Madhya Pradesh High Court

The United India Insurance ... vs Liyakat Kahn on 21 February, 2023

Author: Sunita Yadav

1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 21 st OF FEBRUARY, 2023
MISC. APPEAL No. 661 of 2016

BETWEEN:-
THE UNITED INDIA INSURANCE CO.LTD. THR.
DIVISIONAL MANAGER DIVISIONAL OFFICE CENTER
POINT COMPLEX PHOOLBAG ROAD (MADHYA
PRADESH)

.....APPELLANT
(BY MR. KULDEEP SINGH - ADVOCATE)

AND
1. LIYAKAT KAHN S/O SHRI PEER ALI OCCUPATION:
VEHICLE OWNER NO. MP 07 R 2360 HEERA
NAGAR KHERIYA PURANI CHHAWANI (MADHYA
PRADESH)

2. ASHAQ ALI S/O SHRI PEER ALI OCCUPATION:
VEHICLE DRIVER MP 07 R 2360 SUBHASH NAGAR,
A.B. ROAD GWALIOR (MADHYA PRADESH)

3. RAJENDRA SINGH S/O LATE SHRI VANSHILAL
KUSHWAH, AGED ABOUT 26 YEARS,
OCCUPATION: CARPENTER LOHAR MOHALLA
PURANI CHHAWANI (MADHYA PRADESH)

.....RESPONDENTS
(MR. AKHLESH GUPTA - ADVOCATE FOR RESPONDENT NO. 3 -
CLAIMANT)

MISC. APPEAL No. 747 of 2016

BETWEEN:-
RAJENDRA SINGH S/O LATE SHRI VANSHILAL, AGED
ABOUT 28 YEARS, OCCUPATION: FURNITURE, KARIGAR
LOHAR MOHALLA PURANI CHHAWANI (MADHYA
PRADESH)

Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 22-Feb-23
12:26:37 PM
2
.....APPELLANT
(BY MR. AKHLESH GUPTA - ADVOCATE)

AND
1. ASHAK ALI SHAH S/O SHRI PEER ALI SHAH
OCCUPATION: DRIVER SUBHAS NAGAR AB ROAD
(MADHYA PRADESH)

2. LIYAKAT KHA S/O SHRI SAMSER KHA
OCCUPATION: NA HEERA NAGAR KHERIYA
PURANI CHHAWANI (MADHYA PRADESH)

3. THROUGH PRABHANDAK DIVISIONAL MANAGER
UNITED INDIA INSURANCE CO. LTD. CENTRE
POINT COMPLEX M.L.B. ROAD PHOOLBAGH
CHOURAHA LASHKAR (MADHYA PRADESH)

.....RESPONDENTS
(MR. KULDEEP SINGH - ADVOCATE FOR RESPONDENT NO. 3 -
INSURANCE COMPANY)

Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER

This judgment shall govern the disposal of both the appeals (M.A. Nos. 661 of 2016 and 747 of 2016). For the sake of convenience, facts mentioned in M.A. No. 661 of 2016 are taken into consideration.

These Misc. Appeals under Section 173(1) of Motor Vehicles Act, 1988 have been filed against the award dated 22.4.2016 passed in Claim Case No. 25/2016 by Second Additional Tribunal to the Court of First Additional Claims Tribunal, Gwalior .

The facts in brief to decide these appeals are that respondent No. 3- claimant preferred a claim petition under Section 166 of Motor Vehicles Act for realising an amount of compensation to the tune of Rs.24,00,000/- for the injuries sustained by him in road traffic accident dated 09.3.2012 involving vehicle Vikram bearing registration No. MP07-R-2360. On the fateful day, the Signature Not Verified Signed by: ALOK KUMAR Signing time: 22-Feb-23 12:26:37 PM

aforesaid vehicle was insured with the appellant-insurance company.

Respondents No. 1 and 2-driver and owner of the offending vehicle respectively filed their written statement and denied the facts mentioned by the claimant, however, they remained absent before the learned Tribunal and were proceeded ex-parte.

The appellant-insurance company filed its written statement and denied all the allegations.

Learned Claims Tribunal framed issues and after taking into consideration the facts and material available on record partly allowed the claim petition holding respondent No. 3-claimant entitled for an amount of compensation to the tune of Rs.7,50,400/- along with interest at the rate of 8% per annum and directed the insurance company to pay the compensation amount and recover the same from respondents No. 1 and 2-driver and owner of the offending vehicle.

Learned counsel for the appellant-insurance company argued that the impugned award is against the facts and material available on record and 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. 1-driver without having any valid

driving license or route permit in breach of the policy conditions. Therefore, the findings 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.

On the other hand, learned counsel for respondent No. 3-claimant argued that learned claims tribunal has rightly held the insurance company liable for Signature Not Verified Signed by: ALOK KUMAR Signing time: 22-Feb-23 12:26:37 PM

payment of compensation. It is further argued that respondent No.3-claimant has filed M.A. No. 747 of 2016 for enhancement of compensation amount awarded by learned claims tribunal. Learned claims tribunal has not awarded any amount in the head of future prospect and the compensation awarded in other heads are meager and on the lower side and, therefore, the same deserves to be enhanced.

Heard learned counsel for the rival parties and perused the available record.

The moot questions to be addressed upon in the appeals preferred by the insurance company as well as the claimant is as to whether the Tribunal was justified in directing the insurance company to pay the compensation amount to the claimant and awarding the compensation under various heads to the tune of Rs.7,50,400/-.

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 "Âœpay and recover"Â. 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

Signature Not Verified Signed by: ALOK KUMAR Signing time: 22-Feb-23 12:26:37 PM

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 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. 1 and 2 - driver and owner of the offending vehicle respectively is hereby affirmed.

So far as compensation in respect to future prospect is concerned, in the light of case law of National Insurance Company vs. Pranay Sethi and Others; [2017 ACJ 2700], learned claims tribunal erred in not awarding any sum under the head of future prospect, as claimant sustained 70% permanent disability looking to the age of the claimant 20 years at the time of accident as assessed by learned claims tribunal and which has not been disputed by the claimant as well as by the insurance company. Therefore, in the light of case law of Pranay Sethi (supra) future prospect of 40% would be applicable. Signature Not Verified Signed by: ALOK KUMAR Signing time: 22-Feb-23 12:26:37 PM

Further, learned claims tribunal has rightly held annual income of the claimant as Rs.54000/- as well as awarded just and proper compensation in the head of medical expenses, transportation, special diet and attendant etc. So far as quantum of compensation is concerned, considering the annual income of the claimant to be Rs.54,000/-, future prospect at the rate of 40%, disability at the rate of 70% and multiplier of 18, total compensation comes to Rs.10,22,560/- (Rupees Ten Lakh Twenty Two Thousand Five Hundred Sixty Only). The enhanced amount of compensation comes to Rs.2,72,160/- (Rupees Two Lakh Seventy Two Thousand One Hundred Sixty Only).

The enhanced amount of Rs.2,72,160/- shall not carry any interest, however, if appellant 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.

M.A. Nos. 661 of 2016 and 747 of 2016 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

Signature Not Verified Signed by: ALOK KUMAR Signing time: 22-Feb-23 12:26:37 PM