Madhya Pradesh High Court
Cholamandalam Ms General ... vs Amar Singh Yadav on 7 July, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 7 th OF JULY, 2023
MISC. APPEAL No. 3394 of 2022
BETWEEN:-
CHOLAMANDALAM MS GENERAL INSURANCE
COMPANY LTD., THROUGH ITS LEGAL MANAGER
(INSURANCE COMPANY) BRANCH OFFICE STAR
ARCADE, 2ND FLOOR PLOT NO. 165A, 166, ZONE-1, M.P.
NAGAR, BHOPAL, (MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAKESH JAIN - ADVOCATE)
AND
1. AMAR SINGH YADAV S/O BRAJBHUSHAN YADAV,
AGED ABOUT 26 YEARS, R/O VILLAGE
BHATGOURA, P.S. JATAR, DISTRICT-
TIKAMGARH M.P. (MADHYA PRADESH)
2. RAKESH YADAV S/O KANCHHEDI YADAY, AGED
ABOUT 29 YEARS, OCCUPATION: VEHICLE DRIVE
AND VEHICLE OWNER R/O VILLAGE BHATGOURA
POLICE STATION JATAR, DISTRICT TIKAMGARH
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANAN AGRAWAL - ADVOCATE FOR RESPONDENT NO.1)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Learned counsel for respondent No.1/claimant submits that he has paid
deficit Court fee in the cross-objections filed by the claimant and in support of
the said submission, he has filed a copy of Online Court Fee Cyber Receipt
along with the application, therefore, the Court fee may be taken on record.
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 7/7/2023
6:44:59 PM
On due consideration, the deficit Court fee is taken on record.
This miscellaneous appeal and cross-objections have been filed by the
Insurance Company and the claimant respectively being aggrieved of award
dated 07/03/2022 passed by learned 2nd Additional Motor Accident Claims
Tribunal, Jatar, Distt. Tikamgarh in MACC No.16/2021.
2. Plea taken by learned counsel for the Insurance Company in the appeal
is to the effect that as per FIR, thresher mounted on a tractor was taken on rent
for harvesting the crops, therefore, there was violation of the terms and
conditions of the insurance policy for which insurance company should have
been exonerated. It is submitted that this FIR was lodged on a written
complaint contained in Ex.P/15 and that too it is mentioned that tractor was
taken on hire, therefore, there being violation of insurance policy as the tractor
was being used for commercial purpose, insurance company should have been
exonerated or at the best, award should be that of pay and recover.
3. Shri Manan Agrawal, learned counsel for respondent No.1/claimant, in
his turn, submits that as per the decision of Hon'ble Supreme Court in the case
o f National Insurance Company Ltd. Vs. Chamundeswari and others,
dated 1st October, 2021 in Civil Appal No.6151/2021 (arising out of SLP
(C) No.4705/2019), it is observed that if any evidence before the Tribunal runs
contrary to the contents in the First Information Report, the evidence which is
recorded before the Tribunal has to be given weightage over the contents of the
First Information Report.
4. It is further submitted that income of the injured claimant has been taken
at Rs.6500/- per month for an accident which took place on 21st March, 2020
whereas minimum wages on that day even for an unskilled labourer were to the
tune of Rs.7950/- per month. It is submitted that future prospects is not taken
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 7/7/2023
6:44:59 PM
into consideration and meager amount has been awarded under the different
heads.
5. Shri Rakesh Jain, learned counsel for the Insurance Company, places
reliance on the judgment of Hon'ble Supreme Court in the case of Oriental
Insurance Company Limited Vs. Premlata Shukla and others, (2007) 13
SCC 476. It is submitted that in the case of Premlata Shukla and others
(supra), Hon'ble Supreme Court has held that proof of contents of document
were parts of the document have been relied on by both the parties, the Claims
Tribunal may rely on the same irrespective of whether the contents of the
document have been proved or not. However, this aspect has been
considered by Hon'ble Supreme Court in its decision in the case of
Chamundeswari and others (supra) and it is held that if the evidence before
the Tribunal runs contrary to the contents in the FIR, the evidence which is
recorded before the Tribunal has to be given weightage over the contents of the
First Information Report. It has also dealt with the decision of Hon'ble
Supreme Court in the case of Premlata Shukla and others (supra) and has
held that proof of rashness and negligence on the part of the driver of the
vehicle is sine qua non for maintaining an application under Section 166 of the
Motor Vehicles Act.
6. After hearing learned counsel for the parties and going through the
record, it is evident that in the cross-examination conducted on the claimant,
there is no suggestion that tractor in question which is insured with the appellant
-Insurance Company was being driven in violation of the terms and conditions
of the policy. Insurance Company had examined Shri Narendra Soni. Shri
Narendra Soni did not utter a word in regard to violation of the terms and
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 7/7/2023
6:44:59 PM
conditions of the insurance policy nor proved that if the tractor is taken on hire,
that amounts to violation of the terms and conditions of the policy. In view of
failure of the Law Officer of the Insurance Company namely Narendra Soni
who deposed and proved the terms and conditions of the policy to show that
there was violation of the terms and conditions of the policy, appeal filed by
insurance company being devoid of merit,deserves to be dismissed and the
same is hereby dismissed.
7. As far as compensation payable in favour of the claimant is concerned,
claimant has lost his right wrist. Doctor certified 50% disability. When income
of the claimant is taken into consideration at Rs.7,950/- per month, then 50% of
it will come out to Rs.3,975/- per month. 40% is to be added towards future
prospects and then looking to the age of the claimant, multiplier of 17 is
applied, it will take total pecuniary compensation to Rs.11,35,260/- against a
sum of Rs.6,63,000/- under the head of loss of earning capacity. Thus, there
will be enhancement to the tune of Rs.4,72,260/- under the head of loss of
earning capacity. Under other heads, if appropriate amount are added, then
total enhancement will come out to Rs.5,00,000/- (Rs.five lakh only) which will
be admissible in favour of the claimant. Thus, claimant will be entitled to a sum
of Rs.5,00,000/- (Rs.five lakh only) in addition to the amount awarded by
learned Claims Tribunal. This additional amount will carry interest @ 6% per
annum from the date of filing of the claim petition till the date of actual
payment.
8. This additional amount shall remain invested in the Monthly Income
Scheme of Indian Post Office for a period of ten years.
9. In above terms, this appeal and cross-objections are disposed of.
10. Record of the Claims Tribunal be sent back immediately.
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 7/7/2023
6:44:59 PM
(VIVEK AGARWAL)
JUDGE
ts
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 7/7/2023
6:44:59 PM
