Smt.Kamlesh Rathore vs Jameel Khan
2022 Latest Caselaw 16116 MP

                            1

      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. 922 of 2010

   Between:-



1.  SMT.KAMLESH  RATHOREWD/O
DINESH SINGH RATHORE , AGED
ABOUT 24 YEARS, OCCUPATION:
HOUSEWORK,R/O    NEW    VAKIL
COL.AWARDPURA
ROAD,KAMPU,GWALIOR   (MADHYA
PRADESH)

2. KU.GAYATRID/O LATE DINESH
SINGH    OCCUPATION:    MINOR
GUARDIANSHIP     OF    MOTHER
SMT.KAMLESH R/O NEW VAKEEL
COLONY,    AWARDPURA,    ROAD,
GWALIOR (MADHYA PRADESH


3. RAJS/O LATE DINESH SINGH
OCCUPATION: MINOR GUARDIANSHIP
OF MOTHER SMT.KAMLESH R/O NEW
VAKEEL COLONY, GWALIOR (MADHYA
PRADESH)


4. BHAROSI RATHOR S/O S/O LATE
BALKISHAN , AGED ABOUT 61 YEARS,
OCCUPATION: R/O NEW VAKEEL
COLONY DISTT.GWALIOR (MADHYA
PRADESH)

5. SMT. VIMLAW/O BHAROSI RATHOR ,
                                            2

  AGED ABOUT 58 YEARS, OCCUPATION:
  R/O    NEW    VAKEEL    COLONY,
  DISTT.GWALIOR (MADHYA PRADESH)

                                                              ........APPELLANTS
( BY SHRI ARUN SHARMA - ADVOCATE)


       AND


1.
     JAMEEL KHANS/O ALTAF KHAN OCCUPATION:
     DRIVER,R/O  AWARDPURA,KAMPU,GWALIOR
     (MADHYA PRADESH)

2. IRFAN     QURESHIS/O   IMDAD  QURESHI
     OCCUPATION: R/O INDRA NAGAR GWALIOR
     (MADHYA PRADESH)

   UNITED INDIA INSURANCE CO.LTD. CENTER
3. POINT COMPLEX PHOOLBAG CHAURAHA
   LASHKAR, GWALIOR (MADHYA PRADESH)

                                                            ........RESPONDENTS

(BY SHRI B.N.MALHOTRA, GAURAV                           MALHOTRA,          LEARNED
COUNSEL FOR THE RESPONDENTS .)

----------------------------------------------------------------------------------------

This appeal coming on for hearing this day, the Court passed the

following:

JUDGMET

Being aggrieved by the award passed by Second Additional Motor

Accident Claims Tribunal Gwalior (M.P.) in MACC No.1/2009 on

22.02.2010 claimants have filed this appeal on the ground that quantum

of compensation awarded by the Tribunal requires enhancement.

It is submitted that income assessed by learned Tribunal as

Rs.3,000/- is on lower side, as per SALSA Guidelines it should be Rs.

3295/-. It is also submitted that in the light of National Insurance Co.

Ltd. v. Pranay Sethi (2017) 16 SCC 680, future prospect be also

awarded. It is also submitted that learned Tribunal deducted 1/3 rd of the

income of the deceased towards his personal use where as it should be

1/4th. Hence, prayed for enhancement of the compensation.

Relying upon the decision Mukund Dewangan Vs. Oriental

Insurance Co. Ltd. 2017 ACJ 2011, he submits that a person holding a

driving license to drive a light motor vehicle is competent and eligible to

drive auto. He contends that the insurance company having failed to

prove breach of terms and conditions of the policy, cannot be absolved of

its liability of indemnifying the insurer.

Learned Advocate for the Insurance Company made submission

that learned Tribunal rightly assessed the damages and passed the

impugned award which needs no interference.

After hearing learned counsel for both the parties and looking to

the facts and circumstances of the case, it is evident that accident took

place on 17.10.2008 in which deceased who was 35 years of age died.

As per SALSA guidelines on the date of incident i.e. 17.10.2008,

minimum wages of an unskilled labour were Rs.3295/- per month.

Hence, income of the deceased is assessed as Rs.3295/- per month.

Hence, the annual income of the deceased comes to Rs.39540/-,

deducting 1/4th of his income towards personal expenditure, the figure

comes out to Rs.29,665/-, applying multiplier of 16, the total loss of

income comes to Rs. 4,74,480/-, adding 40% future prospect (i.e. Rs.

1,89,792/-) in the light of Pranay Shetty (Supra) the income of deceased

comes to Rs. 6,64,272/-, adding Rs.70,000/- towards other heads in the

light of Pranay Shetty (Supra), the total compensation comes to Rs.

7,34,272/-.

In view of the forgoing discussion, present appeal succeeds and is

hereby allowed in part. The appellant is held entitled to receive the

enhanced amount of Rs. 3,30,272/- (Rs.7,34,272/- - 4,04,000/-) in

addition to the amount of compensation already awarded by the Claims

Tribunal. The Insurance company shall liable to pay enhanced amount of

Rs.3,30,272/- to the claimant.

Learned advocate for the Insurance company further made

submission that law laid down by Hon'ble Apex Court in Pranay Shetty

(Supra) in the year 2017. Therefore, interest on the future prospect

should be given from the date of the judgment.

Argument advanced by learned Insurance Company appears to be

responsible, hence, the same is allowed.

Accordingly, on the amount of Rs.1,89,792/- towards future

prospects, the interest @ 6% per annum is granted from the date on

which the judgment rendered by Hon'ble Apex Court in Pranay Shetty

(supra). Remaining amount shall carry interest @ 6% per annum from the

date of claim petition till its realization.

Now the question remains who will pay the compensation.

Learned Tribunal exonerated the Insurance Company on the ground that

the offending vehicle was being driven without a valid and effective

permit at the time of accident. In Rani V. National Insurance Co.

Ltd., 2018 ACJ 2430 (SC), again a three-Judges Bench was called upon

to answer with regard to pay and recover order passed by the Tribunal. In

the said case, the Insurance Company disputed its liability on the ground

that the truck had no permit for being plied in the State of Karnataka as

its permit was restricted to the State of Maharashtra. The Tribunal

allowed compensation and directed the insurance company to deposit the

amount, however the High court exempted the insurance company from

liability but the Apex Court, in appeal, directed the insurance company to

deposit the amount with liberty to recover the same from the owner of the

vehicle. Dealing with the aforesaid aspect, at paras 6, 7 and 14, the apex

Court again reiterated the earlier principles in Swaran Singh,

2004 ACJ 1 (SC) and modified the judgment of the High Court and

restored the Tribunal's order directing the insurance company to pay and

recover.

Hence, the Insurance Company is duty bound to satisfy the award

at the first instance and then recover from the owner of the offending

vehicle in accordance with law. Hence, the primary liability is fixed on

the insurance company herein to pay the compensation to the appellant-

claimants at the first instance and then to recover the same from the

owner of the offending vehicle.

The judgment and award passed by the Tribunal is modified to the

extent indicated above.

Parties are directed to bear their own costs.

The appeals are accordingly disposed of.

(DEEPAK KUMAR AGARWAL) JUDGE Vijay

MADHU SOODAN PRASAD 2022.12.08 18:31:54 +05'30'