Madhya Pradesh High Court
Shriram Generla Insurance Co. ... vs Shivram @ Shivkumar Markko on 21 April, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 21 st OF APRIL, 2023
MISC. APPEAL No. 4072 of 2019
BETWEEN:-
SHRIRAM GENERAL INSURANCE CO. LTD. ITS.
ERSTWHILE OFFICE AT 123 RAMAESHWAR NILAY
NAPIER TOWN R/O PLOT NO.1642-43, NAPIER TOWN IN
FRONT OF INCOME TAX OFFICER (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ADITYA NARAYAN SHARMA - ADVOCATE)
AND
1. RAJNI MARKO W/O PURSHOTTAM MARKO,
AGED ABOUT 31 YEARS, R/O THR. THEIR
MOTHER AND NATURAL GUARDIAN RAJNI
MARKO W/O PUSHOTTAM MARKO A/A 31 YEARS
(MADHYA PRADESH)
2. KU. KHILONA MARKO D/O PURSHOTTAM
MARKO, AGED ABOUT 16 YEARS, OCCUPATION:
MINOR THR. THEIR MOTHER AND NATURAL
GUARDIAN RAJNI MARKO W/O PURSHOTTAM
MARKO 31 R/O VILLAGE KATANGI, P.S. MANDLA
(MADHYA PRADESH)
3. KU. NISHA MARKO D/O PURSHOTTAM MARKO,
AGED ABOUT 13 YEARS, OCCUPATION: MINOR
THR. THEIR MOTHER AND NATURAL GUARDIAN
RAJNI MARKO W/O PURSHOTTAM MARKO 31 R/O
VILLAGE KATANGI, P.S. MANDLA (MADHYA
PRADESH)
4. RAGHUVEER MARKO S/O PURSHOTTAM MARKO,
AGED ABOUT 10 YEARS, OCCUPATION: MINOR
THR. THEIR MOTHER AND NATURAL GUARDIAN
RAJNI MARKO W/O PURSHOTTAM MARKO 31 R/O
Signature Not Verified
SAN
VILLAGE KATANGI, P.S. MANDLA (MADHYA
PRADESH)
Digitally signed by AMITABH RANJAN
Date: 2023.04.25 12:55:02 IST
5. SMT. REVATI BAI W/O KALIKA MARKO, AGED
2
ABOUT 63 YEARS, R/O VILLAGE KATANGI, P.S.
MANDLA (MADHYA PRADESH)
6. MOHAMMAD AFZAL S/O MOHAMMAD JARIF,
AGED ABOUT 24 YEARS, R/O H.NO.1106, MOLANA
ABDUL KALAM WARD P.S.HANUMAN TAAL
(MADHYA PRADESH)
7. DINESH RAI S/O SURAJ RAI R/O LPR MARG
TILGAWAN, PANAGAR SUNDERPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI KAPIL PATWARDHAN - ADVOCATE)
CIVIL REVISION No. 487 of 2019
BETWEEN:-
SHRIRAM GENERLA INSURANCE CO. LTD. ITS.
ERSTWHILE OFFICE AT 123 RAMESHWAR MILAY
NAPIER TOWN AT PLOT NO. 1642-43, NAPIER TOWN IN
FRONT OF INCOME TAX OFFICE (MADHYA PRADESH)
.....PETITIONER
(BY SHRI ADITYA NARAYAN SHARMA - ADVOCATE )
AND
1. SHIVRAM @ SHIVKUMAR MARKKO S/O KOMAL
SINGH MARKO, AGED ABOUT 43 YEARS, R/O
VILL. KATANGI, P.S. MANDLA (MADHYA
PRADESH)
2. MOHAMMAD AFZAL S/O MOHAMMAD JARIF,
AGED ABOUT 24 YEARS, HOUSE NO. 1106 MOLANA
ABDUL KALAM WARD P.S. HANUMAN TAAL
(MADHYA PRADESH)
3. DINESH RAI S/O SURAJ RAI LPR MARG
TILGAWAN PANAGAR SUNDERPUR JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI KAPIL PATWARDHAN - ADVOCATE)
Signature Not Verified
SAN
MISC. APPEAL No. 3119 of 2019
Digitally signed by AMITABH RANJAN
Date: 2023.04.25 12:55:02 IST
3
BETWEEN:-
1. SMT RAJNI MARKO W/O LATE PURSHOTTAM
MARKO, AGED ABOUT 31 YEARS, GRAM
KATANGI THANA MANDLA (MADHYA PRADESH)
2. KU. KHILONA MARKO D/O LATE PURSHOTTAM
MARKO, AGED ABOUT 18 YEARS, GRAM
KATANGI THANA MANDLA (MADHYA PRADESH)
3. KU. NISHA D/O LATE PURSHOTTAM MARKO,
AGED ABOUT 13 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GUARDIAN SMT. RAJNI
MARKO GRAM KATANGI THANA MANDLA
(MADHYA PRADESH)
4. RAGHUBEER MARKO S/O LATE PURSHOTTAM
MARKO, AGED ABOUT 10 YEARS, OCCUPATION:
MINOR THROUGH NATURAL GUARDIAN SMT.
RAJNI MARKO GRAM KATANGI THANA MANDLA
(MADHYA PRADESH)
5. SMT. REVATI BAI W/O KALIKA MARKO, AGED
ABOUT 63 YEARS, GRAM KATANGI THANA
MANDLA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI KAPIL PATWARDHAN - ADVOCATE )
AND
1. MODH AFZAL S/O MOHAMMAD JAREEF, AGED
ABOUT 24 YEARS, 1106 MOULANA ABDUL KALAM
WARD THANA HANUMANTAAL (MADHYA
PRADESH)
2. DINESH RAI S/O SOORAJ RAI LPR MARG
TILGAVAN PANAGAR SUNDARPUR (MADHYA
PRADESH)
3. BRANCH MANAGER SHRIRAM GENERAL
INSURANCE CO. LTD. ABOVE HOTEL ASTHA
CIVIL LINES MANDLA, (MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
SAN
(RESPONDENT No. 3 BY SHRI ADITYA NARAYAN SHARMA )
These appeals/revision coming on for admission this day, t h e court
Digitally signed by AMITABH RANJAN
Date: 2023.04.25 12:55:02 IST
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passed the following:
ORDER
Heard on I.A. No. 9379/2019 filed in CR No. 487/2019 an application
under Section 5 of the Limitation Act for condonation of delay of 16 days.
On due consideration, I.A. No. 9379/2019 is allowed.
Appellant has filed covering memo No.2455/2023 in M.A. No.
3119/2019, enclosing Online Court Fee receipt.
It is submitted by learned counsel for the appellant that deficit Court Fees
has been paid by him, therefore, prays for taking the Court fees on record and
he may be permitted to amend the valuation accordingly.
Considering the aforesaid, deficit Court fee is taken on record and
appellant is permitted to amend the valuation.
These Misc. Appeals and Civil Revision filed by Insurance Company and
the claimants respectively being aggrieved of the award dated 05.04.2019
passed by learned Motor Accident Claims Tribunal, Mandla in Claim Case No.
733/2017 (Smt. Rajni Marko and others Vs. Md. Afzal & Others) and case No.
734/2017 (Shivram @ Shiv Kumar Marko Vs. Md. Afzal).
It is submitted that it is a case of gratuitous passenger who were traveling
in the offending vehicle owned by Dinesh Rai and which was driven by Md.
Afzal at the time of the accident and the vehicle was insured with Shriram
General Insurance Company Ltd. It is submitted that accident took place on
24.09.2017 since deceased Purushottam Marko and injured Shiv Kumar Marko
were gratuitous passengers in the offending truck bearing Registration No. CG-
04JC-1583, therefore, Insurance Company should repeal exonerated and claim
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petition should have been dismissed. It is also submitted that truck was
Digitally signed by AMITABH RANJAN
Date: 2023.04.25 12:55:02 IST transferred in the name of respondent No.2 but no intimation was given to the
Insurance Company and therefore, on that ground also, Insurance Company
needs to be exonerated.
It is further submitted that, even if, evidence of the claimants is accepted
as discussed by learned Claims Tribunal, then there would have been only one
passenger who could have been treated as owner of the goods. In para 19 of
the impugned award, it has come on record that Ganga Bai was shifting her
household goods after vacating the house of Power Plant to her village Katra,
Mandla and therefore, she had hired the said truck. Her brother Purushottam
was sitting in the truck as a representative of the owner of the goods but that
will not cover Shiv Kumar Marko, because, two persons cannot be sit to be the
owner of the goods in the same truck specially when there is no evidence that in
what capacity Shiv Kumar Marko was traveling in the truck.
Shri Kapil Patwardhan in his turn submits that, looking to the date of
accident, learned Claims Tribunal has erred in construing income of the
deceased @ Rs.4500/- per months, whereas minimum wages even for an
unskilled labourer on the date of accident was to the tune of Rs.7125/- per
month and accordingly calculation should be made.
After hearing learned counsel for the parties and going through the
records, two things are crystal clear. Purushottam was travelling as
representative of the owner of the goods as he was travelling as custodial of the
goods of his sister Ganga Bai who was shifting her luggage from her Power
Plant's house to her native village. Therefore, Purushottam cannot be
considered to be a gratuitous passenger. Similarly in para 21 of the impugned
award, learned Claims Tribunal has recorded a finding that even Shivram was
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traveling as representative of the goods and there is no sufficient cross-
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Date: 2023.04.25 12:55:02 IST
examination to deny this fact. Thus, once it is established and not rebutted
through cogent evidence, the deceased Purushottam and injured Shiv Kumar
Marko were travelling as the representative of the owner of the goods.
Therefore, in the light of the decision rendered by this High Court in the case of
Oriental Insurance Company Ltd. Vs. Brijkishore & Others. (M.A. No.
750/2003) decided on 19.09.2022, wherein this Court has placed reliance on
the judgment of Hon'ble Supreme Court in the case of National Insurance
Company Ltd. Vs. Baljeet Kaur & Ors. (2004)2 SCC 1, wherein it is held
that "by reason of 1994 amendment what was added as including the owner
of the goods or his authorized representatives carried in the vehicle" a liability
of the owner of the vehicle is insured compulsorily and thus by reason of the
aforesaid amendment included owner and the authorized representative of the
goods decides 3rd party will be covered under the policy.
This Court is of the opinion that Misc. Appeal and the Civil Revision
(M.A. No. 4072/2019 and CR No. 487/2019) filed by the Insurance Company
deserve to be dismissed and the same are dismissed. Moreover, taking this fact
into consideration, that non-transfer of policy is not one of the defences
available under Section 147 of the M.V. Act. Accordingly, M.A. No.
4072/2019 and CR No. 487/2019 are dismissed.
As far as claim for enhancement is concerned, it has come on record that
deceased Purushottam Marko is survived by five legal hairs. When income @
Rs.7125/- per month is taken into consideration, it will come out to Rs.85,500/-
per annum. 1/4th is to be deducted towards the living expenses of the deceased.
Age of the deceased is accepted by the Claims Tribunal to be 38 yeas,
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SAN therefore, 40% addition is to be made towards the future prospect and then
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Date: 2023.04.25 12:55:02 IST
multiplier of 15 will be applicable, taking total pecuniary compensation to
Rs.13,46,625/-. Over and above which claimants are entitled to a sum of Rs.
70,000/- under the head of non-pecuniary compensation and another sum of
Rs.1,20,000/- for loss of parental consortium for three minor children of the
deceased. Taking total compensation to Rs.15,36,625/- in place of
Rs.6,77,500/-. Thus, there will be an enhancement to the tune of Rs.8,59,425/-
which will be admissible in favor of the claimants.
This additional amount will earn interest @ 6% per annum from the date
of filing of the claim petition till the date of actual payment. Other terms and
conditions of the award shall remain intact. It is further directed that this
additional amount shall remain invested in a monthly income scheme of the
Indian Post-office/Nationalized Bank in joint names of claimant No.1 to 4 for a
period of 10 years. Claimants will be entitled to utilized monthly income.
In above terms, this appeal is disposed of.
Certified copy as per rules.
(VIVEK AGARWAL)
JUDGE
Amitabh
Signature Not Verified
SAN
Digitally signed by AMITABH RANJAN
Date: 2023.04.25 12:55:02 IST
