Madhya Pradesh High Court
Smt. Sandhya Singh vs Rajesh Kushwaha on 1 February, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 1 st OF FEBRUARY, 2023
MISC. APPEAL No. 4209 of 2010
BETWEEN:-
IFFCO TOKIYO GENERAL INSURANCE CO.LTD. C 84,
NARMADA ROAD JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SMT. AMRIT RUPRAH - ADVOCATE)
AND
1. SMT. SANDHYA SINGH W/O LATE NARENDRA
SINGH OCCUPATION: HOUSE WIFE, R/O NEAR
HANUMAN MANDIR BIDA ROAD DEKHA PS CIVIL
LINE REWA, DISTT. REWA (MADHYA PRADESH)
2. KU.RICHA SINGH D/O LATE NARENDRA SINGH,
AGED ABOUT 5 YEARS, MINOR THRO. NATURAL
GUARDIAN MOTHER SMT.SANDHYA SINGH, W/O
NARENDRA SINGH, R/O NEAR HANUMAN
MANDIR BIDA ROAD DEKHA PS CIVIL LINE
REWA, DISTT. REWA (MADHYA PRADESH)
3. MASTER UDIT SINGH D/O LATE NARENDRA
SINGH, AGED ABOUT 3 YEARS, MINOR THRO.
NATURAL GUARDIAN MOTHER SMT.SANDHYA
SINGH, W/O NARENDRA SINGH, R/O NEAR
HANUMAN MANDIR BIDA ROAD DEKHA PS CIVIL
LINE REWA, DISTT. REWA (MADHYA PRADESH)
4. KUSHAL SINGH S/O VISHWNATH SINGH, AGED
ABOUT 63 YEARS, OCCUPATION: FARMER, R/O
NEAR HANUMAN MANDIR BIDA ROAD DEKHA PS
CIVIL LINE REWA, DISTT. REWA (MADHYA
PRADESH)
5. SMT.SAVITRI SINGH W/O KUSHAL SINGH, AGED
Signature Not Verified
SAN ABOUT 58 YEARS, OCCUPATION: HOUSE WIFE,
NEAR HANUMAN MANDIR, BIDA ROAD, DEKHA,
Digitally signed by TULSA SINGH
Date: 2023.02.03 18:10:29 IST
P.S.CIVIL LINE, DISTT.REWA (MADHYA PRADESH)
2
6. VIRENDRA SINGH S/O KUSHAL SINGH, AGED 30
YEARS, OCCUPATION: FARMER, R/O NEAR
HANUMAN MANDIR BIDA ROAD DEKHA PS CIVIL
LINE REWA, DISTT. REWA (MADHYA PRADESH)
7. RAJESH KUSHWAHA S/O RAMRAJ KUSHWAHA,
AGED ABOUT 28 YEARS, OCCUPATION: DRIVER,
R/O BIDA, P.S.SEMARIYA, DISTT.REWA (MADHYA
PRADESH)
8. RAMRAJ KUSHWAHA S/O RAMGOPAL
KUSHWAHA, AGED ABOUT 47 YEARS,
OCCUPATION: BUSINESS, R/O BIDA,
P.S.SEMARIYA, REWA DISTT.REWA (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI ARUBENDRA SINGH PARIHAR - ADVOCATE FOR
RESPONDENTS NO.1 TO 6/CLAIMANTS)
MISC. APPEAL No. 4748 of 2010
BETWEEN:-
1. SMT. SANDHYA SINGH W/O NARENDRA SINGH,
AGED ABOUT 28 YEARS, OCCUPATION
HOUSEWIFE, R/O NEAR HANUMAN MANDIR,
BIDA ROAD DHEKHA, PS CIVIL LINE REWA,
DISTT. REWA (MADHYA PRADESH)
2. KU.RICHA SINGH D/O NARENDRA SINGH, AGED
ABOUT 5 YEARS, MINOR THRO. NATURAL
GUARDIAN MOTHER SMT.SANDHYA SINGH, W/O
NARENDRA SINGH, R/O NEAR HANUMAN
MANDIR BIDA ROAD DEKHA PS CIVIL LINE
REWA, DISTT. REWA (MADHYA PRADESH
3. MASTER UDIT SINGH S/O NARENDRA SINGH,
AGED ABOUT 3 YEARS, MINOR THRO. NATURAL
GUARDIAN MOTHER SMT.SANDHYA SINGH, W/O
NARENDRA SINGH, R/O NEAR HANUMAN
MANDIR BIDA ROAD DEKHA PS CIVIL LINE
REWA, DISTT. REWA (MADHYA PRADESH)
4. KAUSHAL SINGH S/O VISHWANATH SINGH, AGED
ABOUT 63 YEARS, OCCUPATION:
Signature Not Verified
SAN
AGRICULTURIST, R/O NEAR HANUMAN MANDIR
BIDA ROAD DEKHA PS CIVIL LINE REWA, DISTT.
Digitally signed by TULSA SINGH
REWA (MADHYA PRADESH)
Date: 2023.02.03 18:10:29 IST
3
5. SMT.SAVITRI SINGH W/O KOUSHAL SINGH, AGED
ABOUT 58 YEARS, OCCUPATION: HOUSEWIFE, R/O
NEAR HANUMAN MANDIR BIDA ROAD DEKHA PS
CIVIL LINE REWA, DISTT. REWA (MADHYA
PRADESH)
6. VIRENDRA SINGH S/O KAUSHAL SINGH, AGED
ABOUT 30 YEARS, OCCUPATION:
AGRICULTURIST, R/O NEAR HANUMAN MANDIR
BIDA ROAD DEKHA PS CIVIL LINE REWA, DISTT.
REWA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ARUBENDRA SINGH PARIHAR - ADVOCATE)
AND
1. RAJESH KUSHWAHA S/O RAMRAJ KUSHWAHA,
AGED ABOUT 28 YEARS, R/O VILL. POST BIDA, PS
SEMARIYA, DISTT. REWA (MADHYA PRADESH)
2. RAMRAJ KUSHWAHA S/O RAMGOPAL
KUSHWAHA OCCUPATION: BUSINESS, R/O
VILL.POST BIDA, P.S.SEMARIYA, DISTT.REWA
(MADHYA PRADESH)
3. IFFCO TOKYO GENERAL INSURANCE CO. LTD. 84,
NARBADA ROAD, JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SMT. AMRIT RUPRAH - 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 claimants
respectively being aggrieved of award dated 6th July, 2010 passed by learned
Motor Accident Claims Tribunal, Rewa in Claim Case No.134/2008.
Smt. Amrit Ruprah, learned counsel for the Insurance Company, submits
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SAN
that they have filed this appeal mainly on two grounds being that jeep in
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Date: 2023.02.03 18:10:29 IST
question bearing registration No. MP-17-TA-0112 was falsely implicated
inasmuch as in the Marg Intimation (Ex.D/4) which was received at the Police
Station, Kolgawan, Distt. Satna from Police Station, Civil Lines, Rewa that
accident had taken place when deceased who was travelling on a motorcycle on
18/4/2008 at about 12.30 had hit with the road divider, as a result he died. Case
was transferred to Police Station Kolgawan as accident had taken place within
the jurisdiction of Police Station Kolgawan. Original Marg intimation registering
Marg No.78/2008 is Ex.D/5. On the basis of these documents, it is submitted
that its a case of false implication, therefore, insurance company should be
exonerated.
Second argument which is advanced by learned counsel for insurance
company is that permit had expired, therefore, in absence of any valid permit on
the date of accident, jeep which was insured for commercial purposes to the
insurance company, insurance company should be exonerated.
Shri Arubendra Singh Parihar, learned counsel for the claimants, submits
that claimants have filed their appeal on three grounds; namely, finding of
contributory negligence requires to be set aside inasmuch as, admittedly, Jeep
had hit the motorcycle from behind, thus, no aspect of contributory negligence
can be attributed to the driver of the jeep. Secondly, learned Claims Tribunal
has not awarded any amount under the head of future prospect and has
awarded a meager amount under non-pecuniary head.
After hearing learned counsel for the parties and going through the
record, it is evident and it has come in the award itself that owner, driver of the
offending vehicle were ex-parte. They were not examined before the Tribunal.
Offending vehicle was seized. Driver was arrested. Vehicle was subjected to
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SAN
mechanical inspection. Vehicle was given on Supurdaginama to the owner of
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Date: 2023.02.03 18:10:29 IST
the vehicle, therefore, when there was no protest in regard to all these
proceedings, then factum of involvement of vehicle could not have been
doubted. Thus, mere delay in lodging of the FIR for an accident which took
place on 18/04/2008 and FIR was registered on transfer of Marg intimation on
28/06/2008, is not a circumstance to defeat the case of the claimants and allow
the appeal filed by the insurance company.
As far as aspect of breach of permit is concerned, insurance company
has examined R.P. Chaturvedi, Accountant from the Office of RTO who had
admitted in his evidence that permit for the jeep was valid for a period of five
years i.e. from 20/12/2006 to 19/12/2011. Thereafter he deposed that on
18/4/2008 its authorisation was over. But, Smt. Ruprah, learned counsel for the
insurance company, is at lost to explain that when permit was valid and it was
issued for a period of five years, then what does he mean by termination of
authorisation. No documentary evidence is produced by this witness in support
his contention, therefore, even second ground to show indulgence i.e. lack of
permit is not made. Thus, appeal filed by the insurance company deserves to
fail and is hereby dismissed.
As far as appeal filed by the claimants is concerned, finding recorded in
regard to contributory negligence, learned Claims Tribunal has held that
deceased who was 32 years of age was driving his motorcycle. It is held that it
is not proved by the claimants that driver of the motorcycle i.e. deceased was
having a valid driving license. Thus, on the finding that driving license of driver
of the motorcycle was not produced, finding of contributory negligence is
recorded on the basis of surmises and conjecture. It is noted in para-18 of the
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SAN
award that if driver of the motorcycle was driving the motorcycle in a negligent
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manner, then accident could take place when the motorcycle is hit by another
Date: 2023.02.03 18:10:29 IST
vehicle from behind. But, all these findings are not based on the evidence but
on surmises and conjecture, therefore, these findings being not based on
material on record, deserve to be set aside and are set aside.
Even otherwise when this finding is tested on the touchstone of the
judgment of Hon'ble Supreme Court in the case of SudhKumar Rana Vs.
Surinder Singh and others, (2008) 12 SCC 436 so also the Division Bench
decision of this High Court in the case of Chandrakant Goswami Vs.
Ramkesh Patel and others, 2005 (4) MPHT 40 (DB) wherein it is held that
appellant driving the scooter with due care and caution, merely because he had
no driving license, he cannot be held guilty of contributory negligence. So also
Division Bench decision of this High Court in the case of Mus.Vidya Soni and
another Vsx. Pushpesh Dwivedi and others, 2009 (2) MPHT 19 (DB)
wherein it held that violation of statutory requirement, namely, driving of vehicle
without driving license in violation of Section 3 of the Motor Vehicles Act,
would not per se amount to contributory negligence on the part of the driver.
There must be some act or omission established on the part of the driver having
nexus with the accident. The finding of contributory negligence recorded by
Claims Tribunal set aside, the finding of the contributory negligence recorded
the Claims Tribunal cannot be sustained.
Since learned Claims Tribunal has already computed compensation
treating notional fixation of the pay of the deceased as per 6th pay commission,
whereas at the time of accident no evidence is produced to show that actually
deceased was getting pay and salary in accordance with 6th pay commission
recommendations, the request for award of future prospect will get set off in
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SAN
terms of the treatment given by learned Claims Tribunal, therefore, no
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Date: 2023.02.03 18:10:29 IST
indulgence is required to grant future prospect in view of the fact that instead
of taking actual salary which was drawn by the deceased on the date of
accident, learned Claims Tribunal had taken notional salary which he would
have drawn if 6th pay commission recommendations could have been
implemented.
Taking all these facts into consideration, only aspect which requires
indulgence is that claimants are wife, children and parents of the deceased,
therefore, in place of Rs.20,000/- under the head of non-pecuniary
compensation, claimants will be entitled to a sum of Rs.70,000/-. Thus, there
will be enhancement of Rs.50,000/-(Rs. fifty thousand only) to the amount of
award i.e. Rs.30,30,000/- awarded by learned Claims Tribunal which will also
earn interest @ 6% per annum. Other terms and conditions of the award shall
remain intact.
In above terms, appeal filed by the insurance company is dismissed and
appeal filed by the claimants are disposed of.
Let record of the Claims Tribunal be sent back immediately.
(VIVEK AGARWAL)
JUDGE
ts
Signature Not Verified
SAN
Digitally signed by TULSA SINGH
Date: 2023.02.03 18:10:29 IST
