Madhya Pradesh High Court
Vinod Kumar vs Ku.Riya on 19 January, 2023
Author: Rohit Arya
(1)
IN THE HIGH COURT OF MADHYA
PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
ON THE 19th OF JANUARY, 2023
MISC. APPEAL NO.242 OF 2015
BETWEEN :-
NATIONAL INSURANCE COMPANY
LIMITED BRANCH OFFICE
M.S.ROAD, MORENA THROUGH ITS
SR. DIVISIONAL MANAGER AT
DIVISIONAL OFFICE NO.2 AT S.D.M.
ROAD, GWALIOR (MADHYA
PRADESH).
.....APPELLANT
(BY SHRI B.N.MALHOTRA - ADVOCATE)
AND
1. KU. RIYA D/O LATE SANJEET
ALIAS SANJAY AGE - 6 YEARS
MINOR U/G OF GRANDFATHER
SULTAN SINGH S/O SHRI
BHAGWANT SINGH.
2. SMT. PHOOL KUMARI W/O
SULTAN SINGH.
3. SULTAN SINGH S/O
BHAGWANT SINGH - 62
ABOVE ALL R/O VILLAGE
LALJEET KA PURA P.S. AMBAH
(2)
DISTT. MORENA (MADHYA
PRADESH).
4. JITENDRA SHARMA S/O RAM
AVTAR SHARMA R/O VILLAGE
LALJEET KA PURA PARGANA
AMBAH DISTT. MORENA
(MADYA PRADESH).
5. VINOD KUMAR S/O SUGAR
SINGH R/O VILLAGE
KHADIYAHAR P.S. SIHONIYA
PARGANA AMBAH DISTRICT
MORENA (MADHYA PRADSH).
.....RESPONDENTS
(BY ARUN SHARMA - ADVOCATE FOR THE
RESPONDENTS/CLAIMANTS AND SHRI SUNIL KUKMAR
JAIN - ADVOCATE FOR THE RESPONDENTS/OWNER &
DRIVER)
MISC. APPEAL NO.246 OF 2015
BETWEEN :-
NATIONAL INSURANCE COMPANY
LIMITED BRANCH OFFICE
M.S.ROAD, MORENA THROUGH ITS
SR. DIVISIONAL MANAGER AT
DIVISIONAL OFFICE NO.2 AT S.D.M.
ROAD, GWALIOR (MADHYA
PRADESH).
.....APPELLANT
(BY SHRI B.N.MALHOTRA - ADVOCATE)
AND
1. KU. RIYA D/O LATE SANJEET
ALIAS SANJAY AGE - 6 YEARS
(3)
MINOR U/G OF GRANDFATHER
SULTAN SINGH S/O SHRI
BHAGWANT SINGH.
2. SMT. PHOOL KUMARI W/O
SULTAN SINGH.
3. SULTAN SINGH S/O
BHAGWANT SINGH - 62
ABOVE ALL R/O VILLAGE
LALJEET KA PURA P.S. AMBAH
DISTT. MORENA (MADHYA
PRADESH).
5. JITENDRA SHARMA S/O RAM
AVTAR SHARMA R/O VILLAGE
LALJEET KA PURA PARGANA
AMBAH DISTT. MORENA
(MADYA PRADESH).
5. VINOD KUMAR S/O SUGAR
SINGH R/O VILLAGE
KHADIYAHAR P.S. SIHONIYA
PARGANA AMBAH DISTRICT
MORENA (MADHYA PRADSH).
.....RESPONDENTS
(BY ARUN SHARMA - ADVOCATE FOR THE
RESPONDENTS/CLAIMANTS AND SHRI SUNIL KUKMAR
JAIN - ADVOCATE FOR THE RESPONDENTS/OWNER &
DRIVER)
MISC. APPEAL NO.268 OF 2015
BETWEEN :-
1. KU. RIYA D/O LATE SANJEET
ALIAS SANJAY AGE - 3 YEARS
MINOR THROUGH GUARDIAN
GRANDFATHER SHRI SULTAN
(4)
SINGH S/O SHRI BHAGWANT
SINGH.
2. SMT. PHOOL KUMARI W/O
SHRI SULTAN SINGH, AGE - 50
YEARS.
3. SULTAN SINGH S/O SHRI
BHAGWANT SINGH, AGE - 52
YEARS,
ALL R/O VILLAGE LALJEET
KA PURA THANA AMBAH
DISTRICT MORENA (MADHYA
PRADESH).
.....APPELLANTS
(BY SHRI SUNIL KUKMAR JAIN - ADVOCATE )
AND
1. VINOD KUMAR S/O SUGHAR
SINGH R/O - GRAM
KHADIYAHAR, THANA
SIHONIYA, PARGANA -
AMBAH, DISTRICT MORENA,
MADHYA PRADESH.
2. JITENDRA S/O RAMAVTAR
SHARMA, R/O - LAL JEET KA
PURA, PARGANA AMBAH,
DISTRICT MORENA, MADHYA
PRADESH.
3. NATIONAL INSURANCE
COMPANY LIMITED THROUGH
DIVISIONAL MANAGER
JAYENDRAGANJ, LASHKAR,
GWALIOR (MADHYA
PRADESH).
.....RESPONDENTS
(5)
(SHRI ARUN SHARMA - ADVOCATE FOR
RESPONDENTS/OWNER & DRIVER AND SHRI B.N.
MALHOTRA - ADVOCATE FOR INSURANCE COMPANY)
MISC. APPEAL NO.269 OF 2015
BETWEEN :-
1. KU. RIYA D/O LATE SANJEET
ALIAS SANJAY AGE - 3 YEARS
MINOR THROUGH GUARDIAN
GRANDFATHER SHRI SULTAN
SINGH S/O SHRI BHAGWANT
SINGH.
2. SMT. PHOOL KUMARI W/O
SHRI SULTAN SINGH, AGE - 50
YEARS.
3. SULTAN SINGH S/O SHRI
BHAGWANT SINGH, AGE - 52
YEARS,
ALL R/O VILLAGE LALJEET
KA PURA THANA AMBAH
DISTRICT MORENA (MADHYA
PRADESH).
.....APPELLANTS
(BY SHRI SUNIL KUKMAR JAIN - ADVOCATE )
AND
1. VINOD KUMAR S/O SUGHAR
SINGH R/O - GRAM
KHADIYAHAR, THANA
SIHONIYA, PARGANA -
AMBAH, DISTRICT MORENA,
MADHYA PRADESH.
(6)
3. JITENDRA S/O RAMAVTAR
SHARMA, R/O - LAL JEET KA
PURA, PARGANA AMBAH,
DISTRICT MORENA, MADHYA
PRADESH.
3. NATIONAL INSURANCE
COMPANY LIMITED THROUGH
DIVISIONAL MANAGER
JAYENDRAGANJ, LASHKAR,
GWALIOR (MADHYA
PRADESH).
.....RESPONDENTS
(SHRI ARUN SHARMA - ADVOCATE FOR
RESPONDENTS/OWNER & DRIVER AND SHRI B.N.
MALHOTRA - ADVOCATE FOR INSURANCE COMPANY)
MISC. APPEAL NO.341 OF 2015
BETWEEN :-
1. VINOD KUMAR S/O SHRI
SUGHAR SINGH R/O - GRAM
KHADIYAHAR, THANA -
SIHONIYA, PARGANA -
AMBAH, DISTRICT MORENA,
MADHYA PRADESH.
2. JITENDRA S/O RAMAVTAR
SHARMA, R/O - LAL JEET KA
PURA, PARGANA AMBAH,
DISTRICT MORENA, MADHYA
PRADESH.
.....APPELLANTS
(BY SHRI ARUN SHARMA - ADVOCATE )
AND
(7)
1. KU. RIYA D/O LATE SHRI
SANJEET ALIAS SANJAY AGE -
3 YEARS MINOR THROUGH
GUARDIAN GRANDFATHER
SHRI SULTAN SINGH S/O
BHAGWANT SINGH.
2. SMT. PHOOL KUMARI W/O
SHRI SULTAN SINGH, AGE - 50
YEARS.
3. SULTAN SINGH S/O SHRI
BHAGWANT SINGH, AGE - 52
YEARS,
ALL R/O VILLAGE LALJEET
KA PURA THANA AMBAH
DISTRICT MORENA (MADHYA
PRADESH).
.....APPLICANTS/RESPONDENTS
(SHRI SUNIL KUMAR JAIN - ADVOCATE FOR
APPLICANTS/RESPONDENTS).
4. NATIONAL INSURANCE
COMPANY THROUGH BRANCH
MANAGER BRANCH OFFICE
M.S.ROAD, MORENA (MADHYA
PRADESH).
.....NON APPLICANT/RESPONDENTS
(SHRI B.N.MALHOTRA - ADVOCATE FOR NON
APPLICANT -INSURANCE COMPANY)
MISC. APPEAL NO.342 OF 2015
BETWEEN :-
1. VINOD KUMAR S/O SHRI
SUGHAR SINGH R/O - GRAM
KHADIYAHAR, THANA -
(8)
SIHONIYA, PARGANA -
AMBAH, DISTRICT MORENA,
MADHYA PRADESH.
2. JITENDRA S/O RAMAVTAR
SHARMA, R/O - LAL JEET KA
PURA, PARGANA AMBAH,
DISTRICT MORENA, MADHYA
PRADESH.
.....APPELLANTS
(BY SHRI ARUN SHARMA - ADVOCATE )
AND
1. KU. RIYA D/O LATE SHRI
SANJEET ALIAS SANJAY AGE -
3 YEARS MINOR THROUGH
GUARDIAN GRANDFATHER
SHRI SULTAN SINGH S/O
BHAGWANT SINGH.
2. SMT. PHOOL KUMARI W/O
SHRI SULTAN SINGH, AGE - 50
YEARS.
3. SULTAN SINGH S/O SHRI
BHAGWANT SINGH, AGE - 52
YEARS,
ALL R/O VILLAGE LALJEET
KA PURA THANA AMBAH
DISTRICT MORENA (MADHYA
PRADESH).
.....APPLICANTS/RESPONDENTS
(SHRI SUNIL KUMAR JAIN - ADVOCATE FOR
APPLICANTS/RESPONDENTS).
4. NATIONAL INSURANCE
(9)
COMPANY THROUGH BRANCH
MANAGER BRANCH OFFICE
M.S.ROAD, MORENA (MADHYA
PRADESH).
.....NON APPLICANT/RESPONDENTS
(SHRI B.N.MALHOTRA - ADVOCATE FOR NON
APPLICANT -INSURANCE COMPANY)
-------------------------------------------------------------------------------
This appeal coming on for order this day, JUSTICE
ROHIT ARYA passed the following:
ORDER
This order shall govern the disposal of all the six appeals
(M.A.Nos.242/2015, 246/2015, 268/2015, 269/2015, 341/2015
and 342/2015.
2. Aggrieved by the common award dated 02.12.2014 passed
in Claim Case No.02/2011 and 01/2011 by learned Motor
Accident Claims Tribunal, Ambah, District Morena, National
Insurance Company Limited preferred two appeals viz.
M.A.No.242/2015 and M.A.No.246/2015, owner and driver of the
offending vehicle preferred two appeals viz. M.A.No.341/2015
and 342/2015 and the claimants of both the claim cases preferred
M.A.No.268/2015 and 269/2015 for enhancement of
compensation.
3. Facts necessary for disposal of all the appeals in nutshell
are to the effect that when on 17.11.2010 deceased Sanjeet @
Sanjay alongwith his wife deceased Rajkumari was going on his
motorcycle towards Laljeet Ka Pura, on the Porsa Road ahead
Chambal Colony suddenly the offending vehicle namely Jeep
bearing registration No. M.P.07/H.A.-5640 owned by Vinod and
driven by Jitendra rashly and negligently came and hit the
motorcycle. As a result, Smt.Rajkumari died on the spot and
Sanjeet alias Sanjay sustained grievous injuries on his hand, head,
legs and spinal cord. He was taken to Ambah Hospital wherefrom
he was referred to Gwalior. He was admitted in Sahara Hospital
Gwalior till 19.11.2010. Looking to his serious condition, he was
taken to Safdarganj Hospital Delhi, where during treatment he
died. Hence, claimants filed two claim applications (Claim Case
No.2/2011 and Claim Case No.1/2011) before the Claims
Tribunal claiming compensation of Rs.02,03,20,000/- for the
death of Sanjeet Singh @ Sanjay and Rs.30,40,000/- for the death
of Smt.Rajkumari.
4. The case was contested by the respondents. Parties adduced
their part of evidence. Thereafter the Tribunal has assessed the
income of the deceased Sanjeet Singh @ Sanjay as Rs.18,677/-
per month and awarded total compensation of Rs.19,84,867/- in
Claim Case No.02/2011. Tribunal has also assessed the income of
deceased Smt.Rajkumari as Rs.3,000/- and awarded total
compensation of Rs.3,48,000/- break-up of which is as under :-
Claim Case No.2/2011
Towards loss of dependency Rs.19,04,952/-
Funeral Expenses Rs. 10,000/-
Medical expenses Rs. 29,915/-
Transportation Rs. 10,000/-
Loss of love and affection
Rs.10000x3 Rs. 30,000/-
-------------------------------
Total Rs.19,84,867/-
-------------------------------
Claim Case No.1/2011
Towards loss of dependency Rs. 3,06,000/-
Funeral Expenses Rs. 10,000/-
Conveyance amount Rs. 2,000/-
Loss of love and affection
Rs.10000x3 Rs. 30,000/-
-------------------------------
Total Rs. 3,48,000/-
-------------------------------
5. Shri B.N.Malhotra, learned counsel for the Insurance
Company while taking exception to the impugned Award points
out that in the FIR the vehicle was mentioned as unknown
Marshal but in fact was an ambulance vehicle. He further submits
that in para 22 of the impugned Award, the Tribunal has taken into
consideration the evidence of Rajbeer Singh (P.W.1), the eye
witness, that the offending vehicle was carrying about 8-10
persons. However, the same had fled away after having met the
accident. Therefore, the vehicle was though registered as a
commercial vehicle and ensured as ambulance but since was used
for commercial purposes. He further submits that the factum of
use of the vehicle for commercial purpose is well evident from
the statement of Sultan Singh (P.W.2) as he stated that sometime
he used to go in the vehicle as passenger. Therefore, Tribunal did
not commit any illegality while it ordered for payment of
compensation with right to recover the same from the owner as
breach of the policy.
6. Per contra, Shri Arun Sharma, learned counsel for the
owner and driver of the offending vehicle submits that indeed
Rajbeer Singh (P.W.1) was an eye witness on the spot, however,
his evidence to the aforesaid effect can not be treated to be
conclusive evidence to record a finding that the offending vehicle
was being used for commercial purpose. There is nothing on
record that the persons being carried in the vehicle were
passengers charged with fair, therefore, on mere statement of
Rajbeer Singh, the Tribunal could not have concluded the finding
that the vehicle was used for commercial purpose. He further
submits that it may be stated that there is no other evidence to
conclude that the vehicle was being used for commercial purpose
except that of Sultan Singh, father of the deceased, who
admittedly, is neither the eye witness nor was present on the spot
at the time of occurrence of the accident.
7. Upon hearing learned counsel for the parties, this Court is
of the view that the Tribunal did not appreciate the evidence in
right earnest. This court is in agreement with Shri Arun Sharma,
learned counsel for the owner and driver. None of the persons
allegedly sitting in the offending vehicle were examined. The
ocular evidence of the eye witness Rajbeer Singh only is hearsay
as he himself was not aware as the persons sitting in the offending
vehicle were relatives of the patient or passengers on fair. Sultan
Singh is not the eye witness, therefore, his statement could not
have been treated to be conclusive to hold that the ambulance was
being used for commercial purpose. Consequently, finding of the
Tribunal absolving the insurance company of its liability is
perverse and is accordingly set aside.
8. Now adverting to the quantum of compensation awarded by
the Tribunal, as far as M.A.No.268/2015 (Claim No.2/11) filed by
the claimants with regard to deceased Sanjeet @ Sanjay is
concerned, learned counsel for the claimants submits that at the
time of accident deceased was a young man of 30 years of age
and he was posted as Constable in B.S.F. getting monthly salary
of Rs.25,000/-, whereas Tribunal has assessed the income of the
deceased as Rs.18,677/-, which is on lower side. Tribunal has
applied the multiplier of 17 which ought to have been 18 looking
to the age of the deceased. Tribunal has assessed the dependency
of deceased as 1/2, whereas it should have been 1/3. Tribunal has
awarded the amount of Rs.29,915/- under the head of medical
expenses, which is also on lower side. Under the head of
transportation and funeral expenses, Rs.10,000/- in each head has
been awarded by the Tribunal which is on lower side. No amount
has been granted for the attender as well as under the head of
future prospects, pain and suffering and loss of estate. Hence,
prayed for enhancement of compensation suitably.
With regard to M.A.No.269/2015 (Claim No.1/2011), it is
submitted by the learned counsel for the claimants that deceased
Rajkumari aged about 27 years was a housewife and also doing
suing and knitting work from which she was earning Rs.5,000/-.
Tribunal has assessed the income of the deceased as Rs.3,000/-,
which is on lower side. Tribunal has applied the multiplier of 17
which ought to have been 18 looking to the age of the deceased.
Tribunal has assessed the dependency of deceased as 1/2, whereas
it should have been 1/3. Under the head of funeral expenses,
Rs.10,000/- has been awarded by the Tribunal which is on lower
side. No amount has been awarded for the attender as well as
under the head of future prospect, pain and suffering and loss of
estate. Hence, prayed for enhancement of compensation suitably.
9. Learned counsel for Insurance Company submits that the
amount awarded by learned Tribunal is just and proper. He
supported the award and prays for dismissal of the appeals.
10. In view of the evidence brought on record, this Court is of
the view that the Tribunal has rightly assessed the income of the
deceased Sanjeet Singh @ Sanjay but has committed error in not
granting any amount under the head of future prospect. As per the
judgment of the Hon'ble Apex Court in the case of National
Insurance Company Vs. Pranay Sethi and others, 2017 ACJ
2700, future prospects are to be assessed at 50%. Therefore, on
the monthly income of the deceased which was assessed by the
Tribunal as Rs.18,677/- after adding 50% as future prospects, the
total amount comes to Rs.28,015.50 (Rs.18,677.00 + 9,338.50).
After deducting 1/2 amount (Rs.14,007.75/-) towards personal
expenses, yearly dependency comes to Rs.1,68,093.00
(Rs.14007.75 x 12) and on this amount applying multiplier of 17,
total loss of dependency comes to Rs.28,57,581/- (Rs.1,68,093.00
x 17). Besides, the appellants are also entitled for Rs.70,000/-
under the various heads according to the judgment of Hon'ble
Apex Court in the case of Pranay Sethi (supra). Apart from this,
if the sum of Rs.29,915/-, as awarded by the Tribunal under the
head of medical expenses, is also added, total compensation
comes to Rs.29,57,496/-. The Tribunal has already awarded
compensation to the tune of Rs.19,84,867/-. Therefore, the
claimants are held entitled to receive the enhanced amount of
compensation to the tune of Rs.09,72,629/- (Rupees Nine Lakh
Seventy Two Thousand and Six Hundred Twenty Nine only).
11. As regards deceased Smt.Rajkumari, in the opinion of this
Court, the income assessed by the learned Tribunal is on lower
side. The amount awarded by the Tribunal needs to be enhanced
appropriately. Keeping in view the fact that the deceased was
aged about 27 years and she was capable to do work, monthly
income of deceased can easily be assessed at Rs.5,000/- per
month and as per the judgment of the Hon'ble Apex Court in the
case of National Insurance Company Vs. Pranay Sethi and
others, 2017 ACJ 2700, minimum future prospects are to be
assessed at 50%. Therefore, on the monthly income of the
deceased assessed by this Court as Rs.5,000/- after adding 40% as
future prospects, the total amount comes to Rs.7,000.00
(Rs.5,000.00 + 2,000.00). After deducting ½ amount (Rs.3,500/-)
towards personal expenses, yearly dependency comes to
Rs.42,000/- and on this amount applying multiplier of 17, total
loss of dependency comes to Rs.7,14,000/- (Rs.42,000 x 17).
Besides, the appellants are also entitled for Rs.70,000/- under the
various heads according to the judgment of Hon'ble Apex Court
in the case of Pranay Sethi (supra). Thus, total compensation
comes to Rs.7,84,000/-. The Tribunal has already awarded
compensation to the tune of Rs.3,48,000/-. Therefore, the
claimants are held entitled to receive the enhanced amount of
compensation to the tune of Rs.4,36,000/- (Rupees Four Lakh
Thirty Six Thousand only).
On the enhanced amount in both the claims, the claimants
are entitled for interest @ 6% p.a. from the date of application.
The enhanced amount as aforesaid with interest as fixed by the
learned Tribunal, shall be payable to the claimants within 12
weeks from the date of issue of certified copy of this order by the
insurance company.
12. As far as M.A.No.341/2015 and 342/2015 filed by the
owner and driver of the offending vehicle are concerned, since the
finding of the Tribunal absolving the insurance company of its
liability with order to pay and recover has already been set aside
by this court in para 7 of this judgment, both the aforesaid appeals
deserve to be and are accordingly allowed.
13. At this stage, learned counsel for the owner and driver
submits that since the finding with regard to absolving the
insurance company from its liability with order to pay and recover
has been set aside by this Court, therefore, Rs.25,000/- which has
been deposited by them in both the claims with the Claims
Tribunal may kindly be refunded to them.
Accordingly, it is hereby ordered that Rs.25,000/- deposited
by the owner and driver of the offending vehicle in regard to
M.A.No.341/2015 and 342/2015 be refunded to them forthwith.
14. In view of the aforesaid, all the appeals are disposed of
accordingly. Rest of the conditions as imposed by Claims
Tribunal while passing impugned award shall remain intact.
A copy of this order be retained in all the connected
appeals.
(ROHIT ARYA)
JUDGE
SP
SANJEEV
KUMAR PHANSE
2023.01.25
10:10:46 +05'30'
