Madhya Pradesh High Court
Sulle @ Suleman Khan vs Smt.Kalpana Jayant on 5 September, 2022
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 5th OF SEPTEMBER, 2022
MISCELLANEOUS APPEAL NO.1210 OF 2009
Between:-
1. SMT. KALPANA JAYANT W/O
SHIVRAJ SINGH , AGED ABOUT 22
YEARS, OCCUPATION: R/O 140/B
SHASTRINAGAR B.BLOCK, BHIND
(MADHYA PRADESH)
2. SMT. SHEELABAI W/O JAHAR
SINGH, AGED ABOUT 44 YEARS,
OCCUPATION: R/O 140/8 SHASTRI
NAGAR B BLOCK BHIND
P.S.DEHAT, DISTT.BHIND (MADHYA
PRADESH)
........APPELLANTS
(BY SHRI DHARMENDRA RISHISHWAR- ADVOCATE)
AND
1. SULLE @ SULEMAN KHAN S/O
NOOR KHAN OCCUPATION: R/O
GRAM LAVAN,P.S.BAROHI AT
PRESENTLY GRAM PARA P.S.
ATER, DISTT.BHIND (MADHYA
PRADESH)
2. RAMBABU SHIVHARE S/O S/O
DWARIKA PRASAD SHIVHARE
R/O GALLA MANDI BHIND
PARGANA & DISTT. BHIND
(MADHYA PRADESH)
3. UNITED INDIA INSURANCE
2
CO.LTD. ROAD BHIND, THR:
BRANCH MANAGER (MADHYA
PRADESH)
........RESPONDENTS
(SHRI ARVIND KUMAR AGRAWAL-ADVOCATE FOR
RESPONDENT NO.3)
MISCELLANEOUS APPEAL NO.1655 OF 2009
Between:-
SULLE @ SULEMAN KHAN S/O
NOOR KHAN OCCUPATION: R/O
GRAM LAVAN,P.S.BAROHI AT
PRESENTLY GRAM PARA P.S.
ATER, DISTT.BHIND (MADHYA
PRADESH))
........APPELLANT
(NONE)
AND
1. SMT. KALPANA JAYANT W/O
SHIVRAJ SINGH, AGED 22 YEARS,
R/O 140/B SHASTRINAGAR B
BLOCK, BHIND (MADHYA
PRADESH)
2. SMT. SHEELABAI W/O JAHAR
SINGH, AGED 44 YEARS, R/O 140/8
SHASTRI NAGAR B BLOCK BHIND
P.S. DEHAT, DISTT. BHIND
(MADHYA PRADESH)
3. RAMBABU SHIVHARE, S/O
DWARIKA PRASAD SHIVHARE
R/O GALLA MANDI BHIND
3
PARGANA & DISTT. BHIND
(MADHYA PRADESH)
4. UNITED INDIA INSURANCE
CO.LTD. ROAD BHIND, THR:
BRANCH MANAGER (MADHYA
PRADESH)
........RESPONDENTS
(SHRI R.P. GUPTA-ADVOCATE FOR RESPONDENT NO.2
AND SHRI ARVIND KUMAR AGRAWAL- ADVOCATE FOR
RESPONDENT NO.4)
-----------------------------------------------------------------------------------
This application coming on for hearing, this day, the Court
passed the following:
JUDGMENT
By this common order, MA No.1210/2009 filed by the
appellants/claimants and M.A.No.1655/2009 filed by the
appellant/owner are decided and this common order shall govern the
disposal of both the appeals. As the facts of appeals are same and they
are arising out of common Award dated 30/06/2009 passed in Claim
Case No.03/2008 by 1st Motor Accidents Claims Tribunal, Bhind
(M.P.), therefore, they are heard analogously.
Learned counsel for the appellants of MA No.1210/2009 has
filed appeal only for enhancement of compensation and MA
No.1655/2009 has been filed by the owner for exoneration of liability
to pay the compensation.
In MA No.1210/2009, by impugned award, the Claims Tribunal
has awarded a total sum of Rs.8,09,351/- with interest to the claimants for
the death of one Shivraj, aged 27 years who died in motor vehicle
accident on 18/12/2007. According to claimants (wife and mother of
deceased), the compensation awarded is on lower side and hence, needs
to be enhanced. It is for the enhancement in the compensation awarded by
the Tribunal, the claimants have filed this appeal.
The brief facts of the case are that on 18/12/2007, Shivraj (since
deceased) was going from Ater to Bhind by his motorcycle and as soon
as he reached near para village, at that time, driver- respondent No.1
herein of offending vehicle came driving his vehicle in rash and
negligent manner and dashed his motorcycle, due to which, he got
injured and he was taken to the district hospital Bhind and thereafter,
he was referred to J.A. Group of Hospital Gwalior and thereafter, he
was taken to Loknayak Jaiprakash Hospital Delhi where he died during
treatment.
The case was contested by the respondents. Parties adduced
evidence. The Claims Tribunal after assessing income of deceased at
Rs.5,891/- per month and holding that deceased was spending 40% on
himself as personal expenses, the amount of dependency came to the
tune of Rs.42,416/- and applying the multiplier of 17 in the light of
judgment passed in the case of Sarla Verma (Smt.) and Ors. Vs. Delhi
Transport Corporation and Anr. [(2000) 6 SCC 121) according to the
age of the deceased was 27 years and Rs.70,351/- towards medical
expenses, Rs.5,000/- towards vehicle expenditure for carrying dead
body, Rs.5,000/- towards attender, Rs.2,000/- towards grief of son,
Rs.5,000/- towards loss of consortium, Rs.1,000/- towards funeral
expenses, awarded total compensation of Rs.8,09,423/-/- in total.
Learned counsel for the appellants of MA No.1210/2009 submits
that the deceased was husband of appellant No.1 and son of appellant
No.2. He was government servant and used to earn money and spend it to
meet the expenses of the family. Due to his death, the family suffered
great monetary loss. Learned counsel for the appellants further submits
that the learned tribunal has assessed the annual income of the deceased at
Rs.42,416/-per annum after deducting 40% towards personal expenses
and applied the multiplier of 17. It is submitted that the income of the
deceased as assessed is on lower side as he was government servant and
was earning Rs.12,000/- per month. It is submitted that the appeal filed by
the appellants be allowed and the amount of compensation be enhanced.
It is also submitted by counsel for the appellants that no sum has been
awarded by the Claims Tribunal under the head of future prospects,
whereas, deceased was only 27 years of age at the time of death and
therefore, in light of decision of Apex Court in the case of National
Insurance Company Limited Vs. Pranay Sethi and Ors., (2017) 16
SCC 680, 50% of monthly salary to be awarded towards future prospects.
Further, the amount awarded by the trial Court to the
appellants/claimants under the head of funeral expenses is also on the
lower side.
Learned counsel for respondent No.3, submits that the amount
awarded by learned Tribunal is just and proper and do not deserve any
enhancement. It is also submitted that appellants has not taken ground
of future prospects, therefore, arguments are not tenable.
Having gone through the evidence adduced by the
appellants/claimants and after taking into consideration all the evidence
on record, the amount awarded by the tribunal appears to be on the lower
side which deserves to be enhanced. Keeping in view the above and the
fact that accident occurred in the year 2007 and family of the deceased
was dependent upon him, since at the time of accident, deceased Shivraj
was government servant and was earning Rs.6,691/-. Further in the
opinion of this Court, Claims Tribunal erred in not awarding any sum
under the head of future prospects in light of decision of Apex Court in
the case of Pranay Sethi (supra). As such, appellants are entitled for
future prospects at the rate of 50%. in view of the age of the deceased.
Relevant para i.e. 59.3 of the said decision is reproduced hereinbelow
for ready reference:-
"59.3. While determining the income, an addition of
50% of actual salary to the income of the deceased
towards future prospects, where the deceased had a
permanent job and was below the age of 40 years,
should be made. The addition should be 30%, if the
age of the deceased was between 40 to 50 years. In
case the deceased was between the age of 50 to 60
years, the addition should be 15%. Actual salary
should be read as actual salary less tax."
In the opinion of this Court, Claims Tribunal erred in assessing
net income of deceased whereas, in light of catena of decisions of Apex
Court as well as this Court, gross income of deceased should be
assessed. Accordingly the income of deceased is assessed at Rs.6,691/-
per month. After adding 50% towards future prospects, his monthly
income comes to Rs.10,036/- (6,691+3,345/-) and thus, his annual
income comes to Rs.1,20,438/-. The Claims Tribunal erred in
deducting 40% towards self expenditure, it should be deducted 1/3 rd,
therefore, after deducting 1/3rd towards self expenditure, yearly income
comes to Rs.80,288/-. Thus after applying multiplier of 17 as per age in
the light of decision of Sarla Verma (supra), total amount comes to Rs.
13,64,896/-. In the opinion of this Court the sum awarded by Claims
Tribunal under the conventional heads is also on lower side and
therefore, in the light of decision of Apex Court in the case of Pranay
Sethi (supra), a sum of Rs.70,000/- is required to be awarded. Thus,
the claimants are entitled for total compensation to the tune of
Rs.14,34,896/-.
In view of the forgoing discussion, MA No.1210/2009 succeeds
and is hereby allowed in part. The claimants are held entitled to receive
the enhanced amount of Rs.6,25,545/- (Rs.14,34,896 - 8,09,351/-) 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 appellant fails to make the payment of compensation
within a period of three months from today, then the enhanced amount
of award shall carry interest at the rate of 6% per annum.
In MA No.1655/2009, learned counsel for the Insurance
Company submitted that owner and driver have been fastened with the
liability to pay the compensation on the ground that driver of the
offending vehicle was not having the license to drive heavy motor
vehicle. To bolster his submission, learned counsel for the
appellant/Insurance Company relied upon the judgment of Hon'ble
Apex Court in the case of Bajaj Allianz General Ins. Co. Ltd. Vs.
Rambha Devi and others [(2022) ACJ 953] in which the matter was
referred to larger Bench in respect of law laid down in Mukund
Dewangan Vs. Oriental Insurance Co.Ltd [2017 ACJ 2011 (SC)].
The contention of the Insurer is that the driver of the offending
vehicle did not possess the valid and effecting driving license to drive
the matador van and he was having the license to drive only LMV.
Hence the liability of paying compensation cannot be fastened on the
Insurer. The contention of the Insurer cannot be accepted in view of the
judgment of the Hon'ble Supreme Court made in Civil Appeal
No.4834/2013 in the case of S. IYYAPAN v/s M/S. UNITED INDIA
INSURANCE COMPANY LTD. AND ANOTHER disposed off on
01/07/2013. The issue before the Hon'ble Supreme Court in the said
appeal is - "Can an Insurance Company disown its liability on the
ground that the driver of the vehicle although duly licensed to drive the
light motor vehicle but there was no endorsement in the license to drive
the light motor vehicle used as a commercial vehicle." The said issue
has been considered by the Apex Court at paragraph 17 of the
judgment and held as under:-
"Reading the provisions of Section 146 and 147 of the
Motor Vehicles Act, it is evidently clear that in certain
circumstances the insurer's right is safeguarded but in any
event the insurer has to pay compensation when a valid
certificate of insurance is issued notwithstanding the fact
that the insurer may proceed against the insured for
recovery of the amount. Under Section 149 of the Motor
Vehicles Act, the insurer can defend the action inter alia on
the grounds, namely, (i) the vehicle was not driven by a
named person, (ii) it was being driven by a person who was
not having a duly granted licence, and (iii) person driving
the vehicle was disqualified to hold and obtain a driving
licence. Hence, in our considered opinion, the insurer
cannot disown its liability on the ground that although the
driver was holding a licence to drive a light motor vehicle
but before driving light motor vehicle used as commercial
vehicle, no endorsement to drive commercial vehicle was
obtained in the driving licence. In any case, it is the
statutory right of a third party to recover the amount of
compensation so awarded from the insurer. It is for the
insurer to proceed against the insured for recovery of the
amount in the event there has been violation of any
condition of the insurance policy."
In the instant case, admittedly the driver was holding a license to
drive light motor vehicle. There is no dispute that the motor vehicle in
question, by which accident took place, was Matador. Merely because
the driver did not get any endorsement in the driving license to drive
Matador, which is a light motor vehicle, the Claims Tribunal has
committed grave error of law in holding that the insurer is not liable to
pay compensation because the driver was not holding the license to
drive the commercial vehicle. Accordingly, MA No.1655/2009 is
allowed. Liability to pay compensation is purely shifted on the
Insurance Company.
MA No.1210/2009 filed by the appellants seeking enhancement
stands allowed in terms as referred above. MA No.1655/2009 filed by
the owner seeking setting aside of shifting of liability to pay
compensation by the Claims Tribunal is hereby allowed in his absence.
(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=eac942476567cd1b39b3da46068403462fdf82ab676d0cde4de
e473fe77953f5,
pseudonym=68E0B84BAE73376CD071289B3D9FE728CE00D487,
serialNumber=0275C4F803F94C47998BE5C534E21BDED910FD4AB9D1
59B55575E814D05B2EED, cn=RAHUL SINGH PARIHAR
Date: 2022.09.09 18:41:36 +05'30'
