Madhya Pradesh High Court

Smt. Sandhya Yadav vs Sikandar on 27 July, 2023

Author: Sunita Yadav

IN THE HIGH COURT OF MADHYA PRADESH

AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV

MISC. APPEAL No. 3599 of 2022

BETWEEN:-
SMT. SANDHYA YADAV S/O LATE SHRI ARVIND
YADAV, AGED ABOUT 24 YEARS, OCCUPATION:
1.
HOUSEHOLD WARD NO 3 INDIRA COLONY
JAGATPUR P.S. KOLARAS (MADHYA PRADESH)
DEVANSH (MINOR) THROUGH NATURAL
GUARDIAN MOTHER SMT SANDHYA YADAV S/O
2. LATE SHRI ARVIND YADAV, AGED ABOUT 3 YEARS,
WARD NO. 3, INDIRA COLONY JAGATPUR, POLICE
STATION KOLARAS, SHIVPURI (MADHYA PRADESH)
INDRA SINGH @ INDRASEN YADAV S/O LATE SHRI
ANOO SINGH YADAV, AGED ABOUT 54 YEARS,
3. WARD NO. 3, INDIRA COLONY JAGATPUR, POLICE
STATION KOLARAS, SHIVPURI (MADHYA
PRADESH)
SMT NATHIA BAI W/O INDRASEN YADAV, AGED
ABOUT 53 YEARS, WARD NO. 3, INDIRA COLONY
4.
JAGATPUR, POLICE STATION KOLARAS, SHIVPURI
(MADHYA PRADESH)
.....APPELLANTS
(BY MR. AKSHAT KUMAR JAIN - ADVOCATE)

AND
SIKANDAR S/O SHRI SHABBEER, AGED ABOUT 37
YEARS, OCCUPATION: DRIVER TRUCK VILLAGE
1.
HATHIPALKI TEHSIL NAGDA BIRLA GRAM DISTT.
UJJAIN (MADHYA PRADESH)
UMESH GARG S/O SHRI RAJENDRA PRASAD GARG
OCCUPATION: OWNER TRUCK MP 09 HG 6939 R/O 5
2. MIG, HOUSING BOAD COLONY, NAGDA UJJAIN AND
ADDRESS NO. 2 AS SHIVALIK APARTMENT MIG
COLONY, INDORE (MADHYA PRADESH)
3. MANAGER NATIONAL INSURANCE COMPANY
LIMITED ARERA OFFICE, HAJISANNU MARKET,

Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 27-Jul-23
5:05:44 PM
2

DISTRICT SHIVPURI (MADHYA PRADESH)
.....RESPONDENTS
(MR. BADRI NATH MALHOTRA - ADVOCATE FOR
RESPONDENT NO. 3 - INSURANCE COMPANY)
------------------------------------------------------------------------------------------------------
Reserved on : 17.07.2023

----------------------------------------------------------------------------------------

Whether approved for reporting :

JUDGMENT

(Passed on 27.07.2023)

Present miscellaneous appeal has been filed against the award dated

28.2.2022 passed by Member, Motor Accident Claims Tribunal, District

Shivpuri (M.P.) in Motor Accident Claim Case No. 338/2019.

2. The facts in brief to decide the present appeal in short are that the

appellants - claimants filed a claim petition before learned claims tribunal

for grant of compensation on account of death of deceased Arvind Yadav in

a road traffic accident occurred on 28.6.2019 involving Truck bearing

Registration No. MP09/HG-6939.

3. Respondents No. 1 and 2 - Driver and Owner of the offending

vehicle respectively did not appear before the learned claims tribunal and

were proceeded ex-parte.

4. Respondent No. 3 - insurance company filed its written statement

Signature Not Verified Signed by: ALOK KUMAR Signing time: 27-Jul-23 5:05:44 PM

and denied the averments made in the claim petition and further stated that

driver of the offending vehicle did not have valid driving license at the

time of accident and the offending vehicle was being plied without any

valid fitness certificate and permit. Therefore, the insurance company is

not liable to pay the compensation.

5. Learned claims tribunal framed issues and after hearing both the

parties on merits and recording their evidence partially allowed the claim

petition of the appellants and awarded compensation to the tune of

Rs.13,23,928/- which was directed to be paid by respondents jointly and

severely.

6. Learned counsel for the appellants argued that learned claims

tribunal has erred in not considering certificate Ex.P-10 even though it has

not been contradicted by the insurance company and assessed the income

of the deceased on the lesser side. Learned claims tribunal has also erred in

holding that father of the deceased was not dependent upon him and,

therefore, wrongly calculated the dependency. Hence, prayed that present

appeal be allowed and just and proper compensation be granted.

7. On the other hand, learned counsel for the insurance company

opposed the prayer of the appellants and argued that learned claims

tribunal has rightly passed the award and no interference is warranted in

Signature Not Verified Signed by: ALOK KUMAR Signing time: 27-Jul-23 5:05:44 PM

the same.

8. Heard learned counsel for the rival parties and perused the available

record.

9. So far as submission of learned counsel for the appellants that as

certificate Ex.P-10 has not been contradicted by the insurance company,

the same should have been believed upon by learned claims tribunal is

concerned, the same is not acceptable because the certificate cannot be

relied upon only on the basis of not being rebutted by the opposite party. It

is the duty of the party / claimants to prove the document / certificate and

facts mentioned therein. In this case, claimants have failed to examine the

person who had issued certificate Ex.P-10 despite multiple opportunities

were given to produce the witness. Claimants have also failed to file

supporting documents in corroboration of income mentioned in the

certificate. Under these circumstances, learned claims tribunal has rightly

disbelieved certificate Ex.P-10 in which the monthly salary of the deceased

was mentioned as Rs.12,500/- per month.

10. In this case, learned claims tribunal has observed that father of the

deceased cannot be held dependent upon him unless the same is proved by

evidence. The claimants in their evidence have categorically stated that

father of the deceased / appellant No. 3 was dependent upon him and is not

Signature Not Verified Signed by: ALOK KUMAR Signing time: 27-Jul-23 5:05:44 PM

having his own income. The said fact has not been contradicted by the

respondents, therefore, in the present case, on the basis of evidence

adduced, father of the deceased / appellant No. 3 is found to be dependent

upon the deceased.

11. Learned counsel for the insurance company also submitted that the

father of the deceased is not the legal heir of the deceased as per schedule 1

of Hindu law, therefore, he is not entitled to get compensation. However,

the above argument is not acceptable because the Apex Court in the case of

Chandra & Ors. vs. Mukesh Kumar & Ors.; (2021) 6 ALT 116 held that

the parents can be treated as dependent being legal representatives. Section

2 (11) of CPC which defines "legal representatives" includes heirs as well

as persons who represent the estate. Therefore, father of the deceased being

legal representative is also entitled for compensation.

12. So far as age of the deceased at the time of accident is concerned,

learned claims tribunal has rightly held the age of the deceased to be 26

years in view of the postmortem report.

13. Learned claims tribunal also rightly held the income of the deceased

@ Rs.5856/- per month on the basis of evidence adduced before it.

14. Learned counsel for the insurance company argued that learned

claims tribunal has wrongly awarded separate compensation under the

Signature Not Verified Signed by: ALOK KUMAR Signing time: 27-Jul-23 5:05:44 PM

heads of "spousal consortium", "parental consortium" and "filial

consortium" which is against the judgment passed by the Supreme Court in

the case of National Insurance Company vs. Pranay Sethi & Ors.; 2017

ACJ 2700.

15. On the other hand, learned counsel for the appellants argued that in

view of the case law of Magma General Insurance Company Ltd. vs.

Nanu Ram @ Chuhru Ram & Ors.; 2018 (4) TAC 345, learned claims

tribunal has rightly awarded separate compensation under the heads of

"spousal consortium", "parental consortium" and "filial consortium".

16. The Division Bench of the Supreme Court in the case of Shri Ram

General Insurance Co. Ltd. vs. Bhagat Singh Rawat & Ors.; 2023 (2)

TAC 713 (SC), in which case of Magma General Insurance Company Ltd.

(supra) was referred, discussed the above issue and held as under:-

"6. We are, however, of the view that the total amount has to be assigned under a particular heading and that will go depending on the number of legal heirs present."

......

8. Having said so, learned Counsel for the respondent points out that this amount so determined by us is liable to be enhances by a percentage of 10 per cent every three years as opined in para 61 (viii) of the judgment in Pranay Sethi's case (supra) which reads as under:

"61(viii) Reasonable figures on conventional heads, namely, loss of estate, loss of consortium and funeral expenses

Signature Not Verified Signed by: ALOK KUMAR Signing time: 27-Jul-23 5:05:44 PM

should be Rs.15,000/- Rs.40,000/- and Rs.15,000/- respectively. The aforesaid amounts should be enhanced at the rate of 10% in every three years."

17. In view of the aforesaid discussion as well as in the light of the case

laws of Pranay Sethi (supra) as well as Bhagat Singh Rawat (supra),

considering the annual income of the deceased to be Rs.70,272/-,

dependency 3/4th (Rs.70272x3/4=52704), future prospect @ 40% (52704

x 40/100=21081), multiplier of 17 [(52704+21081) x 17=Rs.12,54,345/-)

and Rs.70,000/- in other heads, total compensation amount comes to

Rs.13,24,345/-.

18. As such, the total amount awarded to the claimants is enhanced from

Rs.13,23,928/- to Rs.13,24,345/-. The enhanced amount comes to

Rs.417/- (Rupees Four Hundred and Seventeen only), with interest at

the rate as fixed by the tribunal in the award which is directed to be paid to

the claimants by the insurance company in the same apportionment as

directed by the claims tribunal. The enhanced amount of compensation

Rs.417/- shall be payable to the claimants within 12 weeks from the date of

production of a certified copy of this order. Rest of the award impugned

passed by the Tribunal shall remain intact.

19. If the enhanced amount of compensation is in excess to the valuation

of appeal, the difference of the Court fee (if not already paid) shall be

Signature Not Verified Signed by: ALOK KUMAR Signing time: 27-Jul-23 5:05:44 PM