Jamuna Bai Patel vs Rashiklal Patel

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR MAC No.1044 of 2015
1. H.D.F.C. Ergo General Insurance Company Limited Through Branch Manager, Qtr. No. 105 B, Ina Teps, Central Township, Dallirajhara Dist. Durg, Chhattisgarh, Permanent Address HDFC ERGO General Insurance Company Limited, 6th Floor, Leela Business Park, Andheri, East Mumbai MH 400059 At Present- Devendra Nagar Road, Near Railway Line, P.S.
Devendra Nagar, Civil And Revenue Dist. Raipur, Chhattisgarh.
---Appellant(s)
Versus
1. Smt. Jamuna Bai Patel Wd/o Late Shivram Patel Aged About 35 Years
2. Devendra Chand Patel S/o Late Shivram Patel Aged About 13 Years
3. Tikam Chand Patel S/o Late Shivram Patel Aged About 12 Years
4. Ku. Nilam Patel D/o Late Shivram Patel
5. Ku. Tannuka Patel D/o Late Shivram Patel
6. Maheshwar Patel S/o Late Shivram Patel 7. Ku. Kashak Patel D/o Late Shivram Patel
8. Kartikram Patel S/o Late Mitthuram Patel Aged About 60 Years 9. Smt. Dayawati Patel W/o Kartikram Patel Aged About 55 Years Respondents No.2 to 7 are minor represented through natural guardian their mother respondent No.1 Smt. Jamunal Bai Patel.
All resident of MPH Hospital Road, Jagdalpur, Police Station Jagdalpur, Police Station Jagdalpur, Dist. Jagdalpur, At Present- Behind Police Station Arjuni, Bathena Basti, Dhamtari Tahsil Dhamtari, Civil And Revenue Dist. Dhamtari, Chhattisgarh, District : Dhamtari, Chhattisgarh
10. Rasiklal Patel S/o Rajkumar Patel R/o In-Front Of Mandi, Charama, P.S.
Charama, Civil And Revenue Dist. Kanker, Chhattisgarh Owner Of Vehicle No. Cg-05/1469, District : Kanker, Chhattisgarh
11.The Oriental Insurance Company Limited Through Branch Manager, Behind Amar Talkies, P.S. Dhamtari, Civil And Revenue Dist. Dhamtari, Chhattisgarh Insurer Of Vehicle No. Cg-05/1469, District : Dhamtari.
12. Naresh Kumar Patel S/o B.L. Patel R/o Qtr. No. 105 B, Ina Teps, Central Township, Dallirajhara Dist. Durg. Temporary Address Sonalika Tractor, Authorised Dealer Dudhawa Road, Behind Gyani Dhaba, P.S. Kanker, Civil And Revenue Dist. Kanker, Chhattisgarh.
Respondent(s)
MAC No.823 of 2015
1. Smt. Jamuna Bai Patel Wd/o Late Shivram Patel Aged About 35 Years
2. Devesh Chand Patel S/o Late Shivram Patel Aged About 13 Years
3. Tikam Chand Patel S/o Late Shivram Patel Aged About 12 Years 4. Ku. Neelam Patel D/o Late Shivram Patel, aged about 11 years, 5. Ku. Tannuka Patel D/o Late Shivram Patel, aged about 9 years, 6. Maheshwar Patel S/o Late Shivram Patel, about about 7 years, 7. Ku. Kashak Patel D/o Late Shivram Patel, about about 3 years, Respondents No.2 to 7 are minor represented through natural guardian their mother respondent No.1 Smt. Jamunal Bai Patel.
8. Shri Kartikram Patel S/o Late Shri Mitthuram Patel Aged About 60 Years
9. Smt. Dayavati Patel W/o Kartikram Patel Aged About 55 Years All resident of MPH Hospital Road, Jagdalpur, Police Station Jagdalpur, Police Station Jagdalpur, Distt. Jagdalpur, At Present- Behind Police Station Arjuni, Bathena Basti, Dhamtari Tahsil Dhamtari, Civil and Revenue Dist. Dhamtari, Chhattisgarh.
---Appellant(s)
Versus
1. Rashiklal Patel S/o Shri Rajkumar Patel R/o In Front of Mandi, Thana-
Charma, District- Kanker, Chhattisgarh, Chhattisgarh
2. The Oriental Insurance Company Limited, Branch Manager, Branch Office-
Behind Amar Tackis, Dhamtari, District- Dhamtari, Chhattisgarh.
3. Naresh Kumar Patel S/o Shri B.L. Patel R/o Q. No. 105b, Ina Type, Central Township, Dalli Rajhara, Durg C.G. Temporary R/o Sonalika Tractor, Registered Seller, Dudhava Road, Behind Ghani Dhaba, Kanker, District- Kanker, Chhattisgarh.
4. HDFC Ergo General Insurance Co. Ltd., Branch Manager, Q. No. 105b, Ina Type, Central Township, Dalli Rajhara, Durg C.G. Permanent R/o Hdfc Argo General Insurance Co. Ltd, 6th Floor, Leela Business Park, Kurla Road, Andheri, East Mumbai, Maharashtra 400059.
Respondent(s)
For HDFC ERGO Insurance Co. Shri Rohitashva Singh, Advocate.
For Claimants : Shri Arvind Prasad, Advocate.
For Owner : Shri A.N. Bhakta, Advocate.
For Oriental Insurance Co.: Shri Pankaj Agrawal, Advocate.
Hon'ble Shri Justice P. Sam Koshy

Advocates:
['SAMIR SINGH', 'PANKAJ AGRAWAL', '', 'ITU RANI MUKHERJEE', 'NILESH KUMAR THAKUR', 'SMITA JHA', 'shokie Yadav', 'A N BHAKTA', 'VIVEK BHAKTA']

Order on Board

10.10.2022

1. Both these appeals filed by the Insurance Company as also by the Claimants arise out of a common accident and award dated 13.05.2015 passed by the Additional Motor Accident Claims Tribunal, Dhamtari, in Claim Case No.54 of 2014. Vide the said impugned award, the Tribunal in a death case has awarded a compensation of Rs.4,87,000/- alongwith interest @ 6 percent per annum from the date of application. While passing the said award, the Tribunal had assessed 50 percent by way of contributory negligence. Taking note of contributory negligence of 50 percent, the liability of payment of compensation was fastened upon the insurance company and the owner jointly and severally upon the two vehicles involved in the accident.

2. MAC No. 1044 of 2015 is an appeal by the insurance company which had insured the motorcycle CG-07-LB-8526, driven by the deceased Shivram Patel, owned by respondent No.12-Naresh Kumar Patel. MAC No. 823 of 2015 is the appeal by the claimants seeking for enhancement of the compensation awarded and also assailing the finding of contributory negligence. There is also a cross appeal in MAC No.823 of 2015 filed by the owner of the motorcycle-Naresh Kumar Patel so far as proceeding exparte by the Tribunal as there was no proper service effected upon the owner Naresh Kumar Patel and also assailing the finding of contributory negligence.

3. The brief facts of the case is that deceased Shivram Patel was riding a motorcycle CG-07-LB-8526 on 13.11.2012 when he was hit by another motorcycle coming from the opposite direction i.e. CG-05-C-1469 driven by deceased Omprakash Yadav, owned by Rasik Lal Patel (the respondent No.10 in the appeal of the Insurance Company) and insured by the respondent No.11, The Oriental Insurance Co. Ltd. As a consequence of the said accident, the riders of both the motorcycles Shivram Patel as also Omprakash Yadav received grievous injuries and both of them succumbed to the injuries later on.

4. The legal representatives of Shivram Patel filed a claim application before the Claims Tribunal Dhamtari where the case was registered as Claim Case No.54/2014. In the claim application, the owner and the insurance company of both the motorcycles were impleaded as necessary party and the court proceeded to decide the matter vide impugned award on 13.05.2015. While passing the said award, the Tribunal reached to a conclusion that there was a contributory negligence reflected from the pleadings, though there was no evidence in that regard and shared the liability between the owner and the insurance company of the two motorcycles at 50 percent each. The liability which was fastened upon the Oriental Insurance Company has not been challenged by the Oriental Insurance Co. Ltd. any further. It is said that they have honoured the award. However, the insurance company of the motorcycle on which the deceased Shivram Patel was riding has filed an appeal (MAC No.1044 of 2015) assailing the liability which has been fastened upon them. So also, there is an appeal by the claimants seeking for enhancement of the compensation as according to the claimants the amount of compensation awarded by the Tribunal is on a lower side.

5. As regards the appeal by the HDFC Ergo General Insurance Company, MAC No.1044 of 2015, once when there is a finding of contributory negligence by the Tribunal, the insurance company cannot be fastened with the liability indemnifying the owner for his negligence. It was also the contention of the counsel for the HDFC Ergo General Insurance Company that in any case since the deceased was himself riding the motorcycle he cannot be treated as a third party thereby the appellant insurance company could have been fastened with the liability of payment of compensation.

6. According to appellant insurance company once when the contributory negligence is established, the insurance company cannot be held liable for covering the risk of the owner for the act of negligence on his part and

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