The Oriental Insurance Company ... vs Smt. Anjali Agrawal
2023 Latest Caselaw 5010 MP

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     IN THE HIGH COURT OF MADHYA PRADESH
                 AT G WA L I O R
                    BEFORE
       HON'BLE SHRI JUSTICE ROHIT ARYA

           MISC. APPEAL No. 5172 of 2022

BETWEEN:-
THE ORIENTAL INSURANCE COMPANY LTD.
DIVISIONAL OFFICE: ABOVE HOTEL AMAR
PALACE, PHOOL BAGH CHAURAHA, GWALIOR
(MADHYA PRADESH) THROUGH MANAGER-
INCHARGE TP HUB GWALIOR
                                   .....APPELLANT
(SHRI NIRENDRA SINGH TOMAR-ADVOCATE FOR
THE APPELLANT)

AND
1.    SMT. ANJALI AGRAWAL W/O LATE SHRI
      PAWAN     KUMAR, AGE:  32  YEARS,
      OCCUPATION: NONE (AS PER CLAIM
      PETITION)
2.    YASHU AGRAWAL D/O LATE SHRI PAWAN
      AGRAWAL, AGE: 8 YEARS (MINOR)
3.    ABANI @ AVANI AGRAWAL D/O LATE SHRI
      PAWAN AGRAWAL, AGE 4 YEARS (MINOR)

      RESPONDENTS NO.2 AND 3 BOTH MINORS
      THROUGH THEIR NATURAL GUARDIAN SMT.
      ANJALI AGRAWAL W/O LATE SHRI PAWAN
      KUMAR
                                         2

4.      SMT. CHANDRAKALA MANGAL W/O SHRI
        PURUSHOTTAM MANGAL, AGE: 61 YEARS,
        OCCUPATION- NONE (AS PER CLAIM
        PETITION)
5.      PARSHOTTAM       DAS     MANGAL @
        PURUSHOTTAM S/O LATE SHRI RAMJIDAS
        MANGAL, AGE: 67 YEARS, OCCUPATION-
        NONE (AS PER CLAIM PETITION)

        RESPONDENTS NO. 1 TO 5 ALL RESIDENTS
        OF MAHAVEER COMPLEX, KILA ROAD,
        GWALIOR (MADHAYA PRADESH)

6.      HARENDRA S/O NARAYAN SINGH R/O
        VILLAGE PADAMPUR KHERIYA, MORAR,
        DISTRICT GWALIOR (MADHYA PRADESH)
        (OWNER OF CAR NO. MP07 CH 2132)
7.      NARENDRA YADAV S/O SHRI GOVIND YADAV
        R/O 87 GOSPURA NO.1, GWALIOR, DISTRICT
        GWALIOR (MADHYA PRADESH) (DRIVER OF
        CAR NO. MP07 CH 2132)
                                                    RESPONDENTS
SMT. MEENA SINGHAL-ADVOCATE                                FOR THE
RESPONDENTS/CLAIMANTS.


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                     Reserved on : 13.03.2023
                   Pronounced on : 28.03.2023
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       This appeal having been heard and reserved for
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orders, coming on for pronouncement this day, Hon'ble
Shri Justice Rohit Arya pronounced the following :

                           ORDER

This appeal by the Insurance Company is directed against the Award dated 22.04.2022 passed by the Member, XV Motor Accident Claims Tribunal, Gwalior (M.P.) in MACC/708/2020.

(2) Facts necessary, for disposal of the instant appeal, are in narrow compass. On 18.06.2020, deceased Pavan Agrawal along with his friend Rahul was coming to his home situated at Mahaveer Complex, Kila Gate, from Mela Ground, Gola Ka Mandir by Motorcycle bearing No. MP07/MZ/7578. At about three in the afternoon, as soon as the motorcycle reached in front of the gate of J.C. Mill at that time respondent No.7 (Non-claimant No.2 before the Tribunal) drove the offending car rashly and negligently and hit the deceased from behind, due to which he severely got injured; his friend Rahul also sustained injuries. Passersby at the scene of incident got them to Civil Hospital, Gwalior wherefrom they were referred to J.A. Hospital, Gwalior where at about 11 pm doctor declared Pavan Agrawal to be dead. FIR was registered. Accordingly, the instant Claim Case was submitted. (3) Shri Tomar, learned counsel appearing on behalf of the

appellant/Insurance Company, while taking exception to the impugned award, submits that the Tribunal has fallen in error while assessing the income of the deceased at Rs.3,71,211/- on the basis of Income Tax return, as per Ex.P-34 for the purpose of reckoning the dependency of the claimants. It is next contended by learned counsel for the appellant/company that the Tribunal has also erred in holding that the age of the deceased has been proved as 38 years and thereby applied the incorrect multiplier contrary to the view taken by Hon'ble the Supreme Court in the case of Sarla Verma (Smt.) and others Vs. Delhi Transport Corporation and another [(2009) 6 SCC 121]. It is further submitted that the amount awarded towards conventional heads is also on higher side. It is further submitted that the claimants are not entitled to the interest on future prospects. In all, learned counsel for the appellant/Insurance Company submits that the compensation amount assessed by the Tribunal under award is on higher side which needs to be reduced by allowing the instant appeal. (4) Per contra, Smt. Meena Singhal, learned counsel appearing on behalf of the respondents/claimants, while combating the objections, submits that the Tribunal has rightly applied the multiplier of 15 considering the age of the deceased and the family in penury as his wife, who was hardly 32 years' of age, along with two children and parents had

suffered due to the sad demise of her husband. (5) Upon hearing learned counsel for the parties and on perusal of the record, it is clear that the evidence pertaining to the income of the deceased has been unrebutted as per para 17 of the impugned award which is supported by the evidence of Income Tax Officer-Mr. Sunny Bhargava. This Court does not find any illegality or perversity in the approach of learned Tribunal while taking the income tax return of 2016-17 for assessing the income of the deceased, inasmuch as under the provisions of Motor Vehicles Act, the only embargo is determination of just and fair compensation and in an appropriate case even more than the compensation claimed can be awarded [Ningamma Vs. United India Insurance Co. Ltd. reported in 2009 ACJ 2020 (SC), referred to]. In the instant case, the Tribunal has taken the return on the higher side for assessing the income of the deceased which in no way can be said to be unjust or unfair as the deceased being a businessman could always touch that threshold again and it cannot be said that the said assessment of income was arbitrary, fanciful, unjustifiable or de hors the evidence on record and admittedly, there is no breach of policy conditions. Hence, no exception could be taken thereto.

Record further reveals that though claim petition, Ex.P- 1 to P-15 and the PM Report Ex.P-4 and P-5 depict the age of

the deceased to be 40 years, however, the Tribunal found, on the basis of the Death Certificate, the age of the deceased to be 38 years at the time of accident (Para 19) and thus it was in between 36 to 40 group applied correct multiplier of 15 as per judgment rendered by Hon'ble Supreme Court in the case of Sarla Verma (Smt.) (supra). Tribunal has also not erred in applying the principles laid down by Hon'ble the Apex Court in the case of "National Insurance Company Limited Vs. Pranay Sethi and others [(2017) 16 SCC 680]" on the basis of which it assessed the future prospects at 40% (Para 22), since the deceased being below the age of 40 years and self- employed. Lastly, the amount towards conventional heads (Para 21) is also not found to have been awarded on higher side.

That apart, the deceased passed away leaving behind the entire family in harness with no earning member in the family; widow was 32 years' of age with two small children and parents and hence, this Court does not intend to interfere in the impugned award as it is just and fair. (6) Consequently, present appeal fails and is hereby dismissed.

(Rohit Arya) Judge pd PAWAN Digitally signed by PAWAN DHARKAR DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001,

DHARK st=Madhya Pradesh, 2.5.4.20=5da1b3ce5c6aee672b1f51a5cff 5661c113046ab7ebb8031c36dcac4472c 040a, pseudonym=22FE9CB9F7CF0345E7FFAC

AR 9031E38DF6A29B4C10, serialNumber=C72B9531562BC6028F5D 6E42E82477C85878470B30E4A7672CCA 523E83C0BCB9, cn=PAWAN DHARKAR Date: 2023.03.28 19:39:50 +05'30'