Madhya Pradesh High Court

The New India Assurance Co.Ltd. vs Rajmal Kanojiya on 21 March, 2023

Author: Gurpal Singh Ahluwalia

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 21 st OF MARCH, 2023
MISC. APPEAL No. 266 of 2018

BETWEEN:-
1. SMT. MAMTA KANOJIYA W/O LATE RAKESH
KUMAR KANOJIYA, AGED ABOUT 32 YEARS,
JAYANTI COLONY SAIKRA KHEDI ROAD DISTT.
SEHORE (MADHYA PRADESH)

2. KU. SHIVANI KANOJIYA D/O LATE RAKESH
KUMAR KANOJIYA, AGED ABOUT 12 YEARS,
OCCUPATION: MINOR THROUGH NATURAL
GRADIENT MOHTE SMT. MAMTA KANOJIYA
JAYANTI COLONY SAIKRA KHEDI ROAD DISTT.
SEHORE (MADHYA PRADESH)

3. KU. ASHWINI KANOJIYA D/O LATE RAKESH
KUMAR KANOJIYA, AGED ABOUT 10 YEARS,
OCCUPATION: MINOR THROUGH NATURAL
GRADIENT MOHTE SMT. MAMTA KANOJIYA
JAYANTI COLONY SAIKRA KHEDI ROAD DISTT.
SEHORE (MADHYA PRADESH)

4. MA. SHREYANSH KANOJIYA S/O LATE RAKESH
KUMAR KANOJIYA, AGED ABOUT 8 YEARS,
OCCUPATION: MINOR THROUGH NATURAL
GRADIENT MOHTE SMT. MAMTA KANOJIYA
JAYANTI COLONY SAIKRA KHEDI ROAD DISTT.
SEHORE (MADHYA PRADESH)

5. SACHIN KANOJIYA S/O LATE RAJMAL KANOJIYA,
AGED ABOUT 23 YEARS, OCCUPATION: MINOR
THROUGH NATURAL GRADIENT MOHTE SMT.
MAMTA KANOJIYA JAYANTI COLONY SAIKRA
KHEDI ROAD DISTT. SEHORE (MADHYA
PRADESH)

6. RAJMAL KANOJIYA S/O LATE BALRAM
KANOKIYA, AGED ABOUT 60 YEARS, VILLAGE
FANDA, TEH. HUUR BHOPAL (MADHYA PRADESH)

.....APPELLANTS
Signature Not Verified
Signed by: JULIE SINGH
Signing time: 3/24/2023
4:46:23 PM
2
(BY MR. NITIN KUMAR GUPTA - ADVOCATE)

AND
1. DASHRATH SINGH S/O NANNU LAL JI VILLAGE
KOTHARI TEH. KALAPIPAL DISTT. SHAJAPUR
(MADHYA PRADESH)

2. KUMER SINGH S/O NARAYAN SINGH VILALGE
POCHANER PS AWATIPUR BADODIYA TEH.
SHUJALPUR PRESENT R/O SAHEED NAGAR,
INFRONT OF KOHEFIZA THANA BHOPAL
(MADHYA PRADESH)

3. NEW INDIA INSURANCE COL LTD. THROUGH
DIVISIONAL MANAGER DIVISONAL OFFICE NO. 1
PARYAWAS BHAWAN ARERA HILLS (MADHYA
PRADESH)

.....RESPONDENTS
(BY MR. R.K. JAIN - ADVOCATE FOR RESPONDENT NO.3. NONE FOR
RESPONDENT NOS.1AND 2)

MISC. APPEAL No. 989 of 2011

BETWEEN:-
THE NEW INDIA ASSURANCE CO.LTD. THROUGH :
DIVISIONAL MANAGER DIVISIONAL OFFICE NO 1
PARYAVAS BHAWAN ARERA HILLS BHOPAL (MADHYA
PRADESH)

.....APPELLANT
(BY MR. DINESH KOSHAL - ADVOCATE)

AND
1. RAJMAL KANOJIYA S/O LATE BALRAM
KANOJIYA, AGED ABOUT 60 YEARS, VILL FANDA
TEH HUZUR DISTT BHOPAL (MADHYA PRADESH)

2. SMT. MAMTA KANOJIYA W/O LATE RAKESH
KUMAR KANOJIYA JAYANTI COLONY SAIKRA
KHEDI ROAD SEHORE (MADHYA PRADESH)

3. KU. SHIVANI KANOJIYA D/O LATE RAKESH
KUMAR KANOJIYA OCCUPATION: THRO.
NATURAL GU. SMT. MAMTA KANOJIYA JAYANTI
COLONY SAIKRA KHEDI ROAD SEHORE
(MADHYA PRADESH)
Signature Not Verified
Signed by: JULIE SINGH
Signing time: 3/24/2023
4:46:23 PM
3
4. KU. SHIVANI KANOJIYA D/O LATE RAKESH
KUMAR KANOJIYA OCCUPATION: THRO.
NATURAL GU. SMT. MAMTA KANOJIYA JAYANTI
COLONY SAIKRA KHEDI ROAD SEHORE
(MADHYA PRADESH)

5. MA SHREYANSH KANOJIYA S/O LATE RAKESH
KANOJIYA OCCUPATION: THRO. NATRUAL GUA.
SMT. MAMTA KANOJIYA JAYANTI COLONY
SAIKRA KHEDI ROAD SEHORE (MADHYA
PRADESH)

6. SACHIN KANOJIYA S/O RAJMAL KANOJIYA
JAYANTI COLONY SAIKRA KHEDI ROAD SEHORE
(MADHYA PRADESH)

7. DASHRATH SINGH S/O NANOO LAL JI VIL.
KOTHARI TEH. KALAPIPAL DISTT. SAJAPUR
(MADHYA PRADESH)

8. KUMAR SINGH S/O NARAYAN SINGH VILL.
POCHANER P.S. AWASTIPUR BADODIYA TEH.
SHUJALPUR DISTT. SAJAPUR (MADHYA
PRADESH)

.....RESPONDENTS
(BY MR. NITIN KUMAR GUPTA - ADVOCATE FOR RESPONDENT NOS.2
AND 6. )

This appeal coming on for admission this day, th e court passed the
following:
ORDER

In M.A. No.266/2018...

By order dated 16.03.2018, service of notice to respondent nos.1 and 2 was dispensed with.

I.A. No.6617/2022 has been filed for recall of order dated 16.03.2018 by which, the delay in filing the present appeal was condoned.

By referring to order dated 16.01.2018, it is submitted by the counsel for the respondent no.3 that on the said date, the case was adjourned and thereafter, it was taken up on 16.03.2018 and I.A. No.423/2018 an application Signature Not Verified Signed by: JULIE SINGH Signing time: 3/24/2023 4:46:23 PM

for condonation of delay in filing the appeal which is barred by 2512 days was taken up and it was held that in absence of no opposition, the aforesaid application was allowed. It is submitted that when notices were issued then, therefore, there was no question of appearance on the part of the respondent no.3 and without issuing a notice to any of the respondents, delay in filing the appeal was condoned and therefore, the order dated 16.03.2018 so far as it relates to condonation of delay may be recalled and the respondent no.3 may be heard on the question of condonation of delay.

Considering the fact that I.A. No.423/2018 was allowed without even issuing notice to the respondents. Therefore, the same is recalled.

Accordingly, the counsel for the appellants as well as the respondent no.3 are heard on I.A. No.423/2018.

Although, in the application, it is mentioned that the appellants were not aware of the period of limitation as they were not informed by their counsel. However, it is submitted by the counsel for the respondent no.3 that once the appellants had appeared in the connected appeal filed by the insurance company, therefore, they were already in touch with their counsel and if the counsel did not inform them about the period of limitation when the same cannot be said to be a sufficient cause.

Heard the learned counsel for the parties on the question of condonation of delay.

Undisputedly, M.A. No.989/2011 has been filed by the insurance company against the award in question. Thus, the award in question is already a subject matter of appeal. If the counsel did not rise to the occasion and did not inform the claimants about their right to file an appeal then the claimants cannot be held to be negligent specifically when an appeal filed by the insurance Signature Not Verified Signed by: JULIE SINGH Signing time: 3/24/2023 4:46:23 PM

company is already filed against the impugned award.

Under these circumstances, this Court is of the considered opinion that the delay of 2512 days in filing the appeal is liable to be condoned.

Accordingly, I.A. No.423/2018 is hereby allowed. However, it is made clear that since the appeal was filed after 2512 days of the award. Therefore, the appellants shall not be entitled for interest which would have accrued during this period.

M.A. No.989/2011...

By this common order, M.A. No.266/2018 shall be decided. Both the miscellaneous appeal have been filed against the award dated 18th of November, 2010 passed by Fifth Motor Accident Claims Tribunal Bhopal in MCC No.83/2010.

M.A. No.989/2011 has been filed by the insurance company whereas M.A. No.266/2018 has been filed by the claimants for enhancement of compensation amount.

It is submitted by counsel for the insurance company that since the vehicle had dashed the offending tractor from behind, therefor, it is clear that the driver of the vehicle was also negligence. The elder brother of the deceased cannot be treated as dependent on the deceased and therefore, the total number of dependents are 5 and thus, the Claims Tribunal should not have taken the personal expenses as 1/5 of the income and the driver of the offending tractor was not having valid license.

The facts of the present case in short are that on 12.03.2009 at about 11:13 on Indore Bhopal Highway, the driver of the offending tractor number MP-13-KB-6228 which was attached with a trolley number MP-13-KB-6229

Signature Not Verified Signed by: JULIE SINGH Signing time: 3/24/2023 4:46:23 PM

applied the breaks without giving any indication as a result, the deceased was going in the motorcycle dashed with the tractor and trolley from behind as a result Rakesh Kanoujiya expired.

It is submitted that two persons were riding on the motorcycle and two separate claims were filed which have been decided separately by a separate awards but it has not been clarified that who was driving the Enfield Motorcyle..

It is submitted that since the deceased Rakesh Kanoujiya was driving the motorcycle, therefore, he was equally responsible because he is expected to maintain a safe distance between the on going/all going vehicle.

Heard the learned counsel for the parties.

It is one of the contention of the counsel for the appellants for insurance company since the driver of the motorcycle did not maintain a safe distance between the motorcycle as well as the ongoing offending tractor and trolley, therefore, he was also negligent and thus, the insurer should have been held to be a case of contributory negligence and thus, the evidence led by the parties

and the finding recorded by the Claims Tribunal had considered and it is clear that the offending tractor was going on Indore-Bhopal Highway and when it reached near Dilen Dhaba, the driver of the tractor suddenly applied the breaks without any giving any indication of the same as a result, the motorcycle dashed from behind. The accident took place at about 11:30, the driver and the owner of the tractor has not appeared before the Tribunal to show that the driver was not negligent in driving the vehicle or the motorcycle was not moving at a safe distance. The accident took place admittedly at about 11:30 in the night on a highway, therefore, there must not be a street light on the road. If the driver of the offending tractor suddenly applied the breaks without giving any indication, .......para-9 of award.....

Signature Not Verified Signed by: JULIE SINGH Signing time: 3/24/2023 4:46:23 PM

The driver of the offending tractor has admitted that the accident took place at about 11:30. In his cross-examination, he has specifically stated that there was no light on the trolley. He specifically admitted that even no light in the form of torch was attached on the rare/rear side of the trolley. He admitted that there was no light on the rear side of the trolley and only because of that the motorcycle had collided with the trolley from behind. Thus, it is clear that the tractor and trolley had no light on the rare side of the trolley and no torch or etc. was affixed by the driver of the tractor and trolley for the safety of the other vehicles.

Since, the light on the trolley was not in all condition, thus, it is clear that even after applying the sudden breaks the prek prides (1:13:55) of the trolleys must not have switched on automatically. Thus, the driver of the motorcycle had no occasion to notice that the driver of the trolley has applied the sudden breaks.

Since, the tractor and trolley was being driver without any safety measures and even the lights provided by the companies were not in a functional condition and there is nothing more record that on application of sudden break any light was there to give any alert to the vehicle, this Court is of the considered opinion that the Claims Tribunal did not commit any mistake by holding that the driver of the offending tractor was responsible for the accident and there was no contributory negligence on the part of the driver of the motorcycle. Accordingly, the first submissions made by the counsel for the appellants is hereby rejected.

It is next contended by the counsel for the appellants that the driver of the tractor and trolley was not having a validly issued license and since the

Signature Not Verified Signed by: JULIE SINGH Signing time: 3/24/2023 4:46:23 PM

owner of the offending tractor has not appeared, therefore, it is clear that the driver of the tractor and trolley has failed to prove the valid driving license.

It is further submitted that the insurance company had examined Harish Arya (D.W-1) to show that the driver of the offending vehicle was not having validly issued driving license.

Considered the submissions. The appellants have relied upon a letter written by District Transport Officer Bhind to Section Incharge, Sportship Limited dated 04.11.2010. In the said letter, it is mentioned that the Court has directed to produce the original record of driving license number MP-30-R- 2009-0059251 dated 12.11.2010. However, the Section Incharge of Sportship Limited, District-Bhind has informed that according to the record of the year 2009-2010, the said driving license was not found to have been issued accordingly, the District Transport Officer, District-Bhind had directed the Section Incharge of Smartchip Limited to produce the detaince of the driving license of the driver so that information can he supply to the Court.

Harish Arya (D.W-1) has been examined to prove the aforesaid letter written by District Transport Officer Bhind. In cross-examination, this witness has admitted that it is true that it is not specifically mentioned that the driving license number MP-30-R-2009-2259251has not been issued from the office. He further admitted that in case if the entire information is supplied to them only then, there he would in a position to narrate the correct situation regarding the driving license. This witness on his own has further explained that in this regard that the office of R.T.O had written to the Section Incharge of Smartchip.

He further admitted that he is also not ready to accept that the driving license number MP-30-R-2009-0059251 was not issued from the Office of R.T.O. He further admitted that he has not brought the license register of the Signature Not Verified Signed by: JULIE SINGH Signing time: 3/24/2023 4:46:23 PM

month of November, 2009. Thus, it is clear that the R.T.O. Bhind did not produce the original record to prove that the driving license number MP-30-R- 2009-0059251was never issued from the office.

On the contrary, Harish Arya (D.W-1) has accepted that even he is not ready to accept that the license was not issued from his office.

Kumresh Singh, the driver of the offending tractor has specifically stated that he was having a valid driving license.

Under these circumstances, it is held that the Claims Tribunal did not commit any mistake by holding that the driver of the offending tractor was holding valid driving license. Since, the driver of the offending tractor was examined, therefore, under the facts and circumstances of the case, the examination of the owner of the tractor was not necessary.

The next contention of the counsel for the appellant is that although, the claim petition was filed by six claimants but the appellant no.6/respondent no.6 is the major brother of the deceased, therefore, he is not dependent and accordingly, the Claims Tribunal should not have taken the personal expenses @ 1/5.

Heard the learned counsel for the appellants.

As per the judgment passed by the Supreme Court in the case of National Insurance Company Vs. Kunal Sethi reported in (2017) that the total number of dependent is upto six then the personal expenses of the deceased ought to be taken as 1/4 and the personal expenses of the deceased can be taken as 1/5 only when the total number of defendants is more than six.

In the present case, the claim petition was filed by six persons including major brother of the deceased. Major brother of the deceased cannot be treated

Signature Not Verified Signed by: JULIE SINGH Signing time: 3/24/2023 4:46:23 PM

to be dependent on the deceased. Thus, the claimant nos.1 to 5, who are widow and children of the deceased are entitled for compensation amount. Since the total number of dependents were five, therefore, the Claims Tribunal taken the personal expenses of the deceased as 1/4 and not 1/5.

M.A. No.266/2018.

This miscellaneous appeal has been filed by the claimants for enhancement of compensation amount. It is submitted by the counsel for the appellants that the Claims Tribunal has not taken the future prospects into consideration. The deceased was a government employee, therefore, the claimants are entitled for future prospects @ 50 %.

Since, the age of the deceased was 35, therefore, the claimants are entitled for future prospects @ 50 %. The Claims Tribunal has refused to grant future prospects on the ground that the claimants have failed to produce any document to show that the deceased was in the permanent employment of PHE. However, the same cannot be a ground to refuse the future prospects to the claimants. The deceased was working as a Wall Woman in the PHE Department. It is not the case of the respondents that he was a daily wager and was not on regular appointment. As per the salary slip Exhibit-D-P/14, it is clear that

(G.S. AHLUWALIA) JUDGE julie

Signature Not Verified Signed by: JULIE SINGH Signing time: 3/24/2023 4:46:23 PM