Madhya Pradesh High Court
Smt. Anusuiya Gour vs Rajendra on 17 August, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 17 th OF AUGUST, 2023
MISC. APPEAL No. 1826 of 2018
BETWEEN:-
1. SMT. ANUSUIYA GOUR W/O LATE VISHNU
PRASAD GOUR, AGED ABOUT 35 YEARS, VILL.
DOLARIYA, (MADHYA PRADESH)
2. SMT. AJJUDI BAI W/O BABULAL GOUR, AGED
ABOUT 75 YEARS, VILLAGE DOLARIYA DISTT.
HOSHANGABAD (MADHYA PRADESH)
3. NILESH GOUR S/O LATE VISHNU PRASAD GOUR,
AGED ABOUT 15 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GUARDIAN MOTHER SMT.
ANUSUIYA GOUR VILLAGE DOLARIYA DISTT.
HOSHANGABAD (MADHYA PRADESH)
4. NEERAJ GOUR S/O LATE VISHNU PRASAD GOUR,
AGED ABOUT 12 YEARS, APPELLANT NO. 3 AND 4
MINOR THROUGH NATURAL GUARDIAN
MOTHER SMT. ANUSUIYA GOUR W/O SHRI
VISHNU PRASAD GOUR VILLAGE DOLARIYA
DISTT. HOSHANGABAD (MADHYA PRADESH)
.....APPELLANTS
BY SHRI PRIYANK KHANDELWAL - ADVOCATE)
AND
1. RAJENDRA S/O GANESH JI, AGED ABOUT 32
Y E A R S , VILL. DULWA, TEH. KHATEGAON,
DISTRICT DEWAS (MADHYA PRADESH)
2. UMED PAALIWAAL S/O DILIP KUMAR VILLAGE
BUNDHARA TEH. AND DISTRICT HARDA
(MADHYA PRADESH)
3. NATIONAL INSURANCE COMPANY LTD
THROUGH BRANCH MANAGER D.O 2B, 14
INDRAPURI BHEL BHOPAL DISTRICT BHOPAL
(MADHYA PRADESH)
Signature Not Verified
Signed by: PRARTHANA
SURYAVANSHI
Signing time: 18-08-2023
17:57:29
2
.....RESPONDENTS
(MS. ASGHARI KHAN - ADVOCATE FOR RESPONDENT NO.3)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal is filed being aggrieved of award dated 18.01.2018 passed by
the learned Second Additional Motor Accident Claims Tribunal, Hoshangabad
in Motor Accident Claims Case No.400133 of 2016 whereby claim filed by the
claimant is rejected by the learned Tribunal on the ground that the evidence of
witness Dwarika Prasad Malviya, who claimed himself to be a eye-witness was
not reliable. It is submitted that evidence is discarded on the ground that there
was no occasion for Dwarika Prasad Malviya to visit his farm at 3-4 AM when
he had already engaged the deceased to look after his farm. On such ground,
claim petition is dismissed.
It is submitted that that Dehatinalisi was recorded on 01.03.2016 itself at
10:15 AM. This fact is corroborated from Exhibit-P/3. Akalmrityu Suchna was
given at 10:05 AM as per Exhibit-P/4. Dehati merge intimation is Exhibit-P/5
showing time of 10:05 AM. Vehicle in question was seized from the spot where
accident took place on the same date. The seizure was made at 12:00 afternoon
on 01.03.2016 as contained in Exhibit-P/13. Thereafter, motor vehicle was
subjected to inspection as contained in exhibit-P/15 in which it has come on
record that front light was broken and there was damage to the Bumper and
Bonnet of the said vehicle.
Relying on the aforesaid documents, it is submitted that learned Tribunal
has discarded evidence of the so called eye-witness Dwarika Prasad Malviya on
hypothetical grounds without appreciating the facts in the correct perspective.
Signature Not Verified
Signed by: PRARTHANA
SURYAVANSHI
Signing time: 18-08-2023
17:57:29
Ms. Asghari Khan - Advocate supports the award and submits that there
is no illegality in the said award. It is submitted that there is contradiction in the
Court statement as well as statement recorded under Section 161 of Cr.P.C of
said Dwarika Prasad Malviya.
After hearing the learned counsel for the parties, principle of 'res ipsa
loquitur' will be applicable in the present case i.e circumstances speak for
themselves. Offending vehicle was sized from the spot where accident took
place. There is no denial to this fact in the mechanical report, damage was
found on the front Bamphor and head light of the offending vehicle. There is no
denial to that also. Insurance company or the private respondents did not
adduce any evidence to dispute the factum of accident. They did not even
produce any investigation report to point out that it is a case of false
implantation of the offending vehicle.
The case of the parties from the beginning has been that after accident
when owner driver tried to escape but the vehicle got stuck in the field and it
could not be taken out. Therefore, they left the vehicle and ran away. Under
such facts and circumstances, when impugned award is tested, it has failed to
take into consideration the relevant evidence on record and has been passed on
hypothetical grounds merely causing suspicion to the evidence of Dwarika
Prasad Malviya.
When doctrine of res ipsa loquitur is applied then since vehicle in
question was seized from the spot, the impugned award deserves to be set
aside and is set aside.
Now, this Court has two options either to remand the matter back to the
Tribunal for determination of compensation or to determine the same in
Signature Not Verified
accordance with the principles laid down by the Hon'ble Supreme Court in
Signed by: PRARTHANA
SURYAVANSHI
Signing time: 18-08-2023
17:57:29
various judgments.
It has come on record and as is evident from the post-mortem report in
Exhibit-P/16 that age of the deceased 40 years. The date of accident is
01.03.2016. On the date of the accident minimum wages of unskilled labourer
were to be tune of Rs.6575/- per month. The deceased admittedly survived by
wife, two children and mother. However, it has not come on record that mother
was depended on the deceased and her husband is not surviving. In view of
such fact, 1/3 deduction is to be made. Thus, taking income of the deceased at
Rs.6575/- per month or Rs.78,900/- per annum and after deducting 1/3 towards
living expenses of the deceased, dependency of the family will come out to
Rs.52,600/- per annum. 25% is to be added towards future prospect that will
take the dependency to Rs.65,750/- per annum. Multiplier of 15 will be
applicable taking total pecuniary compensation to Rs.9,86,250/-. Over and
above which claimants are entitled to sum of Rs. 70,000/- under the head of
non-pecuniary compensation, thus, taking total compensation to Rs.10,56,250/-
(Rupees Ten Lacs, Fifty Six Thousand, Two Hundred and Fifty only). This
amount will be admissible in favour of the claimants i.e the wife of the deceased
and two children. This will also earn interest @ 6% per annum from the date of
filing of claim petition till the date of actual payment. Since the vehicle in
question was insured and there is no evidence to show any breach of the terms
and conditions of the policy, therefore, claim amount will be satisfied by the
owner driver and the insurer jointly and severally.
It is directed that except for a sum of Rs.1,00000/- to be given in favour
of the claimants for meeting their expenses under non-pecuniary head, remaining
amount along with interest accrued thereon shall remain invested in the Monthly
Signature Not Verified
Signed by: PRARTHANA
SURYAVANSHI
Signing time: 18-08-2023
17:57:29
Income Scheme of the Indian Post Office/or a Nationalized Bank for a period
of ten years. The claimants will be entitled to utilize its monthly interest for their
well being and maintenance, but the principal amount will not be allowed to be
withdrawn for the aforesaid period.
In above terms, the appeal stands disposed of.
Record of the Tribunal be sent back.
VIVEK AGARWAL)
JUDGE
Prar
Signature Not Verified
Signed by: PRARTHANA
SURYAVANSHI
Signing time: 18-08-2023
17:57:29
