Madhya Pradesh High Court
Ramraja Rajpoot vs Pehalwan Ahirwar on 29 September, 2023
Author: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 29 th OF SEPTEMBER, 2023
MISC. APPEAL No. 4354 of 2019
BETWEEN:-
RAMRAJA RAJPOOT S/O SHRI DAYA RAM RAJPOOT,
AGED ABOUT 35 YEAR S , OCCUPATION: KARIGIRI
VILLAGE BARANA THAR P.S. JATARA DISTT.
TIKAMGARH (MADHYA PRADESH)
.....APPELLANT
(BY MS. RUBI HALDKAR - ADVOCATE )
AND
1. PEHALWAN AHIRWAR S/O BABU LAL AHIRWAR
OCCUPATION: VEHICLE ONWER VILLAGE
MADIYA P.S. PRATHVIPUR (MADHYA PRADESH)
2. BRANCH MANAGER H.D.F.C.E.R.G.O. GENERAL
INSURANCE COMPANY LTD. 2ND FLOOR B.L.B.C.
PLAZA BUILDING NO. 06 M.P. NAGAR ZONE 02
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(NONE FOR RESPONDENT NO.1 DESPITE SERVICE)
(BY MS. AASHI SONI - ADVOCATE FOR RESPONDENT NO.2/INSURANCE
COMPANY)
MISC. APPEAL No. 2593 of 2019
BETWEEN:-
BRANCH MANAGER HDFC ERGO GENERAL
INSURANCE COMPANY LTD. R/O BRANCH OFFICE 2ND
FLOOR B. L. B. C. PLAZA BUILDING NO. 6 M. P. NAGAR
ZONE 2 BHOPAL (MADHYA PRADESH)
.....APPELLANT
(BY MS. AASHI SONI -ADVOCATE)
AND
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 30-09-2023
12:40:59
2
1. RAMRAJA RAJPUT S/O DAYARAM RAJPUT, AGED
ABOUT 35 YEARS, R/O GRAM BARANA THAR
THANA JATARA (MADHYA PRADESH)
2. PAHALWAN AHIRWAR S/O BABULAL AHIRWAR
OCCUPATION: (VEHICLE OWNER BOLERA JEEP
NO MP 36 T 0233 R/O GRAM MADIYA THANA
PRITHAVIPUR DISTRICT TIKAMGARH (MADHYA
PRADESH)
.....RESPONDENTS
(BY MS. RUBI HALDKAR- ADVOCATE FOR RESPONDENT NO.1 )
(NONE FOR RESPONDENT NO.2-DESPITE SERVICE)
-----------------------------------------------------------------------------------------------
Reserved on :- 13-09-2023
Pronounced on :- 29-09-2023
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Misc.Appeal No. 2593/19 has been filed by the Insurance Company for
exonerating Insurance Company from the liability to pay the compensation and
Misc.Appeal No. 4354/19 has been filed by the appellant/claimant for
enhancement of compensation amount. As both the appeals arise out of award
d ated 07-02-2019 in MACC No. 100187/2014, therefore, they are heard
analogously and have been decided by common order.
2. Misc. Appeal No. 2593/19 has been filed by the Insurance Company
against the award dated 07-02-2019 in MACC No. 100187/14 under Section
173 of Motor Vehicles Act, 1988 wherein the learned First Additional Claims
Tribunal Jatara District Tikamgarh in which in the accident dated 22-01-2012
near Gram Gova situated at Ur River, the offending vehicle No. MP-36T- 0233
owned by respondent No.2- Pahalwan and driven by Kallu met with an
accident.
3 . The learned Claims Tribunal awarded a compensation of Rs. 2,42,
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 30-09-2023
12:40:59
712/- on account of treatment, special diet, physical pain and sufferings payable
by the Insurance Company to the injured claimant.
4 . The grounds of appeal are that the vehicle in breach of policy was
given on contract to Madhya Pradesh Electricity Board therefore, the liability
goes on Madhya Pradesh Electricity Board for paying compensation. At the
time of accident, there was no effective and valid permit and valid effective
driving licence. It is submitted that owner remained ex parte in the Tribunal and
driver died in the accident. It was a case of contributory negligence. It is further
submitted that on 26-10-2018, the learned Claims Tribunal wrongly closed the
evidence of Insurance Company and against that order the Company had
preferred a Writ petition No. MP 5899/18 which was allowed by the High Court
on 14-12-2018 and chance was given to the Insurance Company to adduce
evidence but, after this the Company produced two witnesses whose evidence
was recorded but proper appreciation has not been done. The breach of
Insurance Policy Ex. D/1 clearly states that the possession of valid and effective
driving licence is mandatory and certificate report of RTO is Ex. D/2 and
driving licence is Ex. D/3, shows that no permit was issued to the offending
vehicle and licence was not valid to drive the transport vehicle. Notice was
issued to the owner of the vehicle, driver to give the valid driving licence on the
date of incident. Notices issued are Ex. D/4 to Ex.D/5 but, no reply was given.
Son of owner of the vehicle gave copy of permit which is Ex. D/10 for the
period 01-02-2009 to 31-05-2009 but, it was not applicable on the date of
accident. Fitness copy is Ex. D/11 for the period 09-12-2010 to 08-01-2011,
which was also not applicable on the date of incident i.e. 22-01-2012. Hence,
prays for exonerating the Insurance Company.
5 . The appellant/Claimant- Ramraja Rajput has filed this appeal in the
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 30-09-2023
12:40:59
above matter for enhancing the compensation on the ground that his disability
was 40% as per Ex. P/39 but, the learned Court did not consider it properly.
The amount awarded in another heads is also very less and hence, amount may
be enhanced by Rs. 1,50,000/-.
6. The question before this Court is :-
(i) Whether there was breach of any Insurance Policy.
(ii) Can amount of compensation be enhanced.
7. For the sake of convenience, MA No. 4354/19 is taken into
consideration.
8. Claimant- Ramraja Rajput filed affidavit under Order 18 Rule 4 CPC
submits that he got seriously injured resulting in 40% disability to him. The
driver of the offending vehicle has died in the accident. Dr. Sunil Jain, claimant
witness No. 2 has deposed that the medical board has examined Ramraja-
claimant and it was opined that 40% permanent disability has been caused in the
right leg with certificate is Ex. P/39. The learned Tribunal on this aspect in
paragraph-9 of the impugned award dated 07-02-2019 has held on the basis of
evidence that this evidence has not been produced on record by the
appellant/claimant, who is working as an agricultural labourer that his working
capacity by 40% has been reduced therefore, at the most his work may be slow
and assess the disability from the point of view of earning capacity at a
reduction of 25% in income. The disability of right leg which is marked as 40%
by the medical board is only for physical movement and nothing on record by
way of evidence is there to substantiate the loss of income by 40%. Infact,
Ramraja in his affidavit under Order 18 Rule 4 of CPC has not averred as to his
loss of income. Similar is the position of applicant-witness No. 2, who has not
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Signed by: PARMESHWAR
GOPE
Signing time: 30-09-2023
12:40:59
said anything about the loss of income of claimant. Therefore, loss of income
by 25% is correct in the facts and circumstances of the case.
9. Learned counsel for the appellant/claimant- Ramraja Rajput has placed
reliance on the judgments of Hon'ble Supreme Court in the cases of
Kubrabibi & Ors. vs. Oriental Insurance Co. Ltd & Ors 2023 LiveLaw
(SC) 679 in Civil Appeal No. 5461 of 2023 decided on 28-08-2023 and
Sarnam Singh vs. Shriram General Insurance Co. Ltd & Ors. 2023 (8)
SCC 193 in Civil Appeal No. 3900 of 2023 decided on 04-07-2023 wherein
in paragraph Nos. 9 and 10 it has been held thus:-
"9. A s to how compensation, in case where permanent disability of
an injured affects his functional disability, is to be assessed has been
considered by this Court, repeatedly. Reference can be made to the
judgment of this Court in Mohan Soni v. Ram Avtar Tomar [Mohan Soni v. Ram
Avtar Tomar, (2012) 2 SCC 267 : (2012) 1 SCC (Civ) 747 : (2012) 1 SCC (Cri) 641] .
In the aforesaid case the injured was working as a cart puller. As a result of
the accident, his left leg was amputated. His permanent disability was
assessed at 60%. The Tribunal assessed the compensation taking the loss of
earning at 50% on the theory that he can still do some other work while
sitting. The High Court did not disturb the finding regarding loss of income
on account of disability. This Court found that the Tribunal was in error in
taking the loss of earning at 50% as the injured was 55 years of age and it
may be difficult for him to find a job at that stage. In fact, any physical
disability resulting from an accident has to be judged with reference to the
nature of the work being performed by the person who suffered disability.
The same injury suffered by two different persons may affect them in
different ways. Loss of leg by a farmer or a rickshaw puller may be end of
the road as far as his earning capacity is concerned. Whereas, in case of the
persons engaged in some kind of desk work in office, loss of leg may have
lesser effect. This Court enhanced the loss of earning capacity from 50% to
90%.
10. Applying the same principle to the case in hand, we find that the
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Signed by: PARMESHWAR
GOPE
Signing time: 30-09-2023
12:40:59
appellant herein was working as a gunman with Bharat Hotel Limited. On
account of amputation of his right leg above the knee, he was terminated
from service w.e.f. 31-5-2015. It is not a matter of dispute that a person with
his right leg amputated cannot perform the duty of a gunman. This is his
functional disability. He was 50 years & 5 months old at the time of accident.
Considering the aforesaid facts, in our view, the Tribunal was right in
assessing the loss of earning capacity of the appellant at 100% and
assessing the compensation accordingly. The High Court was in error in
reducing the loss of earning capacity to 80%, relying upon the judgment
[Shri Ram General Insurance Co. Ltd. v. Sarnam Singh, 2017 SCC OnLine Del
13011] of the High Court, despite there being a judgment of this Court
available on the issue."
1 0 . The other ground of the appellant in appeal MA No. 4354/19 is
regarding other heads in which the amount is awarded. It is seen that the learned
Tribunal allowed the amount of medical bills, loss of income @ Rs.150/- per
day . In paragraph-17 has awarded amount along with amount incurred on the
attending person by Rs. 2400/-. Income has been assessed at Rs. 4500/- per
month.
1 1 . Incident took place on 22-01-2012. The income of the unskilled
person as per the minimum wages in Madhya Pradesh at the relevant point of
time has been taken as Rs. 4500/-, which is correct. Correct multiplier of 16 has
been applied with the claimant's age 35 years but, on account of Special Diet
only Rs. 5,000/- has been awarded, which can be enhanced by Rs. 5,000/- and
for travelling from the place of residence to Jhansi District for treatment only
Rs. 1000/- has been awarded, which can be enhanced to Rs. 5,000/-.
Therefore, Rs. 10,000/- can be enhanced. MA No. 4354/19 is partly allowed to
the extent indicated hereinabove and the amount of compensation awarded to
the appellant-Ramraja Rajput is enhanced by Rs. 10,000/- which shall carry
interest as directed by the learned Tribunal.
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 30-09-2023
12:40:59
1 2 . In MA No. 2593 of 2019, the documents have been filed by the
Insurance Company to establish the breach of policy. Ex.D/1 is the document
by which the vehicle has been given on hire. In this matter, Insurance Company
has produced witness-Anand Shrivastava ( Law Officer), who has deposed
about the breach of policy deposing that in insurance policy hiring of vehicle is
prohibited except by permit as it would amount to commercial use. Ex. D/2 is
certificate of RTO regarding owner of the offending vehicle not having valid
permit and therefore, breach of policy is established as a owner of the vehicle
choose to remain ex parte in the proceedings before the Claims Tribunal after
service of notice and also choose to remain ex parte before this Court. Hence,
breach is proved. The Learned Claims Tribunal has not at all framed any
specific issue regarding the breach of policy but, dealt with this matter in
paragraph-13. In paragraph-14, the learned Tribunal observed that the offending
vehicle was attached with the Madhya Pradesh Electricity Board and observed
that as per Section 66 of Motor Vehicles Act, 1988 since, the vehicle was used
as per agreement, there was no breach as admitted even by the witness for the
plaintiff.
13. The finding of the learned Tribunal regarding the issue that breach
was not proved is not correct simply on the ground that at the relevant point of
time, the owner of the vehicle did not have the permit but, his son Kamlesh as
per statement Ex. D/9 admitted that his vehicle was engaged in Madhya Pradesh
Electricity Board, Tikamgarh. Ex. D/10 is the permit, Ex. D/11 fitness certificate
which is not of date of accident i.e. 22-01-2012. Hence, the finding of the
learned Tribunal regarding no breach of Insurance Policy is not correct and it is
held that at the time of accident ie. 22-01-2012 the Vehicle No. MP-36T-0233
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was being driven without essential permit and fitness.
Signed by: PARMESHWAR
GOPE
Signing time: 30-09-2023
12:40:59
14. Accordingly, the Insurance Company is not liable to pay the amount
and Insurance Company is exonerated from paying the amount and the amount
shall be satisfied including enhanced amount of Rs. 10,000/- by the respondent
No.2-Pahalwan Ahirwar-owner of vehicle No. MP-36T-0233.
15. Both Appeals are allowed to the extent above.
(AVANINDRA KUMAR SINGH)
JUDGE
PG
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 30-09-2023
12:40:59
