Madhya Pradesh High Court
Nisha Kotwani vs Hamid Khan on 27 January, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 27 th OF JANUARY, 2023
MISC. APPEAL No. 2585 of 2016
BETWEEN:-
1. NISHA KOTWANI D/O SHRI M.L. KOTWANI, AGED
ABOUT 28 YEARS, 192 PRABHU NAGAR IDGAH
HILLS (MADHYA PRADESH)
2. LEENA KOTWANI D/O SHRI M.L.KOTWANI, AGED
ABOUT 29 YEARS, R/O 192 PRABHU NAGAR,
IDGAH HILLS (MADHYA PRADESH)
3. GUNJAN KOTWANI D/O SHRI M.L.KOTWANI,
AGED ABOUT 31 YEARS, R/O 192 PRABHU NAGAR,
IDGAH HILLS (MADHYA PRADESH)
4. KAMAL KISHORE S/O SHRI M.L.KOTWANI, AGED
ABOUT 40 YEARS, R/O 192 PRABHU NAGAR,
IDGAH HILLS (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI KAPIL PATWARDHAN, ADVOCATE)
AND
1. HAMID KHAN S/O WAHID KHAN GRAM
KHANCHROD KALA (MADHYA PRADESH)
2. ABDUL HAMID S/O ABDUL RAHEEM R/O
KHANCHRODH JAAWARA (MADHYA PRADESH)
3. DIVISIONAL MANAGER ORIENTAL INSURANCE
COMPANY LIMITED DIVISIONAL OFFICE
NO.1,102,103 KALACHAND MENTION BAIRASIA
ROAD (MADHYA PRADESH)
4. MOHAL LAL KOTWANI S/O LATE S.R.KOTWANI,
Signature Not Verified
AGED ABOUT 63 YEARS, R/O 192 PRABHU NAGAR,
SAN
IDGAH HILLS (MADHYA PRADESH)
Digitally signed by MOHD TABISH KHAN
Date: 2023.01.31 18:13:23 IST
5. DIVISIONAL MANAGER IFFCO TOKYO GENERAL
2
INSURANCE CO. LTD. DIVISIONAL OFFICE NO.1,
QWALITY BUSINESS CENTER, ZONE 2 MP NAGAR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GULAB CHAND SHOHANE, ADVOCATE FOR RESPONDENT
NO.3)
(BY SHRI VINEET KUMAR PANDEY, ADVOCATE FOR RESPONDENT NO.3)
(BY SMT. AMRIT KAUR RUPRAH, ADVOCATE FOR RESPONDENT NO.5)
MISC. APPEAL No. 1869 of 2016
BETWEEN:-
IFFCO TOKYO GENERAL INSURANCE CO. LTD.
THROUGH BRNACH MANAGER NO. 1 QUALITY
BUSINESS CNETRE ZONE 2 M.P. NAGAR M.P. NAGAR
BHOPAL (MADHYA PRADESH)
.....APPELLANT
(BY SMT. AMRIT KAUR RUPRAH, ADVOCATE FOR THE APPELLANT)
AND
1. KU. NISHA KOTWANI D/O M.L. KOTWANI, AGED
ABOUT 28 YEARS, R/O 192, PRABHU NAGAR,
IDGHAH HILLS (MADHYA PRADESH)
2. KU. LEENA KOTWANI D/O M.L. KOTWANI, AGED
ABOUT 29 YEARS, R/O 192, PRABHU NAGAR,
IDGHAH HILLS (MADHYA PRADESH)
3. KU. GUNJA KOTWANI D/O M.L. KOTWANI, AGED
ABOUT 31 YEARS, R/O 192, PRABHU NAGAR,
IDGHAH HILLS (MADHYA PRADESH)
4. KAMAL KISHORE KOTWANI S/O M.L. KOTWANI,
AGED ABOUT 40 YEARS, R/O 192, PRABHU NAGAR,
IDGHAH HILLS (MADHYA PRADESH)
5. HAMEED KHAN S/O WAHEED KHAN VILLAGE
KHANCHROD KALAN (MADHYA PRADESH)
6. ABDUL HAMID S/O ABDUL RAHIM KHANCHROD
JAWRA (MADHYA PRADESH)
Signature Not Verified
7. DIVISIONAL MANAGER ORIENTAL INSURANCE
SAN
Digitally signed by MOHD TABISH KHAN
COMPANY LIMITED DIVISION OFFICE NO. 1, 102.
Date: 2023.01.31 18:13:23 IST
103, KALACHAND MANSION BERASIYA ROAD
BHOPAL (MADHYA PRADESH)
3
8. MOHANLAL KOTWANI S/O LATE SHRI S.R.
KOTWANI, AGED ABOUT 63 YEARS, R/O 192,
PRABHU NAGAR, IDGHAH HILLS (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI KAPIL PATWARDHAN, ADVOCATE)
These appeals coming on for admission this day, the court passed the
following:
ORDER
These appeals are filed respectively by the IFFCO Tokio General
Insurance Company Ltd. being insurer of Qualis Vehicle bearing Registration
No.MP 04 HB 1173 and that by the claimants.
The ground taken by the insurer IFFCO Tokio General Insurance
Company Ltd. is that initially claim was filed by the claimants against the owner
driver of Bus No.MP 14 H 3097 alleging that bus driver had suddenly applied
brakes as a result of which Qualis which was travelling behind had dashed with
the bus resulting in death of Smt. Meera Kotwani.
It is submitted that vide order dated 28.03.2007 learned Tribunal had
allowed amendment application when it was informed by the Oriental Insurance
Company Ltd., insurer of the bus that the policy was fake and not admissible to
change the story that accident took place due to sole mistake and negligence of
the respondent No.4 Mohan Lal Kotwani, who was driving Qualis at the relevant
point of time. This amendment application was allowed, correction was allowed
to be carried out.
IFFCO Tokio General Insurance Company Ltd. filed W.P.
Signature Not Verified
SAN
No.7714/2007 and in that writ petition, order of the Tribunal dated 28.03.2007
Digitally signed by MOHD TABISH KHAN
was set aside and matter was remitted to the Tribunal to decide application
Date: 2023.01.31 18:13:23 IST
under Order 6 Rule 17 CPC afresh.
Learned 15th Additional Motor Accident Claims Tribunal vide order
dated 13.03.2015 decided said application and held that since amendment
proposed amounted to withdrawal of the admission duly made in the
application, therefore, such amendment could not have been allowed in terms of
the law laid down in D.V. Paul Vs. Manisha Lalwani, MPWN 1999(1) SN
223, Chandrasen Jain Vs. Suresh Chand Jain and Others, 2007(3)
MPHT 486, so also in case of Panchdeo Narain Shrivastva, Vs. Km. Jyoti
Sahay and another, AIR 1983 SC 462 and Heeralal Vs. Kalyan Mal and
Others, AIR 1998 SC 618.
It is submitted that once amendment application was dismissed then there
could not have been any evidence contrary to the pleadings and learned 6th
Motor Accident Claims Tribunal which finally decide the claim vide award
dated 30.03.2016 erred in overlooking the basic principle of law that no
evidence which is contrary to the pleadings is admissible in law. Placing these
facts into consideration, indulgence is sought.
As far as, claimants are concerned, they have seeking proper
compensation on the ground that accident took place on 14.02.2006, Smt.
Meera Kotwani was running an agency of Madhur courier on the date of the
accident besides being a home maker, therefore, proper income should have
been construed while passing an award.
After hearing learned counsel for the parties and going through the
record, Appeal filed by the IFFCO Tokio General Insurance Company Ltd.
Signature Not Verified
insurer of the Qualis in which deceased was travelling deserves to be allowed,
SAN
Digitally signed by MOHD TABISH KHAN
inasmuch as, reliance placed by Shri Kapil Patwardhan on the law laid down by
Date: 2023.01.31 18:13:23 IST
Supreme Court in case of Khenyei Vs. New India Assurance Co. Ltd.,
(2015) 9 SCC 273, wherein it is held that in case of composite negligence,
claimants can claim compensation from either of the joint tortfeasors will not be
applicable to the facts of the present case because there is no pleading in the
claim petition to show that even the driver and owner of the Qualis was a joint
tortfeasors. Thus, this judgment will have no application to the facts of the
present case where in the pleadings claimants had attributed sole negligence to
the driver of the bus who had suddenly applied brakes.
Thus, in view of the aforesaid appeal filed by the IFFCO Tokio General
Insurance Company Ltd. deserves to be allowed and is allowed.
Now, the question arises that what should be the quantum admissible in
favour of the claimants and secondly who shall be liable to pay that
compensation.
Answering the second question, first, it will be the owner driver of the
bus bearing registration No.MP 14H 3097 who will be responsible to settle the
claim. As far as, quantum is concerned, even if a home maker is construed to
be a skilled person then monthly wages for a skilled worker were to the tune of
Rs. 2548/- per month or Rs. 30,576 per annum. Deceased is survived by four
legal representatives, therefore, 1/4th is to be deducted towards the living
expenses of the deceased. After deduction dependency will come out to
Rs.22,932/-. Since deceased was 49 years of age, 25% will be added towards
the future prospects and then multiplier of 13 will be applicable, taking total
pecuniary compensation to Rs.3,72,645/-. Over and above which claimants are
entitled to addition of Rs.30,000/- under the head of last rites and loss of estate,
Signature Not Verified
SAN besides this claimants No.1,2 and 3 being daughters of the deceased will be
Digitally signed by MOHD TABISH KHAN
Date: 2023.01.31 18:13:23 IST
entitled to a sum of Rs.40,000/- each under the head of loss of parental
consortium. Taking total compensation to Rs.5,22,645/- (Rupees Five Lacs
Twenty Two Thousand Six Hundred Fourty Five Only) in place of
Rs.4,50,000/- (Rupees Four Lacs Fifty Thousand Only) awarded by learned
Claims Tribunal. Thus, there will be enhancement to tune of Rs. 72,645/-
(Rupees Seventy Two Thousand Six Hundred Fourty Five Only) which will be
payable along with interest @ 6% per annum from the date of filing of the claim
petition till the date of actual payment by the owner driver of the offending bus
bearing registration No.MP 14H 3097.
In above terms, both these appeals are disposed of.
Record of the Tribunal be sent back.
Certified copy as per rules.
(VIVEK AGARWAL)
JUDGE
Tabish
Signature Not Verified
SAN
Digitally signed by MOHD TABISH KHAN
Date: 2023.01.31 18:13:23 IST
