Madhya Pradesh High Court
New India Assurance Co. Ltd Thr vs Smt. Prema on 31 August, 2023
Author: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 31 st OF AUGUST, 2023
MISC. APPEAL No. 693 of 2015
BETWEEN:-
1. SMT. PREMA W/O LATE SHRI RAJENDRA, AGED
ABOUT 28 YEARS, R/O SUBALAL KA PURA
(MADHYA PRADESH)
2. KU. SAPNA D/O LATE SHRI RAJENDRA, AGED
ABOUT 8 YEARS, OCCUPATION: MINOR U/G
MOTHER SMT. PREMA SUBALAL KA PURA,
TEHSIL AND DISTT. MORENA (MADHYA
PRADESH)
3. RITIK S/O LATE SHRI RAJENDRA, AGED ABOUT 6
YEARS, OCCUPATION: MINOR U/G MOTHER SMT.
PREMA SUBALAL KA PURA, TEHSIL AND DISTT.
MORENA (MADHYA PRADESH)
4. SMT. BEJANTI BAI W/O BATOYI, AGED ABOUT 52
YEAR S, OCCUPATION: NA SUBALAL KA PURA,
TEHSIL AND DISTT. MORENA (MADHYA
PRADESH)
.....APPELLANTS
(BY MR. RAMESH PRASAD GUPTA - ADVOCATE)
AND
1. SUNIL KUMAR SWAMI S/O SHRI RAMESH
KUMAR SWAMI OCCUPATION: OWNER OF JEEP
NO. MP 06 BA 0169 R/O DATTPUA (MADHYA
PRADESH)
2. BHURA S/O RAMESH OCCUPATION: DRIVER OF
JEEP SHYAM VIHAR COLONY MORENA (MADHYA
PRADESH)
3. DIVISIONAL MANAGER THE NEW INDIA
INSURANCE COM. LTD. GDA OFFICE RAVI
NAGAR PHOOLBAGH GWALIOR (MADHYA
PRADESH)
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/1/2023
10:48:48 AM
2
.....RESPONDENTS
(MR. BAL KRISHNA AGRAWAL - ADVOCATE FOR RESPONDENT NO. 3 -
INSURANCE COMPANY)
MISC. APPEAL No. 729 of 2015
BETWEEN:-
NEW INDIA ASSURANCE CO. LTD THR DIVISIONAL
MANAGER DIVISIONLA OFFICE NO 2 CITY SQUARE 1ST
FLOOR NEAR GDA OFFICE RAVI NAGAR DITT.
GWALIOR (MADHYA PRADESH)
.....APPELLANT
(BY MR. BAL KRISHNA AGRAWAL - ADVOCATE)
AND
1. SMT. PREMA W/O LATE SHRI RAJENDRA, AGED
ABOUT 28 YEARS, SABALAL KA PURA TEH. AND
DITT. MORENA (MADHYA PRADESH)
2. KU. SAPNA D/O LATE SH. RAJENDRA, AGED
ABOUT 8 YEARS, OCCUPATION: MINOR U/G
MOTHER SMT. PREMA W/O SH. RAJENDRA
JATAV SUBALAL KA PURA, TEHSIL AND DISTT.
MORENA (MADHYA PRADESH)
3. RITIK S/O LATE SH. RAJENDRA, AGED ABOUT 8
YEARS, OCCUPATION: MINOR U/G MOTHER SMT.
PREMA W/O SH. RAJENDRA JATAV SUBALAL KA
PURA, TEHSIL AND DISTT. MORENA (MADHYA
PRADESH)
4. SMT. BAIJANTI BAI W/O SH. BATOI, AGED ABOUT
52 YEARS, OCCUPATION: NA SUBALAL KA PURA,
TEHSIL AND DISTT. MORENA (MADHYA
PRADESH)
5. SUNIL KUMAR SWAMI S/O SH. RAMESH KUMAR
SAWMI OCCUPATION: NA DATTPURA MORENA
TEHSIL AND DISTT. MORENA (MADHYA
PRADESH)
6. BHURA S/O SH. RAMESH OCCUPATION: NA
SHYAM BIHARI COLONY, TEHSIL AND DISTT.
MORENA (MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/1/2023
10:48:48 AM
3
(MR. RAMESH PRASAD GUPTA - ADVOCATE FOR RESPONDENTS NO. 1
TO 4 - CLAIMANTS)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
JUDGMENT
This judgment shall govern the disposal of both the appeals (M.A. Nos.
693 of 2015 and 729 of 2015).
Present miscellaneous appeals have been filed against the award dated
17.4.2015 passed by Member, Motor Accident Claims Tribunal, Morena in
Claim Case No. 328 of 2013. For the sake of convenience, facts mentioned in
M.A. No. 693 of 2015 are taken into consideration.
The facts in brief to decide the present appeal are that the appellants -
claimants (respondents No. 1 to 4 in M.A. No. 729 of 2015) filed claim petition
before the learned claims tribunal for grant of compensation on account death
of deceased Rajendra in a road traffic accident involving vehicle Jeep bearing
registration No. MP06-BA-0169.
Respondents No. 1 and 2 - Owner and Driver of the offending vehicle
respectively (respondents No. 5 and 6 in M.A. No. 729 of 2015) of the
offending vehicle did not appear before learned claims tribunal and were
proceeded ex-parte.
Respondent No. 3 - Insurance Company (appellant in M.A. No. 729 of
2015) filed its written statement denying the averments made in the claim petition
and further submitted that the offending jeep was being plied in violation of
policy terms and conditions, therefore, insurance company is not liable to pay
the compensation.
Learned claims tribunal framed issues and after hearing both the parties
o n merits and recording their evidence partly allowed the claim petition and
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/1/2023
10:48:48 AM
awarded compensation to the tune of Rs.7,38,750/- which was directed to be
paid by the respondents - owner, driver and insurance company of the
offending vehicle jointly and severely.
The grounds taken by the appellants - claimants are that learned claims
tribunal has wrongly passed the impugned award and granted compensation on
the lower side. Learned claims tribunal has ignored the evidence available on
record in respect to monthly income of the deceased and no compensation
under the head of "future prospects" was granted. Hence, prayed that impugned
award be set aside and just and proper compensation be granted to the
appellants.
On the other hand, learned counsel for the insurance company opposed
the appeal of the claimants and in M.A. No. 729 of 2015 took the grounds that
learned claims tribunal has wrongly awarded the penal interest against the settled
principle of law. Present claim case has been filed by the claimants in
connivance with the owner and driver of the offending vehicle which is evident
from the fact that the FIR was lodged against unknown vehicle, however,
learned claims tribunal has erred in awarding the compensation ignoring the
aforesaid fact. Further ground taken by the insurance company is that the
amount awarded by learned claims tribunal is also on the higher side. Hence,
prayer is made to set aside the impugned award.
Heard learned counsel for the rival parties and perused the available
record.
The points for determination in these appeals are as follows:-
(i) Whether the vehicle in question was involved in the alleged accident?
(ii) Whether learned claims tribunal has erred in awarding penal interest;
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and
Signed by: ALOK KUMAR
Signing time: 9/1/2023
10:48:48 AM
(iii) Whether the compensation amount is just and proper?
So far as the involvement of offending vehicle Jeep bearing registration
No. MP06-BA-0169 in the alleged accident is concerned, in the present case,
claimant - appellant No. 1 Smt. Prema examined herself as AW-1 and proved
documents Ex.P-1 to P-13 filed with the charge-sheet in the criminal case in
relation to this accident. Aforesaid documents indicate that after investigation,
charge-sheet has been filed against the respondent No. 2 - driver of the
offending vehicle under Section 304-A of IPC. In the charge-sheet Ex.P-15,
name of Surendra Jatav is mentioned as eye-witness and claimants have
examined this witness in support of their case as AW-2. Surendra Jatav has
corroborated the fact that respondent No. 2 - driver of the offending vehicle
was driving the jeep in rash and negligent manner due to which the accident
occurred. The evidence of this witness remained unchallenged and nothing
emerged in his cross-examination to raise doubt over his statement.
In this case, driver of the offending vehicle did not appear to contradict
the version of the claimants. Insurance company though examined its
investigator, however, he admitted that he was not present on the spot at the
time of accident. Even respondent No. 1 - owner of the offending vehicle has
certified that respondent No. 2 - driver of the offending vehicle was driving the
vehicle at the time of accident, as per Ex.P-12.
Under these circumstances, learned claims tribunal has rightly held that
the accident occurred on account of rash and negligent driving of respondent
No. 2.
So far as penal interest is concerned, learned claims tribunal has directed
the Insurance Company to pay penal interest @ 12% per annum if the
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/1/2023
10:48:48 AM
compensation amount is not deposited within two months. The Apex Court in
the case of National Insurance Co. Ltd vs. Keshav Bahadur and others
2004 ACJ 648 held that penal interest cannot be levied in default of payment of
compensation within the specific period as it is not statutorily envisaged and
prescribed.
In the light of law laid down as above, the findings of learned Tribunal in
respect to penal interest is hereby set aside.
Now the question is what will be the just and proper compensation?
After going through the evidence available on record, this Court is of the
considered opinion that learned claims tribunal has assessed the monthly
income of the deceased on the lower side and, therefore, Rs.4000/- per month
is found to be appropriate income of the deceased looking to the facts and
circumstances of the case.
Learned claims tribunal has also erred in not awarding any amount
towards "future prospects".
There is no dispute with regard to age of the deceased as well as
dependency of the claimants.
In view of the above as well as in the light of the case law of National
Insurance Company vs. Pranay Sethi & Ors.; 2017 ACJ 2700 and Sarla
Verma and Ors. Vs. Delhi Transport Corporation; (2009) 6 SCC 121 ,
considering the annual income of the deceased to be Rs.48,000/-, age 30 years,
dependency 3/4th (48000 x 3/4 = 36000), future prospect @ 40% (36000 x
40/100 = 14,400), multiplier of 17 and Rs.70,000/- in other heads, total
compensation amount comes to Rs.9,26,800/-. The tribunal has awarded a sum
of Rs.7,38,750/- to the claimants. The enhanced compensation amount comes
to Rs.1,88,050/- (Rs.9,26,800 - 1,88,050). The enhanced amount of
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/1/2023
10:48:48 AM
compensation i.e. Rs.1,88,050/- (Rs. One Lakh Eighty Eight Thousand
and Fifty only) shall carry interest as awarded by learned claims tribunal from
t h e date of claim application till realization. The enhanced amount of
compensation shall be payable to the claimants by the Insurance Company
within a period of 12 weeks from the date of production of certified copy of
this order. Rest of the award passed by learned claims tribunal shall remain
intact.
If the enhanced amount of compensation is in excess to the valuation of
appeal, the difference of the Court fee (if not already paid) shall be deposited
by the appellants - claimants within four weeks' from today and proof thereof
shall be submitted before the Registry. Thereafter, Registry shall issue the
certified copy of the order passed today.
M.A. Nos. 693 of 2015 and 729 of 2015 stands disposed of in above
terms.
(SUNITA YADAV)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/1/2023
10:48:48 AM
