Iffco Tokiyo General Insurance ... vs Smt. Janki Bai
2023 Latest Caselaw 7293 MP

                                                                       1
                                        IN      THE    HIGH COURT OF MADHYA PRADESH
                                                            AT JABALPUR
                                                                  BEFORE
                                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                              ON THE 4 th OF MAY, 2023
                                                           MISC. APPEAL No. 944 of 2010

                                       BETWEEN:-
                                       IFFCO TOKIYO GENERAL INSURANCE CO. LTD H.NO. 7
                                       QUALITY BUSINESS CENTRE M.P. NAGAR ZONE 2
                                       (MADHYA PRADESH)

                                                                                                   .....APPELLANT
                                       (BY SHRI N.S.RUPRAH - ADVOCATE)

                                       AND
                                       1.    SMT. JANKI BAI W/O RAMPRASAD, AGED ABOUT
                                             45 YEARS, KEHALPUR TAHSIL AAMLA (MADHYA
                                             PRADESH)

                                       2.    RAMPRASAD S/O BIHARI CHOURASIYA, AGED
                                             ABOUT 55 YEARS, KEHALPUR, TAH. AAMLA,
                                             DISTT. BETUL (MADHYA PRADESH)

                                       3.    KAMAL S/O RAMPRASAD, AGED ABOUT 24
                                             YEARS, KEHALPUR, TAH. AAMLA, DISTT. BETUL
                                             (MADHYA PRADESH)

                                       4.    SEVARAM S/O TULARAM NAGLE HOSPITAL
                                             COLONY, AMLA, DISTT. BETUL (MADHYA
                                             PRADESH)

                                                                                                .....RESPONDENTS
                                       (NONE)

                                             T h is appeal coming on for orders this day, t h e cou rt passed the
                                       following:
                                                                        ORDER

Signature Not Verified SAN This appeal is filed by the Insurance Company being aggrieved of award Digitally signed by VAIBHAV YEOLEKAR Date: 2023.05.09 11:07:38 IST dated 3.11.2009 passed by learned Member, Additional Motor Accident Claims

Tribunal Multai, District Betul in Motor Accident Claim Case No.02/2008.

It is submitted by learned counsel for the appellant that the appellant is insurer of the Motorcycle bearing regression No.MP48-MA-6397. As per evidence, which has come on record, the accident took place on 10.4.2007, when the motorcycle had collided with an unknown Tractor, therefore, no claim could have been awarded in favour of the claimants and the Insurance Company be exonerated from its liability.

I have heard leaned counsel for the appellant and gone through the record.

An important facet, which is required to be appreciated is that the claim

was filed under Section 163-A of the Motor Vehicles Act, 1988. In this regard, the decision of the Apex Court in Chandrakanta Tiwari versus New India Assurance Company Limited & Another (2020) 7 SCC 386 is relevant wherein it is held that no fault liability is covered under Section 163-A of the Motor Vehicles Act, 1988. The vehicle whether was being driven rashly or negligently by the insured owner or being driven rashly or negligently by any other person, neither factum is to be established as per Section 163-A of the Motor Vehicles Act, 1988. It is use of the motor vehicle as cause of accident alone, which needs to be established Without any requirement to prove fault on part of the diver whether it being the owner or any other person, the award can be passed.

As far as the impugned award is concerned, on principle of reasoning of Section 163-A of the Motor Vehicles Act, that cannot be faulted with. This takes me to another aspect as to whether appropriate calculation is made by the Signature Not Verified SAN

Claims Tribunal or not.

Digitally signed by VAIBHAV YEOLEKAR Date: 2023.05.09 11:07:38 IST

As per the provisions as contained in Section 163-A of the Motor

Vehicle Act, 1988 and the Schedule attached thereto in the Motor Vehicles Act, a fixed formula is prescribed. As per Schedule-2, the income is to be taken into consideration and then the multiplier as provided in the Table is to be applied. The claimants are entitled to a fixed sum of Rs.5,000/- under the head of pain and Rs.2,500/- is awarded under the head of last rites.

Learned Tribunal has committed an error in making 50% deduction towards the living expenses of the deceased after treating his income at Rs. 40,000/- whereas as per Schedule-2 under Section 163-A of the Motor Vehicle

Act, only 1/3rd deduction can be made once, claims are allowed under Section 163-A. Therefore, mother of the deceased will be entitled to compute dependency at Rs. 30,000/- in place of Rs. 20,000/-.

As per the judgment of the Hon'ble Supreme Court in MG. Dir., Bangalore Metropolitan Transport Corporation Vs. Sarojamma and others in Civil Appeal No. 2897 of 2008 (Arising out of SLP (Civil) No. 17647 of 2006), even in case of a Bachelor in a claim under Section 163-A of the Motor Vehicle Act, only 1/3rd deduction is required to be made and not 50% as has been made by the learned Tribunal.

Thus, when multiplier applied by the Tribunal looking to the age of the deceased i.e. of 17 is applied, then compensation will come out to Rs. 5,10,000/-, over and above which Rs. 2,000/- is admissible under the head of

funeral expenses and Rs. 2,500/- under the head of loss of estate. The loss of consortium is not payable. The Tribunal has arbitrarily awarded a sum of Rs. 5,000/- under the head of mental agony and pain but there is no such heading Signature Not Verified SAN under Schedule 163-A and, therefore, no such amount could be paid by the

Digitally signed by VAIBHAV YEOLEKAR Date: 2023.05.09 11:07:38 IST Tribunal.

Thus, claimants will be entitled to a sum Rs. 5,14,500/- and further sum of Rs. 15,000/- under the head of treatment taking total compensation to Rs. 5,29,500/- (Rupees Five Lakhs twenty nine thousand five hundred only) in place of Rs. 4,32,232/- (Four Lakhs thirty two thousand two hundred and thirty two only).

Thus, there will be an enhancement of Rs. 97,268/- (Ninety Seven thousand two hundred and sixty eight) in favour of the claimants which this court is entitled to grant with a view to do complete justice and award just compensation in favour of the claimants.

In above terms, the appeal is disposed of.

(VIVEK AGARWAL) JUDGE vy

Signature Not Verified SAN

Digitally signed by VAIBHAV YEOLEKAR Date: 2023.05.09 11:07:38 IST