Madhya Pradesh High Court
National Insurance Company Ltd. vs Smt. Anita Kol on 24 January, 2023
Author: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 24th OF JANUARY, 2023
MISC. APPEAL No. 1217 of 2022
BETWEEN:-
NATIONAL INSURANCE COMPANY LTD.
THROUGH BRANCH MANAGER BRANCH OFFICE
BESIDE MUL FILLING STATION NEHRU WARD
JABALPUR ROAD BARGANVA KATNI THROUGH
DIVISIONAL MANAGER NATIONAL INSURANCE
CO.LTD., DIVISIONAL OFFICE TP HUB, DO-I,
VIJAY NAGAR UKHARI ROAD JABALPUR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI PRAMOD KUMAR SAHU - ADVOCATE)
AND
1. SMT. ANITA KOL W/O LATE RAJESH KOL,
AGED ABOUT 30 YEARS, H.NO.86 JARUA,
GONTIA MOHALLA, NARWAR, THANA
DEHAT DISTRICT KATNI (MADHYA
PRADESH)
2. ASHUTOSH S/O LATE SHRI RAJESH KOL,
AGED ABOUT 12 YEARS, OCCUPATION:
THROUGH NATURAL GUARDIAN,
RESPONDENT NO. 1 SMT. ANITA KOL
H.NO.86 JARUA, GONTIA MOHALLA,
NARWAR, THANA DEHAT DISTRICT KATNI
(MADHYA PRADESH)
3. AKASH KUMAR S/O LATE SHRI RAJESH
KOL, AGED ABOUT 6 YEARS,
OCCUPATION: THROUGH NATURAL
GUARDIAN, RESPONDENT NO. 1 SMT.
ANITA KOL H.NO.86 JARUA, GONTIA
MOHALLA, NARWAR, THANA DEHAT
2
DISTRICT KATNI (MADHYA PRADESH)
4. RAMDAS KOL S/O SHRI LALMAN KOL,
AGED ABOUT 52 YEARS, H.NO.86 JARUA,
GONTIA MOHALLA, NARWAR, THANA
DEHAT DISTRICT KATNI (MADHYA
PRADESH)
5. JHALLI BAI W/O SHRI RAMDAS KOL, AGED
ABOUT 50 YEARS, H.NO.86 JARUA, GONTIA
MOHALLA, NARWAR, THANA DEHAT
DISTRICT KATNI (MADHYA PRADESH)
.....RESPONDENTS
(BY MS.DEVIKA THAKUR - ADVOCATE ON CAVEAT)
MISC. APPEAL No. 909 of 2022
BETWEEN:-
1. SMT. ARTI KOL W/O LATE RAJESH
KOL, AGED ABOUT 30 YEARS,
OCCUPATION: NIL VILLAGE JARUA
H.NHO. 86 GOTIYA MOHALLA
NARWAR P.S. DEHATA DISTT. SATNA
(MADHYA PRADESH)
2. ASHUTOSH S/O LATE RAJESH KOL,
AGED ABOUT 12 YEARS, OCCUPATION:
MINOR U/G MOTHER APPELLANT NO.
1 SMT. ARTI KOL W/O LATE RAJESH
KOL R/O VILLAGE JARUA H. NO. 86
GOTIYA MOHALLA NARWAAR P.S.
DEHATA DISTRICT SATNA M.P.
(MADHYA PRADESH)
3. AKASH KUMAR S/O LATE RAJESH
KOL, AGED ABOUT 6 YEARS,
OCCUPATION: MINOR U/G MOTHER
APPELLANT NO. 1 SMT. ARTI KOL W/O
LATE RAJESH KOL R/O VILLAGE
JARUA H. NO. 86 GOTIYA MOHALLA
NARWAAR P.S. DEHATA DISTRICT
SATNA M.P. (MADHYA PRADESH)
3
4. RAMDAS KOL S/O LALMAN KOL, AGED
ABOUT 52 YEARS, OCCUPATION: NIL
R/O VILLAGE JARUA H. NO. 86 GOTIYA
MOHALLA NARWAAR P.S. DEHATA
DISTRICT SATNA M.P. (MADHYA
PRADESH)
5. JHALLI BAI W/O RAMDAS KOL, AGED
ABOUT 50 YEARS, OCCUPATION: NIL
R/O VILLAGE JARUA H. NO. 86 GOTIYA
MOHALLA NARWAAR P.S. DEHATA
DISTRICT SATNA M.P. (MADHYA
PRADESH)
.....PETITIONER
(BY MS.DEVIKA THAKUR - ADVOCATE )
AND
1. BRIJESH TIWARI S/O SHRI DURGA
PRASAD TIWARI, AGED ABOUT 38
YEARS, OCCUPATION: NIL WARD
NO.15 SIHORA ROAD P.S. MAJAULI
TEHSIL MAJAULI (MADHYA PRADESH)
2. NATIONAL INSURANCE COMPANY
LIMITED THROUGH BRANCH
MANAGER BRANCH OFFICE
ADJACENT TO MOOL FILLING
STATION NEHRU WARD JABALPUR
ROAD BARGAWA KATNI DISTRICT
KATNI M.P. (MADHYA PRADESH)
3. BHAGH WALI PATEL S/O LEKHRAM
PATEL, AGED ABOUT 40 YEARS,
OCCUPATION: NIL R/O CHINDAHI
BARWARA DISTRICT KATNI M.P.
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NO.2 BY SHRI VAIBHAV JAIN - ADVOCATE)
These appeals coming on for admission this day, the court passed
the following:
4
ORDER
1. By this common order, M.A. No. 1217 of 2022 filed by Insurance
Company and M.A. No. 909 of 2022 filed by Claimants for
enhancement of compensation amount shall be decided.
2. Both the Misc. Appeals have been filed under Section 173 of Motor
Vehicles Act, 1988 against the award dated 4-1-2022 passed by 9th
Additional Motor Accidents Claims Tribunal, Katni in MACC No. 582
of 2018.
3. The death of deceased Rajesh Kol on 2-1-2018 in a vehicular
accident is not in dispute. However, the case of the Insurance
Company is that although the accident took place on 1-1-2018 but the
FIR was lodged on 10-3-2018, therefore, the offending vehicle was
planted deliberately after due consultations. Further the claimants have
failed to prove that the accident was caused by the offending motor
cycle.
4. The claimants have filed their appeal for enhancement of
compensation amount on the ground that the Claims Tribunal should
have taken the gross salary of the deceased into consideration.
5. Heard the learned Counsel for the parties.
6. So far as the delay in lodging the FIR is concerned, the claimants
have filed the copy of FIR, Ex. P.6, Rojnamcha sanha, Ex. P.10. From
the FIR, Ex. P.6, it is clear that on 2-1-2018, an information was sent
by the CMHO, Sanjay Gandhi Medical College, Rewa to the effect that
the deceased Rajesh Kol, who had met with an accident was brought in
an injured condition and has died on 2-1-2018 at 4:00 A.M.
Thereafter, Merg number 4/18 was registered. Thereafter, merg no.
19/18 was registered by Police Station Maihar, Distt. Satna and after
completing the enquiry, FIR in Crime No. 143 of 2018 was registered
on 10-3-2018. The claimants have examined Anil Tripathi (P.W.2)
who had conducted the investigation. He clarified that Constable
Vishwanath had recorded the statement of Ramdas, father of the
deceased on 2-1-2018 and he had disclosed the number of the
offending vehicle as MP 20 MH 9618 and accordingly the
investigation was done. The certified copy of the statement of Ramdas
was also filed by the claimants and is available on record but the same
was not got exhibited. However, it is clear from the statement of Anil
Tripathi (P.W.2) that the investigation was done on the basis of
information given by Ramdas. Thus, it is clear that the father of the
deceased had given the details of the offending vehicle on the very
next date of the accident. If the police did not register the FIR
immediately and took more than 2 months to register the FIR, then no
fault can be found with the claimants and it cannot be said that the
offending vehicle was falsely planted.
7. It is next contended by the Counsel for the Appellant that Anil
Shukla (P.W.2) was examined as an eye-witness. However, Smt. Aarti
Kol (P.W.1) has admitted that although She was informed by Shukla
about the accident but She doesnot recognize Shukla. Thus, it is
submitted that Anil Shukla (P.W.2) is an unreliable witness.
8. Considered the submissions made by the Counsel for the
Appellant/Insurance Company.
9. It is not necessary that the eye-witness must know the family
members of the deceased also. This Court has already considered the
statement of Anil Tripathi (P.W.2) as his evidence was recorded by
Commissioner) who has stated that on 2-1-2018 i.e., on the next date of
accident, Ramdas, the father of the deceased had already disclosed the
number of the offending motor cycle and the entire investigation was
done on the basis of that information. Thus, it is held that the accident
was caused by motor cycle bearing registration No. MP 20 MH 9618.
The police during investigation had interrogated the owner of the
offending motor cycle, who had given in writing, Ex. P. 8, that it was
the respondent no. 7 Bhagwali Patel, who was driving the motor cycle.
Further, the Insurance Company did not lead any evidence at all. Thus,
it is held that the Claimants have proved that the respondent no.7 by
driving the motor cycle bearing registration no. M.P. 20 MH 2618 in a
rash and negligent manner, dashed the deceased Rajesh Kol who died
at 4 A.M. on 2-1-2018. Thus, the Insurance Company has been rightly
held jointly and severally liable to pay the compensation amount.
10. It is next contended by the Counsel for the Appellant/Insurance
Company, that the claim petition was filed for compensation of Rs.
53,00,000/-, however, the Claims Tribunal has awarded Rs.
63,76,336/-. Therefore, the compensation amount awarded in excess
of what was claimed by the claimants is bad.
11. The question raised by the Counsel for the Insurance Company is
no more res integra.
12. The Supreme Court in the case of Mona Baghel & Ors Vs. Sajjan
Singh Yadav & Ors by Judgement dated 30-8-2022 passed in S.L.P.
(c) No. 29207 of 2018 has held as under :
The law is well settled that in the matter of
compensation, the amount actually due and payable is to be
awarded despite the claimants having sought for a lesser
amount and the claim petition being valued at a lesser value.
Our view, is fortified by the decision of this Court in
the Case of Ramla and Others Versus National Insurance
Company Limited and Others 2019 2 SCC 192, wherein, it
is held as under:
"Though the claimants had claimed a total compensation
of Rs.25,00,000 in their claim petition filed before the
Tribunal, we feel that the compensation which the
claimants are entitled to is higher than the same as
mentioned supra. There is no restriction that the Court
cannot award compensation exceeding the claimed
amount, since the function of the Tribunal or Court
under Section 168 of the Motor Vehicles Act, 1988 is to
award "just compensation". The Motor Vehicles Act is a
beneficial and welfare legislation. A "just
compensation" is one which is reasonable on the basis
of evidence produced on record. It cannot be said to
have become time-barred. Further, there is no need for a
new cause of action to claim an enhanced amount. The
Courts are duty-bound to award just compensation. (See
the Judgments of this Court in (a) Nagappa v. Gurudayal
Singh, (b) Magma General Insurance Co. Ltd. v. Nanu
Ram, (c) Ibrahim v. Raju.
13. The Claimants have also filed Appeal for enhancement of
compensation amount on the ground that the Claims Tribunal has
considered the take home salary for determining the monthly salary of
the deceased, but should have taken gross monthly salary.
14. Considered the submissions made by the Counsel for the
Appellants/claimants.
15. The Claimants have filed the copy of the salary slip, Ex. P.1. It is
clear from the said salary slip, the gross monthly salary of the deceased
was Rs. 32,671/- whereas his take home salary was Rs. 29,196/-. The
claimants have also examined Indra Singh (P.W.1 as his evidence was
recorded by Commissioner) to prove the salary slip. However, it has
not been clarified that whether the deductions were statutory in nature
or not? If the deductions were statutory like income tax, etc. then the
claimants are not entitled to claim compensation on the basis of
statutory deductions also.
16. Since, the claimants have failed to prove that the deduction of Rs.
3,475/- were not statutory in nature, therefore, this Court is of the
considered opinion, that the Claims Tribunal did not commit any
mistake by taking the net salary of the deceased into consideration.
17. No other arguments are advanced by any of the parties.
18. Ex-Consequenti, the award dated 4-1-2022 passed by 9th Additional
Motor Accidents Claims Tribunal, Katni in MACC No. 582 of 2018 is
hereby affirmed.
19. The M.A. No. 909/2022 and M.A. No. 1217 of 2022 filed by
Claimants as well as the Insurance Company respectively are
dismissed.
(G.S. AHLUWALIA)
JUDGE
HEMANT SARAF
2023.01.31 17:24:32 +05'30'
HS
