Mahendra Singh @ Virendra Singh ... vs Anil Singh Devda
2021 Latest Caselaw 1410 MP

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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
 (SINGLE BENCH: HON'BLE Mr. JUSTICE VIVEK RUSIA)

                       Misc. Appeal No.2426/2014
 (Mahendra Singh @ Virendra Singh Vs. Anil Singh Devda and another)

       Shri Ranjeet Sen, learned counsel for the appellants.
       Shri Romil Malpani, learned for respondent No.1.

Shri Sudhir Dandwate, learned counsel for respondent No.2. Heard learned counsel for parties through video conferencing. ____________________________________________________________________ ORDER Dated: 08.04.2021

The appellant/claimant has filed this appeal under Section 173 of Motor Vehicle Act, 1988 seeking enhancement of compensation of Rs. 10,000/- in addition to the amount of compensation 1,23,480/- awarded by Third, Motor Accident Claims Tribunal, Mandsaur in claim 57/2013 vide award dated 30.09.2014. In the present appeal, respondent No.1 being the owner and driver of the offending vehicle has filed a cross-appeal. A copy of the appeal had been supplied to Shri Dandwate on 12.12.2019 and thereafter on 27.01.2020, he sought time to file a reply to the cross objection.

(2). Shri Dandwate learned counsel for respondent No.2 Insurance company submits that even in the cross appeal filed by the owner and driver challenging the impugned award he is liable to deposit amount of Rs. 25,000/- as required under Section 173 of Motor Vehicle Act. (3). Shri Malpani appearing for respondent No.1 submits that he has already deposited an amount of Rs. 25,000/- vide D.D. No.7480 dated 29.01.2018 before the IIIrd MACT and the copy of the application and photocopy of the DD have already filed in this appeal. In such a situation, Shri Dandwate submits that cross-appeal may be admitted for a final hearing.

(4). With the consent of the parties, Misc. Appeal, as well as cross appeal, both are heard finally.

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(5). The facts of the case in short are as under:

The appellant met with an accident 06.09.2012 near about 03:30 pm with the TATA Magic (Chhota Hathi) bearing registration No.MP-14-LB- 0491 driven and owned by respondent No.1. Due to the rash and negligent driving, by respondents No1, the appellant suffered a fracture of the tibia fibula bone of the left leg and a fracture of elbow of the left hand apart from other minor injuries. At the time of the accident, he was aged about 13 years and studying in class six. He was treated in Government Hospital Sawasara Mandsaur and thereafter shifted to a hospital in Ahmedabad. The father of the appellant spent Rs. 1,00,000/- for his treatment. (6). The appellant being a minor filed a claim case through the guardianship of his father Mansingh under Section 166 of Motor Vehicle Act, 1988 claiming compensation of Rs. 7,60,000/-. At the time of the accident, the offending vehicle was registered as a commercial transport vehicle and insured by respondent No.2 from 14.01.2012 to 13.01.2013. In claim case No.57/2013, respondent No.1 remained ex-parte and did not contest the case. Respondent No.2 filed the written statement denying the liability to indemnify respondent No.1 on account of plying an offending vehicle without valid permit, fitness and violation of terms and condition of the insurance policy. The insurance company/respondent No.2 took a specific defence that at that time accident, respondent No.1 was not having a valid driving license to drive a transport/ commercial vehicle, therefore, being a violation of transport policy the insurance company is not liable to pay compensation.

(7). On the basis of pleadings, the learned MACT framed eight issues for adjudication.

(8). The father (Mansingh) of the injured examined himself as (PW-1), Shiv Singh as (PW-2) and Doctor P.K. Upadhayay, M.S. Orthopaedic as (PW-3) and got exhibited 59 documents as D-1 to D-59. Respondent No.2 examined Ravindra Vishwas, RTO, Mandsaur (DW-1) and Manoj S/o Shantilal Law Officer (DW-2) and got exhibited seven documents as D-1 to D-7. As per the Ex. D-2, the offending vehicle was registered as good

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carriers LGV (Pickup Van) and unlanded weight 815. The driving license of respondent No.1 was exhibited as D-7 and according to which at the time of the accident he was having a valid driving license up to 02.05.2031 for LMV-NT- and LMVTT.

(9). After appreciating the evidence that came on record, the learned MACT has held that respondent No.1 while driving the offending vehicle rashly and negligently dashed the appellant and due to which he suffered 10% permanent disability. At the time of the accident, his age was 13 years and he has failed to prove his income was Rs. 5,000/- per month. While answering the issue No.5 and 6, the learned tribunal has held that the respondent No.1 was not having a valid license to drive the goods carrier which is a violation of insurance policy, hence, the Insurance company is not liable to indemnify him.

Vide award dated 30.09.2014, the learned tribunal has awarded compensation of Rs. 10,23,480/- with interest 8% from 04.01.2013 in favour of the appellant and directed respondents No1 to deposit by exonerating the insurance company.

(10) Being aggrieved by the less amount of compensation, the appellant has filed this appeal seeking enhancement of compensation by Rs. 10,000/- and in this appeal, respondent No.1 filed a cross-appeal challenging the exoneration of the insurance company.

MISC. APPEAL SEEKING ENHANCEMENT (11). So far enhancement of compensation is concerned, based on evidence led by appellant/claimant the learned tribunal has accessed that the disablement @ 10 % and awarded Rs.1,00,000/- compensation in light of judgment passed by Apex Court Master Mallikarjun Vs. Divisional Manager, National Insurance Company (2014) 134 SCC 396. Based on the bills submitted by the appellant from Ex.16, 17, 23, 26 to 30 amount of Rs.15,680/- has been added to the amount of compensation. The appellant remained in the hospital from 07.09.2012 to 15.09.2012,

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therefore, Rs.1,800/- has been awarded for expenses incurred by the two attendants. Rs. 1,000/- has been awarded for mental pain and agony and Rs. 2,000/- for travelling charges and Rs. 1,000/- for a special diet. (12). By way of this appeal, the appellant is claiming Rs. 10,000/- by way of enhancement. Although Shri Dantwate learned counsel has opposed it but submitted that there is the scope of enhancement of Rs. 10,000/- under the head of mental agony, suffered due to accident and during the treatment, and pursuing this litigation. Rs.1,000/- under the head of mental agony is too less. Looking to the age of the appellant/claimant at the time of the accident, he was aged about 13 years and according to him due to the accident he could not pursue the study and that agony and he will suffer life long hence, the compensation already awarded is enhanced by Rs. 10,000/- payable to the appellant. CROSS APPEAL (13) By way of the cross-appeal, respondent No.1 is seeking quashment of findings recorded in issue No. 5 and 6 and his liability to pay the compensation.

(14). Admittedly, at the time of the accident, respondent No.1 was having the driving licensee for the light motor vehicle (LMV) not the transport or commercial or goods vehicle for which the insurance company has successfully proved by examining the RTO and Law Officer. The RTO in his cross-examination has admitted that the testing vehicle was the same for taking trial before granting the driving license of light motor vehicle or commercial vehicle. The learned MACT has exonerated the Insurance Company by placing the reliance on the judgment which were holding the field in the year 2014 but during the pendency of this appeal the Apex Court in the case of Mukund Dewangan Vs. Oriental Insurance Company reported in 2017 (14) SCC 663 has held that light motor vehicle would include a transport vehicle as per the weight prescribed in Section 2(21) read with Section 5 (15) and 2(40) of the M.V. Act. A transport vehicle and the omnibus the gross vehicle weight of either of which does not exceed 7,500 kilograms would be a light motor vehicle

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and also motor car or tractor or a road roller," unladed weight" of which does not exceed 7500 kg.

(15). Shri Danwate learned counsel is not disputing the aforesaid proposition of law given by the Apex Court. Therefore, in view of the aforesaid judgment, the award dated 30.09.2014 is hereby set aside, so far it relates to the exoneration of the insurance company and direction to the respondents No1 (Appellant in cross-appeal ) to pay the compensation. Accordingly, this appeal, as well as cross, appeal both hereby allowed in following terms:

(1). The amount of compensation awarded by the Tribunal, is hereby enhanced by Rs. 10,000/- along with the interest already awarded by the MACT.

(2). Respondent Nos.1 and 2 are directed to pay compensation jointly and severally. The amount deposited by the appellant Rs. 25,000/- be returned to him by the Insurance Company, while depositing the enhanced amount of compensation payable to the respondents.

Let record of the tribunal be sent back.

( VIVEK RUSIA ) JUDGE praveen

Digitally signed by ALOK GARGAV Date: 2021.04.14 15:11:32 +05'30'