Madhya Pradesh High Court
National Insurance Co. Ltd. vs Smt Kanta Barela on 11 November, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 11th OF NOVEMBER, 2022
MISC. APPEAL No. 1445 of 2018
BETWEEN:-
NATIONAL INSURANCE CO. LTD. DO -1, 71,
SEVANI TOWER, ZONE NO.2, M.P. NAGAR,
BHOPAL, P. NO. 39010231156104487740 PERIOD
20.02.16 TO 19.01.17 ISSUED FROM INDORE M.P.
THROUGH IN-CHARGE TP HUB VIJAY NAGAR,
JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI N. S. RUPRAH, ADVOCATE)
AND
1. SMT KANTA BARELA W/O LATE GOVIND
BARELA, AGED ABOUT 32 YEARS, VILL.
SASTAKHEDI, P.S KHAJURI SADAK, BHOPAL
(MADHYA PRADESH)
2. MASTER MUKESH BARELA S/O LT GOVIND
BARELA, AGED ABOUT 13 YEARS,
OCCUPATION: MINOR TH R O U G H MOTHER
AND NATURAL G U A R D I A N SMT KANTA
BARELA W/O LT GOVIND BARELA VILLAGE
SASTAKHEDI P S KHAJ UR I SADAK, BHOPAL
(MADHYA PRADESH)
3. MASTER SUNIL BARELE S/O LT GOVIND
BARELA, AGED ABOUT 11 YEARS,
OCCUPATION: MINOR TH R O U G H MOTHER
AND NATURAL G U A R D I A N SMT KANTA
BARELA W/O LT GOVIND BARELA VILLAGE
SASTAKHEDI P S KHAJ UR I SADAK, BHOPAL
(MADHYA PRADESH)
4. MASTER ARUN BARELA S/O LT GOVIND
BARELA, AGED ABOUT 9 YEARS, OCCUPATION:
M IN OR THR OUGH M OTHER AND NATURAL
Signature Not Verified
SAN
GUAR D IAN SMT KANTA BARELA W/O LT
GOVIN D BARELA VILLAGE SASTAKHEDI PS
Digitally signed by ANURAG SONI
KHAJURI SADAK, BHOPAL (MADHYA PRADESH)
Date: 2022.11.18 18:29:12 IST
2
5. RADHO ALIAS SMT RADHI BAI W/O LT VATHE
BARELA, AGED ABOUT 65 YEARS, VILLAGE
SASTAKHEDI P S KHAJ UR I SADAK, BHOPAL
(MADHYA PRADESH)
6. RAMDAYAL S/O GULAB B A R E L A VILLAGE
M AN JIKHED ICHHAP P S NASRULLAHGANJ,
DISTRICT SEHORE (MADHYA PRADESH)
7. RAJESH BARELA S/O DEVI SINGH BARELA
V I L L A G E SEVNIA P O L A D K U I TEHSIL
NASRULLAGANJ, DISTRICT SEHORE, ADDRESS
2 6 SHANKAR KHEDI KILOD INDORE (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI NITIN GUPTA, ADVOCATE FOR RESPONDENT NOS. 1 TO 5
- CLAIMANTS)
MISC. APPEAL No. 3436 of 2019
BETWEEN:-
1. SMT. KANTA BARELA W/O LATE GOVIND
BARELA, AGED ABOUT 32 YEARS, GRAM
SHASTAKHEDI, PS KHAJOORI SADAK, BHOPAL
(MADHYA PRADESH)
2. MA. MUKESH BARELA S/O LATE. GOVIND
BARELA, AGED ABOUT 13 YEARS,
OCCUPATION: MINOR THROUGH NATURAL
GRADIAN MOTHER SMT. KANTA BARELA
GRAM SHASTAKHEDI, PS KHAJOORI SADAK,
BHOPAL (MADHYA PRADESH)
3. MA. SUNEEL BARELA S/O LATE. GOVIND
BARELA, AGED ABOUT 11 YEARS,
OCCUPATION: MINOR THROUGH NATURAL
GRADIAN MOTHER SMT. KANTA BARELA
GRAM SHASTAKHEDI, PS KHAJOORI SADAK,
BHOPAL (MADHYA PRADESH)
4. MA. ARUN BARELA S/O LATE. GOVIND BARELA,
AGED ABOUT 9 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GRADIAN MOTHER SMT.
KANTA BARELA GRAM SHASTAKHEDI, PS
K H A J O O R I SADAK, BHOPAL (MADHYA
Signature Not Verified
SAN PRADESH)
5. RADHO @ RADHI BAI W/O LATE BATHE
Digitally signed by ANURAG SONI
Date: 2022.11.18 18:29:12 IST
BARELA, AGED ABOUT 65 YEARS, GRAM
3
SHASTAKHEDI, PS KHAJOORI SADAK, BHOPAL
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI NITIN GUPTA, ADVOCATE)
AND
1. RAMDAYAL S/O SHRI GULAB BARELA R/O
GRAM MANJIKHEDI CHHAP P. S.
NASRULLAHGANJ, DISTRICT SEHORE
(MADHYA PRADESH)
2. RAJESH BARELA S/O DEVI SINGH BARELA
GRAM SEVANIYA POST LADKUI TEH.
NASRULLAHGANJ DISTT. SEHORE ADD. 26
SHANKAR KHEDI KILAUD DISTRICT INDORE
(MADHYA PRADESH)
3. NATIONAL INSURANCE CO. LTD. THROUGH
DIVISIONAL MANAGER DIVISIONAL OFFICE
NO. 1, 71 SEVANI TOWER ZONE NO. 2 MP
NAGAR, DISTRICT BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI N.S. RUPRAH, LEARNED COUNSEL FOR RESPONDENT
NO.3)
These appeals coming on for hearing this day, th e court passed the
following:
ORDER
Heard on I.A.No.7576/2019, which is an application under Section 5 of
t h e Limitation Act seeking condonation of 454 days' delay in filing of
Miscellaneous Appeal No.3436/2019.
For the reasons stated in the application, duly supported by the affidavit
of claimant Smt. Kanta Barela, sufficient cause is made out to condone the
delay.
I.A.No.7576/2019 is allowed and the delay in filing of Miscellenous
Signature Not Verified
SAN
Appeal No.3436/2019 is condoned.
Digitally signed by ANURAG SONI
Date: 2022.11.18 18:29:12 IST
These appeals are filed by the Insurance Company and claimants
respectively being aggrieved of award dated 21/12/2017 passed in Claim Case
No.1770/2016 by XIX Additional Motor Accident Claims Tribunal, Bhopal.
Plea of the Insurance Company is that accident took place on 11/05/2016.
Deceased Govind Barela died on 13/05/2016, whereas FIR was lodged on
30/07/2016. Thus, there is inordinate delay in lodging of the FIR.
It is submitted that present is a case of false implication of the offending
vehicle. It is further submitted that in marg intimation it is mentioned that injuries
were caused to the deceased due to fall from motorcycle, but after 80 days of
the accident of offending vehicle bearing registration No.MP-37-MM-1817
being driven by Ramdayal and owned by Rajesh Barela, has been falsely
implicated, therefore, Insurance Company should be exonerated of its liability
to pay compensation. It is further submitted that there is no eyewitness to the
incident and therefore, it should be held that deceased sustained injuries
because of the negligence of Pahad Singh in driving the motorcycle on which
deceased was travelling as pillion rider. It is further submitted that learned
Tribunal has imposed a penal interest holding that if compensation is not paid
within 45 days of the award, then interest at enhanced rate of 10% in place of
7% will be payable, which is contrary to the law laid down by Supreme Court in
National Insurance Company Ltd. Vs. Keshav, (2004) 2 SCC 370.
Shri Nitin Gupta, appearing for the claimants supports the award.
In connected appeal (M.A.No.3436/2019) Shri Nitin Gupta submits that
learned Tribunal while passing the award has arbitrarily taken income at
Rs.6,339/-, whereas minimum wages on the date of accident were to the tune of
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SAN
Rs.6,850/- per month. It is also submitted that Tribunal has not awarded any
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amount under the head of future prospects and also no amount is awarded
Date: 2022.11.18 18:29:12 IST
under the head of loss of parental consortium to the children in the light of
judgments of Supreme Court in United India Insurance Company Ltd. Vs.
Satvindar Kaur @ Satwinder Kaur 2020 SCC Online SC 410 & Magma
General Insurance Company Limited Vs. Nanu Ram Alias Chuhru Ram,
(2018) 18 SCC 130.
After hearing learned counsel for the parties and going through the record
it is evident that as per Ex.P-5 deceased Govind Barela was admitted in Tripti
Hospital, Bhopal. Pre MLC / MLC Ex.P-5 is on record. This is dated
12/05/2016 i.e. on the very next date of the accident. Thereafter, in Ex.P-6 there
is mention of death at 01:00 P.M. on 13/05/2016. There is a mention of alleged
history of fall from bike on 12/05/2016. Postmortem was conducted, for which
Police had forwarded application on 13/05/2016. Postmortem report (Ex.P-7) is
also available on record. Thus, Police had information about the accident on
12/05/2016 itself when MLC was drawn by the Tripti Hospital, Bhopal vide
Ex.P-5. Ex.P-4 is the enquiry report pointing out hitting of the motorcycle, on
which Govind Barela was travelling by motorcycle bearing registration No.MP-
37-MM-1817. Marg intimation was recorded on 13/05/2016 itself. Therefore, if
Police had taken time to investigate the matter and lodge FIR, then for such
delay claimants cannot be held to be responsible.
Thus, appeal filed by the Insurance Company alleging delay in lodging of
FIR is not made out. Similarly, in the marg intimation there is no mention of fall
from his own motorcycle. In Ex.P-5 it is clearly mentioned that it is history of
RTA fall down from bike on 12/05/2016 at about 04:00 A.M. at village
Nayapura. Primary treatment was given in Government Hospital, Nasrullaganj.
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SAN
Condition is mentioned as unconscious and swelling on right side of forehead.
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Date: 2022.11.18 18:29:12 IST
There is also mention of RTA and it is not mentioned that deceased had fallen
down from own motorcycle. Further claimants had examined wife of the
deceased and Magan Singh Barela, who had seen the incident. Investigator of
the Insurance Company has also not mentioned correct facts in his report. He
has mentioned that after accident on 11/05/2016 Govind Barela was taken to his
home, then he was admitted to Government Hospital, Nasrullaganj on
12/05/2016, where he died on 13/05/2016 during treatment. This is factually
incorrect and contrary to the documentary evidence available on record.
Shri Santosh Kaithal, investigator filed his filed under Order 18 Rule 4
CPC. He admitted that he had never made any enquiry with the investigating
officer of the case i.e. Shri Sunil Kumar Pandey. He has no information as to
what proceedings were drawn by the Superintendent of Police, Sehore. He even
did not take statement of driver of the motorcycle i.e. Pahad Singh, nor took
statement of driver of the offending motorcycle. Thus, his report cannot be
form basis to reject the claim petition. Thus, Insurance Company having failed
to prove its case, its appeal deserves to be dismissed and is dismissed.
As far as appeal filed by the claimants is concerned, if income of the
deceased is accepted at Rs.6,850/- per month, which was the minimum wages
on the date of accident and taking this fact into consideration that deceased is
survived by wife, widow mother and three children and after deducting 1/4th,
when 40% is added, it will come out to Rs.86,310/-. Taking into consideration
age of the deceased to be 34 years multiplier of 16 will be applicable as has
been applied by the Tribunal taking pecuniary compensation to Rs.13,80,960/-,
over and above which Rs.70,000/- is payable under the head of non-pecuniary
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SAN
compensation and Rs.1,20,000/- under the head of loss of consortium to each
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of the children, taking total compensation to Rs.15,70,960/- against a sum of
Date: 2022.11.18 18:29:12 IST
Rs.9,68,416/- granted by the learned Tribunal. Thus, there will be addition of
Rs.6,02,544/-, which claimants will be entitled to receive alongwith 7% interest
from the date of filing claim petition till date of actual payment.
The enhanced amount shall remain invested in a Monthly Income Scheme
of Indian Post Office or a Nationalized Bank for a period of ten years, so that
the claimants will be entitled to use its interest for their well being, but will not
be entitled to touch the principal amount for a period of ten years.
Thus, appeal filed by the Insurance Company (M.A.No.1445/2018) for
want of evidence on record fails and is dismissed and appeal filed by claimants
(M.A.No.3436/2019) is allowed.
Record of the Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
as
Signature Not Verified
SAN
Digitally signed by ANURAG SONI
Date: 2022.11.18 18:29:12 IST
