Madhya Pradesh High Court
Magma Hdi General Insurance Co. ... vs Smt. Soma Rawat on 2 May, 2023
Author: Sunita Yadav
1 M.A. Nos. 271/2019 and 320/2019
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 2nd OF MAY, 2023
MISC. APPEAL No. 271 of 2019
BETWEEN:-
MAGMA HDI GENERAL INSURANCE CO. LTD. THR
ASSISTANT MANAGER ABOVE STATE BANK OF
INDIA SAPNA SANGEETA ROAD (MADHYA
PRADESH)
.....APPELLANT
(BY MR. NARESH SINGH TOMAR - ADVOCATE)
AND
SMT. SOMA RAWAT W/O LATE SHRI VIRENDRA
SINGH RAWAT, AGED ABOUT 28 YEARS,
1. OCCUPATION: HOUSE WIFE VIVEKANAND
COLONY BEHIND BALWANT NAGAR CITY
CENTRE (MADHYA PRADESH)
KU. TEJASWINI RAWATI D/O LATE SHRI
VIRENDRA SINGH RAWAT, AGED ABOUT 6
2.
YEARS, UDDHANPURA SABALGARH (MADHYA
PRADESH)
VANSH RAWAT S/O LATE SHRI VIRENDRA SINGH
3. RAWAT, AGED ABOUT 4 YEARS, UDDHANPURA
SABALGARH (MADHYA PRADESH)
NARENDRA SINGH RAWAT S/O SHRI MAHESH
4. RAWAT VILL. MASOODPUR THASIL BHITARWAR
(MADHYA PRADESH)
VRINDAVAN RAWAT S/O SHRI RADHE VILL.
5. KARAIYA THASIL BHITARWAR (MADHYA
PRADESH)
.....RESPONDENTS
(MR. R.P. GUPTA - ADVOCATE FOR RESPONDENTS
NO. 1 TO 3 - CLAIMANTS)
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 08-May-23
10:15:33 AM
2 M.A. Nos. 271/2019 and 320/2019
MISC. APPEAL No. 320 of 2019
BETWEEN:-
SMT. SOMA W/O LATE VIRENDRA SINGH RAWAT,
AGED ABOUT 28 YEARS, VIVEKANAND COLONY
1.
BEHIND BALWANT NAGAR CITY CENTER (MADHYA
PRADESH)
KU. TEJSWANI RAWAT D/O LT VIRENDRA SINGH
RAWAT, AGED ABOUT 6 YEARS, OCCUPATION: MINOR
2. UG SMT. SOMA RAWAT VIVEKANAND COLONY
BEHIND BALWANT NAGAR CITY CENTRE (MADHYA
PRADESH)
VANSH RAWAT S/O LT VIRENDRA SINGH RAWAT, AGED
ABOUT 4 YEARS, OCCUPATION: MINOR UG SMT. SOMA
3.
RAWAT VIVEKANAND COLONY BEHIND BALWANT
NAGAR CITY CENTRE (MADHYA PRADESH)
.....APPELLANTS
(BY MR. R.P. GUPTA - ADVOCATE)
AND
NARENDRA SINGH RAWAT S/O MAHESH RAWAT
1. VILLAGE BELA MASUDPUR BHITARWAR (MADHYA
PRADESH)
VRANDAVAN RAWAT S/O RADHE VILL KARAIYA TEH
2.
BHITARWAR (MADHYA PRADESH)
DIVISIONAL MANAGER MEGMA HDI GENERAL
INSURANCE CO.LTD. NEAR CONSUMER FRORM
3. COURT CITY CENTER AT PRESENT 2ND FLOOR ANUJ
CHAMBER 24 PARK STREET KOLKATA 700016 WEST
BENGAL (WEST BENGAL)
.....RESPONDENTS
(MR. NARESH SINGH TOMAR - ADVOCATE FOR
RESPONDENT NO. 3 - INSURANCE COMPANY)
-----------------------------------------------------------------------------------------
These appeals coming on for orders this day, the court passed the
following:
JUDGMENT
Since common question of law is involved in aforesaid M.A. Nos.
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 08-May-23
10:15:33 AM
271 of 2019 and 320 of 2019, therefore, they are heard analogously and are
decided by this common judgment. For the sake of convenience, the facts
mentioned in M.A. No. 271 of 2019 are taken into consideration.
2. Present miscellaneous appeals have been filed assailing the award of
Motor Accident Claims Tribunal, Gwalior dated 10.10.2018 passed in
Motor Accident Claim Case No. 1554/2017.
3. The facts in brief to decide the appeal are that a claim petition was
filed by respondents No. 1 to 3 / claimants for grant of compensation on
account of death of deceased Virendra Singh Rawat in a motor accident
occurred on 06.8.2017 involving vehicle tractor bearing registration No.
MP07 AA 8374.
4. Respondents No. 4 and 5 - driver and owner of the offending
vehicle respectively filed their written statement and denied the allegations
made in the claim petition.
5. Appellant - Insurance Company filed its written statement and
denied the averments made in the claim petition and further stated that the
accident occurred due to contributory negligence of the deceased.
Therefore, the Insurance Company is not liable to pay compensation and
prayed to dismiss the claim petition.
6. Learned claims tribunal framed issues and after hearing both the
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 08-May-23
10:15:33 AM
parties on merits and recording their evidence allowed the claim petition of
the claimants and awarded compensation to the tune of Rs.11,20,000/-
which was directed to be paid by the appellant - insurance company and
respondents No. 4 and 5 - Driver and Owner of the offending vehicle
jointly and severely.
7. Learned counsel for the appellant - insurance company argued that
the impugned award passed by learned claims tribunal is arbitrary, illegal
and against the settled principle of law. Evidence adduced in record goes to
show that at the time of accident, the offending vehicle was carrying illegal
sand and since the insured tractor was being used for illegal activity, thus,
appellant - insurance company is not liable to indemnify the insured.
Further argument is that learned claims tribunal has erred in not deducting
any amount towards personal expenses of the deceased and thus, wrongly
calculated the compensation. Hence, prayed that the impugned award
deserves to be set aside.
8. On the other hand, learned counsel for respondents No. 1 to 3 -
claimants supported the impugned award with regard to liability of
insurance company for payment of compensation. However, by filing M.A.
No. 320 of 2019, learned counsel for the claimants argued that learned
claims tribunal has wrongly assessed the income of the deceased and thus,
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 08-May-23
10:15:33 AM
awarded the compensation amount on the lower side. Hence, prayed for
enhancement of the compensation.
9. Heard learned counsel for the rival parties and perused the available
record.
10. Learned counsel for the insurance company has argued that since the
offending tractor was being used for illegal activity, therefore, insurance
company is not liable to pay the compensation. However, the above
argument is not tenable because only on the basis of seizure memo in
which illegal sand is alleged to be seized, it cannot be held that the sand
was being transported illegally or was illegally excavated unless the
finding of a competent Court is there in this regard. Therefore, learned
claims tribunal has not erred in holding that insurance company is liable
for payment of compensation.
11. However, learned claims tribunal has erred in not deducting any
amount towards the personal expenses of the deceased. As per National
Insurance Company vs. Pranay Sethi & Ors.; 2017 ACJ 2700, 1/3rd ought
to have been deducted towards personal expenses of the deceased.
12. So far as income of the deceased is concerned, as per claimants,
deceased was having 25 bigha of land and he was also doing the business
of fertilizers, seeds and was earning Rs.3,00,000/- per annum. The case of
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Signed by: ALOK KUMAR
Signing time: 08-May-23
10:15:33 AM
the claimant is that deceased was a farmer having 25 bigha of land and was
also doing business of fertilizer. Claimants have filed documents to
corroborate the above fact. Learned claims tribunal has held that on
account of death of deceased Virendra, there would be no loss in respect to
agricultural income. However, learned claims tribunal held that there
would be loss in the business of fertilizers and fixed the income of the
deceased @ Rs.5,000/- per month. However, in view of the evidence
available on record as well as looking to the fact that deceased was doing
business of fertilizers, the assessment seems to be on the lower side and,
therefore, Rs.7,000/- is found to be appropriate monthly income of the
deceased.
13. In view of the case law of Pranay Sethi (supra), considering the
monthly income of the deceased @ Rs.7,000/-, 1/3 rd personal expense,
multiplier of 14, future prospect @ 25% and Rs.70,000/- in other heads,
total compensation amount comes to Rs.10,50,000/- (Rupees Ten Lakh
Fifty Thousand only). Learned claims tribunal has awarded compensation
to the tune of Rs.11,20,000/-. Difference amount comes to Rs.70,000/-
(Rs.11,20,000 - 10,50,000/-). If the claimants have already received the
total compensation amount, they are directed to deposit the difference
amount of Rs.70,000/- (Rupees Seventy Thousand only) before the
executing court below within a period of 12 weeks from the date of
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 08-May-23
10:15:33 AM
production of certified copy of this order and if the compensation amount
has not been paid, same be paid within the aforesaid period of 12 weeks.
Rest of the award passed by learned claims tribunal shall remain intact.
14. M.A. Nos. 271 of 2019 and 320 of 2019 are disposed of in above
terms.
A copy of this order be kept in the record of connected M.A. No.
320 of 2019.
(SUNITA YADAV)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 08-May-23
10:15:33 AM
