Mamta Pandey vs Kallu Musalman @ Abdul And Ors.
2022 Latest Caselaw 13957 MP

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           IN THE HIGH COURT OF MADHYA PRADESH
                        AT GWALIOR
                          BEFORE
      HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                 ON THE 31st OF OCTOBER, 2022
           MISCELLANEOUS APPEAL NO. 113 OF 2005

     Between:-

     MAMTA PANDEY S/O ANIL KUMAR
     PANDEY, D/O BRIJKISHORE, AGED 26
     YEARS, OCCUPATION- NIL, R/O CIVIL
     LINE DATIA AT PRESENT R/O
     BHANDER, DISTRICT-DATIA (MADHYA
     PRADESH)

                                            ........APPELLANT

     (BY SHRI P.K. MISHRA- ADVOCATE)

     AND

1.   KALLU MUSALMAN @ ABJUL S/O
     VALID KHAN, AGED- 30 YEARS, R/O
     MOHALLA SIKANDARPUR BHANDER,
     POLICE      STATION-   BHANDER,
     DISTRICT- DATIA (MADHYA PRADESH)

2.   FIROJ KHAN S/O RAMJAN KHAN
     THROUGH     MUNNARAJA     TANAY
     KARAN     SINGH   YADAV,     R/O
     TARANTARAN    MARG,    DISTRICT-
     DATIA (MADHYA PRADESH)

3.   NATIONAL INSURANCE CO. CIVIL
     LINE, DISTRICT- DATIA (MADHYA
     PRADESH)
                                          ........RESPONDENTS

     (SHRI RAM VILAS SHARMA- ADVOCATE FOR RESPONDENT
NO.3/INSURANCE COMPANY)
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       This application coming on for hearing, this day, the Court passed the
following:
                                      JUDGMENT

This is an appeal filed by the claimant under Section 173 of the Motor Vehicles Act against the award dated 09/09/2004 passed by Second Motor Accident Claims Tribunal (Fast Track Court), District- Datia (M.P.) in Claim Case No.41/1999.

By impugned award, the Claims Tribunal has awarded a total sum of Rs.1,30,000/- with interest to the claimant who sustained injuries in accident on 27/05/1997. According to the claimant, the compensation awarded is on lower side and hence, needs to be enhanced. Therefore, the claimant has filed this appeal.

During pendency of this appeal Insurance Company also preferred cross- objection on the ground that Insurance policy issued by them is Act Policy. Under these circumstances, Insurance Company is not liable to pay the compensation.

Precisely stated facts of the case are that on 27/05/1997 at about 12:00 PM, the appellant and 15 other persons were going to Jhansi by offending Jeep bearing registration No.MP07-W-1554 which was being driven by respondent No.1 in rash and negligent manner which turned turtle, due to which, claimant received injuries and other three persons died on the spot. Thereafter, FIR was lodged and after investigation, charge sheet has been filed. Due to accident, she sustained injury in brain for which she had to treat herself by Neurologist. She is suffering from Schizophrenia disease. She filed an application for compensation under Section 166 of Motor Vehicles Act and adduced evidence. In support of her application, she adduced evidence of doctor- Kuldeep Singh (PW-4) in which he has stated that he is posted at Mansik Arogyashala Gwalior

and on 12/03/2003, he examined the injured- Mamta and prescribed medicines which is Ex.P/11. He again examined her on 21/06/2003. Later on, 07/07/2003, appellant was referred to him by Dr. Ayangar for which prescription is Ex.P/3 which was signed by Dr. Ayangar. Thereafter, on 08/07/2003, prescription was written for examination of appellant which is Ex.P/14 and certificate was given in respect of her treatment from 15/08/1999 to 08/07/2003. She is suffering from Schizophrenia disease and advised for taking long treatment. During cross- examination, he admitted that if proper treatment is given then she can recover.

It is submitted by the learned counsel for the claimant that the Claims Tribunal has awarded compensation to the sum of Rs.1,30,000/- in lump sum which is on lower side. In view of the foregoing submissions, appeal filed by the appellant be allowed and the amount of compensation be enhanced.

Learned counsel for the Insurance Company supported the findings of the Claims Tribunal and submitted that the compensation as awarded by the Claims Tribunal appears to be just and reasonable and interference by this Court for enhancement of the compensation is not warranted. Learned counsel for the Insurance Company relied upon the judgment of Apex Court in the case of Oriental Insurance Company Ltd. Vs. Surendra Nath Loomba and others [2013 ACJ 321] and submitted that injured/claimant was traveling in the offending vehicle which was not comprehensively insured. Insurance of the said vehicle was only for the Act Policy. Under these circumstances, Insurance Company be exonerated from the liability of paying the compensation to the claimant.

Heard the learned counsel for parties and perused the record. Having gone through the evidence adduced by the claimant, it is transpired that besides the evidence of doctor- Kuldeep Singh, no evidence has been produced by the claimant that she received any disability due to accident but doctor was of the opinion that treatment would take time and taking into consideration the overall findings of the Claims Tribunal which appear to be

just and proper but however considering the nature of the case, the compensation as awarded by the Claims Tribunal is liable to be enhanced by Rs.50,000/- in lump sum alongwith interest which shall be payable to the appellant in addition to already awarded amount by the Claims Tribunal i.e. Rs.1,30,000/- .

The appellant is held entitled to receive the enhanced amount of Rs.50,000/- in addition to the amount of compensation already awarded by the Claims Tribunal. The enhanced amount of award shall not carry any interest however, if respondents fail to make the payment of compensation jointly and severely within a period of one month from today, then the enhanced amount of award shall carry penal interest at the rate of 6% per annum. Rest of the conditions as imposed by Claims Tribunal shall remain intact.

So far as liability to pay the compensation is concerned, this Court after going through the evidence available on record as well as judgment relied by the Insurance Company in the case of Oriental Insurance Company Ltd. (supra) comes to the conclusion that the claimant was traveling in offending vehicle which was not covered in Act Policy.

In view of the above, liability to pay the compensation to the claimant as awarded above by this Court is of owner and driver of the said vehicle in which claimant was traveling at the time of incident. Accordingly, Insurance Company is exonerated from the liability to pay the compensation to the claimant.

The instant appeal is disposed of in above terms. In the facts of the case, parties are directed to bear their own costs.

(DEEPAK KUMAR AGARWAL) JUDGE

rahul

Digitally signed by RAHUL SINGH PARIHAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=eac942476567cd1b39b3da46068403462fdf82ab676d0cde 4dee473fe77953f5, pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D487, serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4AB 9D159B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR Date: 2022.11.01 18:16:08 +05'30'