Madhya Pradesh High Court

Smt.Bharti vs Pushpendra Singh Bundelal on 28 April, 2022

Author: Sunita Yadav

                               1
          IN THE HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                              BEFORE
                 HON'BLE SMT. JUSTICE SUNITA YADAV
                       ON THE 28th OF APRIL, 2022

                   MISC. APPEAL No. 1450 of 2011

       Between:-
1.     SMT.BHARTI W/O PAHAD SINGH , AGED
       ABOUT 30 YEARS, OCCUPATION: HOUSE WIFE
       R/O GRAM SONI,P.S.VIJOLI,DISTT.GWALIOR
       (MADHYA PRADESH)

2.     PAHADSINGH S/O PANCHAMSINGH , AGED
       ABOUT 32 YEARS, OCCUPATION: HOSUEHOLD
       WORK VILL.SONI,P.S.BIJOLI,DISTT.GWALIOR
       (MADHYA PRADESH)

                                                        .....APPELLANTS
       (BY SHRI R.P. GUPTA, ADVOCATE)

       AND

1.     PUSHPENDRA     SINGH    BUNDELAL   S/O
       SHANKAR SINGH OCCUPATION: DRIVER R/O
       RAIPUR     SANI     SUJWAHA,PANCHAYAT
       PATHARI,,DISTT.DATIA (MADHYA PRADESH)

2.     PARWAT SINGH (DEAD) OCCUPATION: TH:
       LRS:- SMT.PREMABAI W/O LT.PARWAT
       SINGH VILL.BILONI,DISTT.DATIA (MADHYA
       PRADESH)

3.     THE ORIENTAL INSURANCE COMPANY LTD.
       TH: ZONAL MANAGER, MANAGER HOTEL
       AMAR        PALACE       PHOOILBAGH
       CHAURAHA,DISTT.GWALIOR      (MADHYA
       PRADESH)

                                                      .....RESPONDENTS
       (BY SHRI SHRINIVAS GAJENDRAGADKAR, ADVOCATE)



                                ORDER

Present appeal has been filed assailing the award dated 11/8/2011 passed by Third Additional Judge to the Court of First Motor Accident Claims Tribunal, Gwalior in Claim Case No.177/2010.

The case of the claimants is that on 29/1/2010, deceased Bhuri @ Mushkan, aged about six years, was playing near the godown of society. At that very moment, respondent No.1 by driving the tractor No. MP32 M 3780

in rash and negligent manner hit the deceased who died on the spot. The accident was reported to the concerned police station who after investigation registered a criminal case against the driver of the offending vehicle under Section 304-A of the IPC holding him responsible for the accident. The claimants who are the parents of the deceased filed the claim petition which was dismissed by the Tribunal by the impugned order.

Respondent/ non-claimants No. 1 and 2 filed reply denying the facts mentioned in the petition and submitted that respondent/ non-claimant No.1 did not commit any accident. It was further contended that the offending vehicle was insured with respondent/ non-claimant No.3 - insurance company. Respondent/ non-claimant No. 1 was having a valid license at the time of accident, therefore, respondent-insurance company is liable to pay the compensation, if the case is proved.

Respondent No. 3 - Insurance Company filed its reply denying the averments made in the claim petition and prayed to dismiss the petition stating therein that the vehicle was being driven without having any valid driving license.

The Tribunal after having recorded the evidence as well as hearing the parties dismissed the claim petition vide impugned order.

Learned counsel for the appellants/ claimants argued that the impugned order is perverse, arbitrary and against the settled principles of law. While passing the impugned order, the Tribunal did not appreciate the evidence and materials available on record. The Tribunal has passed the impugned order only on the basis of facts mentioned in the First Information Report. Hence, prayed to set aside the impugned order.

On the other hand, learned counsel for respondent No. 3 - insurance company has argued that the impugned order/ award is passed keeping in view the facts of the case and is in accordance with the settled principles of law and it is not required to be interfered with.

Heard learned counsel for the rival parties and perused the record as

well as evidence produced by the claimants.

The claimants have examined Smt. Bharti (AW-1), Gajendra Sikarwar (AW-2) in support of the case who in their oral statements have corroborated the facts mentioned in the claim petition. Certified copies of the criminal case filed against respondent No.1/ driver of the offending vehicle was also produced by the claimants. Non-claimants No. 1 and 2 examined Krishna Pal Singh and respondent No. 1 - Pushpendra himself as their witness and respondent/ non-claimants No. 3 - insurance company has examined U.S. Nigam in its support.

On perusal of the evidence adduced by the claimants, it is apparent that in their oral evidence, witnesses have duly corroborated the fact that the

accident occurred on account of the negligence of respondent/ non-claimant No. 1 - driver of the offending vehicle while deceased was playing on the road near the tractor. The documents produced by the claimants also support that on account of the negligence of respondent/ non-claimant No. 1 - driver of the offending vehicle, the accident occurred and as a result of the accident, deceased Bhuri @ Mushkan died on the spot. The witness examined on behalf of the insurance company has admitted that she was not present at the time of accident, therefore, her statement do not give any benefit to the respondents. The driver of the vehicle Pushpendra in his cross-examination admitted that the deceased was playing near the tractor.

In the light of the evidence adduced, it is proved that the deceased was not sitting on the tractor. On the contrary, she was playing near the tractor.

In the case of National Insurance Company Ltd. v.

Chamundeshwari & Ors., [Civil Appeal No.6151 of 2021 (arising out of Special Leave Petition (C) No.4705 of 2019], the Supreme Court has held that "if any evidence before the Tribunal runs contrary to the contents in the First Information Report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the First Information Report. In the judgment, relied on by the appellant's counsel in

the case of Oriental Insurance Company Limited v. Premlata Shukla and Others, [2007 (13) SCC 476], this Court has held that proof of rashness and negligence on the part of the driver of the vehicle, is therefore, sine qua non for maintaining an application under Section 166 of the Act. In the said judgment, it is held that the factum of an accident could also be proved from the First Information Report. " therefore, in the light of the above case law, it is apparent that from the evidence it is proved that it was respondent No.1-Pushpendra on account of whose negligence, the accident occurred.

The apex court in the case of New India Assurance Co. Ltd. vs. Satender & Ors., [(2006) 13 SCC 60] held as below:

"In cases of young children of tender age, in view of uncertainties abound, neither their income at the time of death nor the prospects of the future increase in their income nor chances of advancement of their career are capable of proper determination on estimated basis. The reason is that at such an early age, the uncertainties in regard to their academic pursuits, achievements in career and thereafter advancement in life are so many that nothing can be assumed with reasonable certainty. Therefore, neither the income of the deceased child is capable of assessment on estimated basis nor the financial loss suffered by the parents is capable of mathematical computation."

In the case of State of Haryana and Anr. v. Jasbir Kaur and Ors., [2003 (7) SCC 484] it was held as under:

"7. It has to be kept in view that the Tribunal constituted under the Act as provided in Section 168 is required to make an award determining the amount of compensation which is to be in the real sense "damages" which in turn appears to it to be "just and reasonable". It has to be borne in mind that compensation for loss of limbs or life can hardly be weighed in golden scales. But at the same time it has to be borne in mind that the compensation is not expected to be a windfall for the victim. Statutory provisions clearly indicate that the compensation must be "just" and it cannot be a bonanza; not a source of profit; but the same should not be a pittance. The courts and tribunals have a duty to weigh the various factors and quantify the amount of compensation, which should be

just. What would be 'just" compensation is a vexed question. There can be no golden rule applicable to all cases for measuring the value of human life or a limb. Measure of damages cannot be arrived at by precise mathematical calculations. It would depend upon the particular facts and circumstances, and attending peculiar or special features, if any. Every method or mode adopted for assessing compensation has to be considered in the background of 'just" compensation which is the pivotal consideration. Though by use of the expression "which appears to it to be just" a wide discretion is vested in the Tribunal, the determination has to be rational, to be done by a judicious approach and not the outcome of whims, wild guesses and arbitrariness. The expression 'just" denotes equitability, fairness and reasonableness, and non-arbitrary." In the light of the judgment passed by the Supreme Court in the case of Satender (supra) and Jasbir Kaur (supra) in the entirety of the facts and circumstances of the case, the amount of Rs.2,00,000/- is found to be just and proper compensation.

The compensation amount shall be paid by respondent No. 3 - insurance company and shall carry the interest @ 6% per annum from the date of filing of the claim petition till realization.