The New India Insurance Company ... vs Radhe Shyam Nishad
2022 Latest Caselaw 13469 MP

                                                                 1
                                               IN THE HIGH COURT OF MADHYA PRADESH
                                                            AT JABALPUR
                                                                  BEFORE
                                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                        ON THE 13th OF OCTOBER, 2022

                                                      MISC. APPEAL No. 1302 of 2019

                                            BETWEEN:-
                                            THE NEW INDIA INSURANCE COMPANY LTD.
                                            THR. DEPUTY MANAGER LEGAL HUB NEW
                                            INDIA   ASSURANCE     COMPANY     BHOPAL
                                            DIVISION OFFICE NO.1 CDU 1 BLOCK 3 SECOND
                                            FLOOR PARYAVAS BHAWAN AREA HILLS
                                            BHOPAL THR. R/O 290 NAPIER TOWN
                                            JABALPUR (MADHYA PRADESH)

                                                                                         .....APPELLANT
                                            (BY SHRI JAYANT NEEKHRA, ADVOCATE)

                                            AND
                                       1.   RADHE SHYAM NISHAD S/O BAIJNATH NISHAD,
                                            AGED    ABOUT      65    YEARS, VILLAGE
                                            CHATARGARH P.S SHANKARGARH DISTT.
                                            ALLAHABAD (UTTAR PRADESH)

                                       2.   MUNA DEVI W/O LATE SHRI RAMCHANDRA
                                            NISHAD, AGED ABOUT 40 YEARS, OCCUPATION:
                                            HOUSE WIFE R/O VILLAGE CHATARGARH,
                                            P.S.SHANKAR GARH (UTTAR PRADESH)

                                       3.   ASARFI LAL NISHAD S/O LATE SHRI
                                            RAMCHANDRA NISHAD, AGED ABOUT 21
                                            Y E A R S , R/O VILLAGE    CHATARGARH,
                                            P.S.SHANKAR GARH (UTTAR PRADESH)

                                       4.   AJAY KUMAR S/O LATE SHRI RAMCHANDRA
                                            NISHAD, AGED ABOUT 17 YEARS, OCCUPATION:
                                            MINOR THR. GUARDIAN MOTHER MUN DEVI
                                            W/O LATE SHRI RAMCHANDRA NISHAD R/O
                                            VILLAGE CHATARGARH, P.S.SHANKAR GARH
                                            (UTTAR PRADESH)

                                       5.   SANTOSH    KUMAR     S/O   LATE    SHRI
Signature Not Verified
  SAN                                       RAMCHANDRA NISHAD, AGED ABOUT 15
                                            YEARS, OCCUPATION: MINOR THR. GUARDIAN
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.10.18 11:02:36 IST
                                            MOTHER MUN DEVI W/O LATE SHRI
                                            RAMCHANDRA      NISHAD   R/O    VILLAGE
                                                                    2
                                               CHATARGARH, P.S.SHANKAR GARH (UTTAR
                                               PRADESH)

                                       6.      KU. KAVITA NISHAD D/O LATE SHRI
                                               RAMCHANDRA NISHAD, AGED ABOUT 12
                                               YEARS, OCCUPATION: MINOR THR. GUARDIAN
                                               MOTHER MUN DEVI W/O LATE SHRI
                                               RAMCHANDRA      NISHAD   R/O    VILLAGE
                                               CHATARGARH, P.S.SHANKAR GARH (UTTAR
                                               PRADESH)

                                       7.      DILIP BILDCON LIMITED, R/O DEVENDRA JAIN,
                                               S V P M PHALOODI COLONY RAJGARH THR.
                                               ASHISH TRIPATHI S/O BHOOMINATH TRIPATHI
                                               R/O LANE NO.2, KRISHNA NAGAR BHOPAL
                                               (MADHYA PRADESH)

                                       8.      AVADH KUSHORE SHAH S/O SHRI SIPAHI SHAH
                                               R/O VILLAGE GURRUNANAK NAGAR, POST
                                               NORTH BANGAI GAUN, DISTT BANGAI GAUN
                                               (ASSAM)

                                                                                                  .....RESPONDENTS
                                               (SHRI RAMSUPHAL CHATURVEDI, ADVOCATE FOR
                                               RESPONDENT NOS. 1 TO 6)

                                             Th is appeal coming on for hearing this day, t h e court passed the
                                       following:
                                                                         ORDER

Nobody is appearing for respondent nos. 7 and 8 though as per office report dated 10/05/2019, notices were served on respondent no. 7.

This appeal is filed by the Insurance company being aggrieved of award dated 30/11/2018 passed by the learned Additional Member, Motor Accident Claims Tribunal, Teonthar, District Rewa in MACC No. 7/16 on the sole ground that the Insurance company had examined the official from the R.T.O. namely Shri Karan Naresh Singh as NAW-2.

This witness in his examination-in-chief has clearly deposed that he is Signature Not Verified SAN working as District Transport Officer, District Senapati. The driving license Digitally signed by VAIBHAV YEOLEKAR Date: 2022.10.18 11:02:36 IST was issued by his office to Shri Avadh Kishore Shah S/o Shri Sipahi Shah,

President of Gurunanak Nagar, Post North Bangai Gaun, District Bangai Gaun, Assam to drive a heavy vehicle which was valid from 29/10/2012 to 28/10/2015. As per his record, it was not renewed thereafter.

It has come on record that the accident took place on 6/01/2016 and on the date of the accident, Driver Awadh Kishore Shah was not having valid driving license to drive the offending vehicle. When this fact could be established by the Insurance company, then it had discharged its burden under Section 149 of the Motor Vehicle Act. Thereafter, there was no scope for interpretation in the matter and the Insurance company should have been either exonerated or at best, the award should have been passed directing the Insurance company to pay the compensation and then recover it from the owner/driver of the offending vehicle.

Infact, once the burden was discharged by the Insurance company, then it shifted to the owner/driver of the motor vehicle to prove that driver of the offending vehicle was having valid driving license on the date of the accident.

Relevant law on the subject is laid down in the case of Amrit Paul Singh and another Vs. Tata AIG General Insurance Company Ltd. and others AIR 2018 SC 2662. This burden has not been discharged by the owner/driver. The impugned award deserves to be modified and is accordingly modified and it is directed that the Insurance company will pay the

compensation in favour of the claimants as awarded by the learned Tribunal and will be free to recover from the owner of the offending vehicle i.e. Dilip Buildcon Ltd.

In this case, cross-objections have also been filed by the claimants and Signature Not Verified SAN

the only ground which is raised by the claimants is that the Tribunal has Digitally signed by VAIBHAV YEOLEKAR Date: 2022.10.18 11:02:36 IST

considered age of deceased Shri Ram Chandra Nishad as 45 years whereas his

date of birth is 12/05/1976 and the date of accident is 6/01/2016, therefore, he was less than 40 years of age. Ex. P-29 is the temporary identity certificate of deceased Ram Chandra Nishad. On this certificate Ex. P-29, the date of birth of the deceased is mentioned as 12/05/1976.

Thus, Shri R.S. Chaturvedi, learned counsel for the claimants submits that the Tribunal erred in considering age as 45 years contrary to the documentary evidence available on record on the basis of postmortem report when the documentary evidence from the statutory authority namely Employees State Insurance Corporation is available on record, then there was no justification in doubting that evidence available on record.

Therefore, 50% addition is to be made towards the future prospects. It is further submitted that the Tribunal erred in considering the income of the deceased at Rs. 5,000/- per month on the ground that after filing documents pertaining to year 2012 showing his engagement at Rourkela, no other document was filed to show his income on the date of the accident which took place in the year 2016 but at the same time, the Tribunal erred in considering income of the deceased at Rs. 5,000/- per month against the minimum wages of Rs. 6,575/- per month as were notified by the statutory authority under the Minimum Wages Act.

Thus, calculation is to be made in the following manner. If minimum wages of the deceased are taken into consideration @ Rs. 6,575/- per month,

then it will come out to Rs. 78,900/- per annum. The Tribunal has made 1/4 th deduction leaving net dependency at Rs. 59,175/-. As age of the deceased was Signature Not Verified SAN admittedly less than 40 years on the date of the accident, 40% is to be added

Digitally signed by VAIBHAV YEOLEKAR Date: 2022.10.18 11:02:36 IST towards future prospects taking net dependency to Rs. 82,845/-. Since, age of

the deceased has come out less than 40 years on the date of the accident, therefore, multiplier of 15 will be applicable as laid down by the Supreme Court in the case of Smt. Sarla Verma and others Vs. Delhi Transport Corporation and another, (2009) 6 SCC 121 taking total pecuniary compensation to Rs. 12,42,675/-.

Besides this, the claimants will be entitled to a sum of Rs. 70,000/- under the head of non-pecuniary compensation and another sum of Rs. 1,60,000/- under the head of loss of parental consortium for death of their father for claimant nos. 3, 4, 5 and 6.

Learned counsel for respondent nos. 1 to 6 submits that he has paid deficit court fee of Rs.15,755/- and in support of the said submission, he has filed a copy of Online Court Fee Cyber Receipt dated 17/10/2022, therefore, the Court fee may be taken on record.

Thus, claimants will be entitled to a total sum of Rs. 14,72,675/- in place of Rs. 8,42,500/- awarded by the learned Claims Tribunal. Thus, in the light of the judgment of this Hon'ble Court in New India Assurance Company Ltd. Vs. Saits 2004 ACJ 169 as valid driving license was not possessed by the Driver of the offending vehicle, the Insurance Company is directed to pay the compensation and recover it from the owner/driver of the offending vehicle.

Similarly, the claimants will be entitled to an additional sum of Rs. 6,30,175/- (Rupees Six Lakh Thirty thousand one hundred and seventy five only) which will also earn interest @ 6% from the date of filing of the claim petition till the date of actual payment.

This additional amount shall remain invested in the monthly income Signature Not Verified SAN

scheme of Indian Postoffice. The claimants will be entitled to draw the interest Digitally signed by VAIBHAV YEOLEKAR Date: 2022.10.18 11:02:36 IST

for a period of five years.

In above terms, the appeal is disposed of.

(VIVEK AGARWAL) JUDGE vy

Signature Not Verified SAN

Digitally signed by VAIBHAV YEOLEKAR Date: 2022.10.18 11:02:36 IST