National Insurance Company Ltd. vs Dharmendra Singh
2023 Latest Caselaw 1870 MP

                       (1)

        IN THE HIGH COURT OF MADHYA
                   PRADESH

                   AT GWALIOR

                     BEFORE
        HON'BLE SHRI JUSTICE ROHIT ARYA
             ON THE 02nd FEBRUARY 2023

           MISC. APPEAL NO.1465 OF 2009

BETWEEN :-

NATIONAL INSURANCE COMPANY
LIMITED    THROUGH    SENIOR
DIVISIONAL         MANAGER,
DIVISIONAL OFFICE INDERGANJ,
GWALIOR (MADHYA PRADESH).
                                   .....APPELLANT

(BY SHRI KAMAL S. ROCHLANI - ADVOCATE)

AND

1.    MUNNA SINGH S/O UTTAM
      SINGH, AGE 40 YEARS, CASTE
      GURJAR THAKUR RESIDENT
      OF NEW HOUSING BOARD
      COLONY,    PARGANA     AND
      DISTRICT MORENA (MADHYA
      PRADESH).
                      .....RESPONDENT/APPLICANT

2.    M/S M.S. CARRIER, SHOP
      NO.27,   BATA      RAILWAY
      CROSSING, N.I.T. FARIDABAD
      (HARYANA)      (REGISTERED
      OWNER).
                        (2)

3.    LAXMI NARAYAN S/O RATLAL
      SOLANKI,   R/O    LAWAVAT
      MAUZA     VANANIA,     P.S.
      RAJGARH,          DISTRICT
      RAJGARH (DRIVER).

                .....RESPONDENTS/NON APPLICANTS

(SHRI ARUN SHARMA - ADVOCATE FOR THE
RESPONDENT/NON APPLICANT NO.1.
NONE FOR RESPONDENTS/NON APPLICANTS NO.2 & 3.)

           MISC. APPEAL NO.1500 OF 2009

BETWEEN :-

MUNNA SINGH S/O SHRI UTTAM
SINGH, AGE 40 YEARS, CASTE
GURJAR THAKUR RESIDENT OF
NEW HOUSING BOARD COLONY,
MORENA, PARGANA AND DISTRICT
MORENA.
                                    .....APPELLANT

(BY SHRI ARUN SHARMA - ADVOCATE)

AND

1.    M/S M.S. CARRIER, SHOP
      NO.27,   BATA      RAILWAY
      CROSSING, N.I.T. FARIDABAD
      (HARYANA)      (REGISTERED
      OWNER).

2.    LAXMINARAYAN S/O SHRI
      RATLAL    SOLANKI,  R/O
      LAWAVAT MAUZA VANANIA,
      THANA RAJGARH, DISTRICT
      RAJGARH (DRIVER).
                        (3)

3.    NATIONAL         INSURANCE
      COMPANY LIMITED THROUGH
      BRANCH MANAGER, BRANCH
      OFFICE IN FRONT OF HARIRAJ
      TALKIES, M.S. ROAD, MORENA
      (INSURANCE COMPANY).


                .....RESPONDENTS/NON APPLICANTS

(BY SHRI KAMAL S.ROCHLANI - ADVOCATE FOR
RESPONDENT NO.3 INSURANCE COMPANY.
NONE FOR RESPONDENTS NO.1 AND 2.

          CIVIL REVISION NO. 140 OF 2009

BETWEEN :-

NATIONAL INSURANCE COMPANY
LIMITED    THROUGH    SENIOR
DIVISIONAL         MANAGER,
DIVISIONAL OFFICE INDERGANJ,
GWALIOR (MADHYA PRADESH).

                   .....PETITIONER/NON APPLICANT

(BY SHRI KAMAL S. ROCHLANI - ADVOCATE)

AND

1.    DHARMENDRA SINGH        S/O
      SHRI SARDAR SINGH GURJAR
      AGE 18 YEARS, CASTE GURJAR
      THAKUR, R/O NEW HOUSING
      BOARD COLONY, MORENA
      (MADHYA PRADESH)
                       .....RESPONDENT/APPLICANT

2.    M/S M.S. CARRIER, SHOP
      NO.27,   BATA      RAILWAY
      CROSSING, N.I.T. FARIDABAD
                                     (4)

       (HARYANA)                 (REGISTERED
       OWNER).

3.     LAXMI NARAYAN S/O RATLAL
       SOLANKI,   R/O    LAWAVAT
       MAUZA     VANANIA,     P.S.
       RAJGARH,          DISTRICT
       RAJGARH (DRIVER).

                         .....RESPONDENTS/NON APPLICANTS

(SHRI ARUN SHARMA - ADVOCATE FOR THE
RESPONDENT/NON APPLICANT NO.1.
NONE FOR RESPONDENTS/NON APPLICANTS NO.2 AND
3.)
-------------------------------------------------------------------------------
        These matters coming on for order this day, JUSTICE
ROHIT ARYA passed the following:

                                ORDER

This order shall govern the disposal of M.A.No.1465 of

2009, M.A.No.1500 of 2009 and Civil Revision No.140 of 2009.

2. Aggrieved by the common award dated 19 th August 2009

passed in Claim Case No.200 of 2008 and 247 of 2008 by learned

Fourth Additional Motor Accident Claims Tribunal, Morena,

Madhya Pradesh, National Insurance Company Limited preferred

M.A.No.1465 of 2009 and Civil Revision No.140 of 2009,

whereas claimant/appellant Munna Singh has preferred

M.A.No.1500 of 2009 for enhancement of compensation.

3. Facts necessary for disposal of all the aforesaid cases in

nutshell are to the effect that on 16.02.2008 Dharmendra Singh

and Munnasingh were going on motorcycle, at 11.30 A.M. When

the motorcycle reached at Factory area Banmore, at that time

driver of the offending vehicle truck container No. H.R.38/L 0670

driving rashly and negligently came and hit the motorcycle due to

which Munnasingh suffered fractures in thigh of both the legs and

femur and tibia fibula bone below knee and sustained permanent

disability. Dharmendra Singh also suffered injuries on his head,

hands, legs, waist and other parts of the body. Report of the

accident was made to Police Station Banmore on which Crime

No.29/2008 was registered for offences under Section 279, 337 of

IPC. Hence, Munnasingh filed Claim Case No.200/2008 claiming

compensation of Rs.16,35,000/-, whereas Dharmendra Singh filed

Claim Case No.247 of 2008 claiming compensation of

Rs.5,70,000/-.

4. The Tribunal has awarded compensation of Rs.1,55,000/- in

Claim Case No.200 of 2008 and Rs.5,500/- in Claim Case No.247

of 2008 and ordered for payment thereof by the Insurance

Company and non applicants jointly and severally.

5. The limited submission raised by the learned counsel for

the insurance company in M.A.No.1465 of 2009 as well as Civil

Revision No.140 of 2009 is referable to finding of the Tribunal in

para 17 of the impugned award wherein the Tribunal has held that

the National Insurance Company has failed to establish that the

offending vehicle Truck Container No. H.R.38/L 0670 did not

have valid permit. Learned counsel submits that the oral evidence

of D.W.1 as well as proved documents Ex.D/2 and D/3 i.e.

Authorisation for National Permit issued by the District Transport

Officer and investigation report have been ignored. Said piece of

evidence established the fact that the vehicle did not have valid

permit. Therefore, finding recorded by the Tribunal suffers from

perversity of approach and dehors the record.

6. Shri Arun Sharma, learned counsel for the claimant

Munnasingh supports the award impugned and fairly submits that

the aforesaid evidence on record do not find mention in para 17 of

the award.

7. D.W.1 - C.Tirki is the Branch Manager of National

Insurance Company. In paragraph 2 of his deposition he has

categorically deposed that the permit issued by the Regional

Transport Authority for the offending vehicle was for the period

7.2.2007 till 6.2.2008, while the accident took place on 16.2.2008.

He has proved documents Ex.D/2 and D/3. Ex.D/2 is the

Authorisation for National Permit issued by the office of District

Transport Officer Faridabad (Haryana). From the said permit the

period of validity of authorisation for the offending vehicle is

clearly reflected as 7.2.2007 till 6.2.2008. The said fact is also

corroborated by document Ex.D/3 which is a report of

Investigator Vishnu Sharma, wherein also the said permit has

been found to be valid from 7.2.2007 to 6.2.2008. Clearly the

accident took place on 16.2.2008 i.e. outside the period of permit.

Hence, the learned Tribunal in para 17, while ignoring the

aforesaid documents Ex.D/2 and D/3 as well as evidence of

D.W.1 - C. Tirki, was not justified in holding that the insurance

company had failed to establish that the offending vehicle was not

having valid permit at the time of accident. Hence, said finding is

hereby set aside. The impugned award is modified to the extent

that the Insurance Company shall pay the amount of the

compensation as determined by the Tribunal and shall have

liberty to recover the same from owner of the vehicle.

Accordingly, M.A.No.1465/2009 and C.R.No.140/2009 stand

disposed of.

8. Now adverting to M.A. No.1500/2009 preferred by

appellant/claimant Munna Singh for enhancement of

compensation, the Tribunal has awarded the compensation as

follows:-

(i) towards loss of dependency : Rs. 97,500/-

(ii) towards medical expenses : Rs. 55,000/-

(iii) towards pain and suffering : Rs. 2,500/-

-------------------- Total :: Rs.1,55,000/-

--------------------

9. Learned counsel for the appellant/claimant submits that at

the time of accident he was a young man of 40 years and doing

agriculture and milk vending work and was earning Rs.6,000/-

per month. The Tribunal has assessed his notional income as

Rs.15,000/- per year, which is on lower side. Therefore, the same

needs to be enhanced appropriately. Tribunal has also awarded

Rs.55,000/- under the head of medical expenses and Rs.2500/- in

other heads, which are also on lower side and the same needs to

be enhanced appropriately. Besides learned Tribunal has also

committed error in not awarding any amount towards future

prospects.

10. Learned counsel for Insurance Company supported the

award as regards quantum of compensation and prays for

dismissal of the appeal.

11. The moot question to be addressed upon in this appeal is as

to whether the Tribunal was justified in assessing the income of

appellant Munnasingh as Rs.1250/- per month and not giving any

amount towards future prospects while awarding the

compensation to the tune of Rs.1,55,000/- in total.

12. Having gone through the impugned award, it is apparent

that the Tribunal has not assessed the notional income of appellant

correctly and has inaptly awarded towards loss of future earning

capacity and therefore, same needs to be corrected therefore, in

the opinion of this Court, the amount awarded by the Tribunal

needs to be enhanced appropriately.

13. Having perused the evidence placed on record and the

submissions advanced since the appellant/claimant is a young

man of 40 years doing the work of agriculture and milk vending,

therefore, considering the aforesaid facts and circumstances, this

Court finds it appropriate to assess his notional income as

Rs.2,500/- per month. In the light of Sarla Verma (smt.) and

Ors. Vs. Delhi Transport Corporation (2009) 6 SCC 121,

multiplier of '13' should be applied, therefore, his annual income

comes to Rs. 2500X12x13= Rs.3,90,000/-. Appellant suffered

permanent disability to the extent of 50%, therefore, his yearly

loss of earning capacity comes to Rs.3,90,000x50/100 =

Rs.1,95,000/-. In light of decision of Apex Court in the matter of

National Insurance Company Vs. Pranay Sethi and others,

2017 ACJ 2700, future prospects are to be assessed at 25%, thus

total future prospects comes to Rs. 1,95,000x25/100 =

Rs.48,750/-. Now in addition to the said amount, medical

expenses to the tune of Rs. 55,000/- as considered by the Claims

Tribunal are required to be added. Besides, the appellant is also

entitled for Rs.40,000/- under the various heads according to the

judgment of Hon'ble Apex Court in the case of Pranay Sethi

(supra). Thus, the total award to which appellant is entitled for

comes to Rs.1,95,000 + 48,750 + 55,000 + 40,000 =

Rs.3,38,750/-. The Claims Tribunal has already awarded a sum of

Rs.1,55,000/- to the appellant, therefore, after deducting the same,

the appellant shall be entitled to receive an enhanced

compensation to the tune of Rs. 3,38,750 - 1,55,000 = Rs.

1,83,750/- (Rupees One Lakh Eightythree Thousand Seven

Hundred Fifty only). The enhanced amount of compensation

shall carry interest at the rate of 7% per annum, as awarded by the

Claims Tribunal, from the date of application till its realization.

The enhanced amount of compensation shall also be payable to

the claimant within 12 weeks from the date of production of a

certified copy of this order.

Subject to the directions given by this court in para 7 of this

order, rest of the conditions as imposed by Claims Tribunal while

passing impugned award shall remain intact. M.A.No.1500 of

2009 stands allowed to the extent indicated above.

A copy of this order be retained in all the connected cases.

(ROHIT ARYA) JUDGE

SP

SANJEEV KUMAR PHANSE 2023.02.04 16:30:09 +05'30'