Cholamandalam MS General Insurance Co. Ltd vs Dipali and Others

Biswaroop Chowdhury, J

The Appellant before this Court was an opposite party in a claim under Section 166 of the Motor Vehicles Act 1988 and is aggrieved by the Judgment and Award dated 31st  day of August 2024 passed by Learned Additional District Judge Fast Track Court at Durgapur Paschim Bardhaman in MACC No. 1/2017.

The case of the Respondent no. 1 to 3/claimants before the Learned Trial Court may be summed up thus:

On 26-10-2014 at about 8.30 am the deceased Mantu Man was proceeding towards Bhagalpur through Sagrubad Baliyapur road by driving a bus bearing no. WB-37/6621, when he reached at near Baliyapur more under P.S. Chitra at that time one Truck bearing no. JH-10K/4671 suddenly coming with high speed and negligence manner dashed the said Bus. As a result he sustained severe bleeding injuries and shifted to PHC, Palajori and then shifted to Jeevan Deep Nursing Home, Durgapur and thereafter shifted to the Mission Hospital Durgapur and lastly Burdwan Medical College and Hospital where he succumbed due to his injuries on 05.11.2014. P.M. was held at Burdwan Medical College & Hospital. The accident took place due to fault, rash and negligence driving by the part of offending Truck driver bearing no. JH-10K/4671, The deceased was the only earning person of his family and the claimants also was dependent upon the income of deceased and due to premature death of the deceased all of the claimants lost their future and facing very much financial crisis so they are fully entitled to get compensation on account of deceased against the insurer of offending vehicles. Opposite party Cholamandalam Insurance Co. Ltd. the appellant herein contested the case by filing written statement. Issues were framed. Claimants/Respondent no 1, 2 and 3 adduced evidence. No evidence was adduced by the appellant Insurance Company. Upon considering the evidence and hearing the Learned Advocates for the parties Learned Trial Court was pleased to dispose the claim case by observing and directing as follows:-

“Hence it is ORDERED

“ that the application under section 166 of the M. V. Act

1988 is allowed on contest against the opposite party No.2 (Chola Mandalam MS General Insurance Co. Ltd.) and ex parte against the opposite party No.1. There shall be no order as to cost. The petitioners namely (1) Dipali Man (wife of the deceased) (2) Bapi Man (son of the deceased) and (3) Binoy Man, shall get an award from the Opposite Party No.2 (Chola Mandalam MS General Insurance Co. Ltd.) of a sum of Rs. 15,49,686/ (Rupees Fifteen Lac Forty Nine Thousand Six Hundred and Eighty Six only) as compensation along with 6% simple interest per annum on the said amount, to be calculated from the date of filing of this case i.e. from 20-03-2015 till the actual deposit of the amount. The Opposite Party No.2 (Chola Mandalam MS General Insurance Co. Ltd.) is hereby directed to pay the aforesaid amount of compensation along with the interest to the claimants by issuing separate A/c payee cheques in the manner herein below within one month from the date of delivery of judgment as follows:-

In the name of Dipali Man (wife of the deceased Mantu Man) amounting to Rs. 5,43,228/ (Rs. 5,03,228/- Rs. 40.000/-) (Rupees Five Lac Forty Three Thousand Two Hundred and Twenty Eight only) along with interest as ordered;

In the name of Bapi Man (son of the deceased Mantu Man) amounting to Rs. 5,03,229/ (Rupees Five Lac Three Thousand Two Hundred and Twenty Nine only) along with interest as ordered; and

In the name of Binoy Man (son of the deceased Mantu Man) amounting to Rs. 5,03,229/ (Rupees Five Lac Three Thousand Two Hundred and Twenty Nine only) along with interest as ordered.

The case record be consigned to the Record Room. The petitioners are directed to furnish their photographs before receiving the cheque(s). Let a copy of this Judgment be supplied to both the parties free of cost.”

The appellant being aggrieved by the judgement and award passed by Learned Trial Court has assailed the judgment on the ground that the Learned Trial Judge erred in accepting the monthly income of the victim to be Rs. 10,000/- on the basis of oral evidence when employer did not adduce evidence and that there was contributory negligence of the victim. Heard Learned Advocate for the Appellant Insurance Company and the Learned Advocate for the Respondent no. 1, 2and 3/claimants. Perused the evidence adduced.

Learned Advocate for the Appellant submits that the Learned Judge erred in accepting the monthly income of the victim to be Rs. 10,000/- merely on the basis of oral submissions and in absence of proper documentary evidence. Learned Advocate further submits that the employer never deposed before the Court thus the salary as per minimum wages applicable in the year 2014/2015 should be applied and restricted to Rs. 6251/- per month. Learned Advocate also submits that as per deposition of PW2 it was head-on collision thus there was contributory negligence of the victim.

Learned Advocate relies upon the following judicial DECISIONS

FMA- 867 of 2023 (Nilima Mahato and Ors. Vs. United India Insurance Company Limited and Anr) where this Hon’ble Court considered income to be Rs. 7,500/- per month considering the fiscal index prevalent.”

FMA 1434 of 2019- Dipali Maiti and anr. Vs. National Insurance Co. Ltd. and Anr. where the notional income of the victim was considered by this Hon’ble Court to be Rs. 4,000/- per month.

FMA 149 of 2019- Sandhya Maiti and Ors. Vs. National Insurance Co. Ltd. where the income of the victim was considered by this Hon’ble Court as Rs. 4,000/- per month.

FMA 237 of 2025 Debi Mandal and ors vs the oriental insurance company Limited where notional income was considered as Rs. 4,000/-.

Learned Advocate appearing for respondents no. 1, 2 and 3 claimants submits that the compensation awarded to the claimants is just and reasonable. Learned Advocate relies upon the following judicial decisions:-

Sarla Verma (Smt) Vs. Delhi Transport Corporation and Anr., Reported in (2009) 6 SCC 121

National Insurance Co. Ltd. Vs. Pranay Sethi., Reported in 2017 (4) TAC 673 (SC)

Dwarka Devi Vs. Irfan and others., Reported in 2024 (2) TAC 23 (SC) where income of track driver was consider Rs. 10,000/- per month.

T.C. John Vs. V.J. Antony and others., Reported in 2025 (1) TAC (SC)

Rasmita Biswal and Ors. Vs. Divisional Manager National Insurance Company Limited.

Upon hearing the Ld. Advocates and considering the evidence adduced it appears that the Learned Trial Court considered the evidence of PW1 and PW2 and documentary evidence and came to the finding that the death of the victim took place due to rash and negligent driving by driver of vehicle bearing no. JH-10K/467/. Nothing has come out in the cross examination that there was contributory negligence of the victim neither any evidence is adduced by the appellant insurance company in this regard. Mere head on collision does not prove that there is contributory negligence, unless there is evidence both vehicles were driven at a high speed. In the instant case there is no such evidence that the vehicle which the victim was driving was at high speed. Thus the plea of contributory negligence cannot be sustained.

Now with regard to the occupation of the victim the claimant/ respondent no. 1, 2 & 3 have been able to establish by giving specific evidence that the victim was driver of vehicle bearing no. WB-37/6621 which was a bus and the name of the owner and his address is also mentioned. Thus, the claimants/respondents have been able to prove that the victim was a bus driver. With regard to the salary of the victim although the claimants did not filed the salary slip or examine the owner of the vehicle, but the Learned Trial Judge accepted the evidence of PW1 and considered the income of the victim to be Rs. 10,000/-. Now the point for consideration is whether the Ld. Trial Judge erred in accepting the evidence of claimants without corroboration. Learned Advocates have relied upon decisions where income of driver was considered as Rs. 7,500/- as well as Rs. 10,000/-. Learned Advocate for the appellant Insurance Company has also relied upon the notification with regard to minimum wages of driver of transport vehicle. It is true that when the minimum wages of driver of transport vehicle is prescribed, drivers cannot be paid less than the said wages but there is no bar in making payment of wages more than the minimum wages. While considering the issue of income of a victim with regard to particular employment Courts may not only confine to what is the minimum wages but may also take into consideration market rate prevailing with regard to particular employment and the income reasonably required for a person to maintain his family, for which a person accepts any work/employment. Upon considering such factors Motor Accidents Claim Tribunal can decide the issue of income on the basis of evidence of claimants even if there is no corroboration. Now so far as income of driver is concerned it is found in reality that even car drivers are also paid more than Rs. 10,000/-. Thus the evidence of the claimant that victim who was a bus driver was earning Rs 10,000/- per month as salary can be relied upon. Thus the Ld. Trial Judge did not err in considering the monthly income of the victim to be Rs. 10,000/-. Hence there is nothing to interfere in the Judgment and award of the Learned Trial Judge.

Hence this appeal fails and the same is dismissed. The Judgment and Award dated 31st August, 2024 passed by Ld. Additional District Judge, Fast Track Court, Durgapur in MAC Case No. 1 of 2017 is affirmed. The Respondent are permitted to withdraw the amount deposited.

Urgent photostat certified copy of this order, if applied for, should be made available to the parties upon compliance with the requisite formalities.