Smt.Prem Joo vs Sameer Pratap Seth
2022 Latest Caselaw 15332 MP

                                                01

     IN THE HIGH COURT OF MADHYA PRADESH
                  AT GWALIOR
                        BEFORE
    HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL

              ON THE 22nd OF NOVEMBER, 2022


              MISC. APPEAL No. 904 of 2009

  Between:-
1. SMT.PREM JOOW/O LATE CHANDAN
   SINGH THAKUR , AGED ABOUT 52
   YEARS, OCCUPATION: R/O VILLAGE
   SENGUA     THANA   THARET    TEH.
   DISTT.DATIA (MADHYA PRADESH)

2. KU. MANOJ RAJED/O CHANDAN SINGH
   THAKUR , AGED ABOUT 18 YEARS,
   OCCUPATION:     R/O    VILL.SEGUVA,
   P.S.THARET, TEH.SEVDA, DISTT.DATIYA
   (MADHYA PRADESH)

3. NATHUSINGHD/O     CHANDAN     SINGH
   THAKUR , AGED ABOUT 32 YEARS,
   OCCUPATION:     R/O    VILL.SEGUVA,
   P.S.THARET, TEH.SEVDA, DISTT.DATIYA
   (MADHYA PRADESH)

4. RAJENDRA SINGH S/O S/O LATE
   CHANDAN SINGH THAKUR , AGED
   ABOUT 30 YEARS, OCCUPATION: R/O
   VILL.SEGUVA, P.S.THARET, TEH.SEVDA,
   DISTT.DATIYA (MADHYA PRADESH)

5. HANUMANTH SINGH S/O S/O CHANDAN
   SINGH THAKUR , AGED ABOUT 28
   YEARS,        OCCUPATION:       R/O
   VILL.SEGUVA, P.S.THARET, TEH.SEVDA,
   DISTT.DATIYA (MADHYA PRADESH)

6. MAHENDRA     SINGH   S/O   S/O   LATE
                                                       02

  CHANDAN SINGH THAKUR , AGED
  ABOUT 25 YEARS, OCCUPATION: R/O
  VILL.SEGUVA, P.S.THARET TEH.SEVDA,
  DISTT.DATIYA (MADHYA PRADESH)
                                         .....APPELLANTS
  (SHRI R.P. GUPTA, ADVOCATE FOR APPELLANTS)

  AND

1. SAMEER PRATAP SETHS/O MAHENDRA
   PRATAP SETH OCCUPATION: R/O WARD
   NO.6,PRATHVIPUR DISTT. TIKAMGARH
   (MADHYA PRADESH)
2. SMT.   UMA   SINGH    GOUTAMW/O
   PUSHPENDRA SINGH GOUTAM , AGED
   ABOUT 32 YEARS, OCCUPATION: R/O
   C.O. SHRI HARICHARAN RAJPAL, 13
   TALAIYA MOHALLA, DISTT. JHANSI
   (MADHYA PRADESH)
3. ICICI     LOMBARD        GENERAL
   INSURANCE CO.LTD.HOTEL SHELTER
   BUILDING,     SHASTRI     CHOWK
   OCCUPATION: PADAV, GWALIOR, THR:
   BRANCH     MANAGER       (MADHYA
   PRADESH)

                                        ....RESPONDENTS
  (SHRI DEEPAK KHOT, ADVOCATE FOR RESPONDENT NO.3)


                            &

                MISC. APPEAL No.905 of 2009

    Between:-
    RANU SINGH @ PUSHPENDRA SINGH
    S/O S/O MULAYAM SINGH THAKUR ,
    AGED     ABOUT      22   YEARS,
    OCCUPATION:     R/O    VILLAGE
    SENGUWA      THANA      THARET
                                                                        03

      TEH.SEVADHA DISTT.DATIA (MADHYA
      PRADESH)
                                                       .....APPELLANT
      (SHRI R.P. GUPTA, ADVOCATE FOR APPELLANT)

      AND

 1    SAMEER     PRATAP    SETHS/O
      MAHENDRA SETH OCCUPATION: R/O
      WARD NO.6,PRATHVIPUR DISTT.
      TIKAMGARH (MADHYA PRADESH)

 2    SMT.   UMASINGH     GOUTAMW/O
      PUSHPENDRA     SINGH    GOUTAM
      OCCUPATION:    R/O   C.O.  SHRI
      HARICHARAN RAJPAL, R/O 13,
      TALAIYA               MOHALLA,
      JHANSI,PRES:PRATVIPUR,
      TEEKAMGARH (MADHYA PRADESH

 3    ICICI    LOMBARD      GENERAL
      INSURANCE        CO.LTD.HOTEL
      SHELTER BUILDING OCCUPATION:
      SHASTRI CHOWK, PADAV, GWALIOR,
      THR: BRANCH MANAGER (MADHYA
      PRADESH)

                                                      RESPONDENTS
      (SHRI DEEPAK KHOT, ADVOCATE FOR RESPONDENT NO.3)

       Both these appeals coming on for hearing this day, the court passed
the following:

                             JUDGMENT

This order shall govern the disposal of Misc. Appeal Nos.904/2009 and 905/2009.

Claimants of Claim Case No.92/2007 and claimant of Claim Case No.93/2007 have preferred these two appeals against award

passed on 09.03.2009.

In brief facts of the case are that on the fateful day i.e. 11.04.2007 deceased Chandan Singh alongwith son of his brother- in-law appellant Ranu Singh by his motorcycle MP074 KL 0164 were going from Village Senguva to Orchha. Motorcycle was being driven by appellant claimant Ranu Singh. When they reached infront of waiting hall at Prathvipur, from the front side respondent No.1 driver of the offending vehicle which was in the ownership of respondent No.2 and was insured with respondent No.3 came driving offending vehicle i.e. Tata S bearing Registration No. UP 93 E 7879 and dashed their motorcycle. Due to aforesaid accident, Chandan Singh died on the spot. Appellant- claimant Ranu got severe injuries. FIR was lodged at Police Station Prathvipur bearing crime No.74/2007 for the offence punishable under Section 279, 337, 304-A of IPC against respondent No.1. Dead body panchnama of Chandan Singh was prepared. Claimant appellant was sent for hospital. After investigation, charge-sheet has been submitted against respondent No.1. At the time of accident, deceased Chandan Singh was working as agriculturist and used to earn Rs.3000/- per month. At the time of accident, he was 54 years of age. Appellants-claimants in claim case No.92/2007 are his family members including his wife, daughter and sons. By the aforesaid income, he used to maintain his family. Due to his sudden death, they were deprived of love and affection of husband and father. They preferred claim

petition seeking compensation. In the aforesaid accident, another claimant Ranu Singh got severe injuries. He got fracture in his right leg and right hand. Doctor issued certificate that he suffered 40% permanent disability. He was 22 years of age at the time of accident and used to do agriculture work and earn Rs.3000/- per month. He also filed an application under Section 166 of Motor Vehicle Act seeking compensation. From the side of claimants evidence has been adduced in support their application. In rebuttal, no evidence has been adduced on behalf of respondents. Learned Tribunal in claim case No.92/2007 by partly allowing application, appellants-claimants taking into account income of deceased as Rs.15000/- per annum, age of deceased as 60 years applied multiplier of 8 and awarded compensation to the tune of Rs.1,31,5000/- to the appellants-claimants. As far as Claim Case No.93/2007 is concerned, learned Tribunal awarded compensation to the tune of Rs.1,45,000/- in favour of claimant.

Learned counsel for the claimants in both the appeals made submission that while calculating the award, learned Tribunal assessed the income of claimant on lower side, besides this no future prospects have been taken into account. It is also submitted that learned Tribunal has erred in exonerating Insurance Company from the liability to pay compensation. It is also submitted by learned counsel for the appellant-claimant that appellant-claimant Ranu Singh who is eye-witness of the incident, soon after the incident lodged first information report against offending vehicle

bearing registration No. UP93 E 7879 in which he has named as Mukesh Ahirwar as driver of the offending vehicle but after investigation charge-sheet has been submitted against respondent No.1 Sameer Pratap Seth.

On the other hand learned counsel for the insurance company made submission that learned Tribunal rightly disbelieved the evidence of appellants-claimants because there is contradiction in ocular evidence and investigation done by Investigating Agency. It is also submitted that in FIR, Mukesh Ahirwar has been named as driver but after investigation charge- sheet has been submitted against respondent No.1 Sameer Kumar Seth. In this situation, it is not clear that at the time of accident who was driving the offending vehicle. In such circumstances, Insurance Company is not liable to pay compensation.

Looking to the submissions made by learned counsel for Insurance Company, it is clear that at the time of lodging of FIR, appellant-claimant lodged FIR against Mukesh Ahirwar but after investigation, charge-sheet has been submitted against respondent No.1 Sameer Pratap Seth. In such circumstances, in the light of judgment rendered by three-Judges Bench of Apex Court in the case of National Insurance Co. Ltd. v. Swaran Singh & others reported in (2004) 3 SCC 297, it is directed that the insurance company at the first instance will indemnify the compensation amount to the claimant and thereafter recover the same from the driver and owner, jointly or severally.

As far as quantum of compensation in M.A. No.904/2009 is concerned, as per SALSA guidelines at the time of accident, minimum wages of unskilled labour was Rs.2602/- per month. Rounding off the figures, the income of deceased Chandan Singh is assessed as Rs.2600/- per month. Hence, his annual income comes to Rs.2600 x 12 = Rs.31200/-, adding 10% towards future prospects in the light of judgment National Insurance Co. Ltd. v. Pranay Sethi (2017) 16 SCC 680, the income comes to Rs.34,320/-, deducting ¼ towards dependency, the figure comes out to Rs.25,740, applying multiplier of 9 in the light of judgment of Hon'ble Apex Court rendered in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121, total loss of income comes to Rs. 2,31,660/-, adding Rs.70,000/- under other heads, the total compensation comes to Rs.3,01,660/-.

The appellants-claimants in M.A. No.904/2009 are held entitled to receive the enhanced amount of Rs.1,70,160/- (Rs.3,01,660/- - 1,31,500/-) in addition to the amount of compensation already awarded by the Claims Tribunal. The enhanced amount shall carry interest @ 6% from the date of filing of claim application till its realization.

As far as quantum of compensation in M.A. No.905/2009 is concerned, as per SALSA guidelines at the time of accident, minimum wages of unskilled labour was Rs.2602/- per month. Rounding off the figures, the income of injured Ranu Singh is assessed as Rs.2600/- per month. Hence, his annual income comes

to Rs.2600 x 12 = Rs.31200/-, adding 40% towards future prospects in the light of judgment National Insurance Co. Ltd. v. Pranay Sethi (2017) 16 SCC 680, the income comes to Rs.43,680/-, loss of earning due to functional disability would be 30% which is Rs.13,104/, applying multiplier of 18 in the light of judgment of Hon'ble Apex Court rendered in Sarla Verma Vs. Delhi Transport Corporation, (2009) 6 SCC 121, total loss of income comes to Rs. 2,35,872/-, adding Rs.20,000/- towards medical expenses, Rs.5000/- towards special diet, Rs.2000/- towards transportation, Rs.50,000/- towards pain and suffering looking to the injuries sustained by the injured, Rs.5000/- towards loss of income, the total compensation comes to Rs.3,17,872/-.

The appellant-claimant in M.A. No.905/2009 are held entitled to receive the enhanced amount of Rs.1,72,872/- (Rs.3,17,872/- - 1,45,000/-) in addition to the amount of compensation already awarded by the Claims Tribunal. The enhanced amount shall carry interest @ 6% from the date of filing of claim application till its realization Rest of the terms and conditions of the award shall remain as it is. The judgment and award passed by the Tribunal is modified to the extent indicated above.

In view of the forgoing discussion, both the appeals succeed and is hereby allowed in part. Parties are directed to bear their own costs.

M.A. No.904/2009 and M.A. No.905/2009 are accordingly

disposed of.

YOGENDRA
OJHA                        (DEEPAK KUMAR AGARWAL)
2022.11.23
10:30:25                            JUDGE
+05'30'      ojha