Madhya Pradesh High Court
United India Insurance Company ... vs Devki Bai on 24 April, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 24 th OF APRIL, 2023
MISC. APPEAL No. 188 of 2011
BETWEEN:-
UNITED INDIA INSURANCE COMPANY LIMITED
THROUGH : DIVISION MANAGER OFFICE 1454 WRIGHT
TOWN JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI VINEET KUMAR PANDEY - ADVOCATE)
AND
1. DEVKI BAI W/O LATE GHASHYAM, AGED ABOUT
38 YEARS, VILL FEFARTAL TEH AND DISTT
HOSHANGABAD (MADHYA PRADESH)
2. KU.MANISHA D/O LATE GHANSHYAM, AGED
ABOUT 21 YEARS, VILL.BHIKANGAON,
TEH.KHARGON, DISTT.KHARGON, (MADHYA
PRADESH)
3. NITIN KUMAR S/O LATE GHANSHYAM, AGED
ABOUT 19 YEARS, VILL.BHIKANGAON,
TEH.KHARGON, DISTT.KHARGON,PRE.
VILL.FEFARTAL, HOSHANGABAD (MADHYA
PRADESH)
4. NIRMAL KUMAR S/O LATE GHANSHYAM, AGED
ABOUT 17 YEARS, OCCUPATION: MINOR THRO.
MOTHER SMT.DEVKI BAI VILL.BHIKANGAON,
TEH.KHARGON, DISTT.KHARGON,PRE.
VILL.FEFARTAL, HOSHANGABAD (MADHYA
PRADESH)
5. SONU S/O LATE GHANSHYAM, AGED ABOUT 15
YEAR S, OCCUPATION: MINOR THRO. MOTHER
SMT.DEVKI BAI VILL.BHIKANGAON,
TEH.KHARGON, DISTT.KHARGON,PRE.
VILL.FEFARTAL, HOSHANGABAD (MADHYA
PRADESH)
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
4/26/2023 6:13:43 PM
2
6. GOMTI BAI W/O MANGAL SINGH, AGED ABOUT 75
Y E A R S , VILL.BHIKANGAON, TEH.KHARGON,
DISTT.KHARGON,PRE. VILL.FEFARTAL,
HOSHANGABAD (MADHYA PRADESH)
7. RASHID BAIG S/O RAHMAN BEIG, AGED ABOUT
30 YEARS, OCCUPATION: DRIVER, VILL.BORI
PIPARIYA, P.S.REHTI, TEH.BUDNI,
DISTT.HOSHANGABAD (MADHYA PRADESH)
8. DURGA PRASAD KEWAT S/O OMKARLAL KEWAT,
AGED ABOUT 32 YEARS, OCCUPATION: OWNER,
CIVIL LINE, MALAKHEDI ROAD,
DISTT.HOSHANGABAD (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NOS.1 TO 6 BY SHRI S.K.JAISWAL - ADVOCATE)
(RESPONDENT NOS.7&8 BY SHRI V.C.RAI - ADVOCATE)
MISC. APPEAL No. 189 of 2011
BETWEEN:-
UNITED INDIA INSURANCE COMPANY LIMITED
THROUGH : DIVISIONAL MANAGER 1454 WRIGHT
TOWN JABALUPR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI VINEET KUMAR PANDEY - ADVOCATE)
AND
1. GAYA PRASAD S/O BARELAL VILL FEFARTAL TEH
AND DISTT HOSHANGABAD (MADHYA PRADESH)
2. RASHID BAIG S/O RAHMAN BEIG, AGED ABOUT
30 YEARS, OCCUPATION: DRIVER, VILL.BORI
PIPARIYA, P.S.REHTI, TEH.BUDNI,
DISTT.HOSHANGABAD (MADHYA PRADESH)
3. DURGA PRASAD KEWAT S/O OMKARLAL KEWAT,
AGED ABOUT 32 YEARS, OCCUPATION: OWNER,
CIVIL LINES, MALAKHEDI ROAD, JALALABAD,
HOSHANGABAD (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI S.K.JAISWAL - ADVOCATE)
(RESPONDENT NOS.2&3 BY SHRI V.C.RAI - ADVOCATE)
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
4/26/2023 6:13:43 PM
3
These appeals coming on for orders this day, th e court passed the
following:
ORDER
M.A.No.188/2011 & M.A.No.189/2011 are filed by the Insurance
Company being aggrieved of award dated 14.9.2010 passed by learned Motor
Accident Claims Tribunal, Hoshangabad in Motor Accident Claim Case
No.87/2008 & Motor Accident Claim Case No.85/2008 on the ground that as
per the evidence of Clerk of the Regional Transport Office, namely, Shyam
Yadav S/o.Shri L.P.Yadav, the driver of the offending vehicle, namely, Rashid
Baig S/o.Shri Rehman Baig was having a licence to drive a Light Motor Vehicle
but did not have any endorsement to drive a Light Transport Vehicle.
Reading the evidence of Shyam Yadav, it is submitted by learned counsel
for the appellant that the accident took place with a transport vehicle Mahindra
Max bearing registration No.MP05-G-6271 and, therefore, in absence of any
endorsement to drive a transport vehicle, the Insurance Company needs to be
exonerated.
Learned counsel for the other side supports the impugned award.
In paragraph No.46 of the impugned award, the learned Claims Tribunal
has discussed a fact that the offending vehicle was having gross unladen weight
of less than 7500 Kilograms and it will come under the definition of a Light
Motor Vehicle as defined in Section 2(21) of the Motor Vehicles Act, 1988.
The Apex Court in Mukund Devangan versus Oriental Insurance
Company Limited 2017 ACJ 2011 wherein it is held that mere absence of
endorsement is not sufficient to defeat the claim because lack of endorsement
to drive a transport vehicle would not enhance or reduce the capacity of a driver
to drive a vehicle under the category for which he is licensed.
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
4/26/2023 6:13:43 PM
In view of the authoritative pronouncement of law of the Apex Court
in Mukund Devangan versus Oriental Insurance Company Limited
(supra), M.A.No.188/2011 & M.A.No.189/2011 fail and are dismissed.
In M.A.No.188/2011, Claimant-Devki Bai & Others have filed cross-
objection under Order XLI Rule 22 of the Code of Civil Procedure, 1908 (for
short 'C.P.C') and similar cross-objection under Order XLI Rule 22 of the
C.P.C has been filed by Claimant Gaya Prasad in M.A.No.189/2011 also.
As far as the cross-objection in M.A.No.188/2011 is concerned, it is a
case of death of the husband of claimant No.1 Devki Bai and father of claimant
Nos.2,3,4,5 and son of claimant No.6 whereas the cross objection in
M.A.No.189/2011 is filed by injured/claimant Gaya Prasad seeking enhancement
of compensation.
As far as the cross-objection of Devki Bai & Others for enhancement is
concerned, it is evident that the date of accident is 19.12.2007. The Claims
Tribunal has considered the income of the deceased at Rs.5,000/- per month or
Rs.60,000/- per annum and thereafter has made 1/3rd deduction taking net
dependency to Rs.40,000/- per month. The Claims Tribunal has considered the
age of deceased between 36 to 40 years. Taking all these facts into
consideration, 40% is to be added towards future prospect of the deceased and
then multiplier of 15 will be applicable taking total pecuniary compensation to
Rs.8,40,000/ over and above which the claimants will also be entitled to a sum
of Rs.70,000/- under the head of non-pecuniary compensation.
Another ground to challenge the award in cross-objection is in regard to
the finding record by the Claims Tribunal holding that since three persons were
travelling on the Motorcycle in place of two, it has recorded a finding of
contributory negligence to the extent of 30%. In absence of any evidence to this
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
4/26/2023 6:13:43 PM
effect that travelling of 3 persons on the Motorcycle resulted in the accident
without there being other material cannot lead to a finding of contributory
negligence unless it is established that his very act of riding alongwith 2 others
contributed either to the accident or to the impact of the accident upon the
victim. This is the ratio of law laid down by the Apex court in Mohammed
Siddique & Others versus National Insurance Company Limited &
Others (2020) 3 SCC 57 and, therefore, the finding of contributory negligence
also deserves to be discarded. The claimants will also be entitled to a sum of
Rs.40,000/- for loss of parental consortium admissible to four children of
deceased Ghanshyam. Thus, the claimants will be entitled to a net enhancement
of Rs.6,13,000/- (Rupees Six Lakh Thirteen Thousand Only) alongwith 6% per
annum interest from the date of filing of the claim petition till the date of actual
payment.
Accordingly, the cross-objection filed by Devki Bai & Others in
M.A.No.188/2011 is allowed.
Now this Court would like to deal with the cross-objection filed by
Claimant-Gaya Prasad in M.A.No.189/2011. Claimant Gaya Prasad has also
taken a plea the finding of contributory negligence is not based on any evidence
and, therefore, that finding needs to be discarded.
For the reasons stated above and also in the light of the judgment of the
Apex Court in Mohammed Siddique & Others versus National Insurance
Company Limited & Others (supra), the finding of contributory negligence is
set aside.
The Claims Tribunal has awarded a sum of Rs.2,30,000/- but has
deducted 30% amount towards the contributory negligence. It has come in the
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
4/26/2023 6:13:43 PM
evidence of Gaya Prasad that the Motorcycle was hit by the offending vehicle
from behind and that is another circumstance, which should have been taken
into consideration for not recording the finding of contributory negligence. It
has come on record that Gaya Prasad did not examine any doctor in favour of
his claim that he had suffered permanent disability though it was averred that he
suffered from a fracture of left leg, which was fixed with rod, lost his left eye
completely and also two teeth of front disrupting his chances of marriage but no
such evidence of the doctor is available on record to prove the permanent
disability. The Claims Tribunal has not awarded any amount under the head of
nutritious diet, attendant, transport and physiotherapy etc and, therefore, a sum
of Rs.10,000/- at the rate of Rs.2,500/- per month for a period of four months
is awarded under the head of nutritious diet. A sum of Rs.10,000/- at the rate
of Rs.2,500/- per month for a period of four months is awarded under the head
of attendant. A sum of Rs.10,000/- at the rate of Rs.2,500/- per month for a
period of four months is awarded under the head of physiotherapy etc. A sum
of Rs.5,000/- is awarded under the head of transport. Thus, Claimant Gaya
Prasad will be entitled to Rs.2,65,000/- in place of Rs.1,61,000/- awarded by
the Claims Tribunal. Thus, there will be enhancement to the tune of
Rs.1,04,000/- (Rupees One Lakh Four Thousand Only) to which Claimant
Gaya Prasad will be entitled to in addition to the amount awarded by the Claims
Tribunal alongwith interest @ 6% per annum from the date of claim petition till
the date of actual payment.
Accordingly, the cross-objection filed by Claimant Gaya Prasad in
M.A.No.189/2011 is allowed.
Let record of the Claims Tribunal be sent back.
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
4/26/2023 6:13:43 PM
(VIVEK AGARWAL)
JUDGE
amit
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
4/26/2023 6:13:43 PM
