Madhya Pradesh High Court
Smt. Nema Bai vs Gendlal on 4 January, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 4 th OF JANUARY, 2023
MISC. APPEAL No. 761 of 2013
BETWEEN:-
1. SMT. NEMA BAI W/O ROHIT DAS @ SUNIL, AGED
ABOUT 32 YEARS, VILL. KARELA TOLA, TAH.
BICHHIYA DISTT. MANDLA (MADHYA PRADESH)
2. SHIVAM S/O LATE SHRI ROHIT DAS, AGED ABOUT
1 YEARS, OCCUPATION: MINOR THROUGH HIS
NATURAL GUARDIAN MOTHER SMT. NEMA BAI
VILLAGE KARELA TOLA, TAHSIL BICHHIYA
DISTT. MANDLA,M.P. (MADHYA PRADESH)
.....APPELLANTS
(CLAIMANTS BY SHRI SARVESH JAISWAL - ADVOCATE)
AND
1. GENDLAL S/O NAMAMUL VILL. GHUTAS, TAH.
BICHHIYA, DISTT. MANDLA (MADHYA PRADESH)
2. KHEMRAJ S/O ABHILASH PADWAR VILLAGE
GHUTAS, TAHSIL BICHHIYA, DISTT. MANDLA,
M.P. (MADHYA PRADESH)
3. NATIONAL INSURANCE COMP. LTD. SADAR
BAZAR MANDLA, TAHSIL & DISTT. MANDLA,M.P.
(MADHYA PRADESH)
4. KULUDAS SURESHWAR S/O KANGLU DAS , AGED
ABOUT 55 YEARS, VILLAGE KARELA, POST
DADIBHANPUR, THANA MACHAI, TAH. BICHHIYA
MANDLA,M.P. (MADHYA PRADESH)
5. SMT. DHARMA BAI W/O KALUDAS, AGED ABOUT
50 YEARS, VILLAGE KARELA, POST
DADIBHANPUR, THANA MACHAI, TAH. BICHHIYA
MANDLA,M.P. (MADHYA PRADESH)
6. SOHAN DAS S/O KALUDAS, AGED ABOUT 30
YEARS, VILLAGE KARELA, POST DADIBHANPUR,
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
1/5/2023 3:50:30 PM
2
THANA MACHAI, TAH. BICHHIYA MANDLA,M.P.
(MADHYA PRADESH)
7. KU. SHYAMA BAI S/O KALUDAS, AGED ABOUT 25
YEARS, VILLAGE KARELA, POST DADIBHANPUR,
THANA MACHAI, TAH. BICHHIYA MANDLA,M.P.
(MADHYA PRADESH)
.....RESPONDENTS
(INSURANCE COMPANY BY SHRI RAKESH JAIN - ADVOCATE)
MISC. APPEAL No. 1039 of 2013
BETWEEN:-
NATIONAL INSURANCE COMPANY LIMITED THROUGH
: THE DIVISIONAL MANAGER OFFICE 495 MARHATAL
JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI D.N.SHUKLA - ADVOCATE)
AND
1. SMT. NEMA BAI W/O ROHIT DAS @ SUNIL, AGED
ABOUT 28 YEARS, VILL KARELA TOLA TEH
BICHIYA (MADHYA PRADESH)
2. SHIVAM S/O LATE ROHIT, AGED ABOUT 1 YEARS,
OCCUPATION: MINOR THROUGH THE NATURAL
GUARDIAN MOTHER SMT. NEMA BAI VILLAGE
KARELA TOLA, TAHSIL BICHIYA DISTT. MANDLA
(MADHYA PRADESH)
3. GEND LAL GHUTASH, P.S.&TAHSIL BICHIYA
DISTT. MANDLA (MADHYA PRADESH)
4. KHEMRAJ S/O ABHILASH PADWAR VILLAGE
GHUTASH P.S. BICHIYA, DISTT.MANDLA,M.P.
(MADHYA PRADESH)
5. KALUDAS S/O KANGLUDAS, AGED ABOUT 55
YEARS, VILLAGE KARELA, RAIYAT POST DADHI
MANPUR, P.S. BMAWAI, TAHSIL BICHIYA MANDL
(MADHYA PRADESH)
6. SMT. DHARMA BAI W/O KALUDAS, AGED ABOUT
50 YEARS, VILLAGE KARELA, RAIYAT POST
DADHI MANPUR, P.S. BMAWAI, TAHSIL BICHIYA
MANDL (MADHYA PRADESH)
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
1/5/2023 3:50:30 PM
3
7. SOHANDAS S/O KALUDAS, AGED ABOUT 30
YEARS, VILLAGE KARELA, RAIYAT POST DADHI
MANPUR, P.S. BMAWAI, TAHSIL BICHIYA MANDL
(MADHYA PRADESH)
8. KU. SHYAMA BAI D/O KALUDAS , AGED ABOUT 25
YEARS, VILLAGE KARELA, RAIYAT POST DADHI
MANPUR, P.S. BMAWAI, TAHSIL BICHIYA MANDL
(MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NOS.1& 2 BY SHRI SARVESH JAISWAL - ADVOCATE)
These appeals coming on for orders this day, th e court passed the
following:
ORDER
M.A.No.1039/2013 is filed by the Insurance Company being aggrieved of
award dated 20.12.2012 passed by learned 1 Additional Motor Accident Claims
Tribunal, Mandla in Motor Claim Case No.221/2008 on the ground that the
award of the Claims Tribunal is contrary to the facts, evidence and
circumstances available on record.
Learned counsel for the Insurance Company submits that the Claims
Tribunal committed error in deducting 1/5th dependency in place of 1/3rd in the
light of the judgment of Hon'ble the Supreme Court in Smt. Sarla Verma &
Others versus Delhi Transport Corporation & Another (2009) 6 SCC
121. The offending vehicle was insured for private use but at the time of the
accident, 13 persons were travelling and the vehicle was being used for
commercial purposes.
The ground that there were thirteen persons travelling and the offending
vehicle was used contrary to the terms and conditions of the insurance policy is
also not made out. The Insurance Company has examined its Administrative
Officer Rajesh Kumar Pasine. He has not said anything about violation of terms
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
1/5/2023 3:50:30 PM
and conditions of the insurance policy. Thus, when the Insurance Company
itself has failed to adduce evidence to prove violation of terms and conditions
of the insurance policy, that ground could not have been taken by the Insurance
Company and to that extent, it is evident that this appeal is frivolous.
The Insurance Company has also examined its Surveyor Rajendra
Agrawal in support of his investigation report (Exhibit D/4). This witness admits
that on the statement Exhibit D/1 to D/3, there is no mention of any date. Chhoti
Bai while giving the statement Exhibit D/1 did not say that she was travelling in
the Jeep. He further admits in Paragraph No.8 of her cross-examination that the
authors of Exhibit D/2 and Exhibit D/3 were not travelling in the Jeep and they
were also not present on the spot where the accident took place. In view of
such cross-examination, the contention on behalf of the Insurance Company as
made out from the grounds is that they have failed to prove the factum of
violation of terms and conditions of the insurance policy.
Accordingly, M.A.No.1039/2013 is dismissed.
M.A.No.761/2013 is filed by the claimants being aggrieved of award
dated 20.12.2012 passed by learned 1 Additional Motor Accident Claims
Tribunal, Mandla in Motor Claim Case No.221/2008.
Learned counsel for the claimants submits that 40% future prospects
should have been awarded by the Claims Tribunal. The compensation under the
head of loss of parental consortium be awarded in favour of the child and
appropriate amount under the head of non-pecuniary compensation be also
awarded. The Claims Tribunal erred in making 1/5th deduction despite the fact
that there are only two claimants i.e.wife and one child of the deceased Rohit
Das @ Sunil, therefore, 1/3rd deduction is to be made and to this extent, the
impugned award suffers from infirmity.
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
1/5/2023 3:50:30 PM
It is surprising that though the Claims Tribunal has referred to the
judgment of Hon'ble the Supreme Court in Smt. Sarla Verma & Others
versus Delhi Transport Corporation & Another (supra) but it has failed to
apply the ratio of the said judgment and has arbitrarily made 1/5th deduction
without there being any basis for making such deduction. Thus, it is apparent
that the Claims Tribunal has only read placitum of Smt. Sarla Verma &
Others versus Delhi Transport Corporation & Another (supra) and has
not gone into the observations made in the said judgment else it would not have
made 1/5th deduction.
In my opinion, when 1/3rd deduction is made then the annual income of
the deceased will come out to Rs.24,000/- The age of the deceased Rohit Das
@ Sunil has come on record to be 35 years, therefore, 40% is to be added
towards future prospect and when multiplier of 16 is applied then the total
pecuniary compensation will come out to Rs.5,37,600/- over and above which a
sum of Rs.70,000/- is payable under the head of non-pecuniary compensation
and a sum of Rs.40,000/- is also payable in favour of the minor child for loss of
parental consortium in the light of the law laid down by Hon'ble the Supreme
Court in United India Insurance Company Limited versus Satinder Kour
@ Satvinder Kour 2020 SCC Online SC 410. Thus, the claimants will be
entitled to a sum of Rs.6,47,600/ in place of Rs.4,80,800/-. Thus, there will be
enhancement to the tune of Rs.1,66,800/- (Rupees One Lakh Sixty Six
Thousand Eight Hundred Only) to which the claimants will be entitled to
alongwith interest as has been awarded by the Claims Tribunal. The other terms
and conditions of the award shall remain intact.
Accordingly, M.A.No.761/2013 is disposed of.
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
1/5/2023 3:50:30 PM
Let record of the Claims Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
amit
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
1/5/2023 3:50:30 PM
