United India Insurance Co.Ltd. vs Smt. Poonam @ Puniya
2023 Latest Caselaw 1148 MP

                            1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                          BEFORE
              HON'BLE SHRI JUSTICE ROHIT ARYA
                 ON THE 19 th OF JANUARY, 2023
            MISCELLANEOUS APPEAL No. 889 of 2014

BETWEEN:-
UNITED INDIA INSURANCE COMPANY LIMITED ITS
SENIOR DIVISIONAL MANAGER AT CENTRE POINT
COMPLEX, PHOOLBAG GATE THROUGH ITS SENIOR
DIVISIONAL MANAGER

                                                   .....APPELLANT
(BY SHRI B.K. AGARWAL - ADVOCATE FOR THE APPELLANT )

AND
1.    SMT. POONAM @ PUNIYA W/O SHRI SURESH
      KUSHWAH, AGED ABOUT 36 YEARS, RESIDENT OF
      VILLAGE DUBAHA, THANA KARHIYA GWALIOR
      (MADHYA PRADESH) AT PRESENT RESIDING AT
      C/O HOUSE OF KAILASH KUSHWAH, VEERPUR
      BANDH, NEAR HANUMAN MANDIR, THANA
      MADHOGANJ LASHKAR GWALIOR

2.    SURESH KUSHWAH S/O LATE SHRI HOSHIYAR
      KUSHWAH, AGED ABOUT 39 YEARS, RESIDENT OF
      VILLAGE DUBAHA, THANA KARHIYA GWALIOR
      (MADHYA PRADESH) AT PRESENT C/O HOUSE OF
      KAILASH KUSHWAH, RESIDENT OF VEERPUR
      BANDH, NEAR HANUMAN MANDIR, THANA,
      MADHOGANJ LASHKAR GWALIOR (MADHYA
      PRADESH)

3.    KU. HEMA D/O SHRI SURESH KUSHWAH, AGED
      ABOUT 17 YEARS, HANDICAPPED OCCUPATION:
      MINOR RESIDENT OF VILLAGE DUBAHA, THANA
      KARHIYA GWALIOR (MADHYA PRADESH) AT
      PR ES EN T C/O KAILASH KUSHWAH, VEERPUR
      BANDH, NR. HANUMAN MANDIR, THANA,
      MADHOGANJ       (MADHYA    PRADESH)  .....
      CLAIMANTS

4.    BRIJ MOHAN SHARMA S/O SHRI CHANDAN LAL
      SHARMA OCCUPATION: DRIVER RESIDENT OF
      GRAM & POST KARHIYA DISTRICT GWALIOR
                              2
      THROUGH OWNER BRIJENDRA SINGH S/O SHRI
      CHITRA SINGH, RESIDENT OF MORPURA BASERI,
      DISTRICT DHOLPUR RAJASTHAN    ------- DRIVER


5.    BRIJENDRA SINGH S/O SHRI CHITRA SINGH
      RESIDENT OF MORPURA BASERI, DISTRICT
      DHOLPUR RAJASTHAN
                     ----- OWNER

                                                            .....RESPONDENTS
(BY MS. MEENA SINGHAL - ADVOCATE FOR CLAIMANT/RESPONDENT
NOS 1 TO 3
SHRI ANVESH JAIN - ADVOCATE FOR RESPONDENT NO.4-DRIVER)

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

This appeal under Section 173(1) of the Motor Vehicle Act is filed by the Insurance Company for setting-aside the impugned award dated 24/06/2014 passed by 5th Motor Accident Claims Tribunal Gwalior (M.P) in Claim Case No.103/2014.

2. Facts relevant and necessary for disposal of this appeal lie in narrow compass; Deceased Varsha aged about 15 years has died in the accident on 01/11/2011 due to rash and negligent driving of offending vehicle Tractor bearing registration No. R.J.-11-R-4613. Occurrence of accident, factum of involvement of the offending vehicle and death of deceased in the accident have been found proved by the Tribunal in para No. 23 of the Award. Total amount of compensation awarded is Rs.5,21,000/- alongwith the interest @ 12% per annum from the date of filing of claim application.

3.Counsel for the appellant/Insurance Company while taking exception to the impugned award inter alia contends that offending vehicle did not bear any registration number either at the time of lodging of FIR or seizure of vehicle i.e.after nine days. The alleged vehicle was plied for the purpose other

than the agriculture purpose, therefore, terms and conditions of the Insurance Policy were violated. The Tribunal while passing the award has assessed the income of the deceased as Rs. 4500/- per month, which is on higher side. It is further submitted that the rate of interest i.e. 12% per annum on the amount of compensation is also excessive, therefore, the same needs to be reduced.

4.Per contra, Mrs. Singhal, counsel for the claimants-respondents and Shri Jain, counsel for respondent No.4 submits that FIR ExP-1 reflects that the offending vehicle was properly described as regards its make and colour. Seizure memo Ex.P.9 bears registration number as well as the engine and chasis number of the offending vehicle. The photo copy of registration book reflecting the same registration number of the offending vehicle was also seized. The Tribunal has well discussed the pleadings and evidence brought on record as regards the purpose for which the offending vehicle was being used as contained in para Nos. 36 and 38 of the impugned award. Even otherwise, there is no pleading that the offending vehicle was being used for other than agriculture purpose. Since, at the time of accident, the deceased Varsha was of 15 years of age and was studying, therefore, she might have bright future ahead, therefore, future prospects @ 40% should have been awarded. Mrs. Singhal while referring to her counter claim further submits that notional income of the deceased has been assessed at Rs. 4500/- per month, the same is on lower side

whereas the same should be assessed Rs. 5000/- per month to meet the ends of justice in the matter of compensation.

5.At this stage, counsel for the appellant/Insurance Company points out that counter claim has been filed without court fee. Therefore, the same can not be countenanced.

6.At this stage, Ms. Singhal submits that in the event, this Court is inclined to award just and proper compensation by taking into account the income of deceased as Rs. 5000/-, she is prepared to pay court fee on the enhanced amount of compensation.

7.Heard.

8.This Court has carefully perused the award in question, evidence placed on record and submissions advanced. The factum of accident, involvement of the vehicle and unnatural death of the deceased as well as purpose of use of offending vehicle has been well discussed in para Nos. 23, 36 and 38 of the impugned award. This Court does not find any reason to take a different view on facts as finding are impregnable and same are based on evidence on record placed before it.

9.So far as counter claim is concerned, since there is no court fee either paid or any averment made in the application that in case of enhancement of the compensation, court fee shall be paid in the light of judgment of Supreme Court Superintending Engineer and others Vs B. Subba Reddy, (1999) 4 SCC 423, hence, the same is rejected. 10.However, this Court finds substantial force in the submission that Tribunal ought to have awarded future prospect looking to the age of the deceased. Hence, in the light of decision of Apex Court in the matter of National Insurance Company Vs. Pranay Sethi and others, 2017 ACJ 2700, loss of future earning capacity is to be assessed at 40%, thus total loss of earning capacity comes to Rs. 4,86,000x40/100=1,94,400/-. Tribunal has awarded Rs. 25,000/- for funeral expenses and loss of estate of Rs. 10,000/- (Rs.25,000 + 10,000 = 35,000/-). Thus, in addition to the same, Rs. 35,000/- is awarded under the head of consortium. After adding the said amount, total amount of compensation

comes to Rs.4,86,000+1,94,400 +70,000 = 7,50,400/-. The Tribunal has already awarded Rs.5,21,000/-, therefore, the enhanced amount of compensation to be payable to the respondents/ claimants comes to Rs. 7,50,400 - 5,21,000 = Rs.2,29,400/- (Rs. Two Lacs and Twenty Nine Thousand Four Hundred only). The Tribunal has calculated the interest rate @ 12% per annum, however, in the fitness of things, interest rate is fixed as 9% per annum on the enhanced amount. Therefore, the enhanced amount of Rs.2,29,400/- shall carry rate of interest @ 9% per annum from the date of filing of the application till its realization, which shall be payable to the respondents/ claimants within 12 weeks from the date of production of a certified copy of this order.

11.Rest of the conditions as imposed by Claims Tribunal while passing impugned award shall remain intact.

12.With the aforesaid, appeal stands disposed of.

13.No order as to cost.

(ROHIT ARYA) JUDGE Prachi

PRACHI MISHRA 2023.01.23 18:02:21 +05'30'