United India Insurance Company ... vs Smt.Madhu Alias Manorama Tiwari
2023 Latest Caselaw 7012 MP

                                                      1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT GWALIOR
                                                    BEFORE
                                       HON'BLE SMT. JUSTICE SUNITA YADAV
                                              ON THE 1 st OF MAY, 2023
                                            MISC. APPEAL No. 761 of 2006

                          BETWEEN:-
                          UNITED INDIA INSURANCE COMPANY LIMITED,
                          DIVISIONAL OFFICE AT CENTRE POINT, COMPLEX,
                          M.L.B.ROAD, PHOOLBAGH, DISTT.GWALIOR (MADHYA
                          PRADESH)

                                                                             .....APPELLANT
                          (BY MR. B.N. MALHOTRA - ADVOCATE)

                          AND
                          1.    SMT. MADHU ALIAS MANORAMA TIWARIW/O
                                LATE SHRI MANOJ TIWARI , AGED ABOUT 30
                                YEARS, OCCUPATION: R/O RAGHUNATH SINGH
                                ENGINEER KA BADA, MANGLESHWAR ROAD,
                                SHITLA GALI, GHASMANDI, DISTT.GWALIOR
                                (MADHYA PRADESH)

                          2.    KU. VISHAKHA TIWARID/O MANOJ TIWARI ,
                                AGED     ABOUT    9   YEARS, OCCUPATION:
                                TH:GUARDIAN    MOTHER    SMT.MADHU    @
                                M ANORAM A R/O RAGHUNATH SINGH ENG.KA
                                BAD, SHITLA GALI,GHASMANDI GWL. (MADHYA
                                PRADESH)

                          3.    VISHWANATH TIWARI S/O S/O LATE RAJJANLAL ,
                                AGED ABOUT 67 YEARS, OCCUPATION: R/O
                                RAGHUNATH      SINGH       ENG.    KA BAD,
                                MANGLESHWAR                    RAOD,SHITLA
                                GALI,GHASMANDI           GWALIOR (MADHYA
                                PRADESH)

                          4.    SMT.     PUSHPA TIWARIW/O   VISHWANTATH
                                OCCUPATION: R/O RAGHUNATH SINGH ENG. KA
                                B A D A , M AN GLESHWAR ROAD,SHITLA GALI,
                                GHASMANDI GWALIOR (MADHYA PRADESH)

                          5.    DALVEER SINGH S/O S/O GANGADHAR BARERA
                                OCCUPATION:      DRIVER R/O  PAWANDEEP
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 03-May-23
10:17:07 AM
                                                      2
                                CHOWK,DISTT:FARIDABAD (HARYANA)

                          6.    SMT. SWADESH KUMAR BATRAW/O SUBHASH
                                B AT R A OCCUPATION: R/O 806,SECTOR NO.16,
                                FARIDABAD (UTTAR PRADESH)

                                                                                    .....RESPONDENTS
                               (MR. ARUN SHARMA - ADVOCATE FOR RESPONDENTS NO. 1 TO 4 -
                                                     CLAIMANTS)

                                               MISC. APPEAL No. 763 of 2006

                          BETWEEN:-
                          UNITED INDIA INSURANCE COMPANY LIMITED
                          DIVISIONAL OFFICE AT CENTRE POINT COMPLEX,
                          M.L.B.ROAD, PHOOLBAGH, DISTT.GWALIOR (MADHYA
                          PRADESH)

                                                                                       .....APPELLANT
                          (BY MR. B.N.MALHOTRA - ADVOCATE)

                          AND
                          1.    SHRIKRISHNA VERMA ALIAS BABBU S/O OM
                                PRAKASH VERMA OCCUPATION: R/O SHITLA
                                GALI,  MANGLESHWAR     ROAD, GHASMANDI,
                                DISTT.GWALIOR (MADHYA PRADESH)

                          2.    DALVEER SINGH S/O S/O GANGADHAR BARERA
                                OCCUPATION:        R/O        PAWANDEEP
                                CHOEK,DISTT:FARIDABAD (UTTAR PRADESH)

                          3.    SMT. SWADESH KUMAR BATRAW/O SUBHASH
                                B A T R A OCCUPATION:     R/O   806,SECTOR
                                NO.16,FARIDABAD, (UTTAR PRADESH)

                                                                                    .....RESPONDENTS
                          (MR. ARUN SHARMA - ADVOCATE FOR RESPONDENT NO. 1 - CLAIMANT)

                                These appeals coming on for orders this day, th e court passed the
                          following:
                                                         JUDGMENT

This judgment shall govern the disposal of both the appeals (M.A. Nos. 761 of 2006 and 763 of 2006) arising out of same subject matter. For the sake Signature Not Verified Signed by: ALOK KUMAR Signing time: 03-May-23 10:17:07 AM

of convenience, facts mentioned in M.A. No. 761 of 2006 are taken into consideration.

Present miscellaneous appeals have been filed against the award dated 22.4.2006 passed by Motor Accident Claims Tribunal, Gwalior in Claim Case Nos. 53/2005 and 58/2005.

The facts in brief to decide the present appeal are that the claimants filed claim petitions before the learned claims tribunal for grant of compensation on account death of deceased Manoj Tiwari in Claim Case No. 53/2005 and permanent disability sustained by claimant in Claim Case No. 58/2005 in a road traffic accident involving truck bearing registration No. HR38 D 4863.

Driver and Owner of the offending vehicle did not file any written statement.

Appellant - Insurance Company filed its written statement and submitted that the motorcycle on which the claimant was sitting was being driven by the driver along with two pillion riders due to which the motorcycle got unbalanced resulting in alleged accident. It was further stated that the offending truck was being plied in violation of policy terms and conditions, therefore, insurance company is not liable to pay the compensation.

Learned claims tribunal framed issues and after hearing both the parties on merits and recording their evidence partly allowed the claim petition and

awarded compensation to the tune of Rs.5,87,500/- in Claim Case No. 53/2005 and Rs.75,000/- in Claim Case No. 58/2005.

The main ground taken by the appellant - insurance company is that admittedly at the time of accident, three persons were travelling on the motorcycle against the provisions of Motor Vehicle Act, however, this aspect was completely ignored by the learned claims tribunal. Thus, learned claims Signature Not Verified Signed by: ALOK KUMAR Signing time: 03-May-23 10:17:07 AM

tribunal erred in holding that the truck driver is solely responsible for the said accident. Actually, it is the case of contributory negligence because deceased as well as claimant Shrikrishna Verma knowingly sat on the said motorcycle in violation of the Motor Vehicle Rules. Therefore, insurance company is not liable for payment of compensation and it be exonerated from the same.

On the other hand, learned counsel for the claimants argued that learned claims tribunal has rightly held that the fact that driver was sitting with two pillion riders alone does not prove that the accident occurred on account of negligence of the driver of the motorcycle. Hence, the appeal has no merit and it be dismissed.

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

It is not in dispute that at the time of accident, the motorcycle bearing registration No. MP07 KK 846 was being driven by the driver with two pillion riders. However, the appellant - insurance company has failed to prove that the accident occurred only on account of any violation of Section 128 of Motor Vehicle Act. Claimants by adducing documentary as well as oral evidence has proved that the accident occurred on account of rash and negligent driving of the truck bearing registration No. HR38 D 4863.

The Apex Court in the case of Mohammed Siddique and Anr. V. National Insurance Co. Ltd. and Ors.; 2020 ACJ 751 has held that where a motorcycle was being driven by the driver with two pillion riders and accident occurred, then merely on the fact that triple riding was being done on a motorcycle cannot lead to a finding of contributory negligence unless it is established that the act of riding along with two others contributed either to the

Signature Not Verified Signed by: ALOK KUMAR Signing time: 03-May-23 10:17:07 AM

accident or to the impact of accident upon the victim.

This Court in the case of Devisingh V. Vikramsingh and Ors.; 2008 ACJ 393 has held that violation of Section 128 of the Motor Vehicles Act, per se, by a motorcyclist does not a presumption of contributory negligence on his part. Similarly, violation of Section 128 of the Motor Vehicles Act, per se, does not amount to contributory negligence on the part of the pillion riders.

In view of the above principles laid down by the Apex Court as well as by this Court, when we see this case, it is apparent that the insurance company has failed to adduce any evidence that the accident occurred as a result of triple riding on the motorcycle and accident could have been averted if three persons were not riding on the motorcycle.

In view of the above discussion, this Court is of the considered opinion that learned claims tribunal has rightly held insurance company liable to pay the compensation and no interference is warranted in the same.

Consequently, present miscellaneous appeals (M.A. No. 761 of 2006 and 763 of 2006) sans merit and are hereby dismissed.

Claimants / Respondents No. 1 to 4 have filed cross-objection under Order 41 Rule 22 and Section 151 of CPC in M.A. No. 761 of 2006 for enhancement of the compensation amount submitting therein that the compensation amount awarded by learned claims tribunal is on the lower side and deserves to be enhanced. Learned claims tribunal has erred in assessing the income of the deceased and no amount under the head of "future prospects" has been awarded.

So far as monthly income of the deceased Manoj Tiwari is concerned, learned claims tribunal on the basis of Ex.P-106 income tax return of the deceased filed on 05.8.2004 has rightly held the annual income of the deceased Signature Not Verified Signed by: ALOK KUMAR Signing time: 03-May-23 10:17:07 AM

to be Rs.50,600/-.

There is no dispute with regard to age of the claimant at the time of accident to be 34 years.

In view of the case law of Sarla Verma and Ors. Vs. Delhi Transport Corporation; (2009) 6 SCC 121, learned claims tribunal has rightly applied the multiplier of 16, deceased being in the age group of 31-35 years and deducted 1/3rd towards personal expenses.

However, learned claims tribunal has erred in not awarding any compensation under the head of "future prospects".

In view of the case law of National Insurance Company vs. Pranay Sethi & Ors.; 2017 ACJ 2700, considering the annual income of the deceased to be Rs.50,600/-, deducting 1/3rd towards personal expense, future prospect @ 40%, multiplier of 16 and Rs.70,000/- in other heads, total compensation amount comes to Rs.8,25,626/-. The tribunal has awarded a sum of Rs.5,87,500/- to the claimants in Claim Case No. 53/2005. The enhanced

compensation amount comes to Rs.2,38,126/- (Rs.8,25,626 - 5,87,500). The enhanced amount of compensation i.e. Rs.2,38,126/- (Rs. Two Lakh Thirty Eight Thousand One Hundred Twenty Six only) shall carry interest as awarded by learned claims tribunal from the date of claim application till realization. The enhanced amount of compensation shall be payable to the claimants of Claim Case No. 53/2005 (Respondents No. 1 to 4 in M.A. No. 761 of 2006) by the Insurance Company within a period of 12 weeks from the date of production of certified copy of this order. Rest of the award passed by learned claims tribunal shall remain intact.

Cross-objection filed by respondents No. 1 to 4 in M.A. No. 761 of 2006

Signature Not Verified Signed by: ALOK KUMAR Signing time: 03-May-23 10:17:07 AM

is allowed and disposed of in above terms.

(SUNITA YADAV) JUDGE AKS

Signature Not Verified Signed by: ALOK KUMAR Signing time: 03-May-23 10:17:07 AM