Madhya Pradesh High Court
Smt. Suman Gupta vs Mukesh Sen on 3 January, 2023
Author: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 3rd OF JANUARY, 2023
MISC. APPEAL No. 1029 of 2015
BETWEEN:-
SMT. SHASHI GUPTA W/O LATE SHRI AKHILESH
GUPTA, AGED ABOUT 48 YEARS, OCCUPATION:
1.
HOUSEWIFE 29/A KAILASH NAGAR THANA
BAHODAPUR GWALIOR (MADHYA PRADESH)
PREMPRAKASH @ MONU S/O LATE SHRI
AKHILESH GUPTA, AGED ABOUT 28 YEARS,
2. OCCUPATION: NA DWARA-RAMSWAROOP GUPTA
29/A KAILASH NAGAR THANA BAHODAPUR
(MADHYA PRADESH)
.....APPELLANTS
(BY MR. ARUN SHARMA - ADVOCATE)
AND
MUKESH SEN S/O SHRI MOOLCHAND, AGED
ABOUT 25 YEARS, OCCUPATION: DRIVER GRAM
1.
HARREY THANA GOVARDHAN DIST.SHIVPURI
(MADHYA PRADESH)
SUNDAR SINGH YADAV S/O BADRI SINGH YADAV
OCCUPATION: OWNER OF TAREX VECTRA JCB
2.
MACHINE GANGAMALANPUR, MOTIJHEEL
(MADHYA PRADESH)
HDFC ERGO GENERAL INSURANCE COM. LTD.
HDFC ERGO GENERAL INSURANCE COM. LTD. 6
3.
FLOOR, LEELA BUSINESS PARK, KURLA ROAD
ANDHERI EAST MUMBAI (MADHYA PRADESH)
.....RESPONDENTS
(MR. BAL KRISHNA AGRAWAL - ADVOCATE FOR RESPONDENT NO. 3 -
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
2
INSURANCE COMPANY)
MISC. APPEAL No. 1030 of 2015
BETWEEN:-
SMT. SUMAN GUPTA W/O SHRI MAHESH GUPTA,
AGED ABOUT 39 YEARS, OCCUPATION:
1.
HOUSEWIFE MAHALGAON THANA UNIVERSITY
DIST. GWALIOR (MADHYA PRADESH)
MAHESH GUPTA S/O LATE SHRI KISHAN LAL
GUPTA, AGED ABOUT 40 YEARS, OCCUPATION: NA
2.
MAHALGAON THANA VISHVAVIDYALAYA
LASHKAR (MADHYA PRADESH)
PAVAN GUPTA S/O SHRI MAHESH GUPTA, AGED
3. ABOUT 19 YEARS, OCCUPATION: NA MAHALGAON,
VISHVAVIDYALAYA LASHKAR (MADHYA PRADESH)
ASHISH GUPTA @ CHOTU S/O SHRI MAHESH
GUPTA, AGED ABOUT 17 YEARS, OCCUPATION:
4. MINOR U/G FATHER SHRI MAHESH GUPTA
MAHALGAON, VISHVAVIDYALAYA LASHKAR
(MADHYA PRADESH)
.....APPELLANTS
(BY MR. ARUN SHARMA - ADVOCATE)
AND
MUKESH SEN S/O NOT MENTION, AGED ABOUT 25
YEARS, OCCUPATION: DRIVER GRAM HARREY
1.
THANA GOVARDHAN DIST.SHIVPURI (MADHYA
PRADESH)
SUNDAR SINGH YADAV S/O BADRI SINGH YADAV
OCCUPATION: OWNER OF TAREX VECTRA JCB
2.
MACHINE GANGAMALANPUR, MOTI JHEEL
GWALIOR (MADHYA PRADESH)
HDFC ERGO GENERAL INSURANCE COM. LTD.
HDFC ERGO GENERAL INSURANCE COM. LTD. 6
3.
FLOOR, LEELA BUSINESS PARK, KURLA ROAD,
ANDHERI EAST MUMBAI (MAHARASHTRA)
.....RESPONDENTS
(MR. BAL KRISHNA AGRAWAL - ADVOCATE FOR RESPONDENT NO. 3 -
INSURANCE COMPANY)
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
3
MISC. APPEAL No. 141 of 2017
BETWEEN:-
MUKESH SEN S/O SHRI MOOLCHAND, AGED
ABOUT 25 YEARS, GRAM HARREY THANA
1.
GOVARDHAN DIST. SHIVPURI (MADHYA
PRADESH)
SUNDAR SINGH YADAV S/O SHRI BADRI SINGH
2. YADAV GANGA MALANPUR MOTIJHEEL (MADHYA
PRADESH)
.....APPELLANTS
(BY MR. RAMESH PRASAD GUPTA - ADVOCATE)
AND
SMT. SUMAN GUPTA W/O SHRI MAHESH GUPTA,
1. AGED ABOUT 39 YEARS, MAHALGAON THANA
UNIVERSITY GWALIOR (MADHYA PRADESH)
MAHESH GUPTA S/O LT.SHRI KISHAN LAL GUPTA,
2. AGED ABOUT 40 YEARS, MAHALGAON THANA
UNIVERSITY (MADHYA PRADESH)
PAWAN GUPTA S/O MAHESH GUPTA, AGED ABOUT
3. 19 YEARS, MAHALGAON THANA UNIVERSITY
(MADHYA PRADESH)
ASHISH GUPTA @ CHHOTU S/O MAHESH GUPTA,
4. AGED ABOUT 18 YEARS, MAHALGAON THANA
UNIVERSITY (MADHYA PRADESH)
PRABANDHAK H.D.F.C.I.R.J.O. GENERAL
INSURANE CO. LTD. 6TH FLOOR LEELA BUSINESS
5.
PART, KURLA ROAD ANDHERI EAST (MADHYA
PRADESH)
.....RESPONDENTS
(MR. BAL KRISHNA AGRAWAL - ADVOCATE FOR RESPONDENT NO. 5)
MISC. APPEAL No. 142 of 2017
BETWEEN:-
MUKESH SEN S/O SHRI MOOLCHAND, AGED
1. ABOUT 25 YEARS, GRAM HARREY THANA
GOVARDHAN DIST. SHIVPURI (MADHYA PRADESH)
2. SUNDER SINGH YADAV S/O BADRI SINGH YADAV
GANGA MALANPUR MOTIJHEEL GWALIOR
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
4
(MADHYA PRADESH)
.....APPELLANTS
(BY MR. RAMESH PRASAD GUPTA - ADVOCATE)
AND
SMT. SHASHI GUPTA W/O LATE SHRI AKHILESH
GUPTA, AGED ABOUT 48 YEARS, RAMSWAROOP
1.
GUPTA 29/A KAILASH NAGAR THANA BAHODAPUR
DIST. GWALIOR (MADHYA PRADESH)
PREM PRAKASH @ MONU S/O LATE SHRI
AKHILESH GUPTA, AGED ABOUT 28 YEARS,
2. RAMSWAROOP GUPTA 29/A-KAILASH NAGAR
THANA BAHODAPUR GWALIOR (MADHYA
PRADESH)
MANAGER HDFC ERGO GENERAL INSURANCE
COMPANY LIMITED 6 FLOOR LEELA BUSINESS
3.
PART KURLA ROAD ANDHERI EAST MUMBAI
(MAHARASHTRA)
.....RESPONDENTS
(MR. BAL KRISHNA AGRAWAL - ADVOCATE FOR RESPONDENT NO. 3 -
INSURANCE COMPANY)
-------------------------------------------------------------------------------------------
These appeals coming on for hearing this day, the court passed the
following:
JUDGMENT
Since common question of law is involved in aforesaid M.A. Nos.
1029 of 2015, 1030 of 2015, 141 of 2017 and 142 of 2017, therefore, they
are heard analogously and are decided by this common judgment. For the
sake of convenience, facts mentioned in M.A. No. 1029 of 2015 are taken
into consideration.
Heard on I.A. No. 4297 of 2018, an application under Order 41 Rule
27 CPC, filed by respondent No. 3 / insurance company in M.A. No. 1029
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
of 2015 for taking additional evidence on record.
Learned counsel for the insurance company argued that the original
report of R.T.O., Gwalior issued in compliance of application submitted
by the Investigator of respondent No. 3 under Right to Information Act
along with application of R.T.I. And its acknowledgment with copy of
postal order and its counterfoil were not in possession of respondent No. 3
earlier, therefore, they could not be filed before the Tribunal below and
have been received after passing of the impugned award, therefore, the
aforesaid documents should be taken on record as an additional evidence
for the just disposal of the presnt appeal.
Learned counsel for the appellants vehemently opposed the interim
application and prayed to dismiss the same.
Heard learned counsel for the rival parties.
Learned counsel for respondent No. 3 / Insurance Company has
failed to show that respondent No. 3 was unable to obtain the information
from the R.T.O. after exercising the due diligence before the award was
passed. Therefore, this Court does not find it appropriate to allow
respondent No. 3 / insurance company to produce additional evidence.
Consequently, I.A. No. 4297 of 2018 is hereby dismissed.
Also, heard on I.A. Nos. 1750 of 2017 and 1774 of 2017,
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Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
applications under Order 41 Rule 27 CPC read with Section 151 CPC,
filed by the appellants in M.A. Nos. 141 of 2017 and 142 of 2017
respectively for taking driving license on record.
The applications are vehemently opposed by learned counsel for the
insurance company.
Heard learned counsel for the rival parties.
The perusal of record reveals that the appellants had remained
absent before the learned Claims Tribunal despite service of notice upon
them. The insurance company has examined A.R.T.O. in respect to the
driving license of respondent No. 1 / driver Mukesh Sen. No sufficient
ground has been pointed out by the appellants as to why they did not
appear before the learned Claims Tribunal as well as their inability to file
the driving license before the learned Claims Tribunal.
Consequently, I.A. Nos. 1750 of 2017 and 1774 of 2017 are hereby
dismissed.
1. These Misc. Appeals under Section 173(1) of Motor Vehicles Act, 1988
has been filed against the award dated 27/2/2015 passed in Claim Case Nos.
04/2010 and 05/2010 as well as order dated 11/9/2015 passed in M.J.C.
(Claim) Nos. 15/2015 and 16/2015 by 2nd Member, M.A.C.T., Gwalior.
2. The facts in brief to decide these appeals are that claim petitions
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Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
bearing Nos. 04/2010 and 05/2010 were filed by claimants Smt. Sashi
Gupta, Premprakash @ Monu, Smt. Suman Gupta, Mahesh Gupta, Pawan
Gupta and Ashish Gupta on account of deaths of Deepak Gupta and
Pankaj Gupta in the motor accident involving vehicle JCB bearing
registration No. CG 04 DM 2787.
3. As per the facts narrated in the claim petitions, on 19.11.2009,
deceased persosn Deepak Gupta and Pankaj Gupta were coming to their
house situated at Mahalgaon on a motorcycle bearing registration No.
MP07 MG 0791. The moment they arrived at Aamkho Bus Tiraha,
respondent No. 1 / driver Mukesh Sen by driving the JCB bearing
registration No. CG04 DM 2787 rashly and negligently hit the motorcycle
due to which Deepak and Pankaj sustained grievous injuries and during
treatment they died. F.I.R. Bearing Crime No. 455 of 2009 for offence
under Section 304-A of IPC was registered against respondent No. 1
Mukesh Sen - driver of the offending vehicle and after conclusion of
investigation, charge-sheet in the aforesaid section was filed against him.
4. Appellants / claimants mentioned in para 2 of this judgment filed
claim petitions before learned Claims Tribunal which were registered as
Claim Case Nos. 04/2010 and 05/2010. In Claim Case No. 04/2010,
claimants Sashi Gupta and Prem Prakash @ Monu demanded
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compensation to the tune of Rs.42,50,000/- on account of death of Deepak
@ Sonu Gupta and in Claim Case No. 05/2010, claimants Suman Gupta,
Mahesh Gupta, Pawan Gupta and Ashish Gupta @ Chhotu demanded
compensation to the tune of Rs.43,00,000/- on account of death of Pankaj
Gupta.
5. Respondent No. 1 Mukesh Sen and respondent No. 2 Sundar Singh
Yadav, who were the driver and owner of the offending vehicle JCB
respectively, remained abscent before the learned Claims Tribunal and,
therefore, were proceeded ex-parte.
6. Respondent No. 3 - Insurance Company filed its written statement
in both the cases and denied the allegations that accident occurred on
account of rash and negligent driving by the driver of the vehicle in
question and also pleaded that the insurance company is not liable to pay
the compensation to claimants because the offending vehicle was being
driven in violation of the conditions of the Insurance Policy as the driver
of offending vehicle did not have any valid and effective driving license at
the time of accident.
7. Learned Claims Tribunal after hearing rival parties framed issues
and partly allowed the claim petitions and exonerated the insurance
company from paying the compensation by observing that the offending
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Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
vehicle was being driven in violation of terms and conditions of insurance
policy because the driver did not have valid driving license.
In M.A. No. 1019 of 2015 and 1030 of 2015
8. Learned counsel for the appellants / claimants argued that learned
Claims Tribunal has wrongly decided that the offending vehicle was being
driven in breach of terms and conditions of the insurance policy. It is
further argued that the weight of the offending vehicle is below 7,500 kg
and it comes within the category of LMV and, therefore, in the light of the
case law of Mukund Dewangan vs. Oriental Company Limited, [Civil
Appeal No.5826 of 2011 decided on 3/7/2017], the impugned award
passed by learned Claims Tribunal dismissing the claim petitions of the
claimants is against the settled principle of law. Learned counsel for the
appellants / claimants further argued that learned Claims Tribunal has also
calculated the compensation amount on the lower side.
In M.A. Nos. 141 of 2017 and 142 of 2017
9. Learned counsel for the appellants / driver and owner of the
offending vehicle argued that learned Claims Tribunal has wrongly held
that the insurance company is not liable to pay the compensation. It is
further argued that the offending vehicle JCB is a LMV not having weight
over 7,500 kg, therefore, the finding of learned Claims Tribunal that the
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Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
driver of the vehicle in question did not have valid driving license is
against the evidence and facts available on record. It is further argued that
the learned Claims Tribunal has wrongly proceeded ex-parte against them.
Thereore, the impugned award be set aside and the insurance company be
directed to pay the compensation to the claimants.
10. On the other hand, learned counsel for respondent No. 3 - Insurance
Company argued that the finding of learned Claims Tribunal exonerating
the insurance company from the liability to pay the comensation is in
accordance with settled principle of law because at the time of accident,
the driver of the vehicle did not have valid driving license. The class of
vehicle in question is construction equipment vehicle and not Light Motor
Vehicle, therefore, in any case, the person holding license of LMV (NT)
cannot drive the construction equipment vehicle. The insurance company
has proved its defence by examining A.R.T.O., Shivpuri. It is further
argued that the impugned awards passsed are just and proper need not to
be interfered with and prayed to dismiss the appeals filed the appellants.
11. The questions for determination in these appeals are:
a. Whether the insurance company is liable to pay
compensation to the claimants and the learned claims
tribunal has wrongly exonerated the company from its
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Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
liability?
b. What should be the just compensation for claimants?
12. So far as the liability of insurance company is concerned, from
perusal of record it reveals that the issue raised in the arguements and
evidence led by the company are not pleaded in its written statements.
NAW-2 Ramraj Vishvkarma examined on behalf of insurance company
has admitted that no notice was given to the owner of vehicle in respect to
breach of policy. DW-1 A.R.T.O. Neeraj Likhar, who was examined by
the Insurance Company, stated that the driver of offending vehicle was
having a licence of L.M.V. valid from 15/07/08 to 14/07/28. This witness
DW-1 A.R.T.O. Neeraj Likhar further stated that offending vehicle J.C.B.
is a commercial vehicle. In the case on hand, as per the registration
certificate, the gross weight of the vehicle which was involved in the
accident - JCB is admittedly 7,465 kgs i.e. less than 7,500 kgs. Therefore,
in view of the fact that the driver of the JCB in question possessed a
licence to drive a light motor vehicle and in view of what was held by the
Apex Court in the case of Mukund Dewangan (supra), the driver of the
JCB was indeed authorized to drive a JCB in question and therefore, the
tribunal was not right in fixing the liability to pay the compensation upon
the owner and driver. The same issue was also raised before the Karnataka
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Signing time: 10-Jan-23
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High Court in the case of Reliance General Insurance Company Limited
vs S. Ramya and others, [Miscellaneous First Appeal 6789/2010 decided
on 9 November 2020] and it is held by the court that a driver holding
licence to drive Light Motor Vehicle is authorized to drive JCB as the
unladen weight of the vehicle volved in the accident is less than 7500 kgs
and this court is also of the same opinion.
13. In the light of above discussion, it is found that the insurance
company is liable to pay the compensation to the claimants. Consequently
M.A. Nos. 141 of 2017 and 142 of 2017 are hereby allowed and the
findings of learned claims tribunal exonerating the insurance company
from liability to pay the compensation is hereby quashed.
In M.A. NO. 1029/2015
14. In Claim Case No. 04/2010, learned Claims Tribunal has applied the
multipier on the basis of the age of applicant which is against the settled
principles of law. In this case the age of deceased [email protected] is 28
years as per postmortem Report. Therefore, for the purposes of
calculation of compensation, age of deceased is fixed as 28 years.
14. So far as income of deceased [email protected] is concerned, on the
basis of evidence available on record, learned Claims Tribunal has rightly
calculated the income of deceased as Rs 41,700/- per year.
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
15. In view of the law laid down by the Supreme Court in the case of
National Insurance Company Ltd. vs. Pranay Sethi and Ors., (2017
ACJ 2700), Dependency 1/2, multiplier of 17 and Future Prospect 40%
would be applicable in the present case. Accordingly, Rs 5,66,230/- is
found to be just and proper compensation in different heads as laid down
in the case law of Pranay Sethi (supra).
16. As such, the total amount awarded to the claimants in Claim Case
No. 04/2010 is enhanced from Rs.2,65,350/- to Rs.5,66,230/-. The
enhanced amount comes to Rs.3,00,880/- (Rupees Three Lakh Eight
Hundred Eighty only), with interest at the rate as fixed by the tribunal in
the award which is ordered accordingly to be payable to the claimants as
directed by the Tribunal in the same apportionment. The enhanced amount
of compensation Rs.3,00,880/- shall be payable to the claimants within 12
weeks from the date of production of a certified copy of this order.
In M.A. No. 1030/2015
17. In Claim Case No. 05/2010, learned Claims Tribunal has applied the
multipier on the basis of the age of applicant which is against the settled
principles of law. In this case, the date of birth of deceased Pankaj is
01/01/89 as per his Higher Secendory mark-sheet. Therefore, he was
about 21 year old at the time of accident. Therefore, for the purposes of
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Signing time: 10-Jan-23
12:20:59 PM
calculation of compensation, age of deceased is fixed as 21 years.
18. So far as income of deceased Pankaj is concerned, on the basis of
evidence available on record, learned Claims Tribunal has rightly
calculated the income of deceased as Rs 1,80,000/- per year.
19. In view of the law laid down by the Supreme Court in the case of
Pranay Sethi (supra), Dependency 1/2, multiplier of 18 and Future
Prospect 40% would be applicable in the present case. Accordingly, Rs
23,38,000/- is found to be just and proper compensation on different heads
as laid down in the case law of Pranay Sethi (supra).
20. As such, the total amount awarded to the claimants in Claim Case
No. 05/2010 is enhanced from Rs.12,06,000/- to Rs.23,38,000/-. The
enhanced amount comes to Rs.11,32,000/- (Rupees Eleven Lakh
Thirty Two Thousand only), with interest at the rate as fixed by the
tribunal in the award which is ordered accordingly to be payable to the
claimants as directed by the Tribunal in the same apportionment. The
enhanced amount of compensation Rs.11,32,000/- shall be payable to the
claimants within 12 weeks from the date of production of a certified copy
of this order.
21. The liability of insurance company has already been decided in para
13 of this judgment.
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Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
22. Rest of the award impugned passed by the Tribunal shall remain
intact.
23. If the enhanced amount of compensation is in excess to the
valuation of appeal, the difference of the Court fee (if not already paid)
shall be deposited by the appellants/ claimants within four weeks' from
today and proof thereof shall be submitted before the Registry. Thereafter,
Registry shall issue the certified copy of the order passed today.
24. M.A. Nos. 1029/2015 and 1030/2015 stand allowed to the
aforesaid extent and disposed of.
Registry is directed to place copy of this order in the record of
connected appeals.
(SUNITA YADAV)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10-Jan-23
12:20:59 PM
