Madhya Pradesh High Court

Smt. Azara Bi vs Naresh Kumar Gaur on 13 October, 2023

Author: Vivek Agarwal

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 13 th OF OCTOBER, 2023
MISCELLANEOUS APPEAL No. 1670 of 2016

BETWEEN:-
1. SMT. AZARA BI W/O LATE BHURA @ SHAHID,
AGED ABOUT 32 YEARS, VILL. GARHI TAH-
GAIRATGANJ, DISTRICT RAISEN (MADHYA
PRADESH)

2. DANISH ALI S/O LATE BHURA @ SHAHID, AGED
ABOUT 12 YEARS, VILL. GARHI TEH GAIRATGANJ
DISTT. RAISEN (MADHYA PRADESH)

3. SAJID ALI S/O LATE BHURA @ SHAHID, AGED
ABOUT 10 YEARS, VILL. GARHI TEH. GAIRATGANJ
DISTT. RAISEN (MADHYA PRADESH)

4. SAIF ALI S/O LATE BHURA @ SHAHID, AGED
ABOUT 8 YEARS, VILL. GARHI TEH GAIRATGANJ
DISTT. RAISEN (MADHYA PRADESH)

5. SABIR ALI S/O ASAD ALI, AGED ABOUT 58 YEARS,
VILL. GARHI TEH. GAIRATGANJ DISTT. RAISEN
(MADHYA PRADESH)

6. SMT. NAFIZA BI W/O SABIR ALI, AGED ABOUT 55
YEARS, VILL. GARHI TEH. GAIRATGANJ DISTT.
RAISEN (MADHYA PRADESH)

.....APPELLANTS
(BY SHRI NITIN KUMAR GUPTA - ADVOCATE)

AND
1. NARESH KUMAR GAUR S/O RAMDEEN GOUR,
AGED ABOUT 41 YEARS, PADARIYA TAH
GAIRATGANJ, DISTRICT RAISEN (MADHYA
PRADESH)

2. BHAGWAN SINGH S/O RADHEYLAL, AGED ABOUT
40 YEARS, PADARIYA TAH. GAIRATGANJ DISTT.
RAISEN (MADHYA PRADESH)
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 13-10-2023
18:49:33
2

3. THE L AND T GENERAL INSURANCE CO. LTD.
DIVISIONAL MANAGER 601, 602 TRADE CENTRE
BANDRA KURLA COMPLEX BANDRA EAST
MUMBAI (MAHARASHTRA)

.....RESPONDENTS
(SHRI ROHTAS BABU PATEL - ADVOCATE FOR THE RESPONDENTS NO.1
AND 2 AND SHRI TEJVINDER SINGH LAMBA - ADVOCATE FOR THE
RESPONDENT NO.3)

MISCELLANEOUS APPEAL No. 1671 of 2016

BETWEEN:-
1. SABIR ALI S/O ASAD ALI, AGED ABOUT 58 YEARS,
VIL GARHI GAIRATGANJ RAISEN (MADHYA
PRADESH)

2. SMT. NAFIZA W/O SABIR ALI, AGED ABOUT 55
YEARS, VILL. GARHI TAH- GAIRATGANJ, RAISEN
(MADHYA PRADESH)

3. BABLOO S/O SABIR ALI, AGED ABOUT 20 YEARS,
VILL. GARHI TAH- GAIRATGANJ, RAISEN
(MADHYA PRADESH)

4. BABLI D/O SABIR ALI, AGED ABOUT 18 YEARS,
VILL. GARHI TAH- GAIRATGANJ, RAISEN
(MADHYA PRADESH)

.....APPELLANTS
(BY SHRI NITIN KUMAR GUPTA - ADVOCATE)

AND
1. NARESH KUMAR GAUR S/O RAMDEEN GOUR,
AGED ABOUT 41 YEARS, PADARIYA GAIRALGANJ,
RAISEN (MADHYA PRADESH)

2. BHAGWAN SINGH S/O RADHEYALAL, AGED
ABOUT 40 YEARS, PADARIYA TAH- GAIRATGANJ,
RAISEN (MADHYA PRADESH)

3. DIVISIONAL MANAGER L AND T GENERAL
INSURANCE CO. LTD. 601 602 TRADE CENTRE
BANDRA KURLA COMPLEX BANDRA EAST
MUMBAI (MAHARASHTRA)

.....RESPONDENTS
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 13-10-2023
18:49:33
3
(SHRI ROHTAS BABU PATEL - ADVOCATE FOR THE RESPONDENTS NO.1
AND 2 AND SHRI TEJVINDER SINGH LAMBA - ADVOCATE FOR THE
RESPONDENT NO.3)

MISCELLANEOUS APPEAL No. 2223 of 2016

BETWEEN:-
L AND T GEN. INS. CO. LTD. MUMBAI THR. MANAGER
601602 TRADE CENTRE BANDRA KURLA COMPLEX
BANDRA EAST MUMBAI (MAHARASHTRA)

.....APPELLANT
(BY SHRI TEJVINDER SINGH LAMBA - ADVOCATE)

AND
1. SABIR ALI S/O ASAD ALI, AGED ABOUT 58 YEARS,
R/O VILL-GARHI, TAH-GAIRATGANJ, RAISEN
(MADHYA PRADESH)

2. SMT. NAFISA BI W/O SABIR ALI, AGED ABOUT 55
YE A R S , VILLAGE GARHI TAH. GAIRATGANJ,
RAISEN (MADHYA PRADESH)

3. BABLU ALI S/O SABIR ALI, AGED ABOUT 20
YE A R S , VILLAGE GARHI TAH. GAIRATGANJ,
RAISEN (MADHYA PRADESH)

4. BABLI BI D/O SABIR ALI, AGED ABOUT 18 YEARS,
VILLAGE GARHI TAH. GAIRATGANJ, RAISEN
(MADHYA PRADESH)

5. NARESH KUMAR GAUR S/O RAMDEEN GAUR,
AGED ABOUT 41 YEARS, VILLAGEPADARIYA TAH.
GAIRATGANJ, RAISEN (MADHYA PRADESH)

6. BHAGWAN SINGH S/O RADHELAL, AGED ABOUT
40 YEARS, VILLAGE PADARIYA TAH.
GAIRATGANJ, RAISEN (MADHYA PRADESH)

.....RESPONDENTS
(SHRI NITIN KUMAR GUPTA - ADVOCATE FOR THE RESPONDENTS NO.1
TO 4 AND SHRI ROHTAS BABU PATEL - ADVOCATE FOR THE
RESPONDENTS NO.5 AND 6)

MISCELLANEOUS APPEAL No. 2224 of 2016

Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 13-10-2023
18:49:33
4

BETWEEN:-
L AND T GEN. INS. CO. LTD. MUMBAI THR. MANAGER
601602 TRADE CENTRE BANDRA KURLA COMPLEX
BANDRA EAST MUMBAI (MAHARASHTRA)

.....APPELLANT
(BY SHRI TEJVINDER SINGH LAMBA - ADVOCATE)

AND
1. SMT. AJRA BI W/O LATE BHURA ALIAS SHAHID,
AGED ABOUT 32 YEARS, R/O VILL-GARHI, TAH-
GAIRATGANJ (MADHYA PRADESH)

2. DANISH ALI S/O LATE BHURA ALIAS SHAHDI ALI,
AGED ABOUT 12 YEARS, OCCUPATION: MINORS
THROUGH NATURAL GUARDIAN MOTHER SMT.
AJRA BI VILLAGE GARHI TAH. GAIRATGANJ
(MADHYA PRADESH)

3. SAJID ALI S/O LATE BHURA ALIAS SHAHDI ALI,
AGED ABOUT 10 YEARS, OCCUPATION: MINORS
THROUGH NATURAL GUARDIAN MOTHER SMT.
AJRA BI VILLAGE GARHI TAH. GAIRATGANJ
(MADHYA PRADESH)

4. SAIF ALI S/O LATE BHURA ALIAS SHAHDI ALI,
AGED ABOUT 8 YEARS, OCCUPATION: MINORS
THROUGH NATURAL GUARDIAN MOTHER SMT.
AJRA BI VILLAGE GARHI TAH. GAIRATGANJ
(MADHYA PRADESH)

5. SABIR ALI S/O ASAD ALI, AGED ABOUT 58 YEARS,
VILLAGE GARHI TAH. GAIRATGANJ (MADHYA
PRADESH)

6. SMT. NAFISA BI W/O SABIR ALI, AGED ABOUT 55
YE A R S , VILLAGE GARHI TAH. GAIRATGANJ
(MADHYA PRADESH)

7. NARESH KUMAR GAUR S/O RAMDEEN GAUR,
AGED ABOUT 41 YEARS, VILLAGE PADARIYA
TAHSIL GAIRATGANJ (MADHYA PRADESH)

8. BHAGWAN SINGH S/O RADHELAL, AGED ABOUT
40 YEARS, VILLAGE PADARIYA TAHSIL
GAIRATGANJ (MADHYA PRADESH)

.....RESPONDENTS
Signature Not Verified
Signed by: PUSHPENDRA
PATEL
Signing time: 13-10-2023
18:49:33
5
(SHRI NITIN KUMAR GUPTA - ADVOCATE FOR THE RESPONDENTS NO.1
TO 6 AND SHRI ROHTAS BABU PATEL - ADVOCATE FOR THE
RESPONDENTS NO.7 AND 8)

These appeals coming on for admission this day, the court passed the
following:
ORDER

Shri Nitin Kumar Gupta, learned counsel for the claimants submits that he has paid deficit Court fee of Rs.11,750/- in M.A. No.1670/2016 and Rs.7,250/- in M.A. No.1671/2016 and in support of the said submission he has filed copy of Online Court Fee Cyber Receipts, therefore, it is prayed that deficit Court fee may be taken on record.

2. On due consideration, prayer is accepted and deficit Court fee is taken on record.

3 . These miscellaneous appeals under Section 173(1) of the Motor Vehicles Act, 1988 are filed by the claimants and insurance company being aggrieved of awards dated 29.03.2016 passed by the learned Additional Motor Accident Claims Tribunal, Begumganj, District Raisen in claim case No.20/2014 (Smt. Azra Bi and others Vs. Naresh Kumar Gaur and others) and claim case No.21/2014 (Sabir Ali and others Vs. Naresh Kumar Gaur and others).

4. Shri Tejvinder Singh Lamba, learned counsel for the insurance company submits that insurance company has filed these appeals on the ground that three persons, namely, Anwar, Shahid and Akbar were travelling on a motorcycle. Accident took place on 27.05.2014 in which two of them i.e. Anwar and Shahid died. Thus, it is pointed out that it is a case of contributory negligence. Second ground is that trolley was not insured. Third ground is that driver of the tractor trolley was having a licence to drive Light Motor Vehicle and, therefore, the insurance company should be exonerated.

Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 13-10-2023 18:49:33

5. Reliance is placed on the judgment of Punjab and Haryana High Court in case of New India Assurance Company Ltd. Vs. Sohan Lal and others, 2012 SCC OnLine P&H 24507 = 214 ACJ 1583.

6. Shri Nitin Kumar Gupta, learned counsel for the claimants, in his turn, submits that judgment of Punjab and Haryana High Court in case of Sohan Lal (supra) is not applicable, inasmuch as, Hon'ble Supreme Court in case of Archit Saini and another Vs. The Oriental Insurance Company Ltd., (2018) 3 SCC 365, has dealt with the aspect that as per Rule 15 of the Road Regulations, 1989, no vehicle is to be parked on busy road. It is pointed out that driver of the offending tractor trolley, namely, Naresh Kumar has admitted in his cross-examination that accident took place at night. There was no indicator in the trolley. Trolley was parked on the road as its tyre was punctured. He has also admitted that a criminal case has been registered against him. Therefore, in view of the admission of the driver Naresh Kumar, aspect of contributory negligence is not made out.

7. Shri Rohtas Babu Patel, learned counsel for the owner and driver of the offending vehicle submits that Hon'ble Supreme Court in case of Fahim Ahmad and others Vs. United India Insurance Company Ltd. and others, AIR 2014 SC 2187, has held that merely because at time of accident a trolley was attached with tractor which was carrying sand for irrigation purpose, it would not mean that tractor was used for commercial purpose. Insurance company neither pleaded breach of conditions of policy nor led any evidence to prove the same, it cannot be presumed that there was breach of conditions of the policy.

8. The facts of the present case are identical. No evidence was led by the insurance company to prove the breach of the policy. Therefore, even second Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 13-10-2023 18:49:33

ground that trolley was not insured, is not made out.

9. As far as third ground is concerned, unladen weight of the tractor trolley is less than the weight of the LMV as mentioned in Section 2(21) of the Motor Vehicles Act and, therefore, driver having licence to drive LMV, too cannot be weighed in favour of the insurance company. Again insurance company did not produce any evidence to prove violation of breach of the policy. Therefore, as far as appeals (M.A. No.2223 of 2016 and M.A. No.2224 of 2016) filed by the insurance company are concerned, they are hereby dismissed.

10. As far as appeals filed by the claimants are concerned, income of deceased Shahid and Anwar on the date of accident is construed at Rs.3,000/- per month. Date of accident is 27.05.2014. Therefore, in appeal originating from claim case No.20/2014, minimum wages for an unskilled labourer on the date of the accident can be a criteria for computing the compensation. On the date of accident, minimum wages even for an unskilled labourer were to the tune of

Rs.5,845/- per month or Rs.70,140/- per annum. 1/4th is to be deducted towards the living expenses of the deceased and then 25% is to be added towards the Future Prospects and then when multiplier of 15 is applied, total pecuniary compensation will come out Rs.9,86,344/-. Over and above which, claimants will be entitled to a sum of Rs.70,000/- under the head of non pecuniary compensation and three children of deceased will be entitled to a sum of Rs.40,000/- each in the light of law laid down by Hon'ble Supreme Court in case of United India Insurance Company Limited versus Satinder Kaur @ Satwinder Kaur (2021) 11 SCC 780, taking total compensation to Rs.11,76,344/- against a sum of Rs.5,07,500/- awarded by the learned Claims Tribunal. Thus, there will be enhancement to the tune of Rs.6,68,844/- (Rupees

Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 13-10-2023 18:49:33

Six Lakhs, Sixty Eight Thousands, Eight Hundred and Forty four Only).

11. As far as appeal originating from claim case No.21/2014 is concerned, deceased Anwar was 22 years of age. His Heavy Driving licence is available on record as Ex.D-9. Income for a skilled labourer on the date of the accident were to the tune of Rs.6,125/- per month or Rs.73,500/- per annum. Since deceased Anwar was a bachelor, 50% is to be deducted towards the living expenses of the deceased. 40% is to added towards Future Prospects and then when multiplier of 18 is applied, total pecuniary compensation will come out to Rs.9,26,100/-. Over and above which, claimants will be entitled to a sum of Rs.30,000/- under the head of non pecuniary compensation, taking total compensation to Rs.9,56,100/- against a sum of Rs.3,71,500/- awarded by the learned claims Tribunal. Thus, there will be enhancement to the tune of Rs.5,84,600/- (Rupees Five Lakhs, Eighty Four Thousands and Six Hundred Only).

12. Enhanced amount will also earn interest at the rate of 6% per annum from the date of filing of claim petition till the date of actual payment. Other terms and conditions of the awards shall remain intact.

13. This additional amount along with accrued interest shall remain invested in the Monthly Income Scheme of the Indian Post Office or a Nationalized Bank for a period of ten years. The claimants will be entitled to utilize its monthly interest for their well being and maintenance, but the principal amount will not allowed to be withdrawn for a period of ten years.

14. In above terms, these miscellaneous appeals and disposed of.

15. Record of the learned Claims Tribunal be sent back.

Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 13-10-2023 18:49:33

(VIVEK AGARWAL) JUDGE pp

Signature Not Verified Signed by: PUSHPENDRA PATEL Signing time: 13-10-2023 18:49:33