Madhya Pradesh High Court
Smt. Sheetal Pandey vs Manohar Lal 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)
5. SARVIL CHEKIT PATEL S/O NOT KNWON D-1 MUDRA
APARTMENT NAER STADIUM PETROL PUMP
NAVGIWARI AHMADABAD (GUJARAT)
Signature Not Verified
SAN
6. DIVISIONAL MANAGER BHARTI AXA GENERAL
Digitally signed by MOHD TABISH KHAN INSURANCE CO. LTD. DIVISIONAL OFFICE AD. 4TH
FLOOR 401 402 3RD EY STEDENT AT PANCHWATI CROSS
Date: 2022.11.17 19:29:46 IST
ROAD C G ROAD AHMADABAD (GUJARAT)
2
.....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)
6. DIVISIONAL MANAGER CHOLA MANDLAM GENERAL
INSURANCE CO.LTD. DIVISIONAL OFFICE NO. 1, DEAR
HOUS 2 FLOOR NO. 2 NSCB ROAD (TAMIL NADU)
7. PARMAR NARAN BHAI S/O SAVA BHAI PARSHOTTAM
Signature Not Verified
SAN
MODI CHAVAL , GOMTIPUR AHMADABAD (GUJARAT)
8.
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:46 IST SERVIL CHEKIT PATEL S/O NOT MENTION D-1 MUDRA
APARTMENT, NEAR STADIUM PETROL PUMP,
3
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)
6. PARMAR NARAN BHAI S/O SAVA BHAI PARSHOTTAM
MODI CHAWAL GOMATIPURA (GUJARAT)
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)
Signature Not Verified
SAN
.....RESPONDENTS
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:46 IST
(BY SHRI NITIN KUMAR GUPTA, ADVOCATE FOR RESPONDENTS NO.1,2
AND 3)
4
(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 SCC 765, wherein it
is held that in collision of car into rear end of truck resulting in death of one of the
passengers in car, finding that truck did not 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
Signature Not Verified
SAN shall keep a sufficient distance from that other vehicle to avoid collision if the vehicle in
front should suddenly slow down or stop.
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:46 IST
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, submits that
Tribunal has arbitrarily ignored the Income Tax Returns prior to 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
Signature Not Verified
SAN
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
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:46 IST
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 suddenly applied the brakes
resulting in ramming of the car coming from behind and thus there cannot be any element
of contributory negligence attributed to 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
Signature Not Verified
SAN come of the deceased, and therefore, Income Tax Return available on record are taken
into consideration.
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:46 IST
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.
Tribunal has misread statements of A.K. Saxena, PW-2, who represented 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.
Signature Not Verified
SAN
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
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:46 IST
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
to Rs.9,16,054/- (Rupees Nine Lacs Sixteen Thousand Fifty Four Only). 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
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SAN
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
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:46 IST
the principal amount will not allowed to be withdrawn.
In above terms, these appeals are disposed of.
Record of the tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
Tabish
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2022.11.17 19:29:46 IST
