Chandrika Prasad Pandey vs Anil Choudhary
2022 Latest Caselaw 3224 MP

                                                  M.A. No. 2706 of 2014.
                                 (1)

        IN THE HIGH COURT OF MADHYA PRADESH AT
                       JABALPUR
                              BEFORE
         HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA

      RESERVED FOR JUDGMENT ON THE 21st OF FEBRUARY, 2022

                  MISC. APPEAL No. 2706 of 2014
                              Between:-
     CHANDRIKA PRASAD PANDEY
     S/O LATE SHRI BAIJNATH PANDEY,
     AGED ABOUT 65 YEARS, OCCUPATION:
     SBI LIFE INSURANCE AGENT,
     R/o-1396/1, RANI DURGAWATI
     VISHWAVIDYALAYA ROAD PACHPEDI
     P.S. CIVIL LINES, (MADHYA PRADESH)
                                                    .....PETITIONER
     (BY SHRI S.K. PANDEY, ADVOCATE )

                                 AND

   ANIL CHOUDHARY S/O SHRI BINDRA
   PRASAD       CHOUDHARY     VILLAGE
1.
   UMARIYA P.S. UMARIYA DISTRICT
   JABALPUR, (MADHYA PRADESH)
   RAMESH KUMAR S/O LATE SHRI T.M.
   ROHANI MAA AUTOMOBILES, BUS
   STAND      DISTT.   JABALPUR   M.P.
2.
   (MADHYA PRADESH)
   (OWNER OF MINI BUS NO. M.P. 20-
   G/6194)
   THE ORIENTAL INSURANCE COMPANY
   LTD. BOARD (MANDAL) OFFICE NO. 1-
   6,7,8, BUTT RESSIDENCY NORTH CIVIL
3.
   LINES JABALPUR (MADHYA PRADESH)
   (INSURANCE COMPANY OF MINI BUS
   NO. M.P. 20-G/6194)
                                                  .....RESPONDENTS
     (RESPONDENT NO. 3 BY SHRI JITENDRA SOHANE, ADVOCATE )



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

the following:

                            JUDGMENT

(Delivered on 08/03/2022)

1. This appeal has been filed under section 173(1) of the Motor vehicle act, 1988 by the Appellant, being aggrieved and dissatisfied by the award dated 20/09/14 passed by seventh Additional motor accident Claims Tribunal Jabalpur (hereinafter M.A. No. 2706 of 2014.

as Claims Tribunal) in case of MVC no 169/2013, whereby the learned Claims Tribunal awarded compensation of Rs.1,07,046 in favour of appellant/ claimant against the respondents no. 1 & 2 and exonerated the insurance company-respondent no.3.

2. Incident stated in short is that on 26/10/2012 in the evening 4:30 pm appellant was going from his home to Pachpedhi civil lines Jabalpur with his TVS scooty pep MP20SA9345 when he reached in front of Algin hospital the non applicant no 1 drove the bus numbered MP 20 G 6194 rash and negligently and dashed the appellant resultantly he received grievous injury in occipital region of head and fracture of tibia and febula in right leg and other parts of body. He was admitted in Jabalpur hospital till 04.11.12 for treatment. During treatment his right knee was operated. On the same day an FIR bearing crime no 294/12 under section 279, 337 & 338 was lodged in the police station civil lines Jabalpur. After completion of the investigation chargesheet was filed against the driver of the offending vehicle i.e. respondent/ non-applicant no 1. It was also alleged that appellant received 40% of permanent disability in his left hand and leg.

3. From perusal of the award, it is clear that learned Claims Tribunal found that respondent no 1, the driver and respondent No. 2, the owner of the offending vehicle are responsible to pay the compensation, because they breached the terms and conditions of the insurance policy. Hence they are liable to pay the compensation of Rs. 1,07,046/- to the claimant and exonerated the insurance company- respondent no 3.

4. In this appeal the appellant has challenged the findings of the learned Claims Tribunal in respect of the amount of compensation, and has prayed enhancement of compensation and M.A. No. 2706 of 2014.

to apply the principle of pay and recover i.e. insurer to pay compensation to claimant and then recover the same from the owner.

5. The learned counsel for appellant has argued that pecuniary losses, pain and suffering and other expenses have not been assessed properly. Furthermore he argued that the compensation to be paid by the insurance company firstly and then recover the same from the owner, but the learned Claims tribunal has erred in totally exonerating the insurance company therefore the appeal is liable to be allowed.

6. The counsel of the insurance company supported the impugned award passed by the learned claims tribunal and prayed to dismiss this appeal.

7. As per the MLC report Ex.p. 09, it is mentioned that the claimant was aged about 70 years at the time of accident. In para no 3 of cross- examination claimant Chandrika Prasad (A.W.1) has admitted that at the time of accident he was receiving pension of Rs. 8000/- per month and now he is receiving Rs. 12000/- monthly pension. In para 9 of cross- examination he also admitted that he has not produced any document in respect of loss of income in SBI life insurance company, as a commission agent. Therefore, the learned Claims Tribunal has rightly found that the claimant does not suffer any pecuniary loss in the light of permanent disability.

8. The learned Claims Tribunal has assessed medical expenses of Rs. 82,046/-, for grievous injury Rs. 20,000/- for pain and suffering Rs. 2,000, for conveyance Rs. 1,500/- for nutritious food and attenders expenses Rs. 1,500/-. In this respect looking to M.A. No. 2706 of 2014.

the nature of injuries sustained by the appellant in the alleged accident, the amount assessed by the learned Claims Tribunal in the heads of grievous injuries, pain and suffering, conveyance, nutritious food and attender is insufficient.

9. Other point for consideration is that whether the insurance company is liable to pay the compensation at first and later recover it from owner or not. The learned claims tribunal has exonerated the insurance company for the same. The learned counsel for the respondent No.3 has placed reliance in the case of Ram Sujan Tiwari Vs. Sita Gupta & ors. 2009 ACJ 437,in which the division bench of this court has held that the vehicle was being driven on the route for which the permit was not granted, hence contravened the conditions of permit and thus the Insurance company was exonerated from its liability. The learned counsel for Respondent No. 3 has also showed reliance in the case of Shankar Lal V Sanjay Kumar and Ors.2017 (2) MPLJ 65, in which it was discussed about the breach of conditions by driver of offending vehicle as he was not holding valid driving licence, which relieved the insurance company to pay compensation, and it was held in the case that Insurance company has no liability at all, it can not be compelled to pay compensation amount and later on recover it from owner of the vehicle.

10. On the other hand the learned counsel for the appellant has showed reliance in the case of Smt. Rajkumari & ors. Vs. Smt. Anju Sharma & ors. M.A. No. 979/2010 in which the vehicle had violated the route permit resulting to breach of insurance policy, relying on the case Pappu & ors. Vs. Vinod Kumar Lamba 2018 (1) TAC 360 (SC) directed the award needs to be substituted to the extent that the Insurance Company shall M.A. No. 2706 of 2014.

satisfy the award and will be entitled to recover the same from the owner of the offending vehicle.

11. In the case of Amrit Paul Singh & anr. Vs. TATA AIG General Insurance Co. Ltd. & Ors. (2018) 7SCC 558, Supreme Court has discussed in para 11, that:-

"A distinction has to be made between "route permit" and "permit" in the context of Section 149 of the Act. Section 149(2) provides the grounds that can be taken as defence by the insurer. It enables the insurer to defend on the ground that there has been breach of a specific condition of the policy, namely, (i) a condition that excludes the use of the vehicle, -(a) for hire or reward, where the vehicle is, on the date of the contract of insurance, a vehicle not covered by a permit to ply for hire or reward, or (b) for organized racing and speed testing, or (c) for a purpose not allowed by the permit under which the vehicle is used, where the vehicle is a transport."

12. In the case of Shivawwa & anr. Vs. Branch Manager, National India Insurance Co. Ltd. & anr. (2018) 5 SCC, 762 the principle that has been discussed is- "The Insurance companies are, however, with a view to avoid their liability must not establish the only available defence(s) raised in the said proceeding but must also establish 'breach' on the part of the owner of the vehicle. With regard to the liability in case of third party insurance, it is directed that principle of pay and recover even in absence of liability to pay compensation retreated"

13. Similarly in the case of Amrit Paul Singh (Supra), Hon'ble the Supreme Court has discussed that- "Even though the owner of the vehicle committed a breach of the terms and M.A. No. 2706 of 2014.

condition of the Insurance policy. The tribunal as well as High Court had rightly directed the insurer was required to pay the compensation amount to the claimant with interest with the stipulation that the insurer shall be entitled to recover the same from the owner and the driver. The said directions are in consonance with the principles stated in the case of National Insurance Co. Ltd. Vs. Swaran Singh (2004) 3 SCC 297"

14. Thus, looking at the compensation awarded in the heads under grievous injuries, pain and suffering, conveyance, nutritious food and attender expense is insufficient, Hence the claimant shall be entitled to a further sum of Rs. 50,000/- (1,07,046+50,000=1,57,046) with an interest rate of 6% P.A. on the enhanced amount, from the date of filing of this appeal i.e. on 01.12.2014. In the light of principles laid down by Hon'ble the Supreme Court in the above mentioned cases, this court directs the insurer to pay the compensation first to the claimant/ appellant and shall be entitled to recover it later from the owner of the offending vehicle.

15. Accordingly the appeal is allowed on the above mentioned terms.

(PRAKASH CHANDRA GUPTA) JUDGE

MISHRA

ARVIND Digitally signed by ARVIND KUMAR MISHRA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya

KUMAR Pradesh, 2.5.4.20=dce66f25fbf526310b3a0bb891f23146 05f6d4ed3dbfdd7dc722e096c366730a, pseudonym=17F0EDC1F5660B2F7F839A9F4CA 99995F4C2C01C,

MISHRA serialNumber=2B5E009800C4DE16804B7BC7A B18714B45CE2B1FAC4CE7FCC6E719CF3D353C 8A, cn=ARVIND KUMAR MISHRA Date: 2022.03.09 16:51:45 +05'30'