Smt.Sarswati & Ors. vs Sukhdevsingh & Ors.
2023 Latest Caselaw 18013 MP

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     IN THE      HIGH COURT OF MADHYA
                     PRADESH

                     AT I N D O R E

                        BEFORE
     HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL

               MISC. APPEAL No. 3830 of 2009

BETWEEN:-
1. SMT.SARSWATI & ORS.W/O LATE RAJENDRA CHAWLA, AGED
   ABOUT 36 YEARS, 508, BHAGIRATHPURA INDORE (MADHYA
   PRADESH)
2. PANKAJ S/O LATE RAJENDRA CHAWLA, AGED ABOUT 19 YEARS,
   OCCUPATION: STUDENT 508, BHAGIRATHPURA, INDORE (MADHYA
   PRADESH)
3. RACHNA S/O LATE RAJENDRA CHAWLA, AGED ABOUT 20 YEARS,
   OCCUPATION: STUDENT 508, BHAGIRATHPURA, INDORE (MADHYA
   PRADESH)
4. KU. PINKI D/O LATE RAJENDRA CHAWLA, AGED ABOUT 18 YEARS,
   OCCUPATION: STUDENT 508, BHAGIRATHPURA, INDORE (MADHYA
   PRADESH)
5. LOKESH THRU: N.G. MOTHER SARASWATIBAI S/O LATE RAJENDRA
   CHAWLA, AGED ABOUT 13 YEARS, OCCUPATION: STUDENT 508,
   BHAGIRATHPURA, INDORE (MADHYA PRADESH)
6. KALURAM S/O JAGANNATH CHAWLA, AGED ABOUT 63 YEARS,
   OCCUPATION: NIL 508, BHAGIRATHPURA, INDORE (MADHYA
   PRADESH)
                                               (DELETED)

7. SMT. PARWATIBAI W/O KALURAM CHAWLA, AGED ABOUT 61
    YEARS, OCCUPATION: NIL 508, BHAGIRATHPURA, INDORE
    (MADHYA PRADESH)
8. RAJNI D/O KALURAM CHAWLA, AGED ABOUT 26 YEARS,
    OCCUPATION: NIL 508, BHAGIRATHPURA, INDORE (MADHYA
    PRADESH)
9. CHETNA D/O KALURAM CHAWLA, AGED ABOUT 24 YEARS,
    OCCUPATION: NIL 508, BHAGIRATHPURA, INDORE (MADHYA
    PRADESH)
10. VANDANA D/O KALURAM CHAWLA, AGED ABOUT 22 YEARS,
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      OCCUPATION: NIL 508, BHAGIRATHPURA, INDORE (MADHYA
      PRADESH)
                                                         .....APPELLANTS
(SHRI R.N. DAVE AND SHRI HEMANT VAISHNAV, LEARNED COUNSELS
FOR THE APPELLANTS)

AND
1. SUKHDEVSINGH & ORS. S/O SARWANSINGH ANAJ MANDI SONIPAT
   HARIYANA (HARYANA)
2. KAILASH S/O VARDAJI OCCUPATION: OWNER ANAJ MANDI,
   SONIPAT, HARYANA (HARYANA)
3. MANAGER ORIENTAL INSURANCE COMPANY LIMITED 8/2, RNT
   MARG, SILVER SANCHORA HOUSE, INDORE (MADHYA PRADESH)
                                                       .....RESPONDENTS

(SHRI ABHAY JAIN, LEARNED COUNSEL FOR THE RESPONDENTS)



                    RESERVED ON               : 16.10.2023
                    PRONOUNCED ON             : 30.10.2023


       This appeal having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronounced the following:


                                  ORDER

This appeal has been filed by the appellant/claimant u/S. 173 (1) of the Motor Vehicles Act, 1988 being aggrieved by the award dated 17.11.2009 passed by 1st Additional Member, MACT to 1st Additional Member, MACT, Indore in Claim Case No.56/2009.

02. The short question involved in the appeal is with respect to liability regarding payment of compensation by respondent/insurance company and enhancement in compensation awarded by the tribunal.

03. Learned counsel for the appellants submits just on the ground that at

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the time of seizure, driving licence was not recovered. It cannot be said that at the time of accident, the driver was not having any driving licence. Before the tribunal, owner and driver of the offending vehicle did not appear and they were proceeded ex-parte. Insurance company did not examine driver and owner of offending vehicle and also did not summon RTO record to prove the fact that at the time of accident, driver was not having driving licence. From evidence on record, it is not proved that driver of offending vehicle was not having any driving licence at the time of accident. Alternatively, it is also urged that even if, it is proved that driver of offending vehicle was not having any driving licence still in that case, tribunal was bound to apply principle of pay and recover, therefore, appeal be allowed and insurance company be held liable to pay compensation jointly and severely or principle of pay and recovery be applied. Learned counsel for the appellant has placed reliance upon judgments delivered in the cases of Rukmani and others Vs. New India Assurance Co. Ltd. and others, 1999 ACJ 171; Narcinva V. Kamat and another Vs. Alfredo Antonio Doe Martins and others, 1985 ACJ 397; New India Assurance Co. Ltd. Vs. Smt. Vidya Bai, 1998 (I) MPWN 221; Parminder Singh Vs. New India Assurance Co. Ltd. And others, 2019 ACJ 2401; Ramlal Vs. Prakash and others, 2013 ACJ 1758; Gopalkrishna S/o Madanlal Ji Pancholi Vs. Santosh S/o Sobharam and others, MACD 2010 (2) (M.P.) 704; Shamanna and another Vs. Divisional Manager, Oriental Insurance Co. Ltd. And others, 2018 ACJ 2163 and Jawahar Singh Vs. Bala Jain and others, 2011 (III) MPWN 81.

04. Learned counsel for the appellants has also submitted that tribunal has wrongly assessed deceased's income as Rs.4000/- per month, instead,

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it should have been assessed as Rs.6000/- per month. It is also urged that tribunal has not awarded any amount under the head of future prospects and consortium.

05. Learned counsel for the respondent after referring to para 18 and 20 of the impugned award submits that insurance company issued registered notice to defendant No.1/owner - Sukhdev Singh which was returned as unserved under Section 131/134 of Motor Vehicle Act, the ensured is duty bound to produce relevant documents and the ensured has not supplied any particulars or documents, therefore, it was not possible for the insurance company to summon any record from RTO regarding driving licence of defendant No.2/Kailash. Further as per seizure memo, all documents except driving licence, have been seized. Thus, insurance company made all efforts for production of driving licence etc. Therefore, in view of principle laid down in New India Insurance Company Ltd. Vs. Manu Krishna and others, 2011 ACJ 466, insurance company is not liable. It is also urged that if there is no driving licence, the insurance company is not liable to pay compensation and principle of pay and recover can also not be applied in the instant case. In this connection, learned counsel has relied upon the case of National Insurance Company Limited Vs. Swaran Singh and others, 2004 ACJ 1 and Sardari and others Vs. Sushil Kumar and others, 2008 ACJ 1307.

06. Learned counsel for the respondent has also submitted that judgments relied upon by the learned counsel for the appellants are related to validity of driving licence. He has also submitted that since present petition relates to accident of the year 2006, therefore, learned tribunal has rightly assessed the deceased's income as Rs.4000/- per month.

07. I have heard the learned counsel for the parties and perused the

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record.

08. So far as income of the deceased at the time of accident is concerned, in the claim petition it is mentioned that deceased was working as driver and thereby receiving Rs.4000/- per month as salary and Rs.100/- per day as allowance, thus, the deceased was earning Rs.7000/- per month. Applicant's witness - Saraswatibai wife of the deceased has similarly deposed in her examination in chief. Thus, as per averments of claimants themselves in the claim petition and deposition of claimant- Saraswatibai herself, admittedly, monthly salary of deceased was Rs.4000/- per month. Tribunal after discussing and examining the evidence on record, in para 13, has rightly held deceased's monthly income as Rs.4000/-. As no documentary evidence was produced to prove that deceased was also receiving Rs.100/- per day as allowance and neither owner of concerned tanker or any person on his behalf appeared before the tribunal and has been examined to prove above fact. Therefore, it cannot be said that learned tribunal has wrongly assessed the deceased's income as Rs.4000/- per month.

09. Perusal of impugned award reveals that tribunal has not awarded any amount under the head of future prospects. Therefore, in view of law laid down by the Hon'ble Apex Court in the case of National Insurance Co. Ltd Vs. Pranay Sethi and others, AIR 2017 SC 5157, claimants are also entitled to future prospects in the instant case. Tribunal has held that deceased was 42 years of the age at the time of accident. Therefore, as per law laid down in the case of Pranay Sethi (supra) and taking into consideration the age of the deceased, an addition of 25% of deceased's income is warranted to be added as future prospects. Perusal of the award reveals that tribunal has awarded amount of Rs.5000/- each under the head

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of funeral expenses, loss of estate and loss of consortium as per Sarla Verma and others Vs. Delhi Transport Corporation, AIR 2009 SC 3104. As the present case pertains to accident dated 19.09.2006 and in view of Sarla Verma's case (supra), an amount of Rs.5000/- under the head of filial consortium needs to be awarded to the appellant/claimant Nos.2, 3, 4 and 5. In the opinion of this Court, the compensation amount deserves to be enhanced. Hence, the break-up of enhancement in the compensation amount is as under:-

Annual Income : Rs.4000+1000 (25% Future Prospects) = 5000 X 12= Rs.60,000/- per annum Multiplier adopted : 14 (60,000x14 = 8,40,000/-) Personal expenses : 1/5 (840000/5= 1,68,000/-) (8,40,000-1,68,000=6,72,000/-)

Loss of dependency : Rs.6,72,000/-

For consortium (Filial) : Rs.5,000/- each X 5 = 25,000/-

      Funeral Expenses                               : Rs.5,000/-
      Loss of Estate                                 : Rs.5,000/-

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Total amount : Rs.7,07,000/-

10. In view of the aforesaid discussion, the present appeal is allowed in part to the extent indicated herein above. The amount of compensation is enhanced from Rs.5,52,600/- to Rs.7,07,000/- with interest as fixed by the tribunal over and above the amount already awarded by the tribunal. Hence, the total amount enhanced in this appeal is Rs.1,54,400/- (Rs.5,52,600/- to Rs.7,07,000/-). Accordingly, the appellants shall be entitled to receive the enhanced amount of Rs.1,54,400/-. The enhanced amount shall carry interest from the date of filing of the claim petition till

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its realization.

11. So far as liability to pay above compensation is concerned, I have gone through the evidence on record and impugned award passed by learned tribunal specially para Nos.18 to 24. In this Court's opinion, learned tribunal has rightly held that at the time of accident, offending vehicle was being driven in violation of terms and conditions of insurance policy, therefore, insurance company is not liable to pay compensation and has rightly been exonerated. But, in this Court's considered opinion, in view of judgments referred in para 3 of this order, learned tribunal has erred in not applying principle of pay and recover. Admittedly, in the present case, deceased was a third party, therefore, it is fit case to apply principle of pay and recover. But as the principle of pay and recover has been applied in the present case, therefore, it is directed that non-applicant No.3, the insurance company, shall at the first instance / shall first pay the adjudged compensation alongwith interest as adjudged above to the claimants but, non-applicant no.3, the insurance company, shall be entitled to /shall be at liberty to recover the same from non-applicant Nos.1 and 2, the owner and driver in the manner as provided in National Insurance Co.Ltd. Vs. Swaran Singh & others-2004 ACJ 1 (SC);Amrit Paul Singh Vs. TATAAIG General Insurance Co. Ltd.-AIR 2018 SC 2662;Shammana Vs. Divisional Manager Oriental Insurance Co.Ltd.-AIR 2018 SC 3726 /section 174 Motor Vehicles Act. Therefore, non-applicants Nos.1, 2 and 3 are liable to pay the above compensation along with above interest to the claimants jointly and severally in the manner as mentioned hereinabove.

12. Accordingly, the present appeal is disposed off.

(ACHAL KUMAR PALIWAL ) JUDGE N.R.

Digitally signed by NARENDRA KUMAR RAIPURIA Date: 2023.10.30 19:32:43 +05'30'