Madhya Pradesh High Court
National Insurance Co Ltd vs Ajay on 24 August, 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 AUGUST, 2023
MISC. APPEAL No. 609 of 2010
BETWEEN:-
AJAY S/O GULAB NAGLE, AGED ABOUT 19 YEARS,
MAHAPHULE WARD GANESH CHOWK SHOBHAPUR
JHOPDI PATHAKHEDA SARNI DISTT. BETUL (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI PAWAN CHAUDHARY - ADVOCATE)
AND
1. DEEPAK S/O ARJU GIRI, AGED ABOUT 24 YEARS,
SUPER E 761 MATHARDEO COLONY SARNI DISTT.
BETUL M.P. (MADHYA PRADESH)
2. MANAGER, NATIONAL INSURANCE COMPANY 3
MEDICIAN STREET KOLKATA 700071 (WEST
BENGAL)
3. MACHMEN MOTOR PVT. LTD. NH-12
HOSHANGABAD ROAD MISROD BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT No.2 BY SHRI D.N. SHUKLA - PANEL LAWYER )
MISC. APPEAL No. 1203 of 2010
BETWEEN:-
NATIONAL INSURANCE CO LTD THROUGH
AUTHORIZED SIGNATORY DIVISIONAL MANAGER
NATIONAL INSURANCE COMPANY MADHATAL
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI D.N. SHUKLA - ADVOCATE )
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 26-08-2023
12:17:34
2
AND
1. AJAY S/O GULAB ARJUN NAGLE, AGED ABOUT 19
YEARS, MAHAPHOOLE WARD GANESH CHOWK
SHOBHAPUR GHOPDI PATHAKHED SARNI
(MADHYA PRADESH)
2. DEEPAK S/O ARJUN GIRI, AGED ABOUT 24 YEARS,
SUMAR E-761, MATHARDEV COLONY, SARNI
(MADHYA PRADESH)
3. MACKMAN MOTORS PVT. LTD. N.H.-12
HOSHANGABAD ROAD MISROD BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT No.1 BY SHRI PAWAN CHAUDHARY - ADVOCATE )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
These appeals are filed by the claimant as well as the Insurance Company
being aggrieved of award dated 03.12.2009 passed by learned 1st Member
Additional Motor Accident Claims Tribunal, Betul in Claim Case No. 51 of
2007.
2. Appeal of the Insurance Company is on the ground that on the date of
t h e accident, there was no contract of the Insurance at intimation of the
dishonour of the cheque was received on 27.11.2006, same intimation was
given to the insured on 01.12.2006. It is submitted that therefore, there was no
valid policy on the date of the accident and therefore, insurance company
should be exonerated.
3. Shri Pawan Chaudhary, Advocate for the claimants in his turn submits
that Insurance Company cannot exonerate itself of its liability to pay the
compensation. The amount of compensation paid is on the lower side. Claimant
has sustained fracture of lower third Tibia Bone of the right leg with injury in the
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 26-08-2023
12:17:34
knee. Fracture was fixed with nailing and bone grafting and use of fixator.
Disability certificate given by Dr. N.D. Chaurasia was also produced as Ex.P-
69. Upon perusal of Ex.P-69 will reveal that Doctor had certified 35%
permanent disability. It is submitted that no amount has been paid under the
head of loss of earning capacity on account of the said permanent disability.
4. Shri D.N. Shukla, learned counsel for the Insurance Company submits
that evidence of Dr. N.D. Chaurasia is clear. It is admitted by Dr. Chaurasia that
he had given the said certificate as per the private treatment of the claimant and
not as a member of the District Medical Board. He submitted that since
certificate is not issued by District Medical Board, it has no relevance in the
eyes of law.
5. After hearing, learned counsel for the parties and going through the
record. As far as exoneration of Insurance Company is concerned, reliance is
placed by Shri D.N. Shukla on the Judgment of Hon'ble the Supreme Court in
the case of Dedappa & Ors. Versus The Branch Manager, National
Insurance Co. Ltd. AIR 2008 SC 767. Reading of this judgment it is
submitted that Hon'ble the Supreme Court granted liberty in favour of the
Insurer to recover the amount of compensation paid by it in favour of the third
party from the insured.
6. This judgment is passed in exercise of authority vested in the Supreme
Court under Article 142 of the Constitution of India. In fact, Article 142 of
Constitution of India authorizes only the Supreme Court to exercise
extraordinary jurisdiction, that power is not vested in the High Court exercising
jurisdiction as an appellate authority or under Article 226 of the Constitution.
7. Hon'ble Supreme Court in the case of United India Insurance
Company Ltd. Vs. Laxmamma & ors. (2012)5 SCC 234 has held that if the
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 26-08-2023
12:17:34
policy was cancelled by the Insurer and intimation of such cancellation had
reached insured before the accident then, Insurance Company is to be
exonerated. In case, facts are different as in the present case, then insurer would
prosecute its remedy to recover amount paid by it to claimants from insured. In
the present case, facts are that on 27.11.2006 Insurance Company had received
intimation in regard to dishonour of the cheque which was paid by the insured
for obtaining the policy. Intimation of cancellation of policy was sent to the
Local RTO as well as the Insured on 01.12.2006, whereas accident had taken
place on 29.11.2006, therefore, law laid down by Hon'ble the Supreme Court in
the case of Laxmamma & Ors. (supra) will have application in full force and
accordingly, appeal of the Insurance Company can be disposed of with the
direction that they will be free to prosecute their remedy to recover the amount
paid by it to the claimants from the insured.
8. As far as appeal filed by the claimant is concerned, learned Tribunal
has awarded a sum of Rs.75,000/- with the following breakup. It has awarded a
sum of Rs.35,080/- under the head of treatment. A sum of Rs. 24,000/- @
Rs.2000/- per month for loss of earning for a period of one year looking to the
nature of the injury. A sum of Rs.10,000/- under the head of mental agony and
pain, another sum of Rs.2000/- under the head of counsel fee and Rs.4000/-
under the head of transport charges.
9. As far as minimum wages even for an unskilled labourer on the date of
the accident is concerned, it was to the tune of Rs.2476/- per month and
accordingly, claimant will be entitled to a sum of Rs.29,712/- in place of
Rs.24,000/- awarded by learned claims Tribunal. Thus there will be
enhancement to the tune of Rs.5712/- under the head of loss of earning.
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 26-08-2023
12:17:34
Learned Tribunal has awarded only a sum of Rs.10,000/- under the head of pain
and suffering which is enhanced to Rs.25,000/-. Thus, there will be
enhancement Rs.15000/- under the head of pain and suffering. Tribunal has not
awarded any amount under the head of nutritious dies or attendant, therefore,
taking this period of recovery to be six months, a sum of Rs.9000/- is awarded
under the head of nutritious diet @ 1500/- per month and another sum of
Rs.12,000/- is awarded under the head of attended for a period of six months.
Beside this, Tribunal has not awarded any amount for future treatment in
physiotherapy under which head another sum of Rs.10,000/- is awarded.
10. Thus, there will be enhancement to the tune of Rs.51,712/- which will
be admissible in favour of the claimant. As claimant has failed to prove the
aspect of functional disability, therefore, no amount is being awarded under the
head of physical disability. This additional amount of Rs.51,712/- will earn
interest @ 6% from the date of filing of the claim petition till the date of actual
award.
11. In above terms both these appeals are disposed of.
(VIVEK AGARWAL)
JUDGE
Amitabh
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 26-08-2023
12:17:34
