Ku. Saniya Thru. Guardian Smt. ... vs Sandeep Thru. Power Of Attorney ...
2023 Latest Caselaw 18921 MP

                                                                             1


                                IN THE HIGH COURT OF MADHYA PRADESH
                                             AT INDORE
                                                    BEFORE
                                  HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL

                                                     MISC. APPEAL No. 699 of 2014

                           BETWEEN:-

                           KU. SANIYA THRU. GUARDIAN SMT. KURANA W/O
                           MANOJ   BARMECHA,   AGED   ABOUT   38  YEARS,
                           OCCUPATION: BUSINESS 86, PRIYADARSHINI NAGAR
                           KASTURBA NAGAR RATLAM (MADHYA PRADESH)

                                                                                                          .....APPELLANT
                           (SHRI RAM NARAYAN DAVE AND SHRI HEMANT KUMAR VAISHNAV,
                           LEARNED COUNSEL FOR THE APPELLANT))

                           AND

                           1.     SANDEEP THRU. POWER OF ATTORNEY SANDEEP
                                  S/O SATYANARAYAN SHARMA 76, FRONT OF
                                  NEELAM GUEST HOUSE, STATION ROAD (MADHYA
                                  PRADESH)


                           2.     MUNAVVAR SHAIKH @ SAMEER S/O KALAMUDDIN
                                  VAJIRPURA POLICE STATINO AYODHYA, DISTRICT
                                  FAIZABAD (U.P) HALMUKHAM HAJI ALI DARGAH
                                  KI CHAL, PHOOTPATH, PADDEV, MUMBAI (M.H.)
                                  (MAHARASHTRA)


                           3.     ORIENTAL INSURANCE COMPANY THROUGH
                                  MANAGER MANDAL OFFICE, ADD- IDA BHAWAN,
                                  RACECOURSE ROAD, (MADHYA PRADESH)

                                                                                                      .....RESPONDENTS
                           (MS. PRITI KESHWANI, LEARNED COUNSEL FOR THE RESPONDENT
                           NO.3)

                           -------------------------------------------------------------------------------------------------------
                                                           Reserved on : 06.11.2023
                                                          Pronounced on : 08.11.2023
                           -----------------------------------------------------------------------------------------


Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 08-11-2023
18:05:12
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                                    This miscellaneous appeal having been heard and reserved for
                           orders, coming on for pronouncement this day, Justice Achal Kumar
                           Paliwal pronounced the following
                                                            ORDER

This appeal by the claimant under section 173(1) of the Motor Vehicles Act is arising out of the award dated 04.02.2014 passed by MACT, Ratlam in Claim Case No.37/2012 seeking enhancement of compensation amount awarded by the Tribunal.

2. Learned counsel for the appellant after referring to paragraph 38 of the impugned award and judgment of the Co-ordinate Bench of this Court in the case of National Insurance Company Limited Vs. Sunita Tiwari and others 2023 (2) ACCD 853 (MP) and Reliance General Insurance Company Limited Vs. Karibai and others 2021 ACJ 1818, Parvat Vs. Sheikh Ejaj 2006 ACJ 1507 submits that learned Tribunal has wrongly exonerated the Insurance Company from the liability to pay compensation. It is also urged that in the instant case, breach of terms of Insurance policy has not been proved and established by the Insurance Company, therefore the impugned findings about exonerating the Insurance Company be set aside and Insurance Company be held liable to pay the compensation. Learned counsel for the appellant also submits that the Tribunal has not awarded any compensation for tibia fibula fracture suffered by the claimant. Hence, compensation be also awarded for fracture of tibia fibula.

3. On the other hand, learned counsel for the respondent/ Insurance Company submits that before accident, the offending vehicle was stolen and at the time of accident, it was being driven by an unauthrorized person. Therefore, Insurance Company is not liable to pay compensation. However, referring to para 21 of the impugned award it is submitted that

Signature Not Verified Signed by: REENA JOSEPH Signing time: 08-11-2023 18:05:12

at the time of accident, driver is not found to be having effective and valid driving license, therefore, at the most, pay and recover may be applied in the instant case.

4. Learned counsel for the respondent/Insurance Company submits that the compensation amount awarded by the Tribunal is just and proper and claimant is not entitled for any enhancement for fracture of tibia fibula independently.

5. I have heard the learned counsel for the parties and have perused the record of the case.

6. So far as enhancement of compensation for injuries suffered by the claimant is concerned, perusal of paras 40 to 47 reveal that Tribunal has awarded Rs.46,623/- as compensation. It is also apparent from the impugned award that Tribunal has awarded Rs.500/- for pain and sufferings, Rs.500/-for special diet. Evidently, claimant/appellant has suffered fracture in right leg, therefore, amount awarded by the Tribunal under the head of pain and sufferings /special diet etc. appears to be on the lower side. In the considered opinion of this Court, it would be just and proper to award lump sum amount under the head of pain and sufferings/attendant expenses/transportation charges/special diet as Rs.25,000/-. Thus, claimant/appellant Ku.Saniya is entitled for additional amount of Rs.15,000/- as compensation.

7. So far as liability to pay compensation is concerned, para 21 of the impugned award reveal that Tribunal has held that at the time of accident the driver of the offending vehicle was not having effecting and valid driving licence, therefore, Tribunal held that driver of the offending vehicle is liable to pay compensation. Para 22 of the impugned judgment reveals that Tribunal had held that offending vehicle was duly insured with the Insurance Company (respondent no.3), but there is no discussion in the impugned award as to why the Insurance Company was not held

Signature Not Verified Signed by: REENA JOSEPH Signing time: 08-11-2023 18:05:12

liable to pay compensation and why principle of pay and recover was not applied.

8. Admittedly, in the instant case, before the accident occurred the offending vehicle was stolen by respondent no.2 and at the time of accident it is respondent no.2 who was driving the offending vehicle. On this ground, learned counsel for the Insurance Company has submitted that at the time of accident the offending vehicle was driven by an unauthorised person, therefore, Insurance Company is not liable to pay compensation.

9. On a specific query put by this Court, learned counsel for the Insurance Company has failed to point out any condition in the Insurance Policy that if insured vehicle was stolen before the accident and if at the time of accident it was being driven by the person who has stolen the vehicle, then, Insurance Company will not be liable to pay the compensation. On the contrary, it is evident from the principles laid down in the case of Parvat (Supra), Sunita Tiwari (Supra) and Karibai (Supra) that in such cases Insurance Company shall be liable to pay compensation. On above grounds Insurance Company cannot be exonerated from the liability to pay the compensation.

10. In view of the discussions in the foregoing paras, in the considered opinion of this Court, Insurance Company cannot be exonerated from liability to pay compensation on the ground that at the time of accident, offending vehicle was being driven by an unauthorised person i.e by a person who had stolen the offending vehicle before the accident.

11. As it is evident from the discussions in the foregoing paras that at the time of accident, respondent no.2 driver of the offending vehicle, was not having any valid and effective driving licence. Therefore, on above ground Insurance Company cannot be held liable to pay compensation and is exonerated from the liability to pay the compensation. But,

Signature Not Verified Signed by: REENA JOSEPH Signing time: 08-11-2023 18:05:12

undisputedly in the instant case, claimant is a third party, therefore, it would be just and proper to apply principle of pay and recover in the instant case.

12. Hence, as the principle of pay and recover has been applied in the present case, therefore, it is directed that the insurance company, shall at the first instance/shall first pay the adjudged compensation alongwith interest as adjudged above to the claimant but the insurance company, shall be entitled to/shall be at liberty to recover the same from respondents, the owner and driver in the manner as provided in National Insurance Co.Ltd. Vs. Swaran Singh & others-2004 ACJ 1 (SC);Amrit Paul Singh Vs. TATAAIG General Insurance Co. Ltd.- AIR 2018 SC 2662;Shammana Vs. Divisional Manager Oriental Insurance Co.Ltd.-AIR 2018 SC 3726 /section 174 Motor Vehicles Act. Therefore, respondents are liable to pay the above compensation along with above interest to the claimant jointly and severally in the manner as mentioned hereinabove.

13. Thus, the just and proper amount of compensation in the instant case would be Rs.61,623/- as against the award of the Tribunal of Rs.46,623/-. Accordingly, the appellant is entitled to an additional sum of Rs.15,000/- over and above the amount which has been awarded by the Tribunal.

14. In the result, the appeal is partly allowed by enhancing the compensation amount by a sum of Rs.15,000/-. The enhanced amount shall bear interest at the same rate as awarded by the Tribunal. The other findings recorded by the Tribunal shall remain intact.

(ACHAL KUMAR PALIWAL) JUDGE RJ

Signature Not Verified Signed by: REENA JOSEPH Signing time: 08-11-2023 18:05:12