Sawanlal Kumre vs Arvind Kumar Yadav
2023 Latest Caselaw 2152 MP

                                                                          1
                                         IN     THE      HIGH COURT OF MADHYA PRADESH
                                                              AT JABALPUR
                                                                   BEFORE
                                                     HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                           ON THE 7 th OF FEBRUARY, 2023
                                                            MISC. APPEAL No. 4017 of 2018

                                        BETWEEN:-
                                        SAWANLAL KUMRE S/O SHRI SUKHLAL KUMRE, AGED
                                        ABOUT 24 YEARS, R/O GRAM SOOKHADONGRI THANA
                                        KURAI DISTT. SEONI M.P. (MADHYA PRADESH)

                                                                                                      .....PETITIONER
                                        (BY SHRI ANUP KUMAR SHUKLA - ADVOCATE)

                                        AND
                                        1.    ARVIND KUMAR YADAV S/O SHRI BHAGOOLAL
                                              YADAV OCCUPATION: DRIVER R/O MU. PO. SAI
                                              NAGAR TULASKAR BADI M.G.ROAD NO. 1 FLOOR
                                              MILLS KE PAAS KANDIWALI ROAD WEST
                                              MUMBAI M.H. (MAHARASHTRA)

                                        2.    MITHLESH KUMAR JAIN S/O SHRI VINAY KUMAR
                                              JAIN OCCUPATION: DRIVER MU PO BANGLA NO-
                                              64, AMBABADI SCHEME VELIV TAL JILHA THADE
                                              MAHARASHTRA (MAHARASHTRA)

                                        3.    MANAGER, ORIENTAL INSURANCE COMPANY
                                              LIM ITED M.C.B.O. NO-9, 1ST FLOOR PHEJAN
                                              APART, NEAR SINDICATE BANK S.V. ROAD
                                              JOGESHWARI, WEST MUMBAI (MAHARASHTRA)

                                                                                                   .....RESPONDENTS
                                        (SHRI AJIT AGRAWAL - ADVOCATE FOR THE RESPONDENT NO.3)

                                              This appeal coming on for admission this day, th e court passed the
                                        following:
                                                                           ORDER

Signature Not Verified SAN This Miscellaneous Appeal under Section 173(1) of the Motor Vehicles

Digitally signed by ASHWANI PRAJAPATI Act, 1988, is filed by the claimants and cross-objection under Order 41 Rule 22 Date: 2023.02.08 19:14:22 IST

CPC by the Insurance Company, being aggrieved of award dated 10.05.2018, passed by learned First Additional Motor Accident Claims Tribunal, Seoni (M.P.), in MACC No.300039/2016, whereby, learned Claims Tribunal had overlooked the important fact that accident had taken place on 28.12.2015, at about 6:30 P.M., when driver of the offending vehicle-Bollero bearing registration No.MH-04-DJ/7666, driving it rashly and negligently had caused accident, as a result of which, claimant who was on the motorcycle sustained multiple injuries causing permanent disability.

2. Learned counsel for the claimant submits that he had produced OPD ticket from Indira Gandhi District Hospital, Seoni, Ex.P/7, Bed Head Ticket, Ex.P/8,

Discharge Card, Ex.P/17, Disability Certificate issued by the District Medical Board, Ex.P/16, overlooking the evidence of Dr. Ajay Soni, Orthopedic Surgeon, only on the ground that in the disability certificate it is mentioned that it is valid only for five years and, thereafter, word 'permanent' is deleted.

3. It is submitted that learned Claims Tribunal has accepted factum of accident, but has arbitrarily rejected the finding of permanent disability merely on the basis of writing in the certificate overlooking the evidence of the Dr. Ajay Soni.

4. Learned counsel for the Insurance Company, on the other hand, submits that Tribunal has awarded excessive amounts under the head of permanent disability though the certificate was issued only for five years which demonstrate that the disability was not permanent and, therefore, no amount should have been awarded under this head. It is also submitted that Tribunal overlooked the fact that it was a case of contributory negligence. Besides this, Signature Not Verified SAN

three persons were riding the motorcycle and claimant was driving the Digitally signed by ASHWANI PRAJAPATI Date: 2023.02.08 19:14:22 IST

motorcycle, was not wearing the helmet.

5. After hearing learned counsel for the parties and going through the record, as far as submission of Shri Ajeet Agrawal in regard to contributory negligence is concerned, from the record, it is evident that insurance company did not examine any witness to prove the aspect of contributory negligence. It also did not adduce any evidence in the form of investigation report etc., to prove the aspect of contributory negligence. Similarly, it did not prove the aspect of accident taking place because three persons riding the motorcycle.

6. As far as issue of helmet is concerned, it is evident from the discharge card Ex.P/17 that injury was caused to the right foot. It is mentioned in the discharge card that it was a right foot crushed injury with vascular compromise. Thus, in absence of any injury to head, this aspect is not required to be considered.

7. Third ground raised is in regard to riding of two pillion rider besides the driver. This issue is already settled by Full Bench of this Court in case of Devi Singh Vs. Vikram Singh (AIR 2008 MP 18), wherein, Hon'ble the Chief Justice Shri A.K. Patnaik, as he then was, observed quoting the Law of Torts that to allege contributory negligence, the negligence of the plaintiff can be described as contributory negligence only when it must have causal connection with the damage suffered by him. It also quoted judgment of Supreme Court in Pramod Kumar Rasikbhai Jhaveri Vs. Karmasey Kunuvargi Tak and others [(2002) 6 SCC 455], in the following words :-

"The question of contributory negligence arises when there has been some act or omission on the claimant's part which has materially contributed to the damage caused, and is of such a nature that it may properly be described as 'negligence'.

Negligence ordinarily means breach of a legal duty to care but when used in the expression "contributory negligence" it does Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI not mean breach of any duty. It only means the failure by a Date: 2023.02.08 19:14:22 IST

person to use reasonable care for the safety of either himself or

his property, so that he becomes blameworthy in part as an 'author of his own wrong'."

8. This judgment also places reliance on a decision of the Supreme Court in Municipal Corporation of Greater Bombay Vs. Laxman Aiyer and another [(2003) 8 SCC 731], to deal with the aspect of contributory negligence and has then held that if the damage in the accident has not been caused partly on account of violation of Section 128 of the Motor Vehicles Act by the pillion rider of the motorcycle, the pillion rider is not guilty of contributory negligence. Similarly, if the damage suffered by the pillion rider has not been caused partly on account of violation of Section 128 of the Act by the driver, the pillion rider cannot put up a plea of composite negligence by the driver. In other words, if breach of Section 128 of the Act does not have a causal connection with the damage caused, such breach would not amount to contributory negligence.

9. In the present case, it is evident from the First Information Report that accident took place when driver of the Bollero had hit the motorcycle. Thus, there being no causal connection between the three persons sitting on the motorcycle and the accident, violation of Section 128 of the Motor Vehicles Act, will not have any adverse impact and it cannot be said to be a case of contributory negligence specially when no such evidence is led by the insurance company or the owner & driver of the Bollero Jeep.

10. Now coming to the aspect of quantum of compensation, it is evident that learned Tribunal has awarded a sum of Rs.2,51,500/- out of which break up is Rs.53,000/- under the head of treatment, Rs.10,000/- under the head of pain and Signature Not Verified

suffering, Rs.10,000/- under the head of attendant, Rs.10,000/- under the head SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2023.02.08 19:14:22 IST of nutritious diet. Wages have been construed at Rs.4800/- per month and then

compensation is awarded treating 50% disability by applying a multiplier of 5. Minimum wages on the date of the accident even for an unskilled labourer were to the tune of Rs.6575/- per month. Learned Claims Tribunal has admitted 50% disability, therefore, loss of earning capacity comes out to Rs.3287.50. Age of the claimant is 24 years. Therefore, 40% is to be added towards future prospects. Thus, annual loss of earning capacity comes out to Rs.55,230/- (Rupees Fifty Thousand, Two Hundred and Thirty). When multiplier of 5 as applied by the Tribunal is applied, then total compensation under the head of loss of earning capacity will come out to Rs.2,76,150/- (Rupees Two Lacs, Seventy Six Thousand, One Hundred and Fifty). Thus, under the head of loss of earning capacity, there will be enhancement to the tune of Rs.1,32,150/- (Rupees One Lac, Thirty Two Thousand, One Hundred and Fifty).

11. Learned Claims Tribunal has only awarded a sum of Rs.10,000/- under the head of pain and sufferings, which is enhanced to Rs.25,000/- (Rupees Twenty Five Thousand). Thus, there will be addition of Rs.15,000/- (Rupees Fifteen Thousand) under the head of pain and suffering.

12. As per the evidence of the doctor and also the nature of the injury, compensation under the head of attendant and nutritious diet, is required to be awarded for a period of six months. Thus, @ Rs.3,000/- (Rupees Three Thousand) per month, claimant will be entitled to a sum of Rs.18,000/- (Rupees Eighteen Thousand) each under the head of attendant and nutritious diet. Thus, there will be enhancement to the tune of Rs.16,000/- (Rupees Sixteen Thousand) under the head of nutritious diet and attendant.

13. Learned Claims Tribunal has awarded only a sum of Rs.24,000/- (Rupees Signature Not Verified SAN

Twenty Four Thousand) under the head of loss of earning taking it for five Digitally signed by ASHWANI PRAJAPATI Date: 2023.02.08 19:14:22 IST

months @ Rs.4800/-, but when this is computed in terms of the monthly

minimum wages, then this amount will come out to Rs.32,875/- (Rupees Thirty Two Thousand, Eight Hundred and Seventy Five) in place of Rs.24,000/- (Rupees Twenty Four Thousand). Thus, there will be enhancement to the tune of Rs.8875/-(Rupees Eight Thousand, Eight Hundred Seventy Five).

14. No amounts have been awarded under the head of transport, whereas, there are treatment papers from Nagpur Hospital. Thus, a sum of Rs.5,000/- (Rupees Five Thousand) is awarded under the head of transport.

15. Similarly, no amounts have been awarded under the head of future treatment, for which another sum of Rs.10,000/- is awarded. Thus, there will be enhancement to the tune of Rs.1,87,025/- (Rupees One Lac, Eighty Seven Thousand and Twenty Five), to which claimant will be entitled to in addition to the amounts awarded by the learned Claims Tribunal. This additional amount will earn interest @ 6% per annum from the date of filing of the Claim Petition till the date of actual payment. Other terms and conditions of the award shall remain intact.

16. In above terms, this appeal is allowed and cross objections are rejected.

17. Let record of the Claims Tribunal be sent back.

(VIVEK AGARWAL) JUDGE A.Praj.

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2023.02.08 19:14:22 IST