Madhya Pradesh High Court
Icici Lombard General Insurance Co. ... vs Anuj Kumar Mishra on 18 December, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 18 th OF DECEMBER, 2023
MISC. APPEAL No. 8 of 2023
BETWEEN:-
ICICI LOMBARD GENERAL INSURANCE CO. LTD.
HAVING OFFICE AT 5TH FLOOR, MAPLE HIGH STREET
OPPOSITE ASHIMA MALL HOSHANGABAD ROAD
BHOPAL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ADITYA NARAYAN SHARMA - ADVOCATE)
AND
1. ANUJ KUMAR MISHRA S/O DWARIKA PRASAD
MISHRA, AGED ABOUT 26 YEARS, THROUGH
FATHER AND BEST FRIEND DWARIKA PRASAD
MISHRA S/O LATE SHIV PRASAD AGED ADULT D-2
VAISHNAVI GREEN HILLS CITY MEHUA
BANGRASIYA, BHOPAL (MADHYA PRADESH)
2. SIYASAT ALI S/O LIYAKAT ALI R/O HOUSE NO. 81
PENDIPUR JEHANGIRABAD BHOPAL (MADHYA
PRADESH)
3. MAKSSOD KHAN S/O GAFUR KHAN R/O C/O
NAWAB KHAN HOUSE NO. 94 KUMHARPURA
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NITIN KUMAR GUPTA - ADVOCATE FOR RESPONDENT NO.1)
MISC. APPEAL No. 6019 of 2022
BETWEEN:-
ANUJ KUMAR MISHRA S/O SHRI DWARIKA PRASAD
MISHRA, AGED ABOUT 26 YEARS, THROUGH
GRADIENT FATHER DWARIKA PRASAD MISHRA S/O
LATE SHIVPRASAD, R/O D-2, VAISHNAVI GREEN HILLS
CITY MEHUA BANGARSIA, DISTRICT BHOPAL
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 12/18/2023
7:27:20 PM
2
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI NITIN KUMAR GUPTA - ADVOCATE)
AND
1. SIYASAT ALI S/O SHRI LIYAKAT ALI, R/O H.NO. 81,
PENDIPURA JAHANGIRABAD DISTRICT BHOPAL
(MADHYA PRADESH)
2. MAKSOOD KHAN S/O GAFOOR KHAN THROUGH
NABAB KHAN, R/O H.NO. 94 KUMHARPURA
BHOPAL 462001 (MADHYA PRADESH)
3. THE ICICI LOMBARD GENERAL INSURANCE CO.
LTD. THROUGH BRANCH MANAGER BRANCH
OFFICE ADDRESS IN FRONT OF ASHIMA MALL
HOSHANGABAD ROAD DISTRICT BHOPAL 462026
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ADITYA NARAYAN SHARMA - ADVOCATE FOR RESPONDENT
NO.3)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
These appeals are filed by the insurance company and claimant
respectively being aggrieved of award dated 21/09/2022 passed by learned 5th
Additional Motor Accident Claims Tribunal, Bhopal in MACC No.2288/2021.
2. Learned counsel for insurance company submits that this appeal is filed
merely on two grounds; namely, false implication of the offending vehicle
bearing registration No.MP-04 LD 4049 insured with the present appellant-
insurance company and secondly on the ground of quantum.
3. It is submitted that Dr. R.K. Bairagi (PW-3) is not competent person to
issue disability certificate Ex.P/21-C, therefore, this disability certificate issued
by District Medical Board should not be accepted.
4. Learned counsel for the claimant, on the other hand, submits that there
was an offer letter to the claimant as contained in Ex.P/26 to join his services in
Hawkeye Industrial Security Services and he had given consent to join on 10th
August but prior to that he met with an accident, therefore, his notional income
should be treated at Rs.40,795/- per month as mentioned in Annexure-P/26. In
support of the contention, reliance is placed on the judgment of Madras High
Court in the case of Gnanamani Vs. Vimalanandhan decided on 23rd
February, 2021 in CMA No.2295/2019 and CMA No.1682/2020 .
Drawing attention of this Court to para-10 of the said judgment of Madras High
Court, it is submitted that Madras High Court has considered call letter received
by deceased from Tamil Nadu Mercantile Bank where he had successfully
attended the interview and taken the income which was offered to be the
notional income of the deceased.
5. After hearing learned counsel for the parties and going through the
record, it is true that claimant is an engineer from National Institute of
Technology, Warangal from where he pursued B.Tech. Degree in Metallurgical
and Materials Engineering. It is not denying that NIT, Warangal is a prestigious
institute. However, an offer letter from a inconsequential company dealing with
in a field which not related to Metallurgical and materials engineering as is
evident from Ex.P/26 which has been issued Industrial Security Services where,
according to Shri Aditya Narayan Sharma, learned counsel for the insurance
company, brother of injured was working, is inconsequential, therefore, there is
no parity with the judgment of Madras High Court with that of the present case.
6. As far as contention of Shri Aditya Narayan Sharm, learned counsel for
the insurance company, that disability of 70% has been wrongly considered or
that its a case of false implication, both these grounds are not made out. Eye
witness-Deepak Kumar (PW-2) has been examined. He has given vivid details
of the accident. There is no contradiction in his evidence so to come to a
conclusion that it is a case of false implication.
7. Similarly, Dr. R.K. Bairagi (PW-3) who claims himself to be Manorog
Chikitsak has been examined. He is one of the signatories of the disability
certificate Ex.P/21-C. Though he has said that he had consulted one Dr. Rahul
Sharma, Psychologist but though it is submitted by Shri Aditya Narayan
Sharma, learned counsel that his report is not available on record, but it is also
true that Dr. Bairagi himself is a Manorog Chikitsak and has certified 70%
disability. If there was any doubt in regard to the evidence of Dr.R.K.Bairagi,
then it was open to the insurance company to have made an application to the
Tribunal to summon Dr. Rahul Sharma to examine him as to whether he had
certified 70% disability i.e. reduction in mental capacity or not but insurance
company has failed to do the needful, therefore, both the grounds raised by
insurance company deserves to be rejected and are hereby rejected.
8. Looking to the facts of the case and the degree which is in possession
of the claimant from National Institute of Technology, Warangal, notional
income of the injured can be taken at Rs.20,000/- per month and he cannot be
treated as a skilled labourer as has been done by learned Claims Tribunal. It
appears that learned Claims Tribunal has lost sight of the fact that a qualified
graduate engineer from a reputed institution cannot be treated as a skilled
labourer. Therefore, when examined from this aspect and income of the
claimant is considered at Rs.20,000/- per month and as the claimant sustained
70% disability, then loss of income comes out to Rs.14,000/- per month.
Looking to the age of the claimant, when 40% is to be added towards the future
prospects, monthly loss of income comes out to Rs.19,600/- or Rs.2,35,200/-
per annum. Learned Claims Tribunal has applied multiplier of 17 which is
when applied, then total compensation under the head of loss of earning
capacity will come out to Rs.39,98,400/- against a sum of Rs.21,99,120/-
awarded by learned Claims Tribunal. Thus, there will be enhancement to the
tune of Rs.17,99,280/- under the head of loss of earning capacity.
9. Similarly, loss of marriage prospect is enhanced to Rs.75,000/- to
Rs.2,00,000/-. Thus, there will be addition of Rs.1,25,000/- under the head of
loss of marriage prospects. Thus, claimant will be entitled to total additional
sum of Rs.19,24,280/-. This additional amount will earn interest @ 6% per
annum from the date of filing of claim petition till the date of actual payment.
Other terms and conditions of the award shall remain intact.
10. This additional amount will remain invested in a monthly scheme of an
Indian Post Office/Nationalised Bank in the name of the claimant for a period of
twenty years. He will use the monthly interest incurred from the fixed deposit
for his well being and survival but the principal amount shall not be disbursed to
him for the aforesaid period without leave of this Court.
11. In above terms, miscellaneous appeal i.e. M.A. No.08/2023 filed by the
insurance company is dismissed and miscellaneous appeal i.e. M.A.
No.6019/2022 filed by the claimant is hereby disposed of.
12. Record of Claims Tribunal be sent back immediately.
(VIVEK AGARWAL)
JUDGE
ts
