Bigari Saiyam vs Gendlal
2023 Latest Caselaw 219 MP

                                                      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. 762 of 2013

                         BETWEEN:-
                         1.    BIGARI SAIYAM S/O SUKHKHU SAIYAM, AGED
                               ABOUT 52 YEARS, VILL. SAKWAH THANA MAVAI
                               TEH. BICHHIYA (MADHYA PRADESH)

                         2.    FAGNI BAI SAIYAM W/O BIGARI SAIYAM, AGED
                               ABOUT 50 YEARS, VILLAGE SAKWAH, THANA
                               MAVAI, TAHSIL BICHHIYA & DISTT.MANDLA,M.P.
                               (MADHYA PRADESH)

                                                                             .....APPELLANTS
                         (BY SHRI SARVESH JAISWAL - ADVOCATE)

                         AND
                         1.    GENDLAL S/O NAMALUM VILL. GHUTAS TEH.
                               BICHHIYA (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)

                                                                            .....RESPONDENTS
                         (INSURANCE COMPANY BY SHRI RAKESH JAIN - ADVOCATE)

                                           MISC. APPEAL No. 1038 of 2013

                         BETWEEN:-
                         NATIONAL INSURANCE COMPANY LIMITED THROUGH
                         : THE DIVISIONAL MANAGER OFFICE 495 MARHATAL
                         JABALPUR (MADHYA PRADESH)

                                                                              .....APPELLANT
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
1/5/2023 3:50:30 PM
                                                       2
                         (BY SHRI D.N.SHUKLA - ADVOCATE)

                         AND
                         1.    BIGARI SAIYAM S/O SUKKHU SAIYAM, AGED
                               ABOUT 52 YEARS, VILL SAKWAH P.S. MAWAI TEH
                               BICHIYA (MADHYA PRADESH)

                         2.    FAGNI BAI SAIYAM W/O BIGARI SAIYAM, AGED
                               ABOUT 50 YEARS, VILLAGE SAKWAH, P.S. MAWAI,
                               TAHSIL BICHIYA DISTT. MANDLA,M.P. (MADHYA
                               PRADESH)

                         3.    GEND LAL, AGED ABOUT 50 YEARS, VILLAGE
                               GHUTASH P.S. BICHIYA, DISTT.MANDLA,M.P.
                               (MADHYA PRADESH)

                         4.    KHEMRAJ S/O ABHILASH PADWAR GHUTASH,
                               P.S.&TAHSIL BICHIYA DISTT. MANDLA (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.1038/2013 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.222/2008 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 applying the multiplier overlooking 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. Signature Not Verified Signed by: AMIT JAIN Signing time:

1/5/2023 3:50:30 PM

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 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.

T h e 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.1038/2013 is dismissed. M.A.No.762/2013 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.222/2008.

Learned counsel for the claimants submits that the Claims Tribunal has arbitrarily applied the multiplier of 17 whereas at the time of the accident, the age of deceased Koushal Bai was 21 years, therefore, the multiplier of 18 will be applicable as per the law laid down by Hon'ble the Supreme Court in Smt. Signature Not Verified Signed by: AMIT JAIN Signing time:

1/5/2023 3:50:30 PM

Sarla Verma & Others versus Delhi Transport Corporation & Another (supra). He also submits that 40% future prospect is to be added and appropriate amount under the head of non-pecuniary compensation be awarded in favour of the claimants.

The Claims Tribunal has considered the income of the deceased at Rs.3,000/- per month or Rs.36,000/- per annum and after making 50% deduction towards living expenses as she was a spinster, the net dependency will come out to Rs.18,000/-. 40% is to be added towards future prospect and when the multiplier of 18 is applied, the total pecuniary compensation will come out to Rs.4,53,600/-. The claimants are entitled to a sum of Rs.30,000/- under the head of non-pecuniary compensation. Besides this, the claiamnts beng parents of the deceased are also entitled to a sum Rs.40,000/- each under the head of loss of child consortium taking toal compenation to Rs.5,63,600/- in place of Rs.3,16,000/- awarded by the Cliams Triubnal. Thus, there will be enhancement to the tune of Rs.2,47,600/- (Rupees Two Lakh Forty Seven Thousand Six 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.762/2013 is disposed of. 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