Madhya Pradesh High Court
Raja Bhaiya Patel vs Smt. Arti Kushwaha on 3 January, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 3 rd OF JANUARY, 2023
MISC. APPEAL No. 1097 of 2012
BETWEEN:-
SMT AARTI KUSHWAHA W/O LATE SHRI SATANAND @
SATYAM KUSHWAHA, AGED ABOUT 19 YEARS, VILLAGE
ITORA POST- AMKUI, TAHSIL NAGOD, DISTT. SATNA,
M.P.
.....APPELLANT
(BY SHRI K.K. KUSHWAHA, ADVOCATE)
AND
1. RAJA BHAIYA PATEL (DRIVER) S/O SHRI RAM
GOPAL PATEL, AGED ABOUT 42 YEARS, VILLAGE-
VELHAI, POST-KATAN, THANA SALEHA, DISTT.
PANNA, M.P. (MADHYA PRADESH)
2. RAM GOPAL PATEL S/O RAMADHEEN PATEL
VILLAGE BELHAI POST KATAN, THANA SALEHA,
PANNA (MADHYA PRADESH)
3. BRANCH MANAGER ORIENTAL INSURE COMP.
LTD. BUS STAND REWA ROAD SATNA (MADHYA
PRADESH)
4. LAKHAN LAL KUSHWAHA, AGED ABOUT 60
YEAR S, VILLAGE ITORA, POST AMKUI TAHSIL
NAGOD, SATNA (MADHYA PRADESH)
5. SMT. DULARI KUSHWAHA W/O LAKHAN LAL
KUSHWAHA, AGED ABOUT 56 YEARS, VILLAGE
ITORA, POST AMKUI TAHSIL NAGOD, SATNA
(MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
SAN
(BY SHRI SURYA KUMAR PATEL, ADVOCATE FOR RESPONDENT NO.2)
(BY SHRI RAKESH JAIN, ADVOCATE FOR RESPONDENT NO.3 )
Digitally signed by MOHD TABISH KHAN
Date: 2023.01.05 19:36:52 IST
MISC. APPEAL No. 1033 of 2012
2
BETWEEN:-
1. RAJA BHAIYA PATEL S/O SHRI RAM GOPAL
PATEL, AGED ABOUT 42 YEARS, BELHAI POST
KATAN P.S. SALEHA (MADHYA PRADESH)
2. RAM GOPAL PATEL S/O SHRI RAMADHEEN
PATEL BELHAI POST KATAN, POLICE STATIO
SALEHA, PANNA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI ARUBENDRA SINGH PARIHAR, ADVOCATE FOR APPELLANT
NO.1)
(BY SHRI SURYA KUMAR PATEL, ADVOCATE FOR APPELLANT NO.2)
AND
1. SMT. ARTI KUSHWAHA W/O LATE SHRI
SATANAND @ SATYAM KUSHWAHA, AGED
ABOUT 19 YEARS, OCCUPATION: HOUSE WIFE
VILLAGE AND POST KITHA, TAHSIL
RAGHURAJNAGAR (MADHYA PRADESH)
2. LAKHANLAL KUSHWAHA S/O SHRI LALU PRASAD
KUSHWAHA, AGED ABOUT 60 YEARS, ITOURA,
POST AMKUI, POLICE STATION JASO, TAHSIL
NAGOD, SATNA (MADHYA PRADESH)
3. SMT. DULARI KUSHWAHA W/O SHRI LAKHAN
LAL KUSHWAHA, AGED ABOUT 56 YEARS,
ITOURA, POST AMKUI, POLICE STATION JASO,
TAHSIL NAGOD, SATNA (MADHYA PRADESH)
4. DIVISIONAL MANAGER ORIENTAL INSURANC
CO. LTD. BUSW STAND, REWA ROAD, SATNA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GULAB CHAND SOHANE, ADVOCATE FOR RESPONDENT NO.4)
These appeals coming on for admission this day, the court passed the
following:
ORDER
Signature Not Verified
These appeals are filed respectively by the owner driver of the offending
SAN
Digitally signed by MOHD TABISH KHAN
vehicle and the claimants being aggrieved of award dated 22.12.2011 passed by
Date: 2023.01.05 19:36:52 IST
learned Additional Motor Accident Claims Tribunal, Nagod, District Satna in
M.A.C.C. No.48/2011.
As far as appeal filed by the owner driver of the offending vehicle is
concerned. It is submitted that offending vehicle is a tractor trolley. It is
submitted that unladen weight of tractor trolley is less than 7,500 kilograms,
therefore, it will come within the definition of Light Motor Vehicle. It is an
admitted fact that the driver of the tractor trolley was having a license to drive
LMV. Therefore, mere absence of endorsement to drive commercial vehicle will
not exonerate the Insurance Company in light of the law laid down by the
Supreme Court in Mukund Dewangan Vs. Oriental Insurance Company
Ltd., (2017) 14 SCC 663.
On the other hand, learned counsel for the claimants submits that date of
accident is 14.11.2010 and Tribunal has considered income of the deceased at
Rs.3,000/- per month whereas minimum wages even for an unskilled labourer
on the date of the accident were to the tune of Rs.4,145/- per month or
Rs.49,740/- per annum. Calculation is to be made accordingly.
It is further submitted that the finding of the contributory negligence
merely on the basis of a singular averment by one of the eye witness that there
was mistake of the deceased also cannot be substantiated in view of the fact
that tractor trolley was parked. It has come on record that tractor trolley was
moving there was no back light and therefore, when the motorcycle rammed
from behind it cannot be said that there is contributory negligence of the
deceased for whom claim petition is filed.
After hearing learned counsel for the parties and going through the record
Signature Not Verified
SAN as far as issue of exoneration of Insurance Company is concerned, fact of the
Digitally signed by MOHD TABISH KHAN
Date: 2023.01.05 19:36:52 IST
matter is that it has come on record that unladen weight of the vehicle in
question was less than 7500 kilograms, therefore, in light of the law laid down
by Supreme Court in case of Mukund Dewangan (supra), mere absence of
endorsement will not exonerate the Insurance Company.
Therefore, as far as exoneration of Insurance Company is concerned that
is set aside, appeal filed by the owner driver is allowed. It is held that owner
driver and insurer of the tractor will be jointly and severally liable to satisfy the
award.
T h is brings us to another question as to whether the finding of
contributory negligence recorded by the learned Tribunal is correct or not.
It is submitted that no evidence was led either by the owner driver of the
offending tractor or by the Insurance Company to prove the factum of
contributory negligence. Thus, stray statement of one of the eye witnesses
Rakesh Vishwakarma that there was some mistake on the part of the deceased
is not sufficient circumstance to prove the aspect of contributory negligence.
Hon'ble Supreme Court in Civil Appeal No. 7176/2022 Mamta and
others Vs. Bhav Singh @ Mansingh and another has held in para 8 that
when the dumper which was moving ahead had suddenly stopped in a negligent
manner without giving any signal by which the dumper driven from behind
dashed to the offending dumper, then aspect of contributory negligence could
not have been assigned to the vehicle insured with the appellant inasmuch as in
para 9 of the said judgment, it is mentioned that "It is a settled law that
contributory negligence arises when there has been some act or omission on the
claimant's part which has materially contributory to the damage caused.
Negligence ordinarily means the failure by a person to use reasonable care for
Signature Not Verified
SAN
the safety of either himself or his property so that he becomes blameworthy in
Digitally signed by MOHD TABISH KHAN
Date: 2023.01.05 19:36:52 IST
part as an author of his own wrong."
Therefore, in light of the judgment of the Supreme Court in Mamta
(supra) when aspect of contributory negligence is examined then finding of
contributory negligence merely on a stray statement of one of the eye witnesses
is not a sufficient circumstance specially when the person alleging contributory
negligence did not examine any witness to prove that aspects, therefore finding
of contributory negligence to needs to be set aside and is set aside.
As far as enhancement is concerned. One third is to be deducted towards
the living expenses of the deceased, therefore, net dependency will come out to
Rs.33,160/-. Deceased was aged about 23 years therefore, 40% is to be added
towards future prospects and then when multiplier of 18 is applied, then total
pecuniary compensation will come out to Rs.8,35,632/- (Rupees Eight Lacs
Thirty Five Thousand Six Hundred and Thirty Two Only) over and above
which claimants are entitled to a sum of Rs.70,000/- (Rupees Seventy
Thousand Only). Parents are also entitled to a sum of Rs.40,000/- (Rupees
Fourty Thousand Only) each under the head of loss of love and affection. Thus
total compensation payable will be Rs.9,85,632/- (Rupees Nine Lacs Eighty
Five Thousand Six Hundred and Thirty Two Only) against a sum of Rs.
2,31,000/- (Rupees Two Lacs Thirty One Thousand Only) awarded by learned
Claims Tribunal. Terms of appropriation between the parents and the widow
will be the same as has been directed by the learned Tribunal. This additional
amount will also earn interest @ 6% per annum from the date of filing of the
claim petition till the date of actual payment.Other terms and conditions of the
award shall remain intact.
Signature Not Verified
SAN
Appeal remained dismissed from 05.02.2013 to 9.09.2017 when it was
Digitally signed by MOHD TABISH KHAN
restored in National Lok Adalat in M.C.C. 1060/2017, therefore, claimants will
Date: 2023.01.05 19:36:52 IST
not be entitled to interest from 05.2.2013 to 9.09.2017.
In above terms, both these appeals are disposed of
Record of the Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
Tabish
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2023.01.05 19:36:52 IST
