Madhya Pradesh High Court
Smt. Rampyari vs Avnish Kumar Tyagi on 5 October, 2023
Author: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 5th OF OCTOBER, 2023
MISC. APPEAL No. 382 of 2019
BETWEEN:-
SMT. RAMPYARI W/O LATE BADRIPRASAD,
1. AGED ABOUT 40 YEARS, VILLAGE
HARGAGOLI, JOURA (MADHYA PRADESH)
KEDAR S/O LT BADRI PRASAD, AGED ABOUT
2. 20 YEARS, VILL HARGAGOLI TEH JAURA
(MADHYA PRADESH)
.....APPELLANTS
(BY MR. RAM KISHOR SHARMA - ADVOCATE)
AND
AVNISH KUMAR TYAGI S/O RAMJILAL TYAGI
1.
MS ROAD JOURA (MADHYA PRADESH)
OFFICER S/O FATEH SINGH WARD NO 18
2.
BLOCKPURA JAURA (MADHYA PRADESH)
BRANCH MANAGER UNITED INDIA
INSURANCE CO. LTD. BRANCH OFFICE
3. HOUSING BOARD BUILDING COURT TIRAHA
PURANI HOUSING BOARD COLONY (MADHYA
PRADESH)
.....RESPONDENTS
(MR. RAM VILAS SHARMA - ADVOCATE FOR RESPONDENT NO. 3 -
INSURANCE COMPANY)
-----------------------------------------------------------------------------------------
This appeal coming on for orders this day, the court passed the
following:
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/6/2023
10:45:37 PM
2
JUDGMENT
Present miscellaneous appeal has been filed assailing the order dated
11.9.2018 passed by Member, Motor Accident Claims Tribunal, Morena
(M.P.) in Claim Case No. 600020/2016 filed by the appellants - claimants
for grant of compensation on account of death of deceased Akash in a road
traffic accident occurred on 17.10.2015 involving offending vehicle
motorcycle bearing registration No.MP06-MK-5826. At the time of
accident, respondent No. 1 was the owner and respondent No. 2 was the
driver of the offending vehicle and the vehicle was insured with respondent
No. 3 - insurance company.
Respondents No. 1 and 2 did not appear before the learned claims
tribunal and were proceeded ex-parte.
Respondent No. 3 - 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 dismissed the claim petition of
the claimants.
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/6/2023
10:45:37 PM
Learned counsel for the appellant has submitted that learned claims
tribunal has erred in appreciating the evidence and wrongly came to the
conclusion that appellants - claimants failed to establish the involvement
of offending vehicle in the accident. Claim petition of the appellants has
been dismissed by adopting hyper-technical approach which ought not to
be applied in motor accident cases. It is further submitted that learned
claims tribunal has not gone through the documentary evidence and the
fact that driver of the offending vehicle has not chosen to appear and
contradict the case of the claimants and even insurance company has not
examined any witness or filed investigation report to contradict the case of
the claimants, claimants have proved their case by cogent and reliable
evidence. Therefore, impugned order be set aside and appropriate
compensation be granted to the claimants.
On the other hand, learned counsel for respondents No. 3 -
insurance company supported the impugned award and prayed for rejection
of the appeal.
Heard learned counsel for the rival parties and perused the available
record.
Claimants have examined Rampyari, mother of the deceased, as
AW-1, Ankit Savita (AW-2) as eye-witness and Siyaram Shakya (AW-3),
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/6/2023
10:45:37 PM
Investigating Officer in criminal case related to this accident.
AW-1 Rampyari has admitted that at the time of accident, she was
not present on the place of occurrence, however, proved the documents of
the charge-sheet filed before competent Court in criminal case related to
this accident. Ex.P-1 is the charge-sheet filed under Section 304-A, 279
and 337 of IPC against respondent No. 2 - Officer Singh, driver of the
offending vehicle alleging that the accident occurred on account of rash
and negligent driving of motorcycle bearing registration No. MP06-MK-
5826. Ex.P-2 is the FIR registered against respondent No. 2 - Officer
Singh S/o Fateh Singh, driver of the offending vehicle on the same day i.e.
17.10.2015. Ex.P-3 is merg intimation about the unnatural death of
deceased Akash. Ex.P-4 is intimation by hospital about the death of
deceased. Ex.P-6 is panchanama lash according to which death of Akash
was on account of injuries caused in an accident. Ex.P-9 is Pre-MLC of
Ankit, P-10 is Pre-MLC of Chhotu @ Shubham and P-11 is postmortem
report of deceased Akash according to which death of deceased was head
injuries due to motor vehicular accident. Ex.P-12 is certificate of owner of
the offending vehicle accepting the involvement of motorcycle bearing
registration No. MP06-MK-5826. Offending vehicle was seized as per
Ex.P-13. In mechanical inspection report Ex.P-17, head-light of the
offending vehicle was found damaged. Thus, documentary evidence as
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/6/2023
10:45:37 PM
mentioned above indicate that after investigation, it was found that the
accident occurred on account of rash and negligent driving of the offending
vehicle by respondent No. 2 - driver of the offending vehicle and,
thereafter, charge-sheet under Section 304-A, 279 and 337 of IPC was filed
against him.
Claimants examined Ankit Savita (AW-2) as eye-witness. This
witness has corroborated the facts narrated in the claim petition and
deposed that the accident occurred due to rash and negligent driving of
driver who was driving motorcycle bearing registration No. MP06-MK-
5826 at the time of accident.
Learned claims tribunal has minutely appreciated the evidence of
this witness and found that the statement of this witness is not reliable,
however, the Apex Court in the case of Kusum Lata and Ors. vs. Satbir
and 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 are required to establish their
case merely on the touchstone of preponderance of probability. In the case
of Anita Sharma & Ors. vs. New India Assurance Company Ltd. & Anr.,
2021 ACJ 17 held that strict principles of evidence and standard of proof
like in a criminal trial are inapplicable in motor accident claim cases.
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/6/2023
10:45:37 PM
Standard of proof in this is preponderance of probability rather than
beyond reasonable doubt. The same view has also been adopted by the
Supreme Court in the case of Vimla Devi & Ors. vs. National Insurance
Co. Ltd. & Ors.; 2019 ACJ 454 and it has been held that strict proof on
accident caused by a particular vehicle in a particular manner may not be
possible to be done by the claimants. Claimants were merely to establish
their case on the touchstone of preponderance of probability. Standard of
proof beyond reasonable doubt could not have been applied. Therefore,
only on apprehension and presumption, learned claims tribunal has
wrongly disbelieved the evidence of AW-2 Ankit Shakya.
In this case, driver of the offending vehicle has not chosen to appear
before learned claims tribunal to contradict the version of the claimants.
Even insurance company has not examined any witness to contradict the
case of the claimant.
Siyaram Shakya (AW-3), who investigated the criminal case related
to this accident, has in his statement corroborated the facts narrated by
Ankit Savita (AW-2) in respect to details of accident. In his cross-
examination, he has accepted that during the course of investigation,
evidence of witnesses were recorded as per Ex.D-1 to D-4. A simple
reading of Ex.D-1 to D-4 also indicate that the witnesses during
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/6/2023
10:45:37 PM
investigation stated that the accident occurred on account of rash and
negligent driving of offending vehicle motorcycle bearing registration No.
MP06-MK-5826.
Documents Ex.P-12, certificate of owner of the offending vehicle
accepting the involvement of vehicle motorcycle bearing registration No.
MP06-MK-5826 as well as mechanical inspection report in which
headlight of the offending vehicle was found damaged corroborate the
story of the claimants.
In view of the above discussion, finding of learned claims tribunal
that the claimants failed to prove the involvement of offending vehicle is
found to be against the evidence available on record, therefore, the above
finding is hereby set aside.
Now the question is what would be the just and proper
compensation? In this regard, age and income of the deceased is relevant.
Claimants have not filed birth certificate or school record to prove the age
of the deceased, therefore, on the basis of postmortem report, age of the
deceased is assessed as 18 years at the time of accident.
AW-1 Rampyari, mother of the deceased, deposed that his son Akash
was a labour and was earning Rs.10,000/- per month, however, claimants
have not filed any documentary evidence corroborating that the deceased
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/6/2023
10:45:37 PM
was earning Rs.10,000/-.Therefore, income of the deceased is held as
Rs.3500/- per month on the basis of notional income.
In view of the aforesaid discussion as well as in the light of the case
laws of National Insurance Company vs. Pranay Sethi & Ors.; 2017
ACJ 2700) 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.42,000/-, dependency 1/2 (Rs.42000 x 1/2 = 21,000),
future prospect @ 40% (21000 x 40/100 = 8400), multiplier of 18 [(21000
+ 8400) x 18 = Rs.5,29,200/-), and Rs.70,000/- in other heads, total
compensation amount comes to Rs.5,99,200/-.
As such, claimants are entitled for compensation to the tune of
Rs.5,99,200/- (Rupees Five Lakh Ninety Nine Thousand and Two
Hundred only), with interest at the rate of 6% per annum from the date of
filing of claim petition till realization which is directed to be paid to the
claimants by the insurance company. The compensation amount shall be
payable to the claimants within 12 weeks from the date of production of a
certified copy of this order.
If the enhanced amount of compensation is in excess to the valuation
of appeal, the difference of the Court fee (if not already paid) shall be
deposited by the claimants within four weeks' from today and proof thereof
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/6/2023
10:45:37 PM
shall be submitted before the Registry. Thereafter, Registry shall issue the
certified copy of the order passed today.
Appeal stand allowed to the aforesaid extent and disposed of.
(SUNITA YADAV)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/6/2023
10:45:37 PM
