Madhya Pradesh High Court
Shriram General Insurance ... vs Arvind on 1 February, 2023
Author: Sunita Yadav
1
M.A. Nos. 76 of 2015 and 115 of 2015
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
MISC. APPEAL No. 76 of 2015
BETWEEN:-
ARVIND SINGH S/O RAJAN SINGH, AGED ABOUT 22
YEARS, GOBARA COLONY,BANMORE,DISTT.MORENA
(MADHYA PRADESH)
.....APPELLANT
(BY MR. BHAGWAN DAS VERMA & KRIPAL SINGH
BATHAM - ADVOCATES)
AND
RAJKUMAR CHOUDHWANI S/O BEDAMAL
1. CHOUDHAWANI E-E-84DEENDAYAL NAGAR,GWL.
(MADHYA PRADESH)
RAKESH SINGH S/O DURJAN SINGH, AGED ABOUT 30
2. YEARS, PREMPURA, THANA ANTRI (MADHYA
PRADESH)
MANAGER SHRIRAM GENERAL INSURANCE
3. COMPANY LIMITED E-8 RICO INDUSTRIAL AREA
SITAPUR (RAJASTHAN)
.....RESPONDENTS
(MR. BAL KRISHNA AGRAWAL - ADVOCATE FOR
RESPONDENT NO.3 - INSURANCE COMPANY)
MISC. APPEAL No. 155 of 2015
BETWEEN:-
SHRIRAM GENERAL INSURANCE CO.LTD.
NOT MENTIONED E-8/EPIP,RICO INDUSTRIAL
AREA SITAPUR,JAIPUR(RAJASTHAN)THR,.
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2
M.A. Nos. 76 of 2015 and 115 of 2015
ITS LEGAL OFFICER (RAJASTHAN)
.....APPELLANT
(BY MR. BAL KRISHNA AGRAWAL - ADVOCATE)
AND
ARVIND S/O RAJAN SINGH NUT, AGED ABOUT 22
YEARS, R/O GOBRA
1.
COLONY,BANMORE,DISTT.MORENA (MADHYA
PRADESH)
RAJKUMAR CHOUDHWANI S/O SHRI BEDAMAL E.E.
2.
84 DEENDAYAL NAGAR (MADHYA PRADESH)
RAKESH SINGH S/O DURJAN SINGH, AGED ABOUT 30
3. YEARS, PREMPURA P.S. ANTARI DISTRICT GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
(MR. BHAGWAN DAS VERMA & KRIPAL SINGH BATHAM -
ADVOCATES FOR RESPONDENT NO. 1 - CLAIMANT)
Reserved on : 11.01.2023
-------------------------------------------------------------------------------------------
Whether approved for reporting :
JUDGMENT
(Passed on 01.02.2023)
This judgment shall govern the disposal of both the appeals (M.A.
Nos.76 of 2015 and 155 of 2015). For the sake of convenience, facts
mentioned in M.A. No. 155 of 2015 are taken into consideration.
2. These Misc. Appeals under Section 173(1) of Motor Vehicles Act,
1988 have been filed against the award dated 25.9.2014 passed in Claim
Case No. 78/2013 by Third Motor Accident Claims Tribunal, District
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M.A. Nos. 76 of 2015 and 115 of 2015
Morena.
3. The facts in brief to decide these appeals are that respondent No. 1 -
claimant preferred a claim petition under Section 166 of Motor Vehicles Act
for realising an amount of compensation to the tune of Rs.45,88,000/- for the
permanent disability sustained by him in road traffic accident dated
21.8.2011 involving Eicher Canter bearing registration No. UP75 F 9110. On
the fateful day, the aforesid vehicle was insured with the appellant -
insurance company. Respondents No. 2 and 3 - owner and driver of the
offending vehicle respectively remained absent before the learned Tribunal
and were proceedeed ex-parte. The appellant - insurance company filed its
written statement and denied all the allegations.
4. Learned Claims Tribunal framed issues and after taking into
consideratin the facts and material available on record partly allowed the
claim petition holding respondent No. 1 - claimant entitled for an amount of
compensation to the tune of Rs.2,69,800/- along with interest at the rate of
7% per annum and directed the insurance company to pay the compensation
amount and recover the same from respondents No. 2 and 3 - owner and
driver of the offending vehicle.
5. Learned counsel for the appellant - insurance company argued that the
impugned award is against the facts and material available on record and
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M.A. Nos. 76 of 2015 and 115 of 2015
settled principle of law and therefore, the same is liable to be set aside.
Learned claims tribunal has erred in not exonerating the insurance company
and fastening the liability to pay the compensation upon it as on the fateful
day, the offending vehicle was being driven by respondent No. 3 - driver
without having any valid driving license in breach of the policy conditions.
Learned claims tribunal has also erred in holding the claimant permanently
disable and sustaining the permanent disability as 25% as well as the
ceritificate produced for the same was not issued by the treating doctor and
the doctor examined for the same has wrongly been projected as treating
doctor. As such, the finding of the learned claims tribunal are not sustainable.
Therefore, the award be set aside and the appellant - insurance company be
exonerated from payment of amount of compensation.
6. On the other hand, learned counsel for respondent No. 1 - claimant
argued that learned claims tribunal has rightly held the insurance company
liable for payment of compensation. It is further argued that respondent No.1
- claimant has filed M.A. No. 76 of 2015 for enhancement of compensation
amount awarded by learned claims tribunal. Learned claims tribunal has
incorrectly assessed the permanent disability of the claimant and the
compensation awarded is meager and on the lower side and, therefore, the
same deserves to be enhanced.
7. Heard learned counsel for the rival parties and perused the available
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M.A. Nos. 76 of 2015 and 115 of 2015
record.
8. The moot questions to be addressed upon in the appeal preferred by
the appellant is as to whether the Tribunal was justified in directing the
insurance company to pay the compensation amount to the claimant,
assessing the permanent disability of the claimant as 25% and awarding the
compensation under various heads to the tune of Rs.2,69,800/-.
9. So far as the liability of the insurance company to pay the
compensation amount to the claimant and recover the same from the owner
and driver of the offending vehicle is concerned, the Supreme Court in the
case of Shivaraj Vs. Rajendra; [(2018) 10 SCC 432], Manuara Khatun Vs.
Rajesh Kumar Singh; [2017 ACJ 1031] & Shamanna and another Vs.
Divisional Manager, the Oriental Insurance Co. Ltd. and others; [(2018) 9
SCC 650] observed that in the case of breach of policy directions against the
Insurance Company to pay the awarded sum to the claimants and then to
recover the said sum from the insured be given by applying the principle of
"pay and recover". The Insurance Policy is a contract between the insured
and the insurer and the insurer agrees to indemnify the insured against all the
claims arising out of use of vehicle, however, such contract is subject to the
conditions that the vehicle shall not be plied or driven contrary to the
provisions of law as well as Insurance Policy. Thus, it is clear that the insurer
/ Insurance Company can get away from its liability of indemnifying the
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M.A. Nos. 76 of 2015 and 115 of 2015
insured by proving that the vehicle was being used contrary to the Insurance
Policy. However, the claimants are completely stranger to the contract
between the insured and the insurer. Once, the Insurance Company had
agreed to indemnify the insured than it would be a dispute between the
insured and the insurer as to whether the vehicle was being used contrary to
the conditions of Insurance Policy or not? But the claimants cannot be made
to suffer because of interse dispute between the insured and the insurer.
Once, the vehicle is insured, then the Insurance Company must satisfy the
award and if it is found by the Claims Tribunal that the vehicle was being
used contrary to the conditions of Insurance Policy, then the right to recover
the amount has been given to the Insurance Company without filing a
separate suit against the insured. Therefore in the light of above case laws,
the finding of learned claims tribunal directing the appellant - insurance
company to pay the compensation amount to the claimant and recover the
same from respondents No. 2 and 3 - owner and driver of the offending
vehicle respectively is hereby affirmed.
10. So far as the permanent disability suffered by respondent No. 1 -
claimant is concerned, in the present case, Co-ordinate Bench of this Court
by its order dated 08.2.2019 had directed that respondent No. 1 - claimant
Arvind shall appear before the medical team of experts to be constituted at
G.R. Medical College, Gwalior to ascertain the percentage of permanent
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M.A. Nos. 76 of 2015 and 115 of 2015
disability suffered by the claimant as well as its cause. Thereafter, as directed
by the Court, the report was sent by the Dean, G.R. Medical College,
Gwalior by vide its letter No. 5252 dated 06.3.2019 and according to the
report, respondent No. 1 - claimant is having Right Brachial Plexus injury,
the disability in right arm is 60% permanent physical impairment, however,
the said assessment is not in respect of whole body permanent disability, but
it is in respect of the limb disability, therefore, in the light of the judgment
passed by the Supreme Court in the case of Raj Kumar Vs. Ajay Kumar and
another; [(2011) 1 SCC 343], learned claims tribunal did not commit any
mistake in assessing the whole body permanent disbility of the appellant to
the extent of 25%.
11. Learned claims tribunal has assessed the age of the claimant as 22
years at the time of accident which has not been disputed by the claimant as
well as by the insurance company. In view of the above, learned claims
tribunal has also rightly applied the multiplier of 18.
12. So far as quantum of compensation is concerned, having gone through
the evidence adduced by the both the parties and taking into consideration
the overall findings of learned claims tribunal which appear to be just and
proper, however, considering the nature of the case, the compensation as
awarded by learned claims tribunal is liable to be enhanced by Rs.2,30,000/-
(Rs. Two Lakh Thirty Thousand only) in lump sum along with interest
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M.A. Nos. 76 of 2015 and 115 of 2015
which shall be payable to respondent No. 1 - claimant in addition to already
awarded amount by the claims tribunal i.e. Rs.2,69,800/-.
13. The enhanced amount of Rs.2,30,000/- shall not carry any interest,
however, if appelant fails to make the payment of compensation within a
period of 12 months from today, then the enhanced amount of award shall
carry penal interest at the rate of 6% per annum. Rest of the conditions as
imposed by learned claims tribunal shall remain intact.
14. M.A. Nos. 76/2015 and 155/2015 stand disposed of in above terms.
Registry is directed to place copy of this order in the record of
connected appeal.
(SUNITA YADAV)
JUDGE
AKS
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