Uttam Singh Shakya vs Shaqur Navi Qureshi
2023 Latest Caselaw 17192 MP

                                                            1
                            IN    THE       HIGH COURT OF MADHYA PRADESH
                                                  AT GWALIOR
                                                      BEFORE
                                         HON'BLE SMT. JUSTICE SUNITA YADAV
                                              ON THE 16 th OF OCTOBER, 2023
                                               MISC. APPEAL No. 1236 of 2016

                           BETWEEN:-
                           UTTAM SINGH SHAKYA S/O SHRI LALTA PRASAD
                           SHAKYA, AGED ABOUT 21 YEARS, INFRONT OF POST
                           OFFICE LOHAMANDI GWALIOR (MADHYA PRADESH)

                                                                                        .....APPELLANT
                           (BY MR. AKHLESH KUMAR GUPTA - ADVOCATE)

                           AND
                           1.    SHAQUR NAVI QURESHI S/O SHRI SHAUKAT NAVI
                                 QUR ESHI TANSEN ROAD GWALIOR (MADHYA
                                 PRADESH)

                           2.    PRAYAG NARAYAN BHATELE S/O SHRI P.S.
                                 BHATELE OCCUPATION: NA HOUSE NO. 288
                                 GANESHPURA MORENA (MADHYA PRADESH)

                           3.    DIVISIONAL  MANAGER   THE  ORIENTAL
                                 INSURANCE CO. LTD. PHOOL BAAG ROAD
                                 (MADHYA PRADESH)

                                                                                     .....RESPONDENTS
                           (MR. B.K. AGARWAL - ADVOCATE FOR RESPONDENT NO. 3 - INSURANCE
                           COMPANY)

                                 T h is appeal coming on for orders this day, t h e cou rt passed the
                           following:
                                                          JUDGMENT

Present miscellaneous appeal has been filed against the award dated 15.9.2016 passed by Fifth Additional Member, Motor Accident Claims Tribunal, Gwalior (M.P.) in Claim Case No. 168/2014 filed by the appellant - claimant for grant of compensation on account of injury sustained suffered by Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/17/2023 09:33:40 PM

him in a road traffic accident occurred on 10.11.2012 at about 9:30 am involving offending vehicle Bus bearing registration No. MP07-P-0134. At the time of accident, respondent No. 1 was the driver and respondent No. 2 was the owner of the offending vehicle whereas the vehicle was insured with respondent No. 3 - insurance company.

Respondents No. 1 and 2 remained absent before 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 the offending vehicle was being plied in violation of policy terms and conditions,

therefore, insurance company is not liable to pay the compensation.

Learned claims tribunal after hearing both the parties and going through the evidence available allowed the claim petition of the claimant and awarded compensation to the tune of Rs.3,15,000/-, however, exonerated the insurance company from the liability to pay the compensation.

Learned counsel for the appellant - claimant argued that though learned claims tribunal has found that the offending bus did not have valid fitness certificate and there was breach of policy conditions, however, exonerated the insurance company from the liability to pay the compensation which is against the settled principle of law and principle of "pay and recover" should have been applied. It is further argued that learned claims tribunal has wrongly assessed the income as well as permanent disability of the claimant and thereby erred in awarding the compensation on the lower side. Hence, prayer is made to set aside the impugned award and for enhancement of compensation.

Per contra, learned counsel for respondent No. 3 - insurance company supported the impugned award and prayed for rejection of the appeal. Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/17/2023 09:33:40 PM

Heard learned counsel for the rival parties and perused the available record.

On perusal of record, it is evident that the offending vehicle did not have valid fitness certificate at the time of accident, therefore, learned claims tribunal has rightly exonerated the insurance company from its liability to pay the compensation as there was breach in the policy terms and conditions. However, the Supreme Court in the cases of Shivaraj Vs. Rajendra; [(2018) 10 SCC 432], Manuara Khatun Vs. Rajesh Kumar Singh; [2017 ACJ 1031] & Shamanna and another Vs. Divisional Manager Vs. the Oriental Insurance Co. Ltd. and others, [(2018) 9 SCC 650] observed that in the case of breach of policy, directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured be given by applying the principle of "pay and recover". Therefore, it is directed that respondent No. 3 - insurance company shall pay the compensation to the claimant with the right to recover the same from respondents No. 1 and 2 - driver and owner of the offending vehicle.

So far as quantum of compensation is concerned, learned claims tribunal on the basis of evidence adduced by both the parties rightly held that there was 25% loss in the earning capacity of the appellant - claimant as he suffered 40% permanent disability in his left hand and also rightly assessed Rs.4500/- per

month income of the appellant as there was no documentary evidence to support the oral evidence of the claimant that he was earning Rs.8000/- per month from giving private tuition. However, appellant - claimant would also be entitled for compensation under the head of "future prospect" @ 40%.

There is no dispute with regard to the fact that appellant - claimant was

Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/17/2023 09:33:40 PM

between the age group of 21-25 years.

In view of the above as well as in the light of case law of National Insurance Company vs. Pranay Sethi & Ors.; 2017 ACJ 2700, considering the annual income of the claimant to be Rs.54,000/-, multiplier of 18, loss of future earning capacity @ 25%, future prospect @ 40%, Rs.27,000/- towards loss of income during the period appellant remained admitted and was treated, Rs.35,000/- towards medical expenses, Rs.5,000/- towards pain and suffering and Rs.5,000/- towards special diet, total compensation amount comes to Rs.4,12,200/- [Rs.2,43,000/- (54,000 x 18 x 25%) 97 200/- (40% future prospect on 2,43,000/-) 27000 35000 5000 5000/-]. The tribunal has awarded a sum of Rs.3,15,000/- to the claimant. The enhanced amount comes to Rs. 97,200/- (Rupees Ninety Seven Thousand Two Hundred only). T h e enhanced amount of compensation i.e. Rs.97,200/- shall carry interest as awarded by learned claims tribunal from the date of claim application till realization. The enhanced amount of compensation shall be payable to the appellant - claimant by the Insurance Company within a period of 12 weeks from the date of production of certified copy of this order with right to recover the same from respondents No. 1 and 2 - driver and owner of the offending vehicle respectively. Rest of the award passed by learned claims tribunal shall remain intact.

Present miscellaneous appeal is disposed of in above terms.

(SUNITA YADAV) JUDGE AKS

Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/17/2023 09:33:40 PM