Madhya Pradesh High Court
Smt. Mamta Kanojiya vs Dashrath Singh 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. AND 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. )
These appeals coming on for admission this day, the court passed the
following:
ORDER
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 the 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
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for condonation of delay in filing the appeal, which is barred by 2512 days was
taken up and it was held that there is no opposition, accordingly the aforesaid
application was allowed.
It is submitted that when no notices were issued then there was no
question of appearance on the part of the respondent no.3 and without issuing
notice to any of the respondents, the 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 even without
issuing any 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.
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 then 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
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be held to be negligent specifically when an appeal filed by the insurance
company is already pending 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 and the delay is
condoned.
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.
By this common order, M.A. No.989/2011 shall also be decided.
Both the miscellaneous appeals have been filed against the award dated
18th of November, 2010 passed by Fifth Motor Accident Claims Tribunal
Bhopal in MCC No.83/2010.
2. 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.
3. It is submitted by counsel for the insurance company that since the
motor cycle of the deceased had dashed the offending tractor from behind,
therefor, it is clear that the driver of the motorcycle was also negligent. The
elder brother of the deceased cannot be treated as dependent on the deceased
and therefore, the total number of dependents were 5 and thus, the Claims
Tribunal should not have taken the personal expenses as 1/5th of the income
and the driver of the offending tractor was not having valid license.
4. The facts of the present case in short are that on 12.03.2009 at about
11:30 pm on Indore-Bhopal Highway, the driver of the offending tractor number
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MP-13-KB-6228 which was attached with a trolley number MP-13-KB-6229
applied the breaks without giving any indication, as a result, the deceased
Rakesh Kanoujiya who was going on the motorcycle dashed with the tractor
and trolley from behind and expired.
5. It is further submitted that two persons were riding on the motorcycle
and two separate claims were filed which have been decided separately by a
separate award but it has not been clarified that who was driving the ill-fated
motorcycle.
6. It is submitted that since the deceased Rakesh Kanoujiya was driving
the motorcycle, therefore, he was equally responsible as he was expected to
maintain a safe distance between on going vehicle.
7. Heard the learned counsel for the parties.
8. It is one of the contention of the counsel for the appellant / insurance
company that 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 Claims Tribunal should have held
to be a case of contributory negligence. If the evidence led by the parties and
the finding recorded by the Claims Tribunal are considered, it is clear that the
offending tractor was going on Indore-Bhopal Highway and when it reached
near Dilip Dhave, the driver of the tractor suddenly applied the breaks without
giving any indication of the same, as a result, the motorcycle dashed from
behind.
9. The accident took place admittedly at about 11:30 pm in the night on
the highway, therefore, there must not be a street light on the road. It was the
primary duty of the driver of the offending tractor and trolley to give some
indication before applying breaks.
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Signed by: JULIE SINGH
Signing time: 3/24/2023
4:46:23 PM
10. The driver of the offending tractor has admitted that the accident took
place at about 11:30 pm. 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 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.
11. Thus, it is clear that there was no light on the rear 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 on
condition, therefore, it is clear that even after applying the sudden breaks, the
rear light 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.
12. Since, the tractor and trolley was being driven without any safety
measures and even the lights provided by the companies were not in functional
condition and there is nothing on record to show that on application of sudden
breaks any light was there to give any alert to the other vehicles, 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 submission made by the counsel for the
appellant is hereby rejected.
13. It is next contended by the counsel for the appellant that the driver of
the tractor and trolley was not having a validly issued driving license and since
the owner of the offending tractor has not appeared, therefore, it is clear that the
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driver of the tractor and trolley has failed to prove the valid driving license.
14. 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.
15. Considered the submissions.
16. The appellant has relied upon a letter written by the District Transport
Officer, Bhind to Section In-charge, Smart-chip 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 In-charge of Smart-chip 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 In-charge of Smart-chip Limited
to produce the details of the driving license of the driver so that information can
be supplied to the Court.
17. 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-2009-0059251 has not been issued from the office. He
further admitted that in case if the entire information is supplied to them only
then he would be in a position to narrate the correct situation regarding the
driving license. This witness on his own has further explained that in this regard
the office of R.T.O had written to the Section In-charge of Smart-chip Limited.
18. He further admitted that he himself 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
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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-
2009-0059251 was 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.
19. Kumresh Singh, the driver of the offending tractor, has specifically
stated that he was having a valid driving license.
20. 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, under the facts and circumstances of the case, the examination of the
owner of the tractor was not necessary.
21. 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 elder brother of the deceased, therefore, he is not dependent and
accordingly, the Claims Tribunal should not have taken the personal expenses
@ 1/5th.
22. Heard the learned counsel for the appellants.
23. As per the judgment passed by the Supreme Court in the case of
National Insurance Company Vs. Pranay Sethi reported in (2017) 16
SCC 680 where the total number of dependent is up to six then the personal
expenses of the deceased ought to be taken as 1/4th and the personal expenses
of the deceased can be taken as 1/5th only when the total number of defendants
is more than six.
24. In the present case, the claim petition was filed by six persons
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including elder brother of the deceased. Elder brother of the deceased cannot
be treated 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
should have taken the personal expenses of the deceased as 1/4th and not 1/5th.
25. Miscellaneous Appeal No.266/2018 has been filed by the claimants
for enhancement of compensation amount.
26. It is submitted by the counsel for the appellants/claimants 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 %.
27. 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
P.H.E. However, the same cannot be a ground to refuse the future prospects to
the claimants. The deceased was working as a Valveman in the P.H.E
Department. It is not the case of the respondents that he was a daily wager and
was not in regular appointment. As per the salary slip Exhibit-D-P/14, it is clear
that the deceased was getting Dearness Allowance, Ad-hoc ADA (Interim
relief), Medical Expenses, House Rent Allowance, Conveyance Allowance
which clearly indicates that the deceased was a permanent employee in the
department of P.H.E. Thus, it is held that the claimants of the deceased are
entitled for future prospects @ 50 %.
28. Accordingly, it is held that the claimants are entitled for compensation
as under:-
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Signed by: JULIE SINGH
Signing time: 3/24/2023
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Compensation
S.No. Head
Amount
1. Monthly Income Rs.8,000/-
Future
2. Prospects @ Rs. 4,000/-
50%
Monthly Income
3. + Future Rs.12,000/-
Prospects
4. Yearly Income Rs.1,44,000/-
Personal
5. Rs.36,000/-
Expenses @ 1/4
Yearly loss of
income (Rs.
6. Rs. 1,08,000/-
1,44,000-
Rs.36,000/-)
7. Multiply @ 16 Rs.17,28,000/-
Funeral
8. Rs.15,000/-
Expenses
9. Loss of Estate Rs.15,000/-
Consortium
10. Rs.2,00,000/-
(Rs.40,000 X 5)
Total
11. Compensation Rs.19,58,000/-
Amount
Compensation
12. Awarded by Rs.12,53,800/-
Tribunal
Compensation
13. Liable to be Rs.7,04,200/-
enhanced
29. Since the appellant has valued the appeal as Rs.1,00,000/-, therefore,
a compensation amount is enhanced by a further amount of Rs.1,00,000/-. The
other conditions of the award shall remain intact.
30. As already held by this Court that since the appeal was filed with the
delay of 2512 days, therefore, it is once again clarified that the
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appellants/claimants shall not be entitled for interest from the date of award till
filing of the appeal i.e. 08.01.2018.
With the aforesaid modification, the appeal stands disposed off.
(G.S. AHLUWALIA)
JUDGE
julie
Signature Not Verified
Signed by: JULIE SINGH
Signing time: 3/24/2023
4:46:23 PM
