Madhya Pradesh High Court
Uzma Be vs Saleem on 19 December, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 19 th OF DECEMBER, 2022
MISC. APPEAL No. 3769 of 2007
BETWEEN:-
1. UZMA BELATE MOHD. JAKIR, AGED ABOUT 21
YEARS, H.NO.97 BEHIND JAIN MANDIR BARELI
DISTT. RAISEN (MADHYA PRADESH)
2. SUBHANA DAUGHTER OF LATE MOHD. JAKIR,
AGED ABOUT 2 YEARS, MINOR THROUGH
NATURAL GUARDIAN UZMA BE, RESIDENT OF
H.NO.97 BEHIND JAIN MANDIR BARELI DISTT.
RAISEN (MADHYA PRADESH)
3. DANISH S/O LATE MOHD. JAKIR, AGED ABOUT 1
YEARS, MINOR, THROUGH NATURAL GUARDIAN
UZMA BE, RESIDENT OF H.NO.97 BEHIND JAIN
MANDIR BARELI DISTT. RAISEN (MADHYA
PRADESH)
4. JABUNNISHAMOHD. SHAKIR, AGED ABOUT 45
YEAR S , RESIDENT OF H.NO.97 BEHIND JAIN
MANDIR BARELI DISTT. RAISEN (MADHYA
PRADESH)
5. MOHD. SHAKIR S/O ASHIK ALI, AGED ABOUT 55
YEARS, RESIDENT OF H.NO.97 BEHIND JAIN
MANDIR BARELI DISTT. RAISEN (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI VIVEK BADERIYA - ADVOCATE)
AND
1. SALEEM SON OF ABDUL WAHID, RESIDENT OF
NAVEEN TALKIES BARELI DISTT. RAISEN
(MADHYA PRADESH)
Signature Not Verified
SAN
2. TARIK ALI, SON OF AFFAK ALI, RESIDENT OF
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.12.19 18:32:13 IST
MAIN MARKET NAGAR PALIKA NAVEEN
TALKIES BARELI DISTT. RAISEN (MADHYA
2
PRADESH)
3. ZONAL MANAGER, BAZAJ ALLIANZ GENERAL
I N S . HIG 10, 1ST FLOOR, SHIVAJI NAGAR, IN
FRONT OF PRAGTI PETROL PUMP, BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI T.S. LAMBA - ADVOCATE FOR THE RESPONDENT NO.3)
MISC. APPEAL No. 4412 of 2007
BETWEEN:-
BAJAJ ALLIANZ GENERAL INSURANCE CO. LTSTHR.
BRANCH MANAGER HIG-10, 1ST FLOOR SHIVAJI
NAGAR OPP.PRAGATI PETROL PUMP, BHOPAL
(MADHYA PRADESH)
.....APPELLANT
(SHRI T.S. LAMBA - ADVOCATE)
AND
1. UZMA BI S/O LATE MOHAMMAD ZAKIR, AGED
ABOUT 21 YEARS, RESIDENT OF H.NO. 97 BEHIND
JAIN MANDIR BARELI DISTT RAISEN (MADHYA
PRADESH)
2. SUBHANA DAUGHTER OF LATE MOHAMMAD
ZAKIR, AGED ABOUT 2 YEARS, MINOR THROUGH
NATURAL GUARDIAN SMT. UZMA BI H.NO. 97
BEHIND JAIN MANDIR BARELI DISTT RAISEN
(MADHYA PRADESH)
3. DANISH S/O LATE MOHAMMAD ZAKIR, AGED
ABOUT 1 MONTH, MINOR, THROUGH NATURAL
GUARDIAN SMT. UZMA BI H.NO. 97 BEHIND JAIN
MANDIR BARELI DISTT RAISEN (MADHYA
PRADESH)
4. ZAEBUNISHA WIFE OF MOHAMMAD SHAKIR,
AGED ABOUT 45 YEARS, RESIDENT OF H.NO. 97
BEHIND JAIN MANDIR BARELI DISTT RAISEN
(MADHYA PRADESH)
Signature Not Verified
SAN
5. MOHAMMAD SHAKIR S/O ASHIK ALI, AGED
ABOUT 55 YEARS, RESIDENT OF H.NO. 97 BEHIND
JAIN MANDIR BARELI DISTT RAISEN (MADHYA
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.12.19 18:32:13 IST
PRADESH)
3
6. SALIM SON OF ABDUL VASHID NAVIN TALKIES,
BARELI, RAISEN (MADHYA PRADESH)
7. TARIQ ALIAFAQ SON OF ALI, RESIDENT OF MAIN
MARKET,NAGAR PALIKA,NAVIN TALKIES ROAD,
BARELI, RAISEN (MADHYA PRADESH)
.....RESPONDENTS
(SHRI VIVEK BADERIYA - ADVOCATE)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
These appeals are filed by the claimants and the Insurance Company,
respectively, being aggrieved of award dated 06.07.2007, passed by learned
VIII Addl. Motor Accident Claims Tribunal, Bhopal (M.P.), in Claim Case
No.1336/2007.
2. Appellants-claimants' contention is that for an accident which took place in
the intervening night of 9th/10th February, 2006, computation of income at
Rs.2,500/- per month is on the lower side. It is further submitted that incorrect
multiplier of 15 is applied even though age of the deceased is accepted to be 30
years as mentioned in the postmortem report, multiplier of 17 will be
applicable. No amount is awarded under the head of future prospects and
besides under the non-pecuniary head, there is a scope for enhancement in the
light of judgment of Hon'ble Supreme Court in National Insurance Co. Ltd.
Vs. Pranay Sethi [(2017) 16 SCC 680].
3. Shri T.S. Lamba, learned counsel for the Insurance Company, in his turn,
submits that appeal of the Insurance Company is on two grounds, namely,
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requisition for postmortem was sent on 9th February, whereas, accident
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admittedly took place in the early hours of 10th February. Second ground is
Date: 2022.12.19 18:32:13 IST
that the brother of the deceased turned hostile before the Criminal Court and
said that accident took place when motorcycle had rammed into an electric
pole. Raising these two grounds, it is submitted that it is a fit case for
exoneration of the Insurance Company.
4. After hearing learned counsel for the parties and going through the record,
it is evident from the FIR Ex.P/1, that it clearly makes a mention of the fact that
accident took place on the intervening night at 01:10 hours (night) on
10.02.2006 i.e. on the intervening night of 9th-10th February, 2006. FIR was
lodged on 11.02.2006. Thus, this aspect of postmortem being carried out for
requisition for postmortem being sent prior to the date of the accident, is not
made out from the record. In fact, postmortem was carried out on 10.02.2006
at 08:40 AM. Thus, any clerical error in the requisition for postmortem error
mentioning a date of 09.02.2006, is not of much significance in the present
matter.
5. As far as second plea of brother of the deceased turning hostile before the
Criminal Court is concerned, it is now well settled that evidence led in a
Criminal Case is not to be read in a Motor Accident Case. Insurance Company
could not adduce any evidence to show that the accident in fact took place due
to own negligence of the deceased. Since this onus was not discharged by the
Insurance Company, merely relying on the evidence of the brother of the
deceased in Criminal Case is not sufficient to exonerate the Insurance
Company.
6. As far as quantum is concerned, income of the deceased has been rightly
construed by the learned Tribunal. There is no error in it. However, taking this
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fact into consideration that after 1/3rd deduction, income of the deceased
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Date: 2022.12.19 18:32:13 IST
comes out to Rs.20,000/-, 40% is to be added towards the future prospects
and, thereafter, multiplier of 17 will be applicable in the light of the law laid
down by Supreme Court in Smt. Sarla Verma and others Vs. Delhi
Transport Corporation and another [(2009) 6 SCC 121], taking total
pecuniary compensation to Rs.4,76,000/- over and above which, a sum of
Rs.70,000/- is admissible under non-pecuniary compensation, and another sum
of Rs.80,000/- @ Rs.40,000/- for two of the minor children for the loss of their
parents under the head of loss of parental consortium in the light of judgment of
Hon'ble Supreme Court in United India Insurance Co. Ltd. Vs. Satinder
Kaur @ Satwinder Kaur [2020 SCC On-line SC 410]. Thus, claimants will
be entitled to a sum of Rs.6,26,000/-(Rupees Six Lacs and Twenty Six
Thousands) in place of Rs.3,22,000/- (Rupees Three Lacs, Twenty Two
Thousands) awarded by the Tribunal. Thus, there will be enhancement to the
tune of Rs.3,04,000/- (Rupees Three Lacs, Four Thousand) to which claimants
will be entitled too. This additional amount will also earn interest @ 6% from
the date of filing of the Claim Petition till the date of actual payment.
7. In above terms, Misc. Appeal No.3769 of 2007, filed by the claimants is
allowed in part. Misc. Appeal No.4412 of 2007, filed by the Insurance
Company is dismissed for the reasons stated above.
8. Let record of the Claims Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
A.Praj.
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.12.19 18:32:13 IST
