Madhya Pradesh High Court
United India Insurance Company ... vs Shrikrishna Verma Alias Babbu on 1 May, 2023
Author: Sunita Yadav
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,
GHAS M AN D I, D ISTT.GWALIOR (MADHYA
PRADESH)
2. KU. VISHAKHA TIWARID/O MANOJ TIWARI ,
AGED ABOUT 9 YEARS, OCCUPATION:
TH:GUARDIAN MOTHER SMT.MADHU @
M A N O R A M A R/O RAGHUNATH SINGH
ENG.KA BAD, SHITLA GALI,GHASMANDI
GWL. (MADHYA PRADESH)
3. VISHWANATH TIWARI S/O S/O LATE
R AJJAN LAL , AGED ABOUT 67 YEARS,
OCCUPATION: R/O RAGHUNATH SINGH ENG.
K A B A D , MANGLESHWAR RAOD,SHITLA
GALI,GHASMANDI GWALIOR (MADHYA
PRADESH)
4. SMT. PUSHPA TIWARIW/O VISHWANTATH
OCCUPATION: R/O RAGHUNATH SINGH ENG.
KA BADA, M ANGLESHWAR ROAD,SHITLA
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 03-May-23
10:17:07 AM
2
GALI, GHASMANDI GWALIOR (MADHYA
PRADESH)
5. DALVEER SINGH S/O S/O GANGADHAR
B A R E R A OCCUPATION: DRIVER R/O
P AWA N D E E P CHOWK,DISTT:FARIDABAD
(HARYANA)
6. SMT. SWADESH KUMAR BATRAW/O
SUBHASH BATRA 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
B AR ER A OCCUPATION: R/O PAWANDEEP
C H O E K , D I S T T : F A R I D A B A D (UTTAR
PRADESH)
3. SMT. SWADESH KUMAR BATRAW/O
SUBHASH BATRA OCCUPATION: R/O
806,SECTOR NO.16,FARIDABAD, (UTTAR
PRADESH)
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 03-May-23
10:17:07 AM
3
.....RESPONDENTS
(MR. ARUN SHARMA - ADVOCATE FOR RESPONDENT NO. 1 -
CLAIMANT)
These appeals coming on for orders this day, the 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). For the sake 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
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 03-May-23
10:17:07 AM
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 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
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 03-May-23
10:17:07 AM
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 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.
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 03-May-23
10:17:07 AM
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 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
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 03-May-23
10:17:07 AM
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 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
