National Insurance Com.Ltd vs Smt.Phoolwati
2023 Latest Caselaw 16236 MP

                                                         1

                                IN THE HIGH COURT OF MADHYA PRADESH

                                               AT G WA L I O R
                                                     BEFORE
                                     HON'BLE SMT. JUSTICE SUNITA YADAV

                                          ON THE 4th OF OCTOBER, 2023

                                           MISC. APPEAL No. 316 of 2012

                          BETWEEN:-
                          NATIONAL INSURANCE COM.LTD TH: ITS
                          SR.DIVISIONAL MANAGER AT DIVISIONAL
                          OFICE NO.1 AT JAYENDRA GANJ,GWLIOR
                          (MADHYA PRADESH)
                                                                          .....APPELLANT
                          (BY MR. B.N. MALHOTRA - ADVOCATE)

                          AND
                          1. SMT. PHOOLWATI W/O LATE PANNALAL R/O
                             DINARA, P.S. DINAR, DISTT. SHIVPURI AT
                             PRESENT R/O KALPANANAGAR, GOLA KA
                             MANDIR, GWALIOR (MADHYA PRADESH)
                          2. CHATUR SINGH S/O LATE PANNALAL, AGED
                             ABOUT 27 YEARS, P.S. DINARA, DIST.
                             SHIVPURI AT PRESENT R/O KALPANA
                             NAGAR GOLA KA MANDIR GWALIOR
                             (MADHYA PRADESH)
                          3. GOPAL S/O LATE PANNALAL, AGED ABOUT
                             25 YEARS, P.S. DINARA, DIST. SHIVPURI AT
                             PRESENT R/O KALPANA NAGAR GOLA KA
                             MANDIR GWALIOR (MADHYA PRADESH)
                          4. MOHAN S/O LATE PANNALAL, AGED ABOUT
                             21 YEARS, P.S. DINARA, DIST. SHIVPURI AT
                             PRESENT R/O KALPANA NAGAR GOLA KA
                             MANDIR GWALIOR (MADHYA PRADESH)
                          5. KU. KAMLA D/O LATE PANNALAL, AGED
                             ABOUT 17 YEARS, OCCUPATION: MINOR TH.
                             SMT. PHOLWATI P.S. DINARA, DIST.
                             SHIVPURI AT PRESENT R/O KALPANA
                             NAGAR GOLA KA MANDIR GWALIOR
                             (MADHYA PRADESH) KA MANDIR GWALIOR


Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/5/2023
09:50:33 PM
                                                                       2

                             (MADHYA PRADESH)
                          6. TINKU SHARMA S/O KEDAR SHARMA VILL.
                             SIRSOD P.S. HASTINAPUR DIST. GWALIOR
                             (MADHYA PRADESH)
                          7. KEDAR       PRASAD     SHARMA     S/O
                             CHAKRAPAND       VILL.   SIRSOD   P.S.
                             HASTINAPUR DIST. GWALIOR (MADHYA
                             PRADESH)
                                                                                           .....RESPONDENTS
                          (MR. R.P. GUPTA - ADVOCATE FOR RESPONDENTS NO. 1 TO 5 -
                          CLAIMANTS)
                          -----------------------------------------------------------------------------------------

                                 This appeal coming on for orders this day, the court passed the

                          following:

                                                              JUDGMENT

Present miscellaneous appeal has been filed assailing the award

dated 20.12.2012 passed by Third Additional Motor Accident Claims

Tribunal, Gwalior (M.P.) in Claim Case No. 66/2011 filed by respondents

No. 1 to 5 - claimants on account of death of deceased Pannalal Jatav in a

road traffic accident occurred on 30.12.2010 involving offending vehicle

motorcycle bearing registration No.MP07-ME-1573. At the time of

accident, respondent No. 6 was the driver and respondent No. 7 was the

owner of the offending vehicle and the vehicle was insured with appellant

- insurance company.

Respondent No. 6 and 7 filed their written statements and denied the

allegations made in the claim petition and further stated that since the

Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/5/2023 09:50:33 PM

offending vehicle was insured with appellant - insurance company,

therefore, insurance company is liable to pay the compensation.

Appellant - insurance company filed its written statement and denied

the averments made in the claim petition and further stated that at the time

of accident, offending vehicle was being plied in breach of policy terms

and conditions because the driver of offending vehicle was not having a

valid and effective driving license at the time of accident, therefore,

insurance company is not liable to pay the compensation.

Learned claims tribunal after hearing both the parties and going

through the evidence available on record partly allowed the claim petition

of the claimants and awarded compensation to the tune of Rs.25,81,546/-

which was directed to be paid by appellant - insurance company and

respondents No. 6 and 7 - driver and owner of the offending vehicle

jointly and severely.

Learned counsel for the appellant has submitted that learned claims

tribunal has erred in holding that the accident was not the result of

contributory negligence on the part of the deceased. Learned claims

tribunal has also ignored the fact that at the time of accident, driver of the

offending vehicle was having two licenses. Assessment of the

compensation amount is also on the higher side. Hence, prayed to set aside

Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/5/2023 09:50:33 PM

the impugned award.

On the other hand, learned counsel for respondents No. 1 to 5 -

claimants supported the impugned award and by filing cross-objection vide

I.A. No. 1330 of 2012 argued that appellants are also entitled for

compensation under the heads of "future prospects" and in other heads as

held by the Supreme Court in the case of National Insurance Company

vs. Pranay Sethi & Ors.; 2017 ACJ 2700.

Heard learned counsel for the rival parties and perused the available

record.

Claimant Gopal Jatav has been examined as AW-2. Though claimant

Gopal admitted that he was not present at the time of occurrence on the

place accident, however, he has proved the documents filed in criminal

case related to this accident as per Ex.P-1 to P-5. Ex.P-1 is the charge-

sheet filed under Section 279, 337, 304-A of IPC against the driver of the

offending vehicle. Ex.P-2 is the FIR lodged by Ramswaroop Prajapati

(AW-1) in which it is mentioned that the accident occurred on account of

rash and negligent driving by respondent No. 6 - Tinku Sharma, driver of

the offending Splendor motorcycle. In postmortem report Ex.P-3, the cause

of death of the deceased is mentioned as injuries received in a road traffic

accident. Ex.P-4 and P-5 are the seizure memo of the motorcycle.

Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/5/2023 09:50:33 PM

The Claimants have also examined Ramswaroop Prajapati (AW-1),

who had lodged the FIR. This witness has corroborated the case of the

claimants and deposed that the accident occurred on account of rash and

negligent driving by Tinku Sharma who was driving unnumbered Hero

Honda motorcycle. This witness has specifically mentioned that deceased

was driving his motor cycle at slow speed on his side, however, Tinku

Sharma was driving his motorcycle in a rash and negligent manner and it

was Tinku who dashed the motorcycle of deceased Pannalal. Nothing

emerged in cross-examination of this eye witness that may raise suspicion

over his statement.

Shivdayal (AW-3) has also been examined as an eye witness who

said to have been travelling with deceased Pannalal on his motorcycle as a

pillion rider. This witness has also corroborated the statement of AW-1

Ramswaroop and deposed that the accident occurred on account of rash

and negligent driving of unnumbered motorcycle by Tinku.

In this case, Tinku, driver of the offending vehicle did not appear

before the learned claims tribunal to contradict the version of the claimants

in respect to details of accident. Insurance company has also not examined

any witness or filed any investigation report in respect to this accident.

Statement of eye-witnesses remained unchallenged in their cross-

Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/5/2023 09:50:33 PM

examination. Therefore, there is no reason to disbelieve their statements.

Learned counsel for the appellant argued that the eye-witnesses have

admitted that there was a curve on the road at the place of accident and the

accident was result of head-on collision, therefore, learned claims tribunal

has erred in holding that the accident occurred only on account of rash and

negligent driving of the offending vehicle, however, above argument is not

acceptable because merely on the ground that it was a head-on collision, it

cannot be said that there was any negligence on the part of the deceased

unless it is proved by adducing cogent and reliable evidence. In the case in

hand both the eye-witnesses have specifically mentioned that the accident

occurred on account of rash and negligent driving by driver of the

offending vehicle, therefore, in absence of any cogent and reliable

evidence in rebuttal by the respondent, learned claims tribunal has rightly

held that there was no negligence on the part of the deceased and it was the

driver of the offending vehicle who hit the deceased by driving the

motorcycle in rash and negligent manner.

Further, insurance company has taken the defence that at the time of

accident, driver of the offending vehicle was not carrying valid and

effective driving license. To prove its defence, insurance company has

examined NAW-1 Purshottam as well as NAW-2 Dilip Kumar Palaiya.

Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/5/2023 09:50:33 PM

NAW-1 Purshottam, who is the Investigator appointed by the insurance

company, has deposed that at the time of accident, Tinku, driver of the

offending vehicle, was not having valid driving license, however, NAW-2

Dilip, Assistant Grade-III, RTO Bhind, in his statement deposed that

license No. 0015177 was issued in favour of Tinku for driving of

motorcycle with gear from 22.10.2008 to 21.10.2028 and second license

was for LMV. In his cross-examination this witness has admitted that

Ex.D-4, particulars of the license, is for the license Ex.D-6 which was

issued in favour of Tinku. He has further admitted that in that license an

endorsement was made for Light Motor Vehicle. Thus, learned claims

tribunal has rightly held on the basis of statement of this witness that at the

time of accident, driver of the offending vehicle was having valid and

effective driving license for driving the motorcycle with gear.

So far as quantum of compensation is concerned, the evidence

adduced on record by the parties indicate that at the time of accident, age

of deceased Pannalal Jatav was 51 years and the deceased was working as

lineman in Madhya Pradesh Madhya Kshetra Vidhyut Vitaran Company

Ltd. and was getting Rs.26,729/- per month as gross-salary. Learned claims

tribunal has also rightly deducted the professional tax Rs.1500/- and

income tax Rs.9000/- and calculated the annual income of the deceased as

Rs.3,10,248/-.

Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/5/2023 09:50:33 PM

Learned counsel for the insurance company has argued that major

sons of the deceased are not entitled for compensation, however, this

argument is not acceptable in the light of the settled principle of law laid

down in the case of National Insurance Co. Ltd. Vs. Birender and others;

2020 ACJ 759. Therefore, looking to the number of claimants, learned

claims tribunal has rightly deducted the personal expenses. However,

claimants would also be entitled for compensation under the heads of

"future prospects" as well as Rs.70,000/- in other heads i.e. "loss of

estate", "loss of consortium" and "funeral expenses" as held by the

Supreme Court in the case of Pranay Sethi (supra).

In view of the aforesaid discussion as well as in the light of the case

laws of Pranay Sethi (supra) as well as Smt. Sarla Verma & Ors. vs.

Delhi Transport Corporation & Ors.; AIR 2009 SC 3104, considering the

annual income of the deceased to be Rs.3,10,248/-, dependency 3/4 th

(Rs.310248 x 3/4 = 2,32,686), future prospect @ 15% (232686 x 15/100 =

34903), multiplier of 11 [(232686 + 34903) x 11 = Rs.29,43,479/-), and

Rs.70,000/- in other heads, total compensation amount comes to

Rs.30,13,479/-.

As such, the total amount awarded to the claimants is enhanced from

Rs.25,81,546/- to Rs.30,13,479/-. The enhanced amount comes to

Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/5/2023 09:50:33 PM

Rs.4,31,933/- (Rupees Four Lakh Thirty One Thousand Nine Hundred

and Thirty Three only), with interest at the rate as fixed by the tribunal in

the award which is directed to be paid to the claimants by the insurance

company in the same apportionment as directed by the claims tribunal. The

enhanced amount of compensation Rs.4,31,933/- shall be payable to the

claimants within 12 weeks from the date of production of a certified copy

of this order. Rest of the award impugned passed by the Tribunal shall

remain intact.

Claimants shall deposit the requisite court-fees within four weeks'

from today and proof thereof shall be submitted before the Registry.

Thereafter, Registry shall issue the certified copy of the order passed today.

Appeal stands dismissed and cross-objection filed by the

respondents No. 1 to 5 - claimants stands allowed and disposed of to the

aforesaid extent.

(SUNITA YADAV) JUDGE AKS

Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/5/2023 09:50:33 PM