The Oriental Insurance Co.Ltd. vs Sujan Singh Kushwaha
2023 Latest Caselaw 16805 MP

                                                       1
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                      HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                           ON THE 10 th OF OCTOBER, 2023
                                            MISC. APPEAL No. 3305 of 2021

                           BETWEEN:-
                           THE ORIENTAL INSURANCE CO.LTD. THROUGH
                           DIVISIONAL MANAGER DIVISION OFFICE, 11-B,
                           INDRAPURI, BHOPAL (MADHYA PRADESH)

                                                                             .....APPELLANT
                           (BY SHRI DINESH KAUSHAL - ADVOCATE)

                           AND
                           1.    SUJAN     SINGH   KUSHWAHA    S/O  LATE
                                 PHOOLCHAND KUSHWAHA, AGED ABOUT 40
                                 YEAR S , OCCUPATION: FATHER OF DECEASED
                                 62/1, ISLAMI GATE, BADA BAGH, MODEL
                                 GROUND, SHAHJAHANABAD, BHOPAL (MADHYA
                                 PRADESH)

                           2.    SMT. KANTA BAI W/O SUJAN SINGH KUSHWAHA,
                                 AGED ABOUT 38 YEARS, NOT MENTION (MADHYA
                                 PRADESH)

                           3.    SUNIL KUSHWAHA S/O SUJAN SINGH KUSHWAHA,
                                 AGED ABOUT 18 YEARS, NOT MENTION (MADHYA
                                 PRADESH)

                           4.    KU. SONIYA D/O SUJAN SINGH KUSHWAHA, AGED
                                 ABOUT     10    YEARS, OCCUPATION: MINOR
                                 THROUGH GUARDIAN MOTHER SMT. KANTA BAI
                                 NOT MENTION (MADHYA PRADESH)

                           5.    SALIM KHAN S/O KALE KHAN R/O H.NO.62/1,
                                 ISLAMI GATE, BADA BAGH MODEL GROUND
                                 SHAHJAHANGANJ (MADHYA PRADESH)

                           6.    NAGAR NIGAM COMMISSIONER NAGAR NIGAM
                                 MATA   MANDIR THANA T.T.NAGAR BHOPAL
                                 (MADHYA PRADESH)


Signature Not Verified
Signed by: MOHD TABISH
KHAN
Signing time: 10/11/2023
7:25:46 PM
                                                               2
                                                                                        .....RESPONDENTS
                           (BY SHRI KAPIL PATWARDHAN - ADVOCATE FOR RESPONDENTS NO.1
                           TO 5)
                           (BY SHRI ABHISHEK DWIVEDI - ADVOCATE FOR RESPONDENT NO.6.)

                                 This appeal coming on for admission this day, th e court passed the
                           following:
                                                               ORDER

This appeal is filed by the insurance company being aggrieved of award dated 21.09.2021 passed by the learned 13th Motor Accident Claims Tribunal, Bhopal in Claim Case No.1368/2018 on two grounds namely, there was breach of fitness of the offending vehicle and therefore, the order should have been that of pay and recover and compensation which has been awarded in favour of the

claimants is on the higher side.

Shri Kapil Patwardhan, learned counsel for the claimants and Shri Abhishek Dwivedi, learned counsel for respondent No.6 support the award.

After hearing learned counsel for the parties and going through the record, as far as, first issue is concerned in regard to fitness that is already covered by Constitution Bench judgment of Kerala High Court in case of State of Kerala Vs. A. Pareed Pillai and Another, (1972) 3 SCC 661, as has been adopted and referred to by this Court in M.A. No.3028/2020 while deciding the same on 14.12.2022 (The Oriental Insurance Company Limited Vs. Smt. Meera Devi Sharma and Others). Secondly, as far as quantum is concerned, date of the accident dated 05.06.2018 minimum wages for an unskilled labourer were to the tune of Rs.7325/- per month whereas Tribunal has arbitrarily considered the same at Rs.12,000/- (Rupees Twelve Thousand Only) per month without there being any justification. When this income at Rs.7,325/- (Rupees Seven Thousand Three Hundred and Twenty Five Only) per month in taken into consideration then annual income will come Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10/11/2023 7:25:46 PM

out to Rs.87,900/- (Rupees Eighty Seven Thousand Nine Hundred Only). 50% is to be deducted towards the living expenses of the deceased as he was a bachelor. 40% is to be added towards the future prospects and then when multiplier of 18 is applied then total pecuniary compensation will come out to Rs.11,07,540/- (Rupees Eleven Lacs Seven Thousand Five Hundred and Forty Only) in place of Rs.18,14,400/- (Rupees Eighteen Lacs Fourteen Thousand Four Hundred Only) awarded by learned Claims Tribunal. Thus, there will be reduction to the tune of Rs.7,06,860/- (Rupees Seven Lacs Six Thousand Eight Hundred and Sixty Only) under this head.

Accordingly, this appeal is allowed. It is directed that in place of Rs.20,04,400/- (Rupees Twenty Lacs Four Thousand Four Hundred Only) awarded by learned Claims Tribunal, claimants will be entitled to only a sum of Rs.12,97,540/- Rupees Twelve Lacs Ninety Seven Thousand Five Hundred and Forty Only) and secondly, that insurance company after paying the compensation will be entitled to recover it from the respondents No.1 and 2 on the principle of pay and recover in the light of law laid down by Kerala High Court in A. Pareed Pillai (supra).

In above terms, appeal is allowed and disposed of. Record of the Tribunal be sent back immediately. Certified copy as per rules.

(VIVEK AGARWAL) JUDGE Tabish

Signature Not Verified Signed by: MOHD TABISH KHAN Signing time: 10/11/2023 7:25:46 PM