Madhya Pradesh High Court
The New India Assurance Co.Ltd. vs Smt. Guddi Yadav on 23 September, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 23rd OF SEPTEMBER, 2022
MISC. APPEAL No. 1860 of 2019
BETWEEN:-
THE NEW INDIA ASSURANCE CO.LTD. THR.
DEPUTY GENERAL MANAGER REGIONAL
OFFICE BLOCK 3 SECOND FLOOR PARYAWAS
BHAWAN ARERA HILLS BHOPAL (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI DINESH KAUSHAL, ADVOCATE)
AND
1. SMT. GUDDI YADAV W/O LATE SHRI RAJESH
KUMAR YADAV, AGED ABOUT 32 YEARS,
KACHNAVKALAN BHIND PRESENTLY
RESIDING AT 163 ADITYA AVENUE BHOPAL
(MADHYA PRADESH)
2. MA. ANUJ YADAV S/O LATE SHRI RAJESH
KUMAR YADAV, AGED ABOUT 9 YEARS,
OCCUPATION: MINOR THROUGH GUARDIAN
MOTHER SMT. GUDDI YADAV
KACHNAVKALAN BHIND PRESENTLY
RESIDING AT 163 ADITYA AVENUE BHOPAL
(MADHYA PRADESH)
3. MA. VISHNU YADAV S/O LATE SHRI RAJESH
KUMAR YADAV, AGED ABOUT 5 YEARS,
OCCUPATION: MINOR THROUGH GUARDIAN
MOTHER SMT. GUDDI YADAV
KACHNAVKALAN BHIND PRESENTLY
RESIDING AT 163 ADITYA AVENUE BHOPAL
(MADHYA PRADESH)
4. MURARI LAL YADAV S/O LATE VIJAY SINGH
YADAV, AGED ABOUT 65 YEARS,
KACHNAVKALAN BHIND PRESENTLY
Signature Not Verified
SAN
RESIDING AT 163 ADITYA AVENUE BHOPAL
(MADHYA PRADESH)
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.09.29 11:46:04 IST
5. SMT. BHAGWANSHRI W/O SHRI MURARI LAL
2
YADAV, AGED ABOUT 60 YEARS,
KACHNAVKALAN BHIND PRESENTLY
RESIDING AT 163 ADITYA AVENUE BHOPAL
(MADHYA PRADESH)
6. NITESH DEYANI S/O PRAKASH DEYANI C/O
SMT. HEMA BHANDARI H.NO. 56-A
GOVINDPURI RANIPUR MOR HARIDDWAR
(UTTAR PRADESH)
7. SMT HEMA BHANDARI W/O SHRI VIRENDRA
SINGH BHANDARI RESIDENT OF HOUSE NO 56-
A GOVINDPURI RANIPUR HARIDDWAR UP
(UTTAR PRADESH)
.....RESPONDENTS
(SHRI NITIN GUPTA, ADVOCATE FOR RESPONDENT NOS. 1 TO 5)
MISC. APPEAL No. 5707 of 2019
BETWEEN:-
1. SMT. GUDDI YADAV W/O LATE RAJESH KUMAR
YADAV, AGED ABOUT 32 YEARS, KACHNAO
KALA DIST. BHIND (MADHYA PRADESH)
2. MA.ANUJ YADAV S/O LATE RAJESH KUMAR
YADAV, AGED ABOUT 9 YEARS, OCCUPATION:
MINOR THROUGH NATURAL GUARDIAN
MOTHER SMT.GUDDI YADAV 163 ADITYA
AVENUE DISTT.BHOPAL (MADHYA PRADESH)
3. MA.VISHNU YADAV S/O LATE RAJESH KUMAR
YADAV, AGED ABOUT 5 YEARS, OCCUPATION:
MINOR THROUGH NATURAL GUARDIAN
MOTHER SMT.GUDDI YADAV 163 ADITYA
AVENUE DISTT.BHOPAL (MADHYA PRADESH)
4. MURARI LAL YADAV S/O LATE VIJAY SINGH
YADAV, AGED ABOUT 65 YEARS, 163 ADITYA
AVENUE DISTT.BHOPAL (MADHYA PRADESH)
5. SMT.BHAGWAN SHRI W/O MURARI LAL
YADAV, AGED ABOUT 60 YEARS, 163 ADITYA
AVENUE DISTT.BHOPAL (MADHYA PRADESH)
Signature Not Verified
SAN
.....APPELLANTS
(BY SHRI NITIN GUPTA, ADVOCATE)
Digitally signed by VAIBHAV YEOLEKAR
AND
Date: 2022.09.29 11:46:04 IST
3
1. NITESH DEYANI S/O SHRI PRAKASH DEYANI
THR. SMT. HEMA BHANDARI H. N. 56-A
GOVINDPURA RANIPUR MOR DIST. HARIDWAR
(UTTARAKHAND)
2. SMT.HEMA BHANDARI W/O VIRENDRA SINGH
BHANDARI H.NO.56-A GOVINDPURI RANIPUR
MOR. DIST.HARIDWAR (UTTARAKHAND)
3. THE NEW INDIA INSURANCE CO.LTD THROUGH
DEPUTY GENERAL MANAGER REGIONAL
OFFICE BLOCK 3, 2ND FLOOR PARYAWAS
BHAWAN ARERA HILLS (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DINESH KAUSHAL, ADVOCATE FOR RESPONDENT NO. 3)
These appeals coming on for hearing this day, th e court passed the
following:
ORDER
Heard on I.A. No. 13010/2019 an application under Section 5 of the
Limitation Act for condonation of delay filed in M.A. No.5707/2019.
There is a delay of about six months.
The delay in filing the appeal is condoned.
However, it is made clear that in case, the claimants succeed in their
appeal, they will not be entitled to any interest on the enhanced amount for a
period of six months.
Appellants, in M.A. No.5707/2019, has filed covering memo enclosing
Online Court Fee receipts.
It is submitted by learned counsel for the appellants, in M.A.
No.5707/2019, that deficit Court Fees have been paid by him, therefore, prays
for taking the Court fees on record and he may be permitted to amend the
Signature Not Verified
valuation accordingly.
SAN
Digitally signed by VAIBHAV YEOLEKAR
Considering the aforesaid, deficit Court fee is taken on record and
Date: 2022.09.29 11:46:04 IST
appellants are permitted to amend the valuation.
These appeals have been filed respectively by the Insurance company
and the claimant being aggrieved of award dated 19th December, 2018 passed in
MACC No. 1261/2016 by the learned III Additional Motor Accident Claims
Tribunal, Bhopal.
On one hand, the Insurance company's contention is that the Tribunal has
erred in passing exorbitant award in favour of claimants overlooking the fact
that there is evidence of R.T.O. Moradabad to say that the driving license of the
offending vehicle was fake.
It is submitted that it is wrongly held that the insured vehicle bearing
registration no. U.K.-08-TA 3785 was not being a party in violation of the terms
and conditions of the Insurance Company's policy.
Shri Dinesh Kaushal, learned counsel submits that the Insurance
company should be exonerated as the Tribunal has erroneously held that the
license should be verified by the R.T.O. Podi Gadhwal because address of
holder of the license is mentioned as Podi Gadhwal (Uttarakhand).
It is submitted that infact in the driving license, Article 1 driving license of
Nitesh Dhayani was issued from Moradabad and, therefore, there was no
justification in getting verification from R.T.O. Podi Gadhwal a fact which is
wrongly considered by the Tribunal.
Placing reliance on the judgment of Supreme Court in United India
Insurance Company Ltd. through its Divisional Manager Vs. Sujata
Arora and others 2013(3) TAC 29 (SC) wherein it is held that if offending
vehicle was not being driven by a person holding valid license, the Insurance
Signature Not Verified
SAN Company is not liable to indemnify the owner.
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.09.29 11:46:04 IST On the other hand, the claimants have filed the appeal on the ground that
there cannot be a blanket deduction of 30% income tax. It is further submitted
that age of the deceased was less than 40 years as according to PAN card
bearing Permanent Account No. ACFPY7534E, date of birth is mentioned as
11/06/1976 whereas the accident took place on 24/04/2016, therefore, the
Tribunal should have added 50% towards future prospects but the Tribunal has
arbitrarily added only 30% towards future prospects which is illegal and
arbitrary.
It is also submitted that incorrect multiplier of 15 is applied whereas that
will be 16 in the light of the law laid down by the Supreme Court in Smt. Sarla
Verma and others Vs. Delhi Transport Corporation and another, (2009)
6 SCC 121.
This argument of multiplier cannot be accepted. As per the law laid
down by the Supreme Court in Sarla Verma (supra), multiplier of 15 is
applicable for a person of the age between 36-40 years and, therefore, the
Tribunal has rightly applied multiplier of 15.
After hearing learned counsel for the parties and going through the
record, specially the evidence and the statements recorded on commission of
Shri Anil Kumar, Senior Assistant in the office of R.T.O. Moradabad who has
categorically stated that license no. 1035/U.P./MBD/2014, the issuance date
3/01/2014 is a fake license.
Infact, that license was issued in the name of Anil Kumar S/o Jograj
Singh resident of House No. 14, Taqla Ziyauddin PO and PS Dilari, District
Moradabad to drive a motorcycle and Light Motor Vehicle having validity from
23/01/2014 to 22/01/1934. He further deposed that since 2012, licenses were
Signature Not Verified
SAN
issued in computerized form.
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.09.29 11:46:04 IST
It has come on record that non-applicant nos. 1 and 2 had appeared
before the Tribunal and, thereafter, they remained absent when ex parte
proceedings were drawn against them. However, Article 1 is the license. It has
come on record that copy of the driving license was obtained from the records
of the criminal case and, thereafter, investigator had visited the office of R.T.O.
Moradabad to obtain certified copy of the license as is evident from the report
of Investigator Upendra Kumar Ex. D-4.
Thereafter, on verification, R.T.O. official Anil Kumar has termed it to be
fake, therefore, in the opinion of this court, technicalities will not be of any
assistance when respondent nos. 1 and 2 despite being served and appearing in
the court failed to produce any other document, then what was seized from
them during the criminal investigation and that on verification was found to be
fake.
Thus, on this ground, the appeal filed by the Insurance company
deserves to be allowed and is allowed. However, submissions made by Shri
Dinesh Kaushal, learned counsel that even directions cannot be given for pay
and recovery in the light of judgment of the Supreme Court in Sujata Arora
(supra) is concerned, thereafter, the Supreme Court in Nirmala Kothari Vs.
United India Insurance Company (2020)4 SCC 49 so also in the case of
Singhram Vs. Nirmala and others (2018) 3 SCC 800 which is a three
Bench judgment has held that even in case of fake and expired license of the
driver of the offending vehicle, direction for pay and recover can be given. To
this extent, the appeal is allowed.
It is directed that the Insurance company will pay the compensation and
Signature Not Verified
SAN
will be entitled to recover it from the owner/driver of the offending vehicle.
Digitally signed by VAIBHAV YEOLEKAR
As far as quantum is concerned, indulgence is required on two grounds
Date: 2022.09.29 11:46:04 IST
namely 50% is to be added towards future prospects and further appropriate
amounts are to be awarded under the head of filial, spousal and parental
consortium.
The Tribunal has accepted net dependency of the family at Rs. 7,82,412/-
per annum. 1/4th is to be deducted towards expenditure of the deceased on
self taking net dependency of the family to be Rs. 5,86,809/-. Over and above
which 50% is to be added towards future prospects taking total loss of income
at Rs. 8,80,213/-. When multiplier of 15 as is applied by the Tribunal is
applied, then total pecuniary compensation will come out to Rs. 1,32,03,195/-.
Over and above which claimants will be entitled to a sum of Rs. 70,000/- under
the head of non-pecuniary expenses and another sum of Rs. 80,000/- under the
head of loss of parental consortium taking total compensation to Rs.
1,33,53,195/- in place of Rs. 1,04,96,680/- awarded by the learned Claims
Tribunal.
Thus, there will be an enhancement to the tune of Rs. 28,56,515/-
(Rupees Twenty eight Lakh Fifty Six thousand five hundred and fifteen only) to
which claimants will be entitled to. This additional amount except for a period
of six months shall earn interest @ 7% from the date of filing of the claim
petition till the date of actual payment.
The other terms and conditions of the award with regard to proportion
shall remain intact but this additional amount will remain invested in the F.D.R.
of either Indian postoffice or a nationalized bank for a period of five years and
will not be permitted to be withdrawn under any circumstance by the Tribunal
or the Executing court.
Signature Not Verified
SAN
In above terms, both the appeals are disposed of.
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.09.29 11:46:04 IST
(VIVEK AGARWAL)
JUDGE
vy
Signature Not Verified
SAN
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.09.29 11:46:04 IST
