Madhya Pradesh High Court
Bhartiya Axa General Insurance ... vs Smt. Shital Pandey on 15 November, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 15th OF NOVEMBER, 2022
MISC. APPEAL No. 2059 of 2016
BETWEEN:-
1. SMT. SHEETAL PANDEY W/O LATE SUSHIL
KUMAR PANDEY, AGED ABOUT 42 YEARS, I.S.CI.
COLONY, C-1, HABIBGANJ BHOPAL (MADHYA
PRADESH)
2. KU. SNAGDHA PANDEY D/O LATE SUSHIL
KUAMR PANDEY, AGED ABOUT 23 YEARS, I.S.CI.
COLONY, C-1, HABIBGANJ BHOPAL (MADHYA
PRADESH)
3. UDDYAN PANDEY S/O LATE SUSHIL KUAMR
PANDEY, AGED ABOUT 19 YEARS, I.S.CI.
COLONY, C-1, HABIBGANJ BHOPAL (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI NITIN KUMAR GUPTA, ADVOCATE)
AND
1. MANOHAR LAL S/O MAMRAJ GRAM KUDSU,
NOKHA, BIKANER, RAJASTHAN (RAJASTHAN)
2. HANUMAN RAM S/O MOHRAM GRAM KUDSU,
NOKHA, BIKANER, RAJASTHAN (RAJASTHAN)
3. DIVISIONAL MANAGER CHOLA MANDLAM
GENERAL INSURANCE CO.LTD. DIVISIONL
OFFICE NO. 1 AD. DEAR HOUSE 2 FLOOR H. NO.
2 NSC BOSS ROAD CHENNAI (TAMIL NADU)
4. PAMAR NARAN BHAI S/O SAVA BHAI
PARSHOTTAM MODI CHAWAL GOMTIPUR
AHMADABAD GUJARAT (GUJARAT)
Signature Not Verified
5. SARVIL CHEKIT PATEL S/O NOT KNWON D-1
MUDRA APARTMENT NAER STADIUM PETROL
SAN
Digitally signed by MOHD TABISH KHAN
PUMP NAVGIWARI AHMADABAD (GUJARAT)
Date: 2022.11.17 19:29:33 IST
6. DIVISIONAL MANAGER BHARTI AXA GENERAL
2
INSURANCE CO. LTD. DIVISIONAL OFFICE AD.
4TH FLOOR 401 402 3RD EY STEDENT AT
PANCHWATI CROSS ROAD C G ROAD
AHMADABAD (GUJARAT)
.....RESPONDENTS
(BY SHRI TEJVINDER SINGH LAMBA, ADVOCATE FOR
RESPONDENT NO.3)
(BY SHRI RAKESH JAIN, ADVOCATE FOR RESPONDENT NO.6)
MISC. APPEAL No. 1650 of 2016
BETWEEN:-
BHARTIYA AXA GENERAL INSURANCE
COMPANY LTD. DIVISIONAL MANAGER
DIVISION OFFICE FOURTH FLOOR 401 202
THIRD EYE STENDENT AT PANCHWATI CROSS
ROAD CG ROAD AHMADABAD BHOPAL
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAKESH JAIN, ADVOCATE)
AND
1. SMT. SHITAL PANDEY W/O LATE SUSHIL
KUMAR PANDEY, AGED ABOUT 42 YEARS, ISCI
COLONY C-1 HABIBGANJ P.S HABIBGANJ
BHOPAL (MADHYA PRADESH)
2. KU. SNINGHDHA PANDEY D/O LATE SUSHIL
KUMAR PANDEY, AGED ABOUT 23 YEARS, ISCI
COLONY C-1 HABIBGANJ P.S HABIBGANJ
BHOPAL (MADHYA PRADESH)
3. UDAYAN PANDEY D/O LATE SUSHIL KUMAR
PANDEY, AGED ABOUT 19 YEARS, ISCI COLONY
C-1 HABIBGANJ P.S HABIBGANJ BHOPAL
(MADHYA PRADESH)
4. MANOHAR LAL S/O MAMRAJ GRAM KUDSU,
TEH. NOKHA BIKANER (RAJASTHAN)
5. HANUMAN RAM S/O MOHRAM GRAM KUDSU,
TEH. NOKHA BIKANER (RAJASTHAN)
Signature Not Verified
6. DIVISIONAL MANAGER CHOLA MANDLAM
SAN
Digitally signed by MOHD TABISH KHAN
GENERAL INSURANCE CO.LTD. DIVISIONAL
Date: 2022.11.17 19:29:33 IST
OFFICE NO. 1, DEAR HOUS 2 FLOOR NO. 2 NSCB
ROAD (TAMIL NADU)
3
7. PARMAR NARAN BHAI S/O SAVA BHAI
PARSHOTTAM MODI CHAVAL , GOMTIPUR
AHMADABAD (GUJARAT)
8. SERVIL CHEKIT PATEL S/O NOT MENTION D-1
MUDRA APARTMENT, NEAR STADIUM PETROL
PUMP, NAVJIVARI (GUJARAT)
.....RESPONDENTS
(BY SHRI NITIN KUMAR GUPTA, ADVOCATE)
MISC. APPEAL No. 1689 of 2016
BETWEEN:-
CHOLAMANDALAM MS GEN. INS. CO. LTD.
THROUGH MANAGER DARE HOUSE 2 ND
FLOOR NSC BOSE ROAD CHENNAI (TAMIL
NADU)
.....APPELLANT
(BY SHRI TEJVINDER SINGH LAMBA, ADVOCATE)
AND
1. SMT. SHEETAL PANDEY W/O LATE SUSHIL
KUMAR PANDEY, AGED ABOUT 42 YEARS, ISCI
COLONY C-1, HABIBGANJ P.S. HABIBGANJ
(MADHYA PRADESH)
2. KU. SNIGDHA PANDEY D/O LTE SUSHIL KUMAR
PANDEY, AGED ABOUT 23 YEARS, ISCI COLONY
C-1 HABIBGANJ P.S. BHOPAL (MADHYA
PRADESH)
3. UDYAN PANDEY S/O LATE SUSHIL KUMAR
PANDEY, AGED ABOUT 19 YEARS, ISCI COLONY
C-1 HABIBGANJ P.S. BHOPAL (MADHYA
PRADESH)
4. MANOHARLAL S/O MAMRAJ VILLAGE KUDSU
TAHS. NOKHA BIKANER (RAJASTHAN)
5. HANUMAN RAM S/O MOHRAM VILLAGE KUSSU
TAH. NOKHA BIKANER (RAJASTHAN)
Signature Not Verified
SAN
6. PARMAR NARAN BHAI S/O SAVA BHAI
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:33 IST
PARSHOTTAM MODI CHAWAL GOMATIPURA
(GUJARAT)
4
7. SARVIL CHEKIT PATEL S/O NOT MANTION D-1,
MUKDRA APARMTEN NEAR STADIUM PETROL
PUMP NAVJIWARI (GUJARAT)
8. DIVISIONAL MANAGER BHARTI AXA GEN.INS.
CO. LTD. 4TH FLOOR 401-402 THRID EYE
STANDENT AT PANCHWATI CROSS ROAD
CG.ROAD (GUJARAT)
.....RESPONDENTS
(BY SHRI NITIN KUMAR GUPTA, ADVOCATE FOR RESPONDENTS
NO.1,2 AND 3)
(BY SHRI RAKESH JAIN, ADVOCATE FOR RESPONDENT NO.8)
These appeals coming on for admission this day, the court passed the
following:
ORDER
These appeals are filed respectively by the Insurance Company of the
offending Car, Offending Truck and Claimants being aggrieved of award dated
22.04.2016 passed by learned Additional Motor Accident Claims Tribunal in
M.C.C. No.332/2011.
Shri T.S. Lamba, appearing for the Cholamandalam MS General
Insurance Co. Ltd. submits that once it has come on record that Car bearing
registration No.GJ 01 BV 8282 which was insured with Bharti AXA General
Insurance Co. Ltd had rammed in the Truck bearing registration No.RJ 07 IG
3954 then there was no need for the Tribunal to have appropriated the
compensation between the two insurers i.e. the Insurance Company with which
Truck No.RJ 07 IG 3954 is insured and one with which Car is insured but
should have exonerated the Insurance Company of the Truck of its liability.
Placing reliance on the judgment of Hon'ble Supreme Court in Nishan
Singh and Others Vs. Oriental Insurance Co. Ltd. and Others, (2018) 6
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SAN
SCC 765, wherein it is held that in collision of car into rear end of truck
Digitally signed by MOHD TABISH KHAN
resulting in death of one of the passengers in car, finding that truck did not
Date: 2022.11.17 19:29:33 IST
brake too suddenly nor veer to centre/right side of narrow road causing the
collision, rather cause of collision was that said car not maintaining "sufficient
distance" from truck, held that Car was being driven rashly and negligently and
claim of contributory negligence in which truck suddenly brake will not be
applicable as no fault can be attributed to the truck driver in absence of pointing
out that truck had suddenly stopped.
Reliance is also placed on the Rules of the Road Regulations, 1989
specifically to Rule 23 which provides that the driver of a motor vehicle moving
behind another vehicle shall keep a sufficient distance from that other vehicle to
avoid collision if the vehicle in front should suddenly slow down or stop.
Shri Rakesh Jain representing Bharti AXA General Insurance Co. Ltd i.e.
insurer of the Car, in his turn, submits that there is evidence on record to point
out that Truck had put brakes suddenly as a result of which Car which was
travelling at a safe distance had rammed into the Truck then on the basis of the
evidence of the eye witness namely, Tarachand Tejwani, who clearly deposed
that on 29.11.2010 he was travelling from Ahmadabad to Baroda in his Qualis
when on Nadiad-Baroda road under Chaklasi Police Station, truck driver had
suddenly applied brakes as a result of which car travelling behind it rammed into
it. He had seen number of both the vehicles i.e. the Truck and the Car.
Thus, reading evidence of Shri Tarachand Tejwani, PW-3, it is submitted
that there is no element of contributory negligence and liability fixed on the
insurer of the car be set aside and Bharti AXA General Insurance Co. Ltd be
exonerated of its liability.
Shri Nitin Kumar Gupta, learned counsel for the claimants, in his turn,
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SAN
submits that Tribunal has arbitrarily ignored the Income Tax Returns prior to
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:33 IST
the date of the accident and has arbitrarily computed income at Rs.4,92,576/-
and thereafter making deduction of 10% percent has made calculation which is
illegal and arbitrarily and deserves to be modified.
Reliance is placed on the judgment of Hon'ble Supreme Court in case
National Insurance Co. Ltd Vs. Mannat Johal and Others, 2019 ACJ
1849 wherein it is held that Income Tax Return is to be accepted and ex gratia
payment made by the employer is not required to be deducted from the total
compensation.
Placing reliance on the judgment of Hon'ble Supreme Court in case of
Reliance General Insurance Co. Ltd. Vs. Shashi Sharma, 2016 ACJ
2723 (SC) to hold that the endevour has to be to ensure awarding of just
compensation to the claimants i.e. the measure of compensation must be just
and adequate and no double benefit should be passed on to the claimants in the
matter of award of compensation. Taking these facts into consideration, these
appeals are required to be decided.
After hearing learned counsel for the parties, it is evident that no evidence
was led by the Cholamandalam MS Gen, Insurance Co. Ltd by either examining
the driver of the truck or any other employee who was present in the truck at the
time of the accident or any eye witness to show that Car moving behind was not
maintaining the safe distance. In fact, Rule 24 of the Rules of the Road
Regulations, 1989 provides that no driver of a vehicle shall apply brakes
abruptly unless it is necessary to do so for safety reasons.
Thus, when Rule 23 and 24 are harmoniously constructed with the
evidence of the Tarachand then there is no iota of doubt that truck had
Signature Not Verified
SAN
suddenly applied the brakes resulting in ramming of the car coming from behind
Digitally signed by MOHD TABISH KHAN
and thus there cannot be any element of contributory negligence attributed to
Date: 2022.11.17 19:29:33 IST
the driver of the Car as is held by Hon'ble Supreme Court Mamta and Others
Vs. Bhav Singh @ Mansingh and Another, passed in Civil Appeal
No.7176/2022 arising out of SLP(C) No.32805/2028 decided on
11.10.2022 where in para 8 facts of that case are similar to the present case
that when the vehicle moving ahead had suddenly stopped in a negligent manner
without giving any signal then the vehicle coming from behind had rammed into
it. As a result, deceased sustained injuries and succumbed to death on the spot,
Hon'ble High Court has held that respondent Insurance Company will pay the
compensation i.e. it has not accepted the plea of contributory negligence as was
held by the Madhya Pradesh High Court in M.A. No.956/2013.
Hon'ble Supreme Court in case K. Ramiya and others Vs. National
Insurance Co. Ltd. and Anr., 2022 Live Law (SC) 816 has held in para 14,
that documents such as Income Tax Return and audit reports are reliable
evidence to determine the income come of the deceased, and therefore, Income
Tax Return available on record are taken into consideration.
Thus, plea of negligence of motor car, driver is not made out as
Tarachand has deposed that Car driver was at a safe distance and, therefore,
appeal filed by the Bharti AXA General Insurance Co. Ltd needs to be allowed
and is allowed.
Consequently, appeal filed by the Cholamandalam MS General Insurance
Co. Ltd, insurer of the truck, fails and is hereby dismissed.
As far as, plea of the claimants is concerned that compensation is in
adequate, there appears to be substance in the arguments advanced by the
learned counsel for the appellants.
Signature Not Verified
SAN
Tribunal has misread statements of A.K. Saxena, PW-2, who represented
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:33 IST
IFCI Ltd. Nehru Place New Delhi in his capacity as associate vice president
and clearly deposed that deceased was working as associate vice president and
on the date of the accident his total emoluments were Rs.13,54,596/- (Rupees
Thirteen Lacs Fifty Four Thousand Five Hundred and Ninety Six Only), he had
exhibited Ex.P-11 dated 02.03.2012. Besides this Income Tax Return of the
deceased as was filed on 27.07.2010 before the Income Tax Department,
Ahmadabad Range-14 (Ex.P-8) is on record showing gross income of the
deceased to be Rs.13,39,232/- (Rupees Thirteen Lacs Thirty Nine Thousand
Two Hundred and Thirty Two Only) with deduction of Rs.1,05,811/- (Rupees
One Lac Five Thousand Eight Hundred and Eleven Only), under the Chapter
VI-A showing net tax payable of Rs.2,82,247/- (Rupees Two Lacs Eighty Two
Thousand Two Hundred and Fourty Seven Only). Therefore, Tribunal was
required to consider net income of the deceased at Rs.10,56,985/- (Rupees Ten
Lacs Fifty Six Thousand Nine Hundred and Eighty Five Only) after tax
deduction and on the basis of this calculation should have been made.
Since, deceased is survived by three legal heirs, therefore, 1/3rd is to be
deducted towards the living expenses of the deceased i.e. a sum of
Rs.3,52,328/- (Rupees Three Lacs Fifty Two Thousand Three Hundred and
Twenty Eight Only), leaving disposable income of Rs.7,04,657/- (Rupees Seven
Lacs Four Thousand Six Hundred and Fifty Seven Only) in the hands of the
claimants. Tribunal has accepted age of the deceased between 46-50 years,
therefore, 30% is to be added towards the future prospects in terms of law laid
down by Hon'ble Supreme Court in National Insurance Company Limited
Vs. Pranay Sethi & Others, (2017) 16 SCC 680, taking total dependency
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SAN
to Rs.9,16,054/- (Rupees Nine Lacs Sixteen Thousand Fifty Four Only).
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:33 IST
Tribunal has applied multiplier of 13 which when applied will take total
pecuniary compensation to Rs.1,19,08,702/- (Rupees One Crore Nineteen Lacs
Eight Thousand Seven Hundred and Two Only), over and above which
claimants will be entitled to a sum of Rs.70,000/- (Rupees Seventy Thousand
Only) under the head of loss of consortium, loss of estate and funeral expenses
plus Rs.80,000/- (Rupees Eighty Thousand Only) for the Claimant No.2 and 3
under the head of loss of parental consortium as per the law laid down by the
Supreme Court in case of United India Insurance Company Limited versus
Satinder Kaur @ Satwinder Kaur 2020 SCC Online SC 410, taking total
compensation to Rs.1,20,58,702/- (Rupees One Crore Twenty Lacs Fifty Eight
Thousand Seven Hundred and Two Only) against a sum of Rs.39,67,098/-
(Rupees Thirty Nine Lacs Sixty Seven Thousand Ninety Eight Only) awarded
by learned Claims Tribunal. Thus, there will be an addition of Rs.80,91,604/-
(Rupees Eighty Lacs Ninety One Thousand Six Hundred and Four Only) to
which claimants will be entitled to in addition to the amounts awarded by
learned Claims Tribunal. This additional amount will also earn interest @ 6%
from the date of claim petition till the date of actual payment. This
compensation amount will be payable by the owner, driver and insurer of the
offending truck.
This additional amount will remain invested in a fixed deposit receipt on a
Monthly Income Scheme of the Indian Post Office or the Nationalized Bank for
a period of five years. The claimants will be entitled to use its interest for their
monthly maintenance, but the principal amount will not allowed to be
withdrawn.
In above terms, these appeals are disposed of.
Signature Not Verified
SAN
Record of the tribunal be sent back.
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:33 IST
(VIVEK AGARWAL)
JUDGE
Tabish
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:33 IST
