Madhya Pradesh High Court
The New India Assurance Company ... vs Kunal Dubey on 16 June, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 16 th OF JUNE, 2023
MISC. APPEAL No. 3190 of 2017
BETWEEN:-
THE NEW INDIA ASSURANCE COMPANY LIMITED THR.
290/C NAPIER TOWN JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI DINESH KAUSHAL - ADVOCATE FOR THE APPELLANT)
AND
1. KUNAL DUBEY S/O SHRI CHANDRAMOHAN
DUBEY, AGED ABOUT 32 YEARS, 89 SHANTI
NIKETAN KATANGA ARAKSHI KENDRA KENT
DISTT. JABALPUR (MADHYA PRADESH)
2. ABDUL SAMAD S/O SHRI ABDUL AHMAD, AGED
ABOUT 60 YEARS, SONIYA COLONEY S BAG
THANA S BAG HAMIDIYA ROAD BHOPAL
(MADHYA PRADESH)
3. MOH. ASIF S/O SHRI MOH. JAKARIYA KHAN
VIKASH COLONEY PART 2 DILKHUSH WARD NO.
38 BHOPAL (MADHYA PRADESH)
4. / UNIVERSAL SHAMPOO GERNEL INSURANCE CO.
LTD. JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI T.S. LAMBA - ADVOCATE FOR RESPONDENT NO.4)
MISC. APPEAL No. 3191 of 2017
BETWEEN:-
THE NEW INDIA ASSURANCE COMPANY LIMITED
Signature Not Verified
SAN
THR. 290/C NAPIER TOWN JABALPUR (MADHYA
Digitally signed by MOHD TABISH KHAN
Date: 2023.06.20 19:23:31 IST PRADESH)
2
.....APPELLANT
(BY SHRI DINESH KAUSHAL - ADVOCATE FOR THE APPELLANT)
AND
1. KUNAL DUBEY S/O SHRI CHANDRAMOHAN
DUBEY, AGED ABOUT 32 YEARS, 89 SHANTI
NIKETAN KATANGA ARAKSHI KENDRA
KENT DISTT. JABALPUR (MADHYA PRADESH)
2. ABDUL SAMAD S/O SHRI ABDUL AHMAD,
AGED ABOUT 60 YEARS, SONIYA COLONEY S
BAG THANA S BAG HAMIDIYA ROAD
BHOPAL (MADHYA PRADESH)
3. MOHD ASHIF S/O SHRI MOH. JAKARIYA
KHAN VIKASH COLONY PART 2 DILKHUSH
WARD NO. 38 BHOPAL (MADHYA PRADESH)
4. / UNIVESAL SHAMPOO GERNL INSURANCE
COL. LTD. DISTT. JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI T.S. LAMBA - ADVOCATE FOR RESPONDENT NO.4)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal is filed by the Insurance company of the Dumper being
aggrieved of award dated 25.09.2017 passed by learned 8th Additional Motor
Accident Claims Tribunal, Jabalpur in Claim Case No.97/2015 and Claim Case
No.257/2015 which are respectively in relation to the deceased wife of the
claimant and in regard to the injuries sustained by the claimant himself.
Two issues have been raised primarily in this appeal, namely, there was
no negligence on the part of the driver of the Dumper and, therefore, award of
compensation is arbitrary and illegal. Secondly, it is submitted that as far as
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deceased wife is concerned, her income is considered at Rs.16,000/- per month
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Date: 2023.06.20 19:23:31 IST
and thereafter 50% future prospect is added which is arbitrary and illegal.
Inasmuch as admittedly, at the time of the accident she was not in employment
and, therefore, 40% future prospect could have been added and not 50%. On
this premise, impugned award is questioned. Similarly in regard to claimant
himself. It is submitted that claimant has been awarded an exemplary high sum,
on some other considerations, other than the merits of the case. For e.g.
doctor certified disability of lower limb, but compensation is paid for injury to
jaw.
It is submitted that once claimant himself admitted that he was working as
an Advocate and was functioning, then there was no justification in granting
unduly high compensation.
As far as, first submission which is common to both the appeals is
concerned in regard to aspect of contributory negligence, that is not borne out
from record. Insurance Company cross-examined eye witness and author of the
FIR, namely, Shri Raj Kumar Rajput, In this cross-examination, no suggestion
was given to him that Car in which deceased was travelling or the claimant was
driving in close proximity by not maintaining a safe distance, or that, there was
no indicator light being used by the driver of the dumper. In fact the cross-
examination in the hands of respondent No.3 is not available. In fact, only
counsel for respondent no.4 i.e. Universal Sompo General Insurance Company
Limited had cross-examined this witness.
At this stage, ShriDinesh Kaushal submits that Shri Ajay Dhagat was in
fact representing respondent No.3, New India Insurance Company.
Cross-examination conducted by Shri Dhagat is as follows :-
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SAN
Digitally signed by MOHD TABISH KHAN
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Date: 2023.06.20 19:23:31 IST
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;g ckr lgh fd MEQj ds czsd yxkus ls vkosnd dh dkj MEQj esa ihNs ls ?kql xbZA ?
kVuk djhc jkr ds 09-00 cts dh gS eq>s MEQj fn[k jgk FkkA iqfyl fjiksVZ esjs }kjk fy[kkbZ xbZ
gSA
It reflects, that there was no suggestion on part of the counsel for the
Insurance Company to point out either the aspect of contributory negligence on
the part of the driver of the Car or there being any lack of due caution in the
hands of the driver of the Car. In fact, in cross-examination of the claimant
Kunal Dubey, Shri Dhagat could extract that Car was being driven at a distance
of 200 meters, as is apparent from para 7 of the cross-examination of the
claimant. Thus, in absence of any material on record to demonstrate that there
was any aspect of contributory negligence, this first ground raised by the
learned counsel for the Insurance Company/Appellant is not borne out from the
record and first ground is hereby rejected.
As far as second ground is concerned, claimants examined one Shri Ram
Ujagar Patel s/o Shri Indrabhan Patel to point out that deceased Richa Dubey
was working in Electrical and Electronics Department of Radha Raman Institute
as a Lecturer. She had applied for leave on 03.07.2013 and thereafter she did
not join back the service. Thus at the time of the accident which took place on
05.07.2014, admittedly, Richa Dubey was not in regular service, therefore,
Tribunal clearly erred in adding 50% towards future prospect in violation of the
ratio of law laid down by Supreme Court in National Insurance Co. Ltd. Vs.
Pranay Sethi [(2017) 16 SCC 680]. As far as, income of the deceased is
concerned that has been computed at Rs.16,000/- per month. Therefore, when
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SAN 40% is added towards the future prospects on the income of the deceased
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Date: 2023.06.20 19:23:31 IST
which is computed at Rs.16,000/- and which cannot be said to be excessive
looking to the fact that was her minimum earning potential looking to her
qualification of B.Tech and M.Tech. in Engineering, total income of the
deceased with future prospects will come out to Rs.22,400/- per month. 1/3rd
is to be deducted towards the living expenses of the deceased and when this is
reduced then net dependency comes out at Rs.14,933/- per month or
Rs.1,79,196/- per annum. Since age of the deceased was 28 years, multiplier of
17 will be applicable, taking total pecuniary compensation to Rs.30,46,332/-.
Over and above which claimant is entitled to a sum of Rs.70,000/-, taking total
compensation to Rs.31,16,332/- against a sum of Rs.33,89,000/- awarded by
learned claims tribunal. Thus, there will be reduction to the tune of
Rs.2,72,668/- (Rupees Two Lacs Seventy Two Thousand Six Hundred and
Sixty Eight) to which Insurance Company will be entitled too and thus
Insurance Company along with the owner driver of the Dumper will be liable to
pay only a sum of Rs.31,16,332/- (Rupees Thirty One Lacs Sixteen Thousand
Three Hundred and Thirty Two) along with 6% interest thereon from the date of
filing of the claim petition.
Thus, in above terms, Miscellaneous Appeal No.3190/2017 is disposed
of.
As far as Miscellaneous Appeal No.3191/2017 is concerned, first issue in
regard to contributory negligence is common and, therefore, it is not being
discussed separately. Same ratio will be applicable to this appeal also.
Tribunal has considered income of the injured at Rs.3,88,290/-, it added
50% towards future prospects overlooking income tax return Ex. P-283,
wherein it is mentioned that income tax to the extent of Rs.17,940/- was paid.
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This reflects that Tribunal was not having fair idea of computation of
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Date: 2023.06.20 19:23:31 IST
compensation and failed to discharge its duties properly. When income tax is
deducted to the extent of Rs.17,940/- then net income will come out to
Rs.3,70,350/-. Future prospects could have been added only to the extent of
40% and not 50%. There is no medical evidence to demonstrate that functional
disability sustained by the claimant was to the extent of 25%.
Dr. Sharad Dwivedi, who was examined mentioned in his evidence that
there was pain in the right knee of the claimant and he was not in a position to
sit in a squatting position It is also mentioned that there were surgical marks on
the right knee of the claimant. 25% disability was computed by concerned
Doctor vide Ex.P-280.
But fact of the matter is that in the light of the judgment of Hon'ble
Supreme Court in Rajkumar Vs. Ajay Kumar and another, )2011) 1 SCC
343 functional disability is to be seen. When this witness and claimant admitted
that he was working in the Court and the Tribunal has discussed it in para 41
that as per the evidence of Dr. Promod Sharma, Kunal Dubey had sustained
fractures in the lower jaw and another fracture in the upper jaw besides loss of
two teeth and fracture of upper zygomatic complex besides fracture of right
knee as certified by Dr. Dwivedi, then it was required to be proved that what
was the extent of functional disability which prevented the claimant to perform
his occupation as an Advocate. Thus, finding recorded by learned Tribunal in
para 42 that an Advocate suffering injury of the Jaws thus total disability can be
considered at 25% is against the disability certificate, Ex.P-20, wherein disability
has been shown in relation to the right leg and there is no mention of disability
on account of the fractures sustained in the Jaw by the claimant.
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Thus, the finding recorded by the learned Claims Tribunal in para 42 of
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the award is perverse. Tribunal could not have travelled beyond the disability
Date: 2023.06.20 19:23:31 IST
certificate issued by the concerned Doctor working in the District Hospital. In
fact, Ex.P-280 is not issued by the District Medical Board but by one of the
doctors Dr. S. Dwivedi, who claims himself to be member of the District
Medical Board. There is a difference between a disability certificate issued by
the District Medical Board and one of the doctors' who happens to be member
of the medical Board. Thus, finding in para 42 being perverse cannot be
sustained. Once disability is certified by the doctor of the lower limb, then
Tribunal was not justified in shifting it from lower limb to jaw and hold that
since claimant is an advocate, his vocation is dependent on his oratoral skills
and, therefore, he would have sustained disability of 25% of the face. Thus,
computing compensation on account of 25% disability in the oral cavity, is
contrary to the law. he has also failed to take into consideration the law laid
down by Supreme Court in Rajkumar Vs. Ajay Kumar (supra). Thus,
claimant is not entitled to any compensation under the head of loss of earning
capacity and to that extent appeal filed by the claimants needs to be allowed and
is hereby allowed.
Thus, it is directed that in place of a sum of Rs.35,66,929/- (Rupees
Thirty Five Lacs Sixty Six Thousand Nine Hundred and Twenty Nine)
claimants will be only entitled to a sum of Rs.12,37,185/- (Rupees Twelve Lacs
Thirty Seven Thousand One Hundred and Eighty Five Only) which has been
awarded by learned claims Tribunal under different heads and will not be
entitled to any amount under the head of loss of earning capacity and to this
extent appeal filed by the Insurance Company is allowed. This amount of
Rs.12,37,185/- (Rupees Twelve Lacs Thirty Seven Thousand One Hundred and
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Eighty Five Only) will earn interest @ 6% as has been awarded by learned
Digitally signed by MOHD TABISH KHAN
Date: 2023.06.20 19:23:31 IST
Claims Tribunal.
Other terms and conditions of the award shall remain intact.
In above terms, both these appeals are disposed of.
(VIVEK AGARWAL)
JUDGE
Tabish,
,
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Digitally signed by MOHD TABISH KHAN
Date: 2023.06.20 19:23:31 IST
