Smt.Balvinder Kaur vs Rajendra Singh Yadav
2022 Latest Caselaw 11729 MP

                                                    01

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

            ON THE 6th OF SEPTEMBER, 2022

             MISC. APPEAL No. 24 of 2010

 BETWEEN:-
 RAKSHPAL SINGH SARDAR S/O S/O BAKHSHEESH SINGH
 SARDAR , AGED ABOUT 23 YEARS, OCCUPATION: R/O GRAM
 RAYATPURA,P.S.ANDORI,DISTT. BHIND (MADHYA PRADESH)
                                        .....APPELLANT
 (SMT.MEENA SINGHAL, LEARNED COUNSEL FOR APPELLANT)

 AND
1. RAJENDRA SINGH YADAV S/O S/O GOPAL YADAV , AGED
   ABOUT    26  YEARS,   OCCUPATION:   R/O  JAMUNA
   NAGAR,DARPAN    COLONY,THATIPUR   MORAR,GWALIOR
   (MADHYA PRADESH)
2. JANDEL SINGHS/O BHAGWAN SINGH YADAV OCCUPATION:
   R/O    SURAIYAPURA    SINGHPUR    ROAD    MORAR
   DISTT.GWALIOR (MADHYA PRADESH)
3. UNITED INDIA INSURANCE CO.LTD. CENTER POINT
   COMPLEX PHOOLBAG GWALIOR (MADHYA PRADESH)
                                     .....RESPONDENTS
 (SHRI B.N.MALHOTRA,R.SHARMA, LEARNED COUNSEL FOR
 RESPONDENT)
                         &

             MISC. APPEAL No. 25 of 2010

 BETWEEN:-
1. SMT.BALVINDER KAURW/O JASVEER SINGH SARDAR , AGED
   ABOUT    39   YEARS,   OCCUPATION:    R/O   GRAM
                                                              02

     RAYATPURA,P.S.ANDORI,BHIND (MADHYA PRADESH)
2.   JASVEER SINGH SARDAR S/O S/O BAJ SINGH SARDAR , AGED
     ABOUT 43 YEARS, OCCUPATION: R/O GRAM RAYATPURA,
     THANA ANDORI DISTT.BHIND (MADHYA PRADESH)
3.   AJMER SINGH S/O S/O JASVEER SINGH SARDAR , AGED
     ABOUT 23 YEARS, OCCUPATION: R/O GRAM RAYATPURA,
     THANA ANDORI DISTT.BHIND (MADHYA PRADESH)
4    PUSHPENDRA SINGH S/O S/O JASVEER SINGH , AGED ABOUT
     21 YEARS, OCCUPATION: R/O GRAM RAYATPURA, THANA
.    ANDORI, DISTT.BHIND (MADHYA PRADESH)
                                               .....APPELLANT
     (SMT.MEENA SINGHAL, LEARNED COUNSEL FOR APPELLANT)

     AND
1. RAJENDRA SINGH YADAVS/O GOPAL YADAV OCCUPATION:
   R/O     JAMUNA     NAGAR,DARPAN    COL.THATIPUR,
   MORAR,GWALIOR (MADHYA PRADESH)
   JANDEL SINGHS/O BHAGWAN SINGH YADAV OCCUPATION:
   R/O    SURAIYAPURA    SINGHPUR  ROAD,    MURAR
2.
   DISTT.GWALIOR, THROUGH RAJENDRA SINGH (MADHYA
   PRADESH)
   UNITED INDIA INSURANCE CO.LTD. CENTER POINT
3.
   COMPLEX PHOOLBAG GWALIOR (MADHYA PRADESH)
                                            .....RESPONDENTS
     (SHRI BADRI NATH MALHOTRA, LEARNED COUNSEL FOR
     RESPONDENT [R-3])
        These appeals coming on for hearing this day, the court

passed the following:

                           JUDGMENT

This order shall govern the disposal of Misc. Appeal Nos.24/2010 and 25/2010.

Being aggrieved by the common award passed on 13.11.2009 in Claim Case No.111/2009 and 112/2009 by

Additional Motor Accident Claims Tribunal (Fast Track) Gwalior (M.P.), appellants have preferred these appeals.

Brief facts of the case are that on 13.04.2008 claimant Rakshpal alongwith deceased Hardayal was going by motorcycle bearing registration No. MP07 MD 2998 from his village Rayatpura to Gwalior. The said motorcycle was being driven by deceased Hardayal on the left side of road and was proceeding slowly. At that juncture, respondent No.1-driver of the offending vehicle came driving Dumper bearing registration No. MP07 G 7617 on wrong side rashly and negligently, dashed the deceased motorcycle near hotplant Baretha Laxmangarh due to which Hardayal died on the spot and Rakshpal received grievous injuries on the different parts of his body. Report in regard to the said accident was lodged by Sarman Singh at Police Station Maharajpura Gwalior. Crime No. 88/2008 for the offence punishable under Sections 279, 337, 304-A was registered. Offending Vehicle i.e. Dumper was seized and driver of the said vehicle was arrested. After investigation, offence punishable under Section 338 of IPC was enhanced and charge-sheet against the driver of the offending vehicle was filed. Parents and sons of deceased Hardayal and injured Rakshpal separately filed claim petitions under Section 166 of the Motor Vehicles Act seeking compensation. After recording of evidence, learned Claims Tribunal vide common award dated 13.11.2009 partly allowed claim case Nos.111/2009 & 112/2009 in regard to death of

deceased Hardayal and injured Rakshpal and passed award to the tune of Rs.1,51,400/- and 5,11,500/- respectively.

M.A. No. 24/2010 has been filed by injured Rakshpal on the ground that learned Tribunal has erred in assessing 20% of permanent disability. Since appellant has sustained fractures due to the said accident and in rebuttal, respondent-Insurance Company has not filed any document or evidence and therefore the permanent disability may be assessed as 50%. The another ground raised by the appellant is that the annual income of the injured was assessed as Rs.36,000/- without taking into account the sources of income of injured namely agricultural income and income from driving. Hence, the annual income of injured may be assessed as Rs. 1,48,000/-. It is further submitted that claimants are also entitled for future prospects in the light of the decision of the Apex Court in the case of National Insurance Co. Ltd. vs. Pranay Sethi as reported in 2017 (16) SCC 680. It is also submitted that in claim petition in regard to death of deceased Hardayal, Claims Tribunal has only awarded a sum of Rs.3,000/- towards funeral expenses and loss of estate, whereas as per aforesaid decision of the Apex Court a sum Rs.70,000/- under other heads may be awarded.

M.A. No.25/2010 has been filed on the ground that annual income of the deceased was assessed as Rs.72,000/- without taking into account the sources of income of deceased namely agricultural income, income from driving and sale of milk. Hence, the annual

income of injured be assessed as Rs. 4,00,000/-. The dependency assessed by the tribunal is also on lower side, it should be 2/3. The compensation of the other heads is also on lower side. It is also submitted that the disability should be assessed as 50%.

Reliance has also been placed by learned counsel for the appellants on the judgment of Supreme Court in case of Neeta and Others Vs. Divisional Manager, Mahrashtra State Road Transport Corporation as reported in 2015 ACJ 598, wherein in an accident which had taken place on 22.03.2011 where Tribunal had assessed income of the deceased aged 33 years, a carpenter and having income from agricultural land at Rs.4,500/- per month was increased to Rs.6,000/- per month in first appeal was increased to Rs.12,000/- per month by the Apex Court taking into consideration that deceased was a skilled worker and while computing income at Rs.12,000/- per month factors like minimum wages, agricultural income and future prospects were taken into consideration.

Learned counsel for Insurance Company contends that though learned counsel for the appellants has raised ground that the deceased and injured having agricultural land, but there is no convincing evidence to prove the income out of it and since the land was owned by them, it cannot be said that there is total loss of income due to death of deceased or injuries suffered by appellant- Rakshpal.

Heard learned counsel for the parties and perused the record.

Claim case No.112/2009

In regard to income of deceased Hardayal, claimants have adduced evidence. However, no documentary evidence in this regard has been produced by the claimants. Hence, income of the deceased is assessed as Rs.9000/-. Since parents and brother of the deceased are alive, in these situation, learned Tribunal rightly deducted 50% towards dependency. Claimants are also entitled 40% increase under the head of future prospects in the light of judgment rendered by the Apex Court in the case of Pranay Sethi (supra).

Claim case No.111/2009

In regard to injured Rakshpal, as per the claimants, at the time of accident injured was 22 years of age and on the basis of which in the light of judgment rendered by Apex Court in the case of Smt. Sarla Verma Vs. Delhi Transport Corporation 2009(2) ACCD 924 multiplier of 18 would be applicable. In the disability certificate produced by the claimant, percentage of disability has not been mentioned. Hence, learned Tribunal rightly assessed the percentage of disability as 20%. Evidence of one Hardev Singh has been adduced in which he has specifically stated that Rakshpal used to work as driver and earn Rs.4000/- per month. Upon perusal of his statement, it seems that there is no reason to disbelieve his statement. His evidence is well supported by the certificate issued

by him.

As discussed herein above, the deceased Hardayal was earning Rs.9000/- per month. His annual income would be Rs.1,08,000/-. In view of the decision of the Apex Court in the case of Pranay Sethi (supra) the claimants would be entitled to addition of 40% in this amount. Thus, total amount comes to Rs.1,51,200/-, deducting 50% towards loss of dependency, the annual income of the deceased would be Rs.75,600/-. If in this amount, multiplier of 18 is applied, then total amount comes to Rs.13,60,800/-. Besides that, claimants are entitled to a sum of Rs.70,000/- under miscellaneous heads (loss of estate, loss of consortium and funeral expenses). The total compensation comes to Rs.14,30,800/-. Thus, claimants are entitled to a sum of (Rs.14,30,800- 5,11,500/-) = 9,19,300/-.

As discussed herein above, injured Rakshpal was earning Rs.4000/- per month. His annual income would be Rs.48000/-. In view of the decision of the Apex Court in the case of Pranay Sethi (supra), the claimants would be entitled to addition of 40% in this amount. Thus total amount comes to Rs.67,200/-, deducting 20% towards permanent disability, the annual income of the deceased would be Rs.13,440/-. If in this amount, multiplier of 18 is applied, then total amount comes to Rs.2,41,920/-. Besides that, claimants are entitled to a sum of Rs.8000/- towards loss of income for two months, Rs.15,000/-, Rs.3000/-, Rs.25000/-, Rs.25000/-, Rs.25000/-, Rs.25000/- under the head of medical expenses,

special diet, pain and suffering, loss of amenities of life and transportation, attendant charges, loss of marriage prospects. The total compensation comes to Rs.3,67,920/-. Thus, claimants are entitled to a sum of (Rs.3,67,920 - 1,51,400) = 2,16,520/-.

The enhanced amount of award shall not carry any interest however, if respondent-Insurance Company fails 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.

In view of the above, the instant appeals are allowed in part, accordingly. In the facts of the case, parties are directed to bear their own costs.

(DEEPAK KUMAR AGARWAL) JUDGE YOGENDR ojha A OJHA 2022.09.0 8 17:44:05 +05'30'