Madhya Pradesh High Court
Hameed Khan vs Smt.Suvitra Devi Ravat on 21 September, 2023
Author: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 21 st OF SEPTEMBER, 2023
MISC. APPEAL No. 524 of 2009
BETWEEN:-
1. SMT. SUMITRA DEVI RAWAT W/O LATE PUNJAB
SINGH RAWAT, AGED ABOUT 23 YEARS, R/O
VILLAGE CHANDPUR THANA DABRA DISTT.
GWALIOR (MADHYA PRADESH)
2. KU. KIRAN @ KRISHNA D/O LATE PANJAB SINGH
RAWAT U/G. OF SMT. SUMITRA DEVI R/O VILL.
CHANDPUR, THANA DABRA, DISTT. GWALIOR
(MADHYA PRADESH)
3. RAMSEWAK RAWAT S/O LATE SARWAN SINGH
RAWAT, AGED ABOUT 50 YEARS, R/O VILL.
CHANDPUR, THANA DABRA, DISTT. GWALIOR
(MADHYA PRADESH)
4. SMT. KAPOORI BAI (DELETED) W/O SHRI
RAMSEWAK RAWAT, AGED ABOUT 47 YEARS, R/O
VILL. CHANDPUR, THANA DABRA, DISTT.
GWALIOR (MADHYA PRADESH)
5. KU. RANI D/O LATE PANJAB SINGH U/G. OF SMT.
SUMITRA DEVI R/O VILL. CHANDPUR, THANA
DABRA, DISTT. GWALIOR (MADHYA PRADESH)
.....APPELLANTS
(BY MR. SHANKAR DHINGRA - ADVOCATE)
AND
1. KAMAL SINGH S/O BHAGWAN DAS OCCUPATION:
DRIVER, R/O HARIPURA WARD NO.11, DABRA
DISTT. GWALIOR P.R/O SHIV COLONY, DABRA
(MADHYA PRADESH)
2. HAMEED KHAN S/O HABEED KHAN R/O MASHIA
GANJ, SEEPARI BAZAR, JHANSI U . P . (UTTAR
PRADESH)
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/23/2023
05:32:47 AM
2
3. UNITED INDIA INSURANCE CO. LTD. BRANCH
OFFICE PHALKA BAZAR,LASHKAR, GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
(MR. R.P.GUPTA - ADVOCATE FOR RESPONDENT NO. 2 AND MR.
B.N.MALHOTARA - ADVOCATE FOR RESPONDENT NO .3)
MISC. APPEAL No. 1244 of 2009
BETWEEN:-
HAMEED KHAN S/O SHRI HABIB KHAN, AGED ABOUT
33 YEARS, OCCUPATION: AGRICULTURIST, R/O
MASHIHA GANJ SEEPARI BAJAR, JHANSI (UTTAR
PRADESH)
.....APPELLANT
(BY MR. R.P.GUPTA - ADVOCATE)
AND
1. SMT. SUMITRA DEVI RAVAT W/O LATE PANJAB
SINGH RAVAT, AGED ABOUT 23 YEARS, R/O
GRAM CHANDPUR P.S. DABARA, DISTT.
GWALIOR (MADHYA PRADESH)
2. KU. KIRAN @ KRISHNA D/O LATE PUNJAB SINGH
RAWAT, AGED ABOUT 1 YEARS UNDER
GAURDIAN SMT. SUMITRA DEVI RAWAT R/O
VILL. CHANDPUR, P.S. DABRA, DISTT. GWALIOR
(MADHYA PRADESH)
3. RAMSEWAK RAWAT S/O LATE SARVAN SINGH
RAWAT, AGED ABOUT 50 YEARS, R/O VILL.
CHANDPUR, P.S. DABRA, DISTT. GWALIOR
(MADHYA PRADESH)
4. SMT. KAPOORI BAI (DELETED) W/O RAMSEWAK
RAWAT, AGED ABOUT 47 YEARS, R/O VILL.
CHANDPUR, P.S. DABRA, DISTT. GWALIOR
(MADHYA PRADESH)
5. KU. RANI D/O LATE PUNJAB SINGH UNDER
GUARDIAN MOTHER SMT. SUMITRA DEVI R/O
VILL. CHANDPUR, P.S. DABRA, DISTT. GWALIOR
(MADHYA PRADESH)
6. KAMAL SINGH S/O BHAGWAN DAS R/O
HARIPURA WARD NO. 11, DABRA, DISTT.
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/23/2023
05:32:47 AM
3
GWALIOR (MADHYA PRADESH)
7. UNITED INDIA INSURANCE CO.LTD. BRANCH
OFFICE FALKA BAZAR, LASHKAR, GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
(MR. SHANKAR DHEENGARA - ADVOCATE FOR RESPONDENTS NO. 1 TO
5 AND MR. BADRI NATH MALHOTRA - ADVOCATE FOR RESPONDENT
NO. 7)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
JUDGMENT
Since common question of law is involved in aforesaid M.A. Nos. 524 of
2009 and 1244 of 2009, therefore, they are heard analogously and are decided
by this common judgment. M.A. No. 524 of 2009 has been filed by the
claimants whereas M.A. No. 1244 of 2009 has been filed by driver of the
offending vehicle. For the sake of convenience, facts mentioned in M.A. No.
524 of 2009 are taken into consideration.
Present miscellaneous appeals have been filed against the award dated
24.2.2009 passed by Third Additional Motor Accident Claims Tribunal,
Gwalior (M.P.) in Claim Case No. 244/2008 filed by the appellants - claimants
(respondents No. 1 to 5 in M.A. No. 1244 of 2009) for grant of compensation
on account of death of Punjab Singh Rawat in a road traffic accident occurred
on 13.3.2007 involving offending vehicle Tractor bearing registration No. UP93-
A-9387. At the time of accident, respondent No. 1 Kamal Singh (respondent
No. 6 in M.A. No. 1244 of 2009) was the driver and respondent No. 2 Hameed
Khan (appellant in M.A. No. 1244 of 2009) was the owner of the offending
vehicle and the offending vehicle was insured with respondent No. 3 - insurance
company (respondent No. 7 in M.A. No. 1244 of 2009).
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/23/2023
05:32:47 AM
Respondents No. 1 and 2 - driver and owner of the offending vehicle
respectively filed their written statement and denied the allegations made in the
claim petition.
Respondent No. 3 - insurance company filed its written statement and
denied the averments made in the claim petition and further stated that offending
vehicle was being plied in breach 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 record partially allowed the claim petition and awarded compensation to the
tune of Rs.3,55,100/- which was directed to be paid by respondents No. 1 and
2 - driver and owner of the offending vehicle jointly and severely and insurance
company was exonerated from the liability to pay the compensation.
Learned counsel for the appellants - claimants argued that learned claims
tribunal has committed error in not considering the documentary evidence Ex.P-
11 to P-13 - revenue records of agricultural land, Ex.P-10 - certificate of
Sarpanch in respect to income of deceased Punjab Singh as well as Ex.P-14 -
diary in respect to selling of milk and assessed the income of the deceased on
the lesser side. He has also argued that the age of the deceased was also
wrongly fixed as 26 years, however, in the postmortem report, age of the
deceased is mentioned as 25 years. Further argument is that dependency has
also wrongly been calculated by learned claims tribunal and no compensation
has been awarded towards future prospects as well as in other heads as
directed by the Apex Court in the case of National Insurance Company vs.
Pranay Sethi & Ors.; 2017 ACJ 2700.
Learned counsel for respondent No. 2 - owner of the offending vehicle
Signature Not Verified
by filing M.A. No. 1244 of 2009 argued that learned claims tribunal has wrongly
Signed by: ALOK KUMAR
Signing time: 9/23/2023
05:32:47 AM
fastened the liability upon the owner of the offending vehicle against the settled
principle of law. Further argument is that learned claims tribunal has erred in
holding that the tractor - trolley was being used for other than agricultural
purpose. Even otherwise, in the light of the case law of Mukund Dewangan
vs. Oriental Company Limited, [Civil Appeal No.5826 of 2011 decided on
3/7/2017] as well as Shashibala & Ors. vs. Rajendra Sharma & Ors.; 2008
ACJ 2744, the liability should be fastened upon the insurance company as
deceased was a third party.
Learned counsel for respondent No. 3 - insurance company opposed
both the appeals and prayed for rejection of the same on the ground that the
driver of the offending vehicle did not have valid driving license to drive the
tractor-trolley and the vehicle was being driven for commercial purpose,
therefore, learned claims tribunal has rightly exonerated the insurance company
from the liability to pay the compensation.
Heard learned counsel for the rival parties and perused the available
record.
S o far as the age of the deceased is concerned, since birth certificate,
school certificate or other documentary evidence have not been filed, therefore,
the age should have been fixed on the basis of postmortem report of the
deceased. In the case in hand, as per postmortem report, age of the deceased
Punjab Singh was 25 years at the time of his death, therefore, age of the
deceased is fixed as 25 years at the time of accident.
So far as income of the deceased is concerned, claimants have examined
Basant Sharma to prove income certificate of the deceased, however, this
witness has failed to show on what basis he has issued the certificate and,
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/23/2023
05:32:47 AM
therefore, learned claims tribunal has not erred in disbelieving the certificate
Ex.P-10. Khasra entries are also in the name of father of the deceased and land
is also in the joint name of Suresh, Ramsevak and Pista Bai. Deceased were
three brothers Kalyan, Mahendra and Brijendra. Thus, on the basis of revenue
entry, it is not proved that the entire land was in the name of deceased and he
was earning Rs.40,000/- per annum from these agricultural lands. In the diary
Ex.P-4, necessary details like name of customers, quantity of milk sold to
alleged customers are not mentioned, therefore, learned claims tribunal on the
basis of evidence available on record rightly assessed the income of the
deceased @ Rs.2400/- per month.
However, learned claims tribunal has wrongly calculated the dependency
and as per the case law of Sarla Verma v. Delhi Transport Corporation;
2009 ACJ 1298, 3/4th dependency would be applicable.
Claimants would also be entitled for compensation under the head of
"future prospects" as well as Rs.70,000/- in other heads as held by the Apex
Court in the case of Pranay Sethi (supra).
The insurance company examined DW-1 Sajal Pandey, Asst. Grade III in
Office of RTO Gwalior. This witness has said that the driver of offending
vehicle was having driving license for LMV NT (non transport vehicle ) from
15.06.99 to 31.12.2018.
DW- 2 P.S.Tomar examined by the insurance company has in his
examination-in-chief said that the offending tractor was insured for the
agriculture purpose at the time of accident; however it was being used to carry
khandas (bricks). This witness in his cross-examination admitted that he has
not seen the tractor-trolley after the accident and also admitted that their in no
documentary evidence that the khandas were being carried in that tractor. This
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/23/2023
05:32:47 AM
witness has not denied that khandas could be used in agriculture purpose.
Therefore on the basis of evidence of insurance company it is not proved that
the offending tractor-trolley was being used for other then agriculture purpose.
There is no evidence on record to indicate that the deceased was
travelling in the offending vehicle and was responsible for causing accident,
therefore, in the light of case of Shashibala (supra) deceased being a third
party, there was no violation of insurance policy even if it is found to be proved
that khandas were being carried in the offending vehicle. Therefore, learned
tribunal has erred in exonerating the insurance company from liability to pay
compensation.
The ground taken by learned counsel for the insurance company that the
driver of the offending vehicle did not valid driving license to driver the tractor-
trolley is baseless as there is no dispute that driver of the offending vehicle had
license to drive light motor vehicle and in the case law of Mukund Dewangan
(supra), wherein the Apex Court has held that "if a driver is holding licence to
drive light motor vehicle, he can drive transport vehicle of such class without
any endorsement to that effect" and in the present case offending vehicle
tractor-trolley comes within the purview of "light motor vehicle". Therefore, in
view of above discussion, insurance company is held liable to pay the
compensation.
Now the question is what would be the just compensation?
In view of the above as well as in the light of the case law of Pranay
Sethi (supra) and Sarla Verma (supra), considering the annual income of the
deceased to be Rs.28,800/-, age 25 years, dependency 3/4th (28800 x 3/4 =
21,600), future prospect @ 40% (21600 x 40/100 = 8640), multiplier of 18 and
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/23/2023
05:32:47 AM
Rs.70,000/- in other heads, total compensation amount comes to Rs.6,14,320/-.
The tribunal has awarded a sum of Rs.3,55,100/- to the claimants. The
enhanced compensation amount comes to Rs.2,59,220/- (614320 - 355100).
The enhanced amount of compensation i.e. Rs.2,59,220/- (Rs. Two Lakh
Fifty Nine Thousand Two Hundred and Twenty only) 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
claimants by the Insurance Company within a period of 12 weeks from the date
of production of certified copy of this order. Rest of the award passed by
learned claims tribunal shall remain intact.
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 appellants - claimants within four weeks' from today and proof thereof
shall be submitted before the Registry. Thereafter, Registry shall issue the
certified copy of the order passed today.
Both the appeals stand allowed and disposed of in above terms.
A copy of this order be kept in connected M.A. No. 1244 of 2009.
(SUNITA YADAV)
JUDGE
AKS
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 9/23/2023
05:32:47 AM
