Smt. Mohini Tomar vs Magma Hdi General Insurance Co. ...
2022 Latest Caselaw 8629 MP

                           1

  IN THE HIGH COURT OF MADHYA PRADESH
                    AT GWALIOR
                     BEFORE
    HON'BLE SHRI JUSTICE RAJEEV KUMAR
                  SHRIVASTAVA
             ON THE 29th JUNE, 2022
   MISCELLANEOUS APPEAL NO. 3690 OF 2017
Between:-
SMT. MOHINI TOMAR, WIFE OF
LAE   SHRI    SHIVKANT         SINGH
TOMAR,       AGED     27       YEARS,
RESIDENT OF SAHAS KA PURA, PS
NAGRA,        TEHSIL           PORSA,
DISTRICT MORENA (MP) &
FOUR OTHERS



                                        .... APPELLANTS

(SHRI SUNIL KUMAR JAIN- ADOVCATE FOR
APPELLANTS- CLAIMANTS )

            AND
                              2

MAGMA HDI GENERAL INSURANCE
COMPANY LTD., REGISTERED OFFICE
MAGMA HOUSE, 24 PARK STREET
KOKATA 700 016, THROUGH ASSISTANT
MANAGER MAGMA HDI GENERAL
INSURANCE COMPANY LTD., OFFICE
NEAR AIRTEL OFFICE, CITY CENTRE,
GWALIOR, MP. &

TWO OTHERS

                                           ....RESPONDENTS

(SHRI      NS        TOMAR-ADVOCATE             FOR
RESPONDENT NO.1/INSURANCE COMPANY &
SHRI ANMOL KHEDKAR- ADVOCATE                    FOR
RESPONDENT NO.2)
  MISCELLANEOUS APPEAL NO. 2980 OF 2017

         Between:-
MAGMA            HDI         GENERAL
INSURANCE         COMPANY          LTD.,
REGISTERED        OFFICE         MAGMA
HOUSE,      24       PARK        STREET
KOKATA      700      016,    THROUGH
ASSISTANT MANAGER MAGMA
HDI      GENERAL            INSURANCE
COMPANY LTD., OFFICE NEAR
                                       3

   AIRTEL OFFICE, CITY CENTRE,
   GWALIOR, MP.



                                                    .... APPELLANT

   (SHRI        NS TOMAR- ADVOCATE FOR THE
   APPELLANT- INSURANCE COMPANY )

                  AND

    MAHILA MOHIN TOMAR, WIFE OF
    LATE SHRI SHIVKANT SINGH TOMAR,
    AGED 27 YEARS, RESIDENT OF SAHAS
    KA PURA, PS NAGRA, TEHSIL PORSA,
    DISTRICT MORENA (MP)
    &
    SIX OTHERS


                                                    ....RESPONDENTS

   (SHRI SUNIL KUMAR JAIN-ADOVCATE FOR
   RESPONDENTS NO. 1O TO 5/ CLAIMANT'S &
   SHRI       ANMOL         KHEDKAR-ADVOCATE                   FOR
   RESPONDENT NO.2)

Reserved on                                   :        16TH JUNE, 2022
                                                   th
Passed Award on                               : 29 OF JUNE, 2022
----------------------------------------------------------------------------

Both the appeals coming on for final hearing, Hon'ble

Shri Justice Rajeev Kumar Shrivastava, passed the following:

AWARD

Both the appeals have been filed against the common

Award dated 10th August, 2017 passed by Additional Motor

Accident Claims Tribunal, Ambah, District Morena in Claim

Case No. 17 of 2016.

(2) Miscellaneous Appeal No.2980 of 2017 filed by Insurance

Company for recovery of awarded amount from the claimants

respondents No.1, 4 and 5 (Mahila Mohini Tomar, wife of

deceased; Smt. Mithlesh, mother of deceased and Kanhei, son of

deceased); whereas Miscellaneous Appeal No.3690 of 2017 has

been filed by Claimants for enhancement of compensation

amount awarded by Claims Tribunal. Since the facts and

circumstances of both appeals are same, therefore, they are

heard together by this common Award.

(3) Necessary facts for disposal of both miscellaneous appeals

in short are that on the date of incident i.e. 05-11-2015, deceased

Shivkant Singh (husband of Mahila Mohini Tomar) who was

working in the shop of one Contractor Indresh Singh, as a

salesman was going to Morena, by a motorcycle at around 10:00

pm along with his friend Jaiveer which dashed with a jeep

Borelo bearing registration No.MP 07CD 1437 due to rash and

negligent driving by driver of offending bolero vehicle, as a

result deceased Shivkant Singh fell down and sustained grievous

injuries and resultantly, he died at the time of hospitalization, on

the basis of which offence under Section 304-A of IPC was

registered at Police Station Porsa, District Morena. Thereafter, a

claim petition was filed before the Claims Tribunal by the

claimants and the Claims Tribunal after framing issues and

recording evidence of parties, assessed income of deceased at

Rs.5,694/- per month and after deduction of 1/3 rd, awarded

Rs.45,552/- per annum as dependency, without assessing the

future prospects of the deceased.

(4) Challenging the Award passed by Claims Tribunal, it is

submitted by learned Counsel for the claimants that the learned

Claims Tribunal has committed an error in assessing

compensation at Rs.9,24,384/- which is on the lower side and is

against principles of law. Even if by reducing 1/6 th , the

dependency would be at Rs.14,100/- and after multiplying of 17,

it will be assessed at Rs.28,76,000/- along with compensation of

love and affection. The Claims Tribunal has not awarded future

prospects, which is contrary to law. Therefore, it is prayed that

the amount awarded by Claims Tribunal be enhanced further to

Rs.5 lac towards income, future income, love and affection and

other heads. It is further contended that the accident had taken

place due to rash and negligent driving by the driver of offending

vehicle i.e. Bolero i.e. Keshav Singh and the Insurance Company

is liable to pay aforesaid compensation amount to claimants and

Insurance Company cannot be exonerated from its liability to pay

the compensation amount.

(5) On the other hand, the learned counsel appearing for the

Insurance Company in both appeals opposed the contentions of

claimants and it is submitted that learned Claims Tribunal has

wrongly decided issues No.1 to 6 where there was no

involvement of insured vehicle i.e. MP 07 CD 1437 in the alleged

accident. It is further contended that the FIR was lodged by

cousin of deceased, who was a pillion rider of motorcycle and

FIR was lodged against an unknown driver of vehicle. Only on

relying upon the evidence of Claimant's witness, namely,

Gajendra Singh (PW2), the Claims Tribunal has believed the oral

as well as police diary statement of this witness in awarding the

compensation amount. It is not apparent as to whether the alleged

accident was caused by offending bolero vehicle or not. It is

further submitted that there is delay in making seizure memo of

bolero vehicle. It is further submitted that the claimants in

collusion with owner and driver, has falsely implicated the

offending bolero vehicle MP07CD 1437. The learned Claims

Tribunal has not properly appreciated the evidence of Anil

Kumar Rathore (DW1) and the reasons assigned by the Claims

Tribunal for disbelieving the defence evidence of the Company is

improper and unsustainable. Therefore, the Insurance Company is

not liable to pay compensation amount to claimants no.1, 4 and 5

and the claimants no.1,4 and 5 are not liable for same. It is

submitted by Counsel for Insurance Company, that the Claims

Tribunal has wrongly awarded the excessive amount under the

miscellaneous heads. It is submitted that in the light of judgment

passed by the Supreme Court in the case of National Insurance

Company vs Meghji Naran Soratiya & Ors. 2009 ACJ 1441,

claimants are not entitled for compensation under different heads

on the basis of false claims.

(6) Heard learned counsel for the the parties and perused the

impugned record of Claims Tribunal.

(7) It is well-established principle of law that the claim cases

are to be decided on the basis of evidence which is led in the

Trial Court. The co-ordinate Bench of this Court in the case of

Oriental Insurance Co. Ltd. Vs. Kamli and others reported in

2010 ACJ 1340 has held that F.I.R. is not a substantive piece of

evidence and as such, it cannot be placed on pedestal higher than

statements made before Claims Tribunal on oath. Therefore, I do

not find any illegality in the approach of Claims Tribunal while

coming to the conclusion that deceased was driving the said

motorcycle on the alleged date of accident which dashed with the

offending vehicle.

(8) On perusal of evidence adduced by the Insurance

Company, it is apparent that the Insurance Company has failed to

prove that the offending vehicle was not involved in the alleged

accident and claimants' witnesses have specifically deposed in

their evidence that the accident took place on the date of incident

and the offending vehicle i.e. Bolero jeep was driven by driver

Keshav Singh and due to rash and negligent driving accident

took place and the deceased died at the time of hospitalization.

(9) From the impugned record, it is apparent that the Claims

Tribunal has assessed notional income of deceased after

deduction of 1/3rd i.e. Rs.68,328/- and after considering the

depndency of respondents No.1, 4 (wife and mother of deceased)

and 5 (who is son of deceased, aged around three months on the

alleged date of accident). On perusal of record, it is further clear

that the Claims Tribunal in paragraph 38 has overlooked the fact

of more members of deceased i.e. his father Omendra Singh,

who is aged around 55 years and daughter of deceased Ku.Dolli

who is aged around 15 years at the time of incident, the

dependency has been denied merely on the ground that the

Claimants have not adduced any sort of evidence to prove that

the father of deceased was anywhere employed and earning

income. The findings of Claims Tribunal appears to be recorded

merely on assumption as there is specific submission on record

that the deceased died leaving behind him, his wife, daughter, son

and parents (mother and father). Therefore, the findings recorded

by the Claims Tribunal merely on surmises and conjectures,

cannot be allowed to stand in absence of any specific reason for

denial of the claimants towards dependency as well as future

prospects of deceased. The Claims Tribunal has assessed 1/3 rd

dependency of deceased, however, in view of the guidelines laid

down by the Hon'ble Supreme Court in the case of Sarla Verma

Vs. D.T.C. reported in (2009) 6 SCC 121, the deceased must be

spending something towards his personal expenses, as total

number of dependents is 5 and taking overall aspects of the case

at hand, the dependency also comes to Rs.54,663/- per annum as

discussed above. Since the age of the deceased at the time of

accident was 28 years, therefore, after applying the multiplier of

17, amount after deducting the share towards personal expenses,

calculation comes to Rs.4,555/-x17x12=Rs.9,29,220/-. In

addition, the claimants are also entitled for future prospects of

40% which comes to Rs.3,71,688/-. The rest of amount under

different heads awarded by the Claims Tribunal remains intact.

(10) Resultantly, the miscellaneous appeal filed by the

Insurance Company is dismissed and it is held that Insurance

Company is liable to pay the compensation amount as mentioned

above. The impugned award passed by the Claims Tribunal so far

it relates to the Insurance Company is hereby affirmed.

(11) As a consequence thereof, the miscellaneous appeal filed

by the Claimants is hereby modified to the extent indicated

above. The aforesaid enhanced amount shall carry interest @ 7%

per annum, as fixed by Claims Tribunal from the date of filing of

claim petition till its realization. The said amount be paid within a

period of sixty days from the date of Award passed by this Court.

(12) The miscellaneous appeal filed by claimants stands

disposed of. There shall be no order as to costs.

A typed copy of this Award be kept in connected MA No.

2980 of 2017.

(Rajeev Kumar Shrivastava ) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.06.29 18:02:16 +05'30'