respondent No.1 & 2/Claimants submits that the claimants are the parents of the deceased boy, who at the time of accident was aged about only ten years old. He further submits that the insurance company has not produced any documents regarding alleged breach of any insurance policy condition. This apart, from the statements of Mahesh Ramteke (AW-01), the eye-witness Panchuram Sahu (AW-02) and the police documents, it is established that on the date of accident, non-applicant No.1/driver of the offending vehicle was driving the same in a rash and negligent manner and dashed the deceased boy from back side who was going on his bicycle. Thus, the deceased is treated as third party for insurance company. He further 4 submits that in the matter of Kishan Gopal (supra), though the notional income of the deceased was taken as Rs.30,000/- and multiplier of 15 was used but under the conventional heads towards love and affection, funeral expenses and for last rites, a total sum of Rs.50,000/- has been awarded. However, in the present case, the accident occurred on 07.12.2014 therefore, the claimants/parents of the deceased boy would be entitled to filial consortium on the basis of the principles laid down by the Hon’ble Supreme Court in the matter of Magma General Insurance Company Limited vs. Nanu Ram @ Chuhru Ram and others reported in (2018) 18 SCC 130. This apart, the claimants would also be entitled to funeral expense and loss of estate in accordance with the judgment rendered by the Hon’ble Supreme Court in the matter of National Insurance Company Limited vs Pranay Sethi and others, (2017) 16 SCC 680. On these premises, the learned counsel for the claimants submits that the learned Tribunal was fully justified in awarding just and reasonable compensation of Rs.5,60,000/- which does not call for any interference. In support of his contentions, he placed reliance upon the decision of Hon’ble Supreme Court in the matter of K. Suresh vs. New India Assurance Company Limited and Another, (2012) 12 SCC 274. 6. On the other hand, learned counsel for respondent Nos.3 & 4 i.e. driver and owner of the offending vehicle respectively, while supporting the impugned judgment submits that the offending vehicle was insured with the insurer/appellant. He further submits that the insurance company has not produced any evidence with respect to breach of any policy condition. Therefore, the learned claims Tribunal, after appreciation of the evidence, has rightly awarded the compensation 5 and the appeal preferred by the appellant/insurance company is liable to be dismissed. 7. Heard learned counsel for the parties and perused the material available on record. 8. Before proceeding further, it may be mentioned that the Motor Vehicles Act, 1988 is a beneficial and welfare legislation aimed at providing relief to the victims or their families, in cases of genuine claims. The Tribunals must bear in mind the object of the Act is awarding just and fair compensation to the victim or motor accident cases and it is also the bounden duty of the Court/Tribunals to see that the victim or injured of the motor accident to get just compensation and in assessing, what has been described as a just compensation under the Act, all factors including possibilities have to be kept in mind. 9. Further, in the matter of K. Suresh (supra), emphasizing the “just compensation” which is fundamentally concretised on certain well– established principles and accepted legal parameters, the Hon’ble Supreme Court held in paragraph 8 as under: “8. The conception of “just compensation” is fundamentally concretised on certain well-established principles and accepted legal parameters as well as principles of equity and good conscience. In Yadava Kumar v. National Insurance Co. Ltd. (2010) 10 SCC 341, a two-Judge Bench, while dealing with the facet of “just compensation”, has stated thus: (SCC p. 345, para 15) 15. It goes without saying that in matters of determination of compensation both the Tribunal and the court are statutorily charged with a responsibility of fixing a ‘just compensation’. It is obviously true that determination of a just compensation cannot be equated to a bonanza. At the same time the concept of ‘just compensation’ obviously suggests application of fair and equitable principles and a reasonable approach on the part 6 of the the Tribunals and the courts. This reasonableness on the part of the Tribunal and the court must be on a large peripheral field.” In Concord of India Insurance Co. Ltd. v. Nirmala Devi (1979) 4 SCC 365. “2. ...the determination of the quantum must be liberal, not niggardly since the law values life and limb in a free country in generous scales.” 10. Now, I shall deal with the evidence available on record. Considering the evidence of father of the deceased boy Mahesh Ramteke (AW-01), Panchuram (AW-02), eye witness to the incident and FIR (Ex.P-1), merg intimation (Ex.P-2) and the final report (Ex.P-9), the learned Claims Tribunal has answered the issue No.1 in affirmative by holding that on the date of incident i.e. 07.12.2014 at 06:00 PM, in front of Panchu Kabadi Shop, the non-applicant No.1 caused the accident by driving the offending vehicle in a rash and negligent manner and dashed the deceased resulting into his death. 11.The appellant/insurance company raised its defence that on the date of accident, the offending vehicle was being plied in violation of policy conditions, however, to substantiate its defence, the insurance company has examined one Ravindra Kumar (NAW-03), Sub-Inspector, posted in Gidam Police Station who has stated that during the course of investigation, it was found that non-applicant No.1 himself caused the accident, and thereafter, offence under Section 279, 304-A of IPC was registered against the driver of the offending vehicle, and the said fact was not rebutted by the appellant insurance company by adducing cogent and clinching evidence to show that the offending vehicle was being plied in contravention of insurance policy. Therefore, the learned claims Tribunal considering the facts and circumstances of the case 7 and material available on record has come to the conclusion that the appellant insurance company has not discharged its duty and thus, has utterly failed to prove its case, which resulted in, fastening of liability upon it. 12.As regards the compensation assessed and awarded by the learned Claims Tribunal, it is not in dispute that the deceased boy was aged about ten years old at the time of accident. Relying upon the decision of Smt. Safri Bai Suryavanshi and Anr. V. Ajay Kumar Patel and Others reported in 2015 (2) CGLJ 399, the Tribunal has assessed the annual income of the deceased to Rs.30,000/- which is in consonance with the case of Kishan Gopal (supra), wherein the Hon’ble Supreme Court fixed the notional income at Rs.30,000/- having regard to the fact that the deceased was a ten years old boy. 13. In the case of Kishan Gopal (supra), the Hon’ble Supreme Court held in paragraph 39 as under: “39. In view of the aforesaid reasons, it would be just and reasonable for us to take his notional income at Rs.30,000 and further taking the young age of the parents, namely, the mother who was about 36 years old, at the time of accident, by applying the legal principles laid down in Sarla Verma v. DTC, (2009) 6 SCC 121, the multiplier of 15 can be applied to the multiplicand. Thus, 30,000 x 15 = 4,50,000 and 50,000 under conventional heads towards loss of love and affection, funeral expenses, last rites as held in Kerala SRTC v. Susamma Thomas, (1994) 2 SCC 176, which is referred to in Lata Wadhwa v. State of Bihar, (2001) 8 SCC 197 and the said amount under the conventional heads is awarded even in relation to the death of children between 10 to 15 years old. In this case also we award Rs.50,000 under conventional heads. In our view, for the aforesaid reasons the said amount would be fair, just and reasonable compensation to be awarded in favour of the appellants.” 8 14. When the present matter is examined in the light of Kishan Gopal (supra), I am of the view that the Tribunal was right in fixing the annual income of the deceased boy to Rs.30,000/-. However, while applying the multiplier the Tribunal has erred in using multiplier of 17 which is not just and proper in view of the decision of the Kishan Gopal (supra) wherein the Hon’ble Supreme Court applied the multiplier of 15 taking into consideration the young age of the parents and with the help of the decision of Smt. Sarla Verma and others VS. Delhi Transport Corporation and another, (2009) 6 SCC 121. Therefore, in this case, the applicable multiplier would be 15, looking to the case of Kishan Gopal (supra). 15. In the matter of Kishan Gopal (supra), an award of Rs.50,000/- under conventional heads towards love and affection, funeral expenses and last rites was given. In this regard, in the matter of Magma (supra) wherein the Hon’ble Supreme Court emphasized the right to consortium which would include the company, care, help, comfort, guidance, solace and affection of the deceased, which is a loss to his family and further focused on filial consortium which is the right of the parents to compensation in the case of an accidental death of a child. If the principles laid down in Magma (supra) are applied in the present case, then definitely, the claimants being parents of the deceased son would be entitled to filial consortium to the tune of Rs.40,000/- each (total Rs.80,000). In addition to the above, if the principles laid down by the Hon’ble Supreme Court in Pranay Sethi (supra) are also taken into consideration, then the claimants would also be entitled to Rs.15,000/- each (total Rs.30,000) towards funeral expenses and loss of estate. 9 16. In view of the above, taking guidance of the principles laid down in the matter of Gopal Kishan (supra), Pranay Sethi (supra), and Magma (supra), this Court is of the opinion that the amount of compensation i.e. Rs.5,60,000/- awarded to the claimants is just and proper. 17. For the foregoing reasons, the appeal preferred by the appellant/insurance company is dismissed being devoid of merits. However, the ratio of disbursement and the terms and conditions made by the Tribunal in the impugned award shall remain intact. Sd/- (Radhakishan Agrawal) JUDGE Prakash