The Oriental Insurance Company vs Smt. Ramshri Gurjar
2022 Latest Caselaw 16115 MP

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      IN THE HIGH COURT OF MADHYA PRADESH
                   AT GWALIOR
                     BEFORE
  HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
            ON THE 6th OF DECEMBER, 2022
       MISCELLANEOUS APPEAL NO. 1016 OF 2007

    Between:-

  1. SMT. RAMSHREE GURJARW/O SHRI MAHAVEER
     SINGH GURJAR , AGED ABOUT 28 YEARS,
     OCCUPATION: R/O VILLAGE DONGARI, THANA
     BAMHARI DISTT. SHIVPURI (MADHYA PRADESH)

  2. ELKAR SINGHS/O MAHAVEER , AGED ABOUT 10
     YEARS, OCCUPATION: MINOR U/G MOTHER R/O
     GRAM DONGRI TH. BAMHARI SHIVPURI (MADHYA
     PRADESH)

  3. KU.RAVI GURJARD/O MAHAVEER SINGH , AGED
     ABOUT 7 YEARS, OCCUPATION: MINOR U/G MOTHER
     R/O GRAM DONGARI TH. BAMHARI DISTT. SHIVPURI
     (MADHYA PRADESH)

  4. PUSHPENDRA SINGHS/O MAHAVEER , AGED ABOUT
     4 YEARS, OCCUPATION: MINOR U/G MOTHER R/O
     GRAM DONGARI TH.BAMHARI DISTT. SHIVPURI
     (MADHYA PRADESH)

  5. HAKIM SINGH S/O S/O DHANPAL SINGH , AGED
     ABOUT 65 YEARS, OCCUPATION: R/O GRAM
     DONGARI TH. BAMHARI DISTT. SHIVPURI (MADHYA
     PRADESH)



                                     ........APPELLANT

(BY SHRI R.P.GUPTA - ADVOCATE)

    AND
                           2


     1. SABIR KHAN S/O S/O SHRI YAKUB KHAN , AGED
        ABOUT 21 YEARS, OCCUPATION: R/O VILLAGE
        TUNDALAKA THANA PUNAHANA DISTT. GUDGAON,
        HARYANA (HARYANA)
     2. PARUDDIN KHAN S/O S/O JAL SINGH , AGED ABOUT
        40 YEARS, OCCUPATION: R/O RANIYA KUHURD POST
        KOT TEH.HATIN DISTT. FARUKHABAD HARYANA
        (HARYANA)

3.     THE OREINTAL INSURANCE
       COMP.LTD.NEW DELHI THRO.
       BRANCH OFFICE HAZI SANNU
       OCCUPATION:        MARKET
       SHIVPURI (MADHYA PRADESH)

4.     MOHAN    SINGH   S/O  S/O
       GYASIRAM , AGED ABOUT 40
       YEARS,  OCCUPATION:  R/O
       GHATIGAON DISTT. GWALIOR
       (MADHYA PRADESH)

5.     PREETAM SINGH S/O S/O RATAN
       LAL , AGED ABOUT 45 YEARS,
       OCCUPATION: R/O GHATIGAON
       DISTT. GWALIOR (MADHYA
       PRADESH)

6.     NATIONAL INSURANCE COMP.
       LTD.  GWALIOR    (MADHYA
       PRADESH)


                                     ........RESPONDENTS

(BY MS. VANDANA KEKRE, LEARNED COUNSEL FOR THE
RESPONDENT .
( BY SHRI B.K.AGRAWAL, LEARNED COUNSEL FOR THE
RESPONDENT .
(BY SHRI R.V. SHARMA, LEARNED COUNSEL FOR THE
INSURANCE COMPANY)
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       MISCELLANEOUS APPEAL NO. 1150 OF 2007

     Between:-

     1. THE ORIENTAL INSURANCE
     COMPANY DIVISIONAL OFFICE
     AT      PHOOLBAG,GWALIOR
     (MADHYA PRADESH)

                                     ........APPELLANT

(BY SHRI B.K.AGRAWAL , LEARNED COUNSEL FOR THE
PETITIONER).

     AND

1.   SMT. RAMSHRI GURJARWD/O
     LATE MAHAVIRSINGH , AGED
     ABOUT 28 YEARS, OCCUPATION:
     R/O      VILL.     DANGARI
     P.S.BAMHARI,DISTT. SHIVPURI
     (MADHYA PRADESH)

2.   ELAKAR SINGH S/O S/O LATE
MAHAVIRSINGH , AGED ABOUT 10
YEARS,    OCCUPATION:  THR:  HIS
MOTHER SMT. RAMSHRI GURJAR R/O
VILL. DANGARI P.S.BAMHARI,DISTT.
SHIVPURI (MADHYA PRADESH)

3.  KU. RAVI GURJARD/O LATE
MAHAVIRSINGH , AGED ABOUT 7
YEARS, OCCUPATION: THR: HER
MOTHER SMT. RAMSHRI GURJAR R/O
VILL. DANGARI P.S.BAMHARI,DISTT.
SHIVPURI (MADHYA PRADESH)

4.  PUSHPENDRA SINGH S/O S/O LATE
MAHAVIRSINGH , AGED ABOUT 4 YEARS,
OCCUPATION:  THR:    HIS  MOTHER
                          4

RAMSHRI GURJAR R/O VILL. DANGARI
P.S.BAMHARI,DISTT. SHIVPURI (MADHYA
PRADESH)

5.  HAKIM      SINGH     S/O     S/O
DHANPALSINGH , AGED ABOUT 65
YEARS,   OCCUPATION:    R/O    VILL.
DANGARI P.S.BAMHARI,DISTT. SHIVPURI
(MADHYA PRADESH)

6.   SABIR KHAN S/O S/O YAKUN KHAN ,
AGED ABOUT 21 YEARS, OCCUPATION:
R/O VILL. TUNDLAKA P.S.PUNAHANA
DISTT. GUDGAON (HARYANA)

7.   NOORDIN S/O S/O JALSINGH , AGED
ABOUT 40 YEARS, OCCUPATION: R/O
VILL. RANIYANA KHURD,POST KOT TEH.
HATIN, DISTT. FARUKHABAD (HARYANA)

8.  MOHANSINGH S/O S/O SYASIRAM
RATHOR , AGED ABOUT 40 YEARS,
OCCUPATION: R/O GHATIGAON DISTT.
GWALIOR (MADHYA PRADESH)

9.   PREETAM     SINGH   S/O   S/O
RATANLAL RATHOR , AGED ABOUT 45
YEARS, OCCUPATION: R/O GHATIGAON,
DISTT. GWALIOR (MADHYA PRADESH)

10. NATIONAL INSURANCE CO.LTD. THR:
ITS SR.DIVISIONAL MANAGER (MADHYA
PRADESH)


                                  ........RESPONDENTS

(BY SHRI R.V.SHARMA, LEARNED COUNSEL FOR THE
INSURANCE COMPANY)
BY SHRI R.P.GUPTA, LEARNED COUNSEL FOR THE
RESPONDENT)
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        These appeals coming on for hearing, this day, the Court passed
the following:
                                 JUDGMENT

This judgment shall govern the disposal of above two Misc.

Appeals.

Aggrieved by the award passed in MACC No. 60/2007 on

13.08.2007 passed by the First Additional Motor Accident Claims

Tribunal, Shivpuri, Insurance Company of offending vehicle No.HR 38

J 2192 as well as claimants have preferred these two appeals.

In brief facts of the case are that deceased Mahaveer Singh

Gurjar in truck No.MP07G5853 on 1.02.2006 was travelling as a

businessman by taking stones from Dongri mines to Gwalior. When

aforesaid truck reached near Bela Ki Bawadi, driver of Truck

No.HR38 J 2192- Sabir Khan came driving the said truck rashly and

negligently and dashed the truck in which deceased was sitting. Due to

aforesaid accident, deceased died. The offending truck was in the

ownership of respondent No.2 in M.A.No.1016/2007 and insured with

Oriental Insurance Company Ltd. FIR was lodged soon after the

accident at PS Kampoo against driver of the offending vehicle. FIR

bearing crime No.45/2006 under Section 304 A of IPC was registered.

Dead-body Panchnama was prepared. Dead-body was sent for post-

mortem. During investigation, aforesaid truck was seized along with

papers from respondent No.1. After investigation, charge-sheet against

driver of the offending vehicle i.e. Sabir Khan under Section 304 A of

IPC was submitted. Deceased Mahaveer Singh was aged 30 years at the

time of accident and was contractor and supplier of stones by which he

used to earn Rs.10,000 per month. Claimants were dependent on his

income. Due to his death, they are deprived of their livelihood. Hence

they filed application seeking compensation under Section 166 of the

Motor Vehicles Act and adduced evidence. No evidence has been

adduced from the side of the Insurance company. Learned Tribunal

after considering the evidence adduced by appellants-claimants passed

an award to the tune of Rs. 3,14,000/- by assessing income of the

deceased as Rs.30,000/- per annum, deducting 1/3rd towards personal

expenses and applying multiplier of 15.

Learned counsel for the claimants submits that income of the

deceased has been assessed by learned Claims Tribunal as Rs.2,500/-

per month which is on lower side. Looking to the age of deceased, in

view of the decision of the Apex Court in the case of Sarla Verma

(Smt.) and others vs. Delhi Transport Corporation & Anr., (2009) 6

SCC 121 multiplier of 17 will be applicable in place of 15. It is further

submitted that in the light of decision of the Apex Court in the case of

National Insurance Co.Ltd. vs. Pranay Sethi as reported in 2017

(16) SCC 680 claimants are further entitled to future prospect @ 40%.

It is further submitted by learned counsel for the appellants that learned

Claims Tribunal has wrongly deducted 1/3 rd amount towards personal

expenses. Looking to the number of claimants, 1/4 th amount should

have been deducted towards personal expenses.

Learned for the Insurance Company opposed the arguments

advanced by learned counsel for the claimants as regards income of the

deceased is concerned. He submits that learned Tribunal rightly

assessed the income of the deceased.

Heard learned counsel for the parties and perused the record.

Looking to the facts and circumstances of the case & that

deceased was a contractor and supplier of stones, in these situations,

income of the deceased is assessed as Rs. 4,000/- per month. Thus, his

annual income would be Rs.48,000/-. In the light of the decision of the

Apex Court in the case of Pranay Sethi (supra) claimants are entitled

to future prospect @ 40% and as per the decision of the Apex Court in

the case of Sarla Verma (supra) looking to the age of the deceased

multiplier of 17 will be applicable in the case and 1/4 th amount should

be deducted towards future prospect. After addition of future prospect

@ 40%, deduction of 1/4th towards personal expenses and applying

multiplier of 17, total amount comes to Rs.8,56,800/-. Beside that,

claimants are further entitled to a sum of Rs.70,000/-. Thus, total

amount of compensation comes to Rs.9,26,800/-. Learned Claims

Tribunal has awarded a sum of Rs.3,14,000/-. Thus, claimants are

further entitled to a sum of Rs.6,12,800/- with interest @ 6% per

annum. Rest of the terms & conditions of the award shall remain as it

is.

With the aforesaid, appeal of claimants stands disposed of.

As far as submission of learned counsel for the insurance

company is concerned that accident took place by composite

negligence, soon after the accident offence was registered against

offending vehilce bearing registration No. HR38J2192. After

investigation, charge-sheet has been filed against driver of the said

vehicle. Beside this, no evidence has been adduced by Insurance

Company that deceased was a third party. In these situations, learned

Tribunal rightly held appellant of M.A.No.1150/2017/Oriental

Insurance Company responsible to pay the compensation. Accordingly,

appeal of the Insurance Company stands dismissed.

(DEEPAK KUMAR AGARWAL) JUDGE

Vijay MADHU SOODAN PRASAD 2022.12.08 18:31:01 +05'30'