Madhya Pradesh High Court
Smt. Rambeti vs Mahesh Singh Yadav on 8 May, 2023
Author: Sunita Yadav
1 M.A No. 1124 of 2019
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 8th OF MAY, 2023
MISC. APPEAL No. 1124 of 2019
BETWEEN:-
SMT. RAMBETI W/O SHRI RAMNATH SINGH KUSHWAH,
AGE- 58 YEARS, R/O- VILLAGE JARONI POLICE STATION
NOORABAD, DISTRICT MORENA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI GYAN SINGH YADAV - ADVOCATE)
AND
1 MAHESH SINGH YADAV S/O UMMED SINGH YADAV, AGE-
29 YEARS, R/O- 18 DEVRIKALA, TEHSIL BHITARWAR,
DISTRICT GWALIOR (MADHYA PRADESH) VEHICLE
OWNER DUMPER NO. M.P.7 G.A. 2675
2 M/S GIRRAJ DHARAN KOSTRAN OFFICE- C BLOCK 730
ANAND NAGAR BAHODAPUR DISTRICT GWALIOR
OWNER AGE ADULT VEHICLE OWNER DUMPER NO.
M.P.07 G.A. 2675
3 UNITED INSURANCE COMPANY LIMITED, THROUGH
DIVISIONAL MANAGER OFFICE FALKA BAZAR LASHKAR
GWALIOR
.....RESPONDENTS
(SHRI RAJESH GUPTA - ADVOCATE FOR RESPONDENT NO. 3
- INSURANCE COMPANY)
-----------------------------------------------------------------------------------------
This appeal coming on for order this day, the court passed the
following:
JUDGMENT
I.A. No. 738 of 2019, an application under Section 5 of Limitation
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 09-May-23
10:04:11 AM
Act, is taken up, considered and allowed for the reasons mentioned
therein.
The delay of 42 days in filing this appeal is hereby condoned.
Present miscellaneous appeal has been filed assailing the award
dated 29/09/2018 passed by First Motor Accident Claims Tribunal,
Gwalior in Claim Case No.255/2017.
2. The facts in brief to decide the appeal are that present appellant /
claimant filed a claim petition before learned claims tribunal for grant of
compensation on account of injuries suffered by him in a motor accident
occurred on 16.2.2016 involving loading dumper bearing registration No.
MP07 GA 2675.
3. Respondents No. 1 and 2 - Driver and Owner of the offending
vehicle filed their written statement and denied the allegations made in
the claim petition.
4. Respondent No. 3 - Insurance Company filed its written statement
and denied the averments made in the claim petition stating therein that
the alleged accident occurred due to negligence of the injured and at the
time of accident, the offending vehicle was being plied in violation of
policy terms and conditions, therefore, insurance company is not liable to
pay the compensation.
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 09-May-23
10:04:11 AM
5. Learned claims tribunal framed issues and after hearing both the
parties on merits and recording their evidence partly allowed the claim
petition awarding compensation to the tune of Rs.17,500/- which was
directed to be paid by the respondents jointly and severely.
6. The grounds taken in the appeal are that the learned Tribunal has
wrongly held that the accident was on account of contributory negligence
of injured without appreciating the evidence on record. Learned counsel
for the appellant / claimant argued that there is no evidence on record that
the accident occurred due to negligence of injured while she was crossing
the road. All the documentary as well as oral evidence proved that the
injured was standing near a Tiraha waiting for arrival of the bus when the
accident occurred, therefore, the above finding be set aside. The further
argument is that in view of the injury of victim, the amount of
compensation is on lesser side and it may be enhanced appropriately.
7. On the other hand, learned counsel for respondent No. 3 -
insurance company argued that learned Trial Court has rightly appreciated
the evidence and found that the accident was the result of contributory
negligence of the injured / claimant, therefore, he prays for dismissal of
the appeal.
8. Heard learned counsel for the rival parties and perused the available
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 09-May-23
10:04:11 AM
record.
9. The claimant examined herself alongwith Navalkishore Gupta (PW-
2), record keeper of J.A. Hospital, Gwalior before the learned Tribunal.
The claimant in her Court statement stated that at the time of accident she
was waiting for arrival of bus on Tiraha when the driver of offending
vehicle by driving the vehicle rashly and negligently hit her. The above
statement is supported by the documents Ex.P-1 to Ex.P-12 pertaining to
the charge-sheet filed in respect to this accident. The above documents
also reveal that the injured was standing on a Tiraha waiting for the bus to
come when the driver of offending vehicle hit her while driving the
vehicle rashly and negligently. The driver of the vehicle has not appeared
before the Tribunal to contradict the pleadings or evidence.
10. The Insurance Company has also not examined any eye-witness to
contradict the above version of the claimant. The learned Tribunal only
on the basis of spot map held that the accident was the result of
contributory negligence of claimant without any evidence in this respect.
The mere fact that the accident occurred in the middle of road doesn't
mean that the accident is on account of contributory negligence because
every person has a right to cross the road.
11. The Apex Court in the case of Kusum Lata and Ors. vs. Satbir and
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 09-May-23
10:04:11 AM
Ors.; 2011 ACJ 926 has held that in a case relating to motor accident
claims, the claimants are not required to prove the case as it is required to
be done in a criminal trial. The claimants were merely to establish their
case on the touchstone of preponderance of probability.
12. Therefore, without any evidence in respect to contributory
negligence, the finding of learned Tribunal in respect to contributory
negligence is found to be erroneous and consequently, same is hereby set
aside.
13. So far as compensation in respect to injury caused to claimant is
concerned, learned claims tribunal has assessed the total compensation
amount to be Rs.33,000/- before deducting the 50% amount towards
contributory negligence, however, looking to the nature of injury
sustained by the claimant as well as the the period she remained admitted
in the hospital, the amount of Rs.37,500/- in lump sum is found to be just
and proper compensation. The tribunal has awarded a sum of Rs.17,500/-
to the claimant. The enhanced compensation amount comes to
Rs.20,000/- (Rs.37,500 - 17,500). The enhanced amount of
compensation i.e. Rs.20,000/- (Rs. Twenty Thousand only) shall carry
interest as awarded by learned claims tribunal from the date of claim
application till realization. The enhanced amount of compensation shall
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 09-May-23
10:04:11 AM
be payable to the claimant 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.
14. Present miscellaneous appeal is hereby disposed of in above terms.
(SUNITA YADAV)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 09-May-23
10:04:11 AM
