Madhya Pradesh High Court
National Insurance Company ... vs Binna Bai Kushwaha on 21 February, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 21 st OF FEBRUARY, 2023
MISCELLANEOUS APPEAL No. 2222 of 2022
BETWEEN:-
NATIONAL INSURANCE COMPANY LIMITED THROUGH
BRANCH MANAGER BRANCH OFFICE, 792-793,
JABALPUR ROAD, NEHRU WARD, BARGAWAN , KATNI
M.P. (INSURANCE COMPANY) THROUGH NATIONAL
INSURANCE COMPANY LTD. T.P. HUB, DIVISIONAL
OFFICE NO.2, VIJAY NAGAR, JABALPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ALOK HOONKA - ADVOCATE)
AND
1. BINNA BAI KUSHWAHA W/O LATE SHRIDAMA,
AGED ABOUT 48 YEARS, R/O WARD NO. 4,
VILLAGE LAKHAPATERI (PIPROUDH), P.S.
MADHAV NAGAR, DISTRICT KATNI (MADHYA
PRADESH)
2. MUKESH KUSHWAHA S/O LATE SHRIDAMA,
AGED ABOUT 30 YEARS, R/O WARD NO. 4,
VILLAGE LAKHAPATERI (PIPROUDH), P.S.
MADHAV NAGAR, DISTRICT KATNI (MADHYA
PRADESH)
3. ANIL KUSHWAHA S/O LATE SHRIDAMA, AGED
ABOUT 23 YEARS, R/O WARD NO. 4, VILLAGE
LAKHAPATERI (PIPROUDH), P.S. MADHAV
NAGAR, DISTRICT KATNI (MADHYA PRADESH)
4. SUSHMA KUSHWAHA D/O LATE SHRIDAMA
(MARRIED HUSBAND AJAY KUSHWAHA, AGED
ABOUT 21 YEARS, R/O WARD NO. 4, VILLAGE
LAKHAPATERI (PIPROUDH), P.S. MADHAV
Signature Not Verified
SAN
NAGAR, DISTRICT KATNI (MADHYA PRADESH)
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.24 18:16:59 IST
5. SITARAM GUPTA S/O LATE TULSIRAM GUPTA,
AGED ABOUT 28 YEARS, AMEERGANJ PS
2
MADHAV NAGAR DISTRICT KATNI (MADHYA
PRADESH)
6. RAJESH TIWARI S/O DURGA PRASAD TIWARI,
AGED ABOUT 45 YEARS, R/O VILLAGE MAJHLI PS
MAJHOLI DISTRICT JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(SMT. DEVIKA SINGH THAKUR - ADVOCATE FOR THE RESPONDENTS
NO.1 TO 4)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
Heard on I.A. No.1306/2023, an application seeking permission to amend
the valuation and accordingly to pay Court fee.
2. Learned counsel for the claimants submits that she has paid deficit
Court fee of Rs.4,875/- and in support of the said submission she has filed a
copy of Online Court Fee Cyber Receipt along with the application, therefore,
the Court fee may be taken on record.
3. On due consideration, I.A. No.1306/2023 is allowed and deficit Court
fee is taken on record.
4. This miscellaneous appeal under Section 173(1) of the Motor Vehicles
Act, 1988 is filed by the insurance company being aggrieved of award dated
07.03.2022 passed by the learned Motor Accident Claims Tribunal, Katni in
MACC No.04/2021 (Binna Bai Kushwaha and others Vs. Sitaram Gupta and
others) on the ground that as per the Aadhar card, Date of birth of the deceased
Shridama is of the year 1958 and, therefore, for an accident which took place in
the year 2019, his age should have been considered at 61 years in place of 50
Signature Not Verified
SAN
years as has been construed by the learned Claims Tribunal.
Digitally signed by PUSHPENDRA PATEL
5. Smt. Devika Thakur, learned counsel for the claimants, in her turn,
Date: 2023.02.24 18:16:59 IST
submits that learned Tribunal has erred in making 50% deduction towards the
living expenses of the deceased after not treating the grown up adult sons of the
deceased to be dependents, whereas as per the law laid down by the Supreme
Court in case of Smt. Sarla Verma and others Vs. Delhi Transport
Corporation and another, (2009) 6 SCC 121 , even if wife would have been
the alone claimant, 1/3rd deduction should have been made.
6. However, Smt. Devika Singh Thakur has admitted that since no cross
objection is filed but in the interest of justice and with a view to do complete
justice, she submits that High Court of Bombay in Kelkar and Kelkar Vs.
Shripad Narayan Gore and Others, 2019 SCC OnLine Bom 4140 has
held that there is no restriction to enhance compensation in appropriate case
even in absence of cross appeal or cross objection. Similarly, reliance is placed
on the judgment of Supreme Court in Jitendra Khimshankar Trivedi and
others Vs. Kasam Daud Kumbhar and others, (2015) 4 SCC 237, wherein
it is held that it is the duty of the Court to determine just and reasonable
compensation. Same is the ratio of judgment of the Supreme Court in Mona
Baghel and others Vs. Sajjan Singh Yadav and others, 2022 LiveLaw
(SC) 734, this Court can show indulgence.
7. After hearing learned counsel for the parties and going through the
record, it is evident that Aadhar card on which reliance is placed by the
insurance company is not exhibited. In the post-mortem report, doctor has
clearly mentioned age of the deceased to be 50 years. Therefore, consideration
of age of the deceased to be 50 years, cannot be faulted with.
Signature Not Verified
8. As far as issue of dependency is concerned, Tribunal has considered
SAN
Digitally signed by PUSHPENDRA PATEL
income of the deceased at Rs.6,000/- per month. When 1/3rd is deducted
Date: 2023.02.24 18:16:59 IST
towards living expenses of the deceased, net dependency will come out to
Rs.4,000/- per month. 25% is added by the Tribunal towards Future Prospects
then it comes out to Rs.5,000/- per month or Rs.60,000/- per annum. Tribunal
has applied multiplier of 13, therefore, when multiplier of 13 is applied, it will
take total pecuniary compensation to Rs.7,80,000/- against a sum of
Rs.5,85,000/- awarded by the learned Claims Tribunal. Smt. Devika Singh
Thakur undertakes to pay Court fees on enhanced amount during the course of
the day.
9. Thus, there will be enhancement to the tune of Rs.1,95,000/- (Rupees
One Lakh, Ninety Five Thousands only) to which claimants will be entitled to in
addition to the amount awarded by the learned Claims Tribunal. This additional
amount will also earn interest at the same rate of 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. In view of above, as far as appeal filed by the insurance company is
concerned, it lacks merits, deserves to be dismissed and is hereby dismissed
with the aforesaid modification of enhancement to the tune of Rs.1,95,000/- in
favour of the claimants.
11. Record of the Claims Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
pp
Signature Not Verified
SAN
Digitally signed by PUSHPENDRA PATEL
Date: 2023.02.24 18:16:59 IST
