Madhya Pradesh High Court
Buity Vishwash vs Rakesh Kumar Dubey on 9 August, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 9 th OF AUGUST, 2023
MISC. APPEAL No. 3088 of 2010
BETWEEN:-
1. BUITY VISHWASH W/O WD/O LATE SHRI
NANIGOPAL, AGED ABOUT 46 YEARS, R/O
RAMNATOLA UCHHARA P.S. TAHSIL UCHHARA
DISTT. SATNA (MADHYA PRADESH)
2. SAPANA VISHWASH D/O LATE NANIGOPAL, AGED
ABOUT 22 YEARS, R/O RAMNATOLA UCHHARA
P.S. TAHSIL UCHHARA DISTT. SATNA (MADHYA
PRADESH)
3. MEERA VISHWASH D/O LATE NANIGOPAL, AGED
ABOUT 20 YEARS, R/O RAMNATOLA UCHHARA
P.S. TAHSIL UCHHARA DISTT. SATNA (MADHYA
PRADESH)
4. PRASHANT VISHWASH S/O LATE NANIGOPAL,
AGED ABOUT 13 YEARS, OCCUPATION: MINOR
THRO. MOTHER BUITY VISHWASH R/O
RAMNATOLA UCHHARA P.S. TAHSIL UCHHARA
DISTT. SATNA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI RAJESH PATEL - ADVOCATE)
AND
1. RAKESH KUMAR DUBEY S/O SHRI
YAGNARAYANA, AGED ABOUT 25 YEARS,
OCCUPATION: DRIVER TRUCK NO. MP 16 H - 0084
TIKURIYA TOLA BASNAKA P.S. KOLGAVA DISTT.
SATNA (MADHYA PRADESH)
2. SIYASHRAN AGRAWAL S/O HARGOVIND, AGED
ABOUT 25 YEARS, MAHOBA ROAD, NEAR
GURUDWARA, DISTT.CHHATARPUR (MADHYA
PRADESH)
3. I.C.I.C.I. LOMBARD GENERAL INSURANCE
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 8/10/2023
2:07:46 PM
2
C O . L T D . FIRST FLOOR RASAL CHOWK,
JABALPUR, DISTT.JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI HEMANT SEN - ADVOCATE FOR RESPONDENT NO.1)
(BY SHRI ADITYA NARAYAN SHAARMA - ADVOCATE FOR RESPODNENT
NO.3)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
Heard on I.A. No.3398/2023 by which copy of newspaper- Desh Bandhu
has been filed in which notices were published for effecting service on
respondent No.2-Siyasharan Agrawal, S/o Hargovind, R/o Mahoba Raod, Near
Gurudwara, Distt. Chhatarpur (MP).
On due consideration aforesaid IA is allowed and the original newspaper
is taken on record.
Learned counsel for appellants/claimants submits that he has paid deficit
Court fee in the appeal filed by the claimants and in support of the said
submission, he has filed a copy of Online Court Fees Cyber Receipt of
Rs.20,000/- under covering memo, therefore, the Court fee may be taken on
record. On due consideration, the deficit Court fee is taken on record.
2. This miscellaneous appeal is filed by the claimants being aggrieved of
award dated 09/04/2010 passed by learned Additional Motor Accident Claims
Tribunal, Nagod, Distt. Satna in Claim Case No.94/2009 seeking enhancement
of compensation and also on the plea that nearly on account of non-availability
of permit, insurance company has been exonerated whereas award should have
been pay and recover in terms of the law laid down by Hon'ble Supreme Court
in the case of Pappu & Others versus Vinod Kumar Lamba & Another
Signature Not Verified
(2018) 3 SCC 208.
Signed by: TULSA SINGH
Signing time: 8/10/2023
2:07:46 PM
3. Learned counsel for the respondents supports the award and submit that
no indulgence is required.
4. After hearing learned counsel for the parties and going through the
record, it is evident that accident took place on 29/02/2008. Deceased was
aged about 47 years. He was working as a private doctor. He was survived by
four legal heirs. Learned Claims Tribunal has considered income of the
deceased at Rs.7,000/- per month. No future prospects is granted in favour of
the claimants. He was having registration with Council of Alternative Systems
of Medicines as contained in Annexure-P/55-C. Thus, it is submitted that
income of the deceased on a lower side. He was given a certificate as
Registered Medical Practitioner (R.M.P.) in Indo Allopathy System of
Medicines. This certificate is issued by Council of Alternative Systems of
Medicines, West Bengal, incorporated under West Bengal Govt. Act XXIVI of
1961, therefore, it is submitted that income of the deceased should be
considered at a higher scale.
5. The finding recorded by learned Claims Tribunal in regard to
contributory negligence on the basis of evidence of Manmohan Guru (AW-3) is
cryptic and is liable to be set aside. It is pointed out that Manmohan Guru
(AW-3) categorically deposed that truck was standing on the middle of the
road. It was 7.30 p.m., it was dark. Because of the light of the vehicle coming
from opposite direction, deceased had collided with the standing truck. Neither
any indicator was given by the truck nor there was any other indicator in the
form of stones etc so to cordon of that area. This evidence has remained
unrebutted, therefore, finding of contributory negligence recorded by learned
Claims Tribunal is cryptic, deserves to be set aside and the same is hereby set
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 8/10/2023
2:07:46 PM
aside. No evidence was led either by the owner, driver of offending vehicle or
the insurance company.
6. If the income of deceased is accepted at Rs.7,000/- per month, then
25% is to be deducted towards living expenses of the deceased. 25% is to be
added towards future prospects, that will bring the dependency of the family of
Rs.78,750/- per annum. For the age of 47, multiplier 13 will be application
which will take total pecuniary compensation to Rs.10,23,750/-. Over and
above which claimants are entitled to a sum of Rs.70,000/- under the head of
non-pecuniary compensation. Three of the children are also entitled to a sum
of Rs.1,20,000/- under the head of loss of parental consortium in light of the
judgment of Hon'ble Supreme Court in the case of Satinder Kaur @
Satwinder Kaur (2020 SCC Online SC 410). Thus, total compensation
admissible in favour of the claimants will be Rs.12,13,750/- in place of
Rs.4,24,500/-. Thus, there will be enhancement to the tune of Rs.7,89,250/-. It
is directed that insurance company shall pay compensation and will be entitled
to recover it from the owner and driver of the offending vehicle.
7. In above terms, this miscellaneous appeal is disposed of.
8. Record of Claims Tribunal be sent back immediately.
(VIVEK AGARWAL)
JUDGE
ts
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 8/10/2023
2:07:46 PM
