1 2025:CGHC:40343 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No. 413 of 2017 The Oriental Insurance Company Limited Through Branch Office, Extended Counter, 1st Floor Saluja Complex, Durg Road Ganj Para Balod, District Balod, Chhattisgarh ... Appellant versus 1 - Smt. Divya Bai W/o Late Dushyant Sahu, Aged About 45 Years R/o Village Chicha, Thana Arjunda, Tehsil Gundardehi, District Balod, Chhattisgarh 2 - Ku. Dali D/o Late Dushyant Sahu, Aged About 15 Years Minor Through Natural Guardian Mother Smt. Divyabai, R/o Village Chicha, Thana Arjunda, Tehsil Gundardehi, District Balod, Chhattisgarh 3 - Tusar S/o Late Dushyant Sahu, Aged About 14 Years Minor Through Natural Guardian Mother Smt. Divyabai, R/o Village Chicha, Thana Arjunda, Tehsil Gundardehi, District Balod, Chhattisgarh 4 - Rupesh Kumar Yadav S/o Manglu Prasad Yadav, Aged About 30 Years R/o Amapara, Balod, Thana/ Tehsil/ District Balod, Chhattisgarh 5 - Jitendra Kumar Dewangan S/o Kartikram Dewangan, Aged About 39 Years R/o Village Aatargaon Thana/ Teh. Daundi Lohara, District Balod, Chhattisgarh ... Respondents (Cause-title taken from Case Information System) For Appellant : Mr. Sudhir Agrawal, Advocate For Respondents-Claimants : Mr. Devesh G. Kela, Advocate YOGESH TIWARI Digitally signed by YOGESH TIWARI Date: 2025.08.13 18:18:16 +0530 2 Hon’ble Shri Amitendra Kishore Prasad, Judge Judgment on Board 11.08.2025 1. Challenge in this appeal is to the award dated 09.12.2016 passed by the learned Motor Accident Claims Tribunal, District Balod (C.G.) (hereinafter referred to as 'Claims Tribunal') in Claim Case No.04/2016 whereby learned Claims Tribunal allowed claim application in part of the claimants. 2. The claimants have filed cross-appeal for enhancement of amount of compensation. 3. Brief facts of this appeal, in a nutshell, are that, on 04.11.2015, Dushyant Sahu, aged 55 years, was travelling from Arjunda to his native village Cheecha on a Boxer motorcycle bearing registration No.CG-07-K-2319, when he reached near the turn on the road from Odarskri to Cheecha, non-applicant No.1, Rupesh Kumar Yadav, allegedly driving his vehicle bearing registration No.CG-04- JA-8706 (for short, ‘offending vehicle’) rashly and negligently, collided with the motorcycle. As a result, the motorcycle was damaged and Dushyant Sahu sustained grievous injuries, leading to his death. A case was registered at Police Station Arjunda under Crime No. 239/15 for the offence under Section 304A of the IPC, and a charge-sheet was filed against Rupesh Kumar Yadav. 4. The claimants have filed claim petition alleging therein that the deceased was healthy, without any ailment, and was earning 3 approximately Rs.300/- per day (Rs.9,000/- per month) while working as a Mason, supporting his family. Due to his untimely death, the claimants claimed to have suffered loss of dependency, love, affection, companionship, and support, and sought total compensation of Rs.11,70,000/- along with expenses and litigation costs. 5. Non-applicants Nos. 1 and 2 filed their written statement, denied the allegations and contended that the accident did not occur due to the offending vehcile; rather, Dushyant Sahu died due to falling from his motorcycle owing to his own negligence. They further stated that offending vehicle was insured with non-applicant No.3, and hence, if any compensation was to be awarded, the liability rested with the insurer. 6. Non-applicant No.3, the Insurance Company has filed its separate written statement, denied liability, alleging contributory negligence on the part of the deceased. It contended that the driver of the motorcycle, its owner, and their insurer were necessary parties but had not been impleaded. It was further submitted that there was no conclusive evidence linking the alleged offending vehicle to the accident, as the initial report mentioned an unknown vehicle. The insurer also pointed out that the vehicle in question was a light goods transport van requiring a valid commercial driving licence, whereas the driver, Rupesh Kumar Yadav, possessed only a licence for a motorcycle and light motor vehicle, which amounted 4 to a violation of policy terms and the insurer claimed that it was not liable to pay any compensation. 7. On appreciation of pleadings, oral and documentary evidence brought on record by the respective parties, Claims Tribunal held that the deceased was aged about 55 years on the date of accident and earning Rs.5,000/- per month. While deducting 1/3rd towards personal and living expenses and after applying the multiplier of 11, awarded an amount of Rs.16,32,000/- towards loss of dependecy, Rs.1,00,000/- towards loss of consortium, Rs.1,00,000/- towards loss of love and affection and Rs.25,000/- towards funeral expenses, as such awarded total compensation of Rs.6,65,000/- to the claimants with interest @ 8% per annum from the date of filing of the claim application till its realization and fastened the liability to pay the amount of compensation upon the driver, owner and Insurance Company of the offending vehicle. 8. Learned counsel for the appellant–Insurance Company submitted that the impugned award passed by the learned Tribunal is liable to be set aside on the following grounds: • Firstly, it is contended that the claim petition filed under Section 166 of the Motor Vehicles Act, 1988 (for short, ‘M.V. Act’) was not maintainable as negligence of the driver of the offending vehicle was not proved. The date of accident was 04.11.2015, whereas the FIR was lodged on 05.11.2015 against an unknown driver. In the final report, Exhibit P-1, the police 5 registered the case only under Section 304-A IPC, without adding Sections 279 and 337 IPC, which are indicative of rash and negligent driving. Further, the claimants did not examine any eyewitness to the occurrence; in fact, the Tribunal itself recorded a finding in para 7 of the impugned award that both Divya Bai (AW-1) and Ram Kumar (AW-2) were not eyewitnesses. • It is further pointed out that the seizure memo shows that the alleged offending vehicle was seized only on 25.12.2015, much after the alleged date of accident. In para 16 of the written statement, the Insurance Company specifically pleaded that the deceased fell from his own motorcycle due to his own negligence, and similar pleadings were made by the owner and driver of the offending vehicle in paras 8 and 14 of their written statements. Relying upon the judgment of the Hon’ble Supreme Court in Surender Kumar Arora & Ors. vs. Manoj Bisla & Ors. (2012) 4 SCC 552, it is argued that in proceedings under Section 166 of the M.V. Act, negligence of the driver must be established. In the present case, no such negligence was proved, and even the final report did not attribute any rashness or negligence to the driver. Reliance was also placed on Lachoo Ram & Ors. vs. Himachal Road Transport Corpn. & Ors. (2014) 13 SCC 254 to submit that mere involvement of the vehicle is not sufficient; negligence must be proved, which has not been done in the present case. 6 • Secondly, it was urged that the learned Tribunal awarded excessive amounts under non-pecuniary heads. A sum of Rs.1,00,000/- each has been awarded under the heads of consortium and loss of love and affection, which is beyond the settled legal principles and therefore requires reduction. • Thirdly, it is contended that there was a clear breach of policy conditions as the insured vehicle was being driven without a valid and effective driving licence for a transport vehicle at the time of accident. The RTO witness, Satyendra Kumar, produced the driving licence of respondent No. 4–driver as Exhibit D-1, which did not authorise him to drive a transport vehicle. The Insurance Company’s witness, S.R. Sahu, also deposed that in the absence of a valid and effective driving licence for the insured transport vehicle, there was a breach of policy terms, absolving the Insurance Company from liability. • As such, he prayed that the impugned award be set aside and the claim petition be dismissed, or in the alternative, the liability of the Insurance Company be exonerated and the quantum of compensation be suitably reduced. 9. Learned counsel for the claimants submits that the compensation awarded by the Claims Tribunal is on the lower side and needs to be enhanced suitably. He further submits that the learned Claims Tribunal has erred in law in not awarding any amount to towards future prospects. It has been contended that learned Claims 7 Tribunal has failed to award the proper amount of compensation under the various heads and therefore, the award deserves to be altered in order to fulfill the needs of the claimants. 10. I have heard learned counsel for the parties and perused the record of the claim case carefully. 11. Upon a careful perusal of the entire record, this Court finds no substance in the plea advanced by the Insurance Company that the vehicle in question, i.e., the alleged offending vehicle, was not involved in the accident. The material placed on record, including the police papers and other documentary evidence, sufficiently establish the involvement of the said vehicle in the occurrence. The Insurance Company has not brought forth any cogent evidence to rebut this position. 12. Similarly, with respect to the plea that the driver of the offending vehicle was not holding a valid and effective driving licence on the date of the accident, the burden squarely lay upon the Insurance Company to prove such fact. However, apart from making bare assertions in the written statement and in oral arguments, no credible evidence was adduced to substantiate this allegation. On the contrary, the evidence available on record does not support the case of the Insurance Company on either of these aspects. 13. In view of the above, this Court finds no infirmity in the conclusions arrived at by the learned Claims Tribunal on these issues. The findings recorded therein are accordingly affirmed. 8 14. Before the learned Claims Tribunal, claimants have pleaded income of deceased to Rs.300-350/- per day while doing the work of Mason, but has not produced any evidence with respect to salary or income of deceased. The claimants have failed to prove income as pleaded in their claim application, therefore, in the facts and circumstances of case, income of deceased is to be assessed on notional basis. The date of accident was 04.11.2015, therefore, looking to minimum wages rate prevailing in the Districts and State, it will be proper to hold engagement of deceased in unskilled work and his income to be assessed to Rs.5,860/- per month. 15. The legal position now stands settled by virtue of the law declared by the Apex Court in Sarla Verma v. Delhi Transportation Corporation, (2009) 6 SCC 121. It stands affirmed by the Constitution Bench of the Apex Court in National Insurance Company Limited v. Pranay Sethi and others, AIR 2017 SC 5157. Even though, it has been observed by the Claims Tribunal that the deceased was 55 years of age, there is no conclusive proof with regard to the age. Based on the available materials, the Court reckon the same as 55 years as contended by the claimants. In the instant case, since the accident occurred was in the year 2015, this Court has reckoned the income of deceased as Rs.5,860/- per month, i.e. Rs.70,320/- per annum. Going by the rulings rendered by the Apex Court as cited above, in the case of persons aged between 50-60 years without fixed income, 10% of 9 the income has to be added for fixing the future prospects, which comes to Rs.77,352/- per annum. After deducting 1/3rd towards personal and living expenses, annual income of deceased comes to Rs.51,568/-. After applying the multiplier of 11, the loss of income of deceased comes to Rs.5,67,248/-. 16. From perusal of the record, it would show that learned Claims Tribunal has erred in awarding Rs.2,25,000/- towards other conventional heads, which needs to be recalculated in view of the judgment rendered by the Hon’ble Supreme Court in the matters of Pranay Sethi (supra) and Nanu Ram Alias Chuhru Ram & Others, (2018) 18 SCC 130. 17. The scope of 'consortium' has been subsequently explained by the Apex Court in Nanu Ram Alias Chuhru Ram (supra). It can be of three types; Parental consortium (payable to children because of the death of parents); Spousal consortium (payable to the surviving spouse because of the death of the partner) and Filial consortium (payable to the parents because of the death of children). This being the position, the claimants are entitled to get a sum of Rs.1,20,000/- towards loss of consortium. Further, a sum of Rs.15,000/- is payable towards funeral expenses in view of the law declared in Pranay Sethi (supra). As per the decision rendered in Pranay Sethi (supra), the appellants/claimants are also entitled to get a sum of Rs.15,000/- towards loss of estate. Further, 10% enhancement in every three years is also required to 10 be given in respect of loss of estate, funeral expenses and loss of consortium in view of the dictum rendered by Hon’ble Supreme Court in the matter of United India Insurance Co. Ltd. v. Satinder Kaur @ Satwinder Kaur, (2020) 11 SCC 1. 18. On the basis of above recalculation, the claimants are entitled for compensation in the following manner:- Sl. No. Head Calculation Awarded amount 1. Income of deceased @ Rs.5,860/- per month Rs.70,320/- per annum 2. 10% of (1) above to be added as future prospects 70,320 + 7,032 = Rs.77,352/- 3. 1/3rd of (2) deducted as personal expenses of the deceased 77,352 / 3 = Rs.25,784/- = Rs.51,568/- 4. Compensation after multiplier of 11 applied 51,568 x 11 Rs.5,67,248/- 5. Towards loss of estate 15,000 + 3,000 with increase of 10% in every three years Rs.18,000/- 6. Towards loss of consortium to all the three claimants @ Rs. 40,000/- 40,000 + 8,000 = 48,000/- with increase of 10% in every three years Rs.1,44,000/- 7. Funeral Expenses 15,000 + 3,000 with increase of 10% in every three years Rs.18,000/- Total Compensation Awarded Rs.7,47,248/- 11 19. In the said circumstance, the total compensation comes to Rs.7,47,248/-. After deducting Rs.6,65,000/- as awarded by the Claims Tribunal, the enhancement would be Rs.82,248/-. 20. In the result, the appeal filed by the Insurance Company as well as cross-appeal filed by the claimants are allowed in part. The impugned award is modified to the extent indicated herein-above. The claimants shall be entitled to Rs.82,248/- in addition to what is already awarded by the Claims Tribunal. The enhanced amount will carry interest @ 8% from the date of enhancement of the award till its realization. The other conditions imposed by the learned Claims Tribunal shall remain intact. 21. Since it is an admitted fact that on the date of accident, the offending vehicle was insured with the Insurance Company and the Insurance Company has failed to prove that there was violation of conditions of insurance policy, the Insurance Company is directed to pay the enhanced amount of compensation to the claimants as modified by this Court within a period of 60 days from the date of production of certified copy of this judgment. 22. Record of the concerned Motor Accident Claims Tribunal be sent. Sd/- (Amitendra Kishore Prasad) Judge Yogesh