Madhya Pradesh High Court
United India Insurance Co.Ltd. vs Harimohan Sharma on 9 November, 2023
Author: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
MISC. APPEAL No. 1029 OF 2011
BETWEEN:-
UNITED INDIA INSURANCE COMPANY
LIMITED THROUGH SENIOR DIVISIONAL
MANAGER, DIVISION OFFICE AT -
CENTER POINT COMPLEX, GWALIOR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI B.N.MALHOTRA - ADVOCATE )
AND
1 HARIMOHAN SHARMA S/O SHRI
SIYASHARAN SHARMA, AGED 42
YEARS, R/O BEHIND OF HOUSE OF
GANGOTIYA, RAJGARH FATAK, DATIA
(MADHYA PRADESH).
2. BABLU S/O SHRI RAMCHANDRA
KHATEEK R/O HOUSE NO. 279-D, SADAR
BAZAR, JHANSI (UTTAR PRADESH).
3. DEVENDRA SAHU S/O SHRI
PREMNARAYAN R/O 237 GUDRI
MOHALLA, P.S. KOTWALI, DISTRICT
JHANSI (UTTAR PRADESH).
.....RESPONDENTS
(RESPONDENTS NO. 1 / CLAIMANT BY SHRI R.P.GUPTA- ADVOCATE
AND RESPONDENTS NO. 2 AND 3 BY SHRI ASHISH SHRIVASTAVA -
ADVOCATE)
AND
MISC. APPEAL No. 1032 OF 2011
BETWEEN:-
2
UNITED INDIA INSURANCE COMPANY
LIMITED THROUGH SENIOR
DIVISIONAL MANAGER, DIVISION
OFFICE AT - CENTER POINT COMPLEX,
GWALIOR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI B.N.MALHOTA - ADVOCATE )
AND
1. SANTOSH KUMAR DUBEY S/O SHRI
VAIKUNTH NARAYAN DUBEY, AGED
42 YEARS, R/O DANTRE KI NARIYA,
DATIA (MADHYA PRADESH).
2. BABLU S/O SHRI RAMCHANDRA
KHATEEK R/O HOUSE NO. 279-D,
SADAR BAZAR, JHANSI (UTTAR
PRADESH).
3. DEVENDRA SAHU S/O SHRI
PREMNARAYAN R/O 237 GUDRI
MOHALLA, P.S. KOTWALI, DISTRICT
JHANSI (UTTAR PRADESH).
.....RESPONDENTS
(RESPONDENTS NO. 1 / CLAIMANT BY SHRI R.P.GUPTA- ADVOCATE
AND RESPONDENTS NO. 2 AND 3 BY SHRI ASHISH SHRIVASTAVA -
ADVOCATE)
AND
MISC. APPEAL No. 1215 OF 2011
BETWEEN:-
SANTOSH KUMAR DUBEY S/O SHRI
VAIKUNTH NARAYAN DUBEY, AGED
40 YEARS, R/O DANTRE KI NARIYA,
DATIA (MADHYA PRADESH).
.....APPELLANT
(BY SHRI R.P.GUPTA - ADVOCATE )
AND
1. BABLU S/O SHRI RAMCHANDRA
KHATEEK, AGED 42 YEARS, R/O
3
HOUSE NO. 279-D, SADAR BAZAR,
JHANSI (UTTAR PRADESH).
2. DEVENDRA SAHU S/O SHRI
PREMNARAYAN SAHU R/O 237 GUDRI
MOHALLA, P.S. KOTWALI, DISTRICT
JHANSI (UTTAR PRADESH).
3. UNITED INDIA INSURANCE
COMPANY, CIVIL LINE JHANSI U.P.
THROUGH BRANCH MANAGER
(UTTAR PRADESH)
.....RESPONDENTS
(RESPONDENTS No.1 AND 2 BY SHRI ASHISH SHRIVASTAVA -
ADVOCATE AND RESPONDENT NO. 3 BY SHRI B.N.MALHOTA -
ADVOCATE)
AND
MISC. APPEAL No. 1216 OF 2011
BETWEEN:-
HARIMOHAN SHARMA S/O SHRI
SIYASHARAN SHARMA, AGED 40
YEARS, R/O BEHIND OF HOUSE OF
GANGOTIYA, RAJGARH FATAK,
DATIA (MADHYA PRADESH).
.....APPELLANT
(BY SHRI R.P.GUPTA - ADVOCATE )
AND
1. BABLU S/O SHRI RAMCHANDRA
KHATEEK, AGED 42 YEARS, R/O
HOUSE NO. 279-D, SADAR BAZAR,
JHANSI (UTTAR PRADESH) (DRIVER).
2. DEVENDRA SAHU S/O SHRI
PREMNARAYAN R/O 237 GUDRI
MOHALLA, P.S. KOTWALI, DISTRICT
JHANSI (UTTAR PRADESH) (OWNER).
3.UNITED INDIA INSURANCE
COMPANY, CIVIL LINE JHANSI U.P.
THROUGH BRANCH MANAGER
(UTTAR PRADESH)
.....RESPONDENTS
4
( RESPONDENTS NO. 1 AND 2 BY SHRI ASHISH SHRIVASTAVA -
ADVOCATE AND RESPONDENT NO. 3 BY SHRI B.N.MALHOTRA -
ADVOCATE);
--------------------------------------------------------------------------------------=-
Reserved on : 30/10/2023
Delivered on : 09/11/2023
------------------------------------------------------------------------------------------
These appeals having been heard and reserved for orders, coming on for
pronouncement this day, this court passed the following:
ORDER
This common order shall govern disposal of M.A.Nos. 1029/2011
(United India Insurance Company Vs. Santosh Kuamr Dubey & Ors.),
1032/2011(United India Insurance Company Vs. Harimohan Sharma),
1215/2011 (Santosh Kumar Dubey Vs. Babloo and Ors) and 1216/2011
(Harimohan Sharma Vs. Babloo & Ors.), as all these appeals are filed by
against the common award dated 13th May, 2011 passed by Additional
Member, Motor Accident Claims Tribunal Datia in Claim Case Nos.
24/2010 and 46/2010, whereby, the Claims Tribunal has awarded a sum of
Rs. 45,000/- as compensation to claimant Santosh Dubey and Rs.
1,56,900/- to claimant - Harimohan Sharma for the injuries received by
them in a road accident dated 2/12/2009 and liability for payment of
compensation amount was fastened over Driver-cum-Owner and
Insurance Company jointly and severally alongwith interest at the rate of
7% per annum from the date of claim application.
2. Briefly stated facts of the case are that on 2/12/2009 at about 6.30
hours when claimant Harimohan was coming to Datia from Indargarh on
his motorcycle MP32MA0396 alongwith his friend Santosh Dubey, who
was sitting on motorcycle as pillion rider, near Nagaji College, Datia, a
tempo No. UP93T0511 being driver in wrong side by its driver in rash and
negligent manner, dashed the motorcycle of claimants due to which
claimants Harimohan and Santosh Dubey sustained grievous hurts.
3. M.A.Nos. 1029/2011 and 1032/2011 have been moved on behalf of
Insurance Company assailing the impugned award on the ground that
offending vehicle Piaggioa Ape No. UP93T0511 was having no permit to
be plied at Datia as the said vehicle was having permit to be driven at
Jhansi only within the periphery of 16 kms. This fact though admitted by
claims Tribunal but erred in rejecting the defence of Insurance Company.
No defence by owner of the vehicle was taken before the Claims Tribunal
that vehicle was being run without his knowledge and therefore, also
Claims Tribunal erred in passing the impugned award on the basis of
surmises and conjectures. From the record and criminal papers before the
Claims Tribunal it has been proved that the passengers were carried at
Datia; however, this fact has totally been ignored by the Claims Tribunal
while passing impugned award. As per the statement of Driver, no accident
occurred from the insured vehicle but learned Tribunal has not dealt with
this issue in legal perspective and thereby erred in accepting the total
negligence of the driver, which is liable to be set aside. Further at the most
it is stated that it is a case of contributory negligence of claimants and this
legal aspect has not been considered by the Claims Tribunal.
4. Whereas, M.A.Nos. 1215/2011 and 1216/2011 are being filed by
claimants Santosh Dubey and Harimohan respectively assailing the
quantum of impugned award as according to them the amount of
compensation as awarded by the Claims Tribunal is on the meager side.
According to claimant Santosh Dubey, due to aforesaid accident, he
sustained grievous injuries and sustained fracture of IV and V meta carpal,
little finger, radius ulana and ring finger of right hand. Because of such
injuries, he undergone operation and rod was inserted. He also sustained
permanent disable to the extent of 20%; however, Claims Tribunal has
only awarded a sum of Rs. 45,000/- and therefore, by filing this appeal, he
prayed for enhancement of impugned award by a further sum of Rs.
40,000/-.
5. As regards M.A.No. 1216/2011, same has been moved on behalf of
claimant Harimohan seeking enhancement in the award amount as
according to him in the said accident he sustained compound fracture of
right femur bone due to which he was operated and ring fixtator was
inserted. Though he sustained permanent disablement to the extent of
45% ; however, claims tribunal has only awarded a meager sum of Rs.
1,56,900/- which is on the lower side and thus prayed for enhancement of
impugned award amount by a further sum of Rs. 1,50,000/-.
6. Learned counsel for driver and owner of the offending vehicle
argued in support of impugned award and prayed for dismissal of all the
appeals.
7. Heard learned counsel for the parties at length and perused the
record.
8. The Insurance Company has assailed the impugned award on the
ground that the offending vehicle was being run against the permit and
therefore, Insurance Company cannot be held liable for payment of
compensation amount. The aforesaid contention of learned counsel for the
Insurance Company has been dealt with by Claims Tribunal in paragraph
Nos. 65 to 72 and from perusal of said paragraphs, it is transpired that
Claims Tribunal acted on the presumptions only by believing the version
of driver and owner of the offending vehicle that the vehicle was being
taken forcefully by some police personnel to Datia and at the time of
accident, no passenger was inside the vehicle; whereas, the permit issued
to offending vehicle was only of 16 kms to be plied within the periphery of
Jhansi, and therefore, the aforesaid finding of Claims Tribunal cannot be
said to be in line with the prevailing laws and therefore, in light of
Constitution Bench judgment of the Kerala High Court in the case of
Pareed Pillai versus Oriental Insurance Company Limited 2018 SCC
OnLine Kerala 3543, the Insurance Company cannot be held responsible
for payment of compensation amount; where, the vehicle was being run de
hors the permit. Therefore, Insurance Company is exonerated from liability
of payment of compensation amount and instead driver and owner of the
offending vehicle are held liable for payment of compensation amount and
light of decision of Apex Court in the matter of Smt. Gudiya and Ors.
Vs. Govind Sharma and Ors, 2020ACJ1569(MP), the Insurance
Company is directed to pay the compensation amount to claimants first
and thereafter recover the same from the owner and driver of the offending
vehicle.
9. As regards appeals filed by claimants Santosh Kumar Dubey and
Harimohan Sharma is concerned, after having heard learned counsel
appearing for the parties and on perusal of the pleadings and the evidence
so adduced, in the opinion of this Court, the finding dis-believing the
permanent disability as recorded by the Tribunal appears to be just and
proper. Considering the nature of injuries, treatment papers and its period,
the mental pain and suffering and also the other heads, the compensation
as awarded by the Claims Tribunal is liable to be enhanced by Rs.
20,000/- in lump sum in case of claimant -Santosh Kumar Dubey, thereby
making total compensation to be Rs. 65,000/- and in case of claimant -
Harimohan Sharma, Rs. 50,000/- in lump sum thereby making the total
compensation Rs.2,09,600/-which shall be payable along with the interest
@ 6% per annum from the date of filing of the claim petition.
10. In the result, all the four appeals filed by Insurance Company and
Claimants - Santosh Kumar Dubey and Harimohan Sharma are allowed in
part and impugned award is modified to be extend indicated hereinabove.
Rest of the conditions as imposed by the Claims Tribunal shall remain
intact.
(AVANINDRA KUMAR SINGH)
JUDGE
jps/-
ADNAN Digitally signed by ADNAN HUSAIN ANSARI
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH
COURT OF MADHYA PRADESH BENCH
HUSAIN
GWALIOR,
2.5.4.20=43f3ff8f444225f9f0d9c30497105ab
b80e91238ac53cf96a7b005e256158275,
postalCode=474001, st=Madhya Pradesh,
serialNumber=922E3DC382E0127257CE0DC
ANSARI
C4E29CD410E0BF39FAB6AA6DCB81675BB2
AF2DFCF, cn=ADNAN HUSAIN ANSARI
Date: 2023.11.09 16:09:29 +05'30'
