Madhya Pradesh High Court
Widow Varsha Shukla vs Ram Prasad Gupta on 5 August, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. APPEAL No. 5501 OF 2022
RAM PRASAD GUPTA AND OTHERS
Versus
VARSHA SHUKLA (WIDOW) AND OTHERS
Appearance:
Shri Y.M. Tiwari -Advocate for the appellant.
Shri Alok Tiwari - Advocate for the respondent No.1 and 2.
Shri Dinesh Kaushal - Advocate for the respondent No.3
WITH
MISC. APPEAL No. 6085 of 2022
VARSHA SHUKLA AND OTHERS
Versus
RAM PRASAD GUPTA AND OTHERS
Appearance:
Shri Alok Tiwari -Advocate for the appellants.
Shri Y.M. Tiwari - Advocate for the respondent No.1 and 3.
Shri Dinesh Kaushal - Advocate for the respondent No.2.
RESERVED ON : 23.07.2024
PRONOUNCED ON : 05.08.2024
These appeals having been heard and reserved for judgment, coming on for
pronouncement on this day, the court passed the following
2
ORDER
With the consent of parties, the matter is finally heard at motion stage.
2. This order shall govern disposal of M.A. No.5501/2022 (Ram Prasad
Gupta and another Vs. Varsha Shukla (Widow) and others) and M.A. No.
6085/2022 (Varsha Shukla and another Vs. Ram Prasad Gupta and others)
arising out of award dated 28.10.2022 passed by Additional Member 4th MACT,
Rewa in MACC No.500055/2013.
3. MA No.6085/2022 has been filed by claimants seeking enhancement of
compensation whereas M.A. No.5501/2022 has been filed on behalf of the
owner/driver of offending vehicle seeking setting aside the impugned
award/reduction of compensation amount/fastening liability on insurance company
to pay whole of the compensation amount.
4. Learned counsel for the appellants in MA No.5501/2022, after referring to
deposition of applicant witnesses as well as non-applicant witnesses, especially,
Varsha Shukla as well as Ram Anugrah Shukla submits that as per evidence on
record, at the time of accident, offending vehicle was being ridden by one Rajendra
Prasad Gupta. From evidence on record, it is not established that appellant Jitendra
Gupta was ridding offending Motorcycle. Claimants have not joined Rajendra
Prasad Gupta as driver or in any other capacity in claim petition. During
proceedings before tribunal, claimants filed an application under Order 1 Rule 10
of C.P.C. which has been dismissed by the tribunal. Appellant/Jitendra Prasad
Gupta has been acquitted in criminal case relating to present accident.
5. It is also urged that tribunal has wrongly applied principle of pay and
recover. It should have held that insurance company is liable to pay compensation
as vehicle was insured on the date of accident. Therefore, insurance company is
liable to pay the compensation. With respect to above, learned counsel for the
appellants has relied upon the judgment in the case of Virendra Kumar Vs. Vijay
Kumar and otheres resported in (2020) 4 ACC 18. On above grounds, it is urged
that appeal filed by the appellant be allowed.
6. Learned counsel for appellants in M.A. No.6085/2022 submits that from
evidence on record, it is evident that the tribunal has wrongly deducted 50% on
account of contributory negligence on the part of deceased. From evidence on
record, it is clearly established that instant accident has been caused by rash and
negligent riding of motorcycle bearing registration No. MP-17-MD-3811 as rider
of above motorcycle hit deceased's motorcycle after coming on the wrong side of
the road. It is also evident from site map that rider of above motorcycle was at
fault. Therefore, tribunal has wrongly deducted amount for contributory negligence
on the part of the deceased. Hence, appeal filed by the claimants be allowed and
compensation be suitable enhanced.
7. Learned counsel for the respondent/insurance company, in both the
appeals, submits that in the instant case, charge-sheet has been filed against
appellant Jitendra. At the time of accident, he was riding the motorcycle. Further,
from evidence of eye witnesses, contributory negligence on the part of deceased is
clearly established. Therefore, just on the basis of documents on record, it cannot
be said that deceased did not contribute to the happening of accident in any manner
whatsoever. Tribunal has rightly deducted 50% for contributory negligence on the
part of the deceased. It is also urged that at the time of accident, appellant Jitendra
was minor and was not having any license to drive the vehicle. Therefore, tribunal
has rightly exonerated insurance company for liability to pay the compensation and
has applied principle of pay and recover. Hence, appeal filed by the appellants be
dismissed.
8. Heard learned counsel for the parties and perused the record.
9. From perusal of submissions of learned counsel for the parties, it is evident
that primary issue involved in the case is whether at the time of accident, offending
vehicle was being ridden by Jitendra or it was being ridden by Rajendra Prasad
Gupta. Perusal of record of tribunal reveals that in the instant case, owner of
offending vehicle Ram Prasad Gupta, along with Jitendra, have remained present
before tribunal and they have also filed written statement. It is also evident from
record of the case that Jitendra and Rajendra Prasad Gupta are son of owner Ram
Prasad Gupta. In the instant case, owner has examined Rajendra Prasad Gupta as
witness but appellant Jitendra has not been examined before tribunal.
10. In written statement filed by the owner and driver of offending vehicle, it is
mentioned that at the time of accident, motorcycle was being ridden by brother of
defendant No. 3 i.e. Rajendra Prasad Gupta and defendant No.3 was travelling as
pillion rider on above motorcycle. It is correct that non-applicant witnesses Ram
Prasad Gupta, Ramanugra Shukla, Ranjeet and Rajendra Prasad Gupta, who have
been examined on behalf of owner and driver of the offending vehicle, have
deposed that at the time of accident, Rajendra Prasad Gupta was riding motorcycle
and Jitendra Gupta was sitting as pillion rider on the offending motorcycle.
11. From deposition of above non-applicant witnesses, including their cross-
examination, it is apparent that Rajendra Prasad Gupta had fled away from the
scene of accident leaving his brother Jitendra Kumar Gupta at the scene of accident
in injured condition. It is also evident from above deposition of non-applicant
witnesses that in the incident, Jitendra Gupta has received serious injuries and
when owner of offending vehicle, i.e. father of Jitendra, reached at the scene of
incident, then, Jitendra was lying at scene of accident in injured condition. As per
deposition of Ram Prasad Gupta, he reached at the scene of accident, after he was
informed by one Ramu Yadav. Ram Prasad Gupta has nowhere stated that his son
Rajendra Prasad Gupta informed him about the accident and, thereafter, he reached
at the scene of accident. Perusal of deposition of Rajendra Prasad Gupta also
reveals that he has nowhere stated that before fleeing from scene of accident or
immediately, thereafter, he ever informed his father Ram Prasad Gupta about the
accident and that his brother Jitendra is lying at the scene of accident in injured
condition.
12. Though, non-applicant witnesses Ranjeet and Rajendra Prasad Gupta have
tried to explain above facts by stating that, when after accident, people started
gathering and started threatening, then, due to fear, Rajendra Prasad Gupta fled
away from the scene of accident to save himself. But in this court's opinion, above
explanation appears to be an afterthought. No such explanation has been furnished
by father Ram Prasad Gupta. Further, Rajednra Prasad Gupta has not explained
that if he fled away from the scene of accident on account of fear to his safety from
crowd present on the scene, then, why he did not immediately after fleeing from
scene of the accident inform his father Ram Prasad Gupta about accident and that
brother Jitendra is lying at scene of accident in inured condition.
13. Hence, having regard to mutual relation of owner Ram Prasad, Jitendra and
Rajendra Prasad Gupta, conduct of Rajendra Prasad Gupta is highly unnatural and
improvable and against normal human conduct. It is also so because Ram Prasad
Gupta and Ramanugrah Shukla have nowhere stated that any huge crowd
assembled at the scene of accident and this crowd threatened Rajendra Prasad
Gupta. Further, in the instant case, Jitendra has not been examined and no
explanation has been furnished for not examining him. In the instant case, charge
sheet (Ex. P/48) has been filed against Jitendra after investigation into present
accident. Hence, in the facts and circumstances of the case, adverse inference is to
be drawn against the appellants that at the time of incident, Jitendra was riding
motorcycle, that's why they did not examine Jitendra before tribunal and Jitendra
did not appear before tribunal and got himself examined.
14. Hence, in view of discussion in the forgoing para and evidence available on
record, in this Court's opinion, just on the ground that Jitendra has been acquitted
by Juvenile Board, on the basis of evidence recorded before it, it cannot be said
that Jitendra was not riding motorcycle at the time of accident. Further, each case is
to be decided on the basis of evidence available in that case and not on the basis of
evidence recorded in other case.
15. Hence, in this court's opinion, from evidence on record, it is clearly
established that at the time of accident Jitendra was riding offending motorcycle
and findings recorded by the tribunal with respect to the same cannot be said to be
illegal or perverse or contrary to evidence on record. Hence, findings recorded by
the tribunal with respect of above are affirmed.
16. So far as issued of contributory negligence on the part of deceased is
concerned, Ex. P/48's charge sheet has been filed after investigation into present
accident and therein it is mentioned that rider of offending motorcycle has hit
deceased's motorcycle after going to wrong side. Applicant witness Vishwatma
Prasad Shukla has deposed that at the time of accident, deceased was riding his
motorcycle by his side of the road and it is rider of offending vehicle, who hit
deceased's motorcycle by riding his motorcycle rashly and negligently. This
witness has denied that it is a case of head on collision i.e. both motorcycle
collided with one each other from the front and in the middle of the road. It is also
evident from record of the case that neither Rajendra Prasad Gupta nor Jitendra has
lodged any report to the effect that accident occurred on account of rash and
negligent riding of motorcycle by deceased. Further, in the instant case, from
discussion in the forgoing para, it is clearly established that at the time of accident
Jitendra was riding offending motorcycle but Jitendra did not get himself examined
before the tribunal and no explanation has been furnished for the same. On the
point of contributory negligence on the part of deceased, rider of the offending
vehicle, i.e. Jitendra, was most material witness. Non-examination of Jitendra and
non filing of any counter FIR against deceased also establishes that instant accident
has occurred solely on account of rash and negligent driving by rider of the
offending vehicle and deceased did not contribute to the happening of the accident
in any manner whatsoever.
17. Hence, just on the basis of deposition of non-applicant witnesses
Ramanugrah Shukla, Ranjeet and Rajendra Prasad Gupta, it cannot be said that
accident occurred on the middle of the road or it is a case of head on collision or
that deceased also contributed to the happening of accident in any manner
whatsoever.
18. Therefore, in view of facts and circumstances of the case, principle laid
down in the case of Virendra Kumar (supra) does not help appellants in any way.
19. Hence, in this court's opinion, findings recorded by the tribunal with respect
to contributory negligence on the part of deceased are illegal, perverse and
erroneous and contrary to evidence on record. Hence, they are set aside.
Resultantly, 50% deducted by the tribunal for contributory negligence on the part
of deceased is also set aside.
20. Thus, appellants/claimants are entitled to receive Rs. 13,56,168/- as
compensation. Other findings recorded by the tribunal shall remain intact.
21. Hence, in view of discussion, in the forgoing paras, Misc. Appeal No.
5501/2022 filed by the owner/driver of the offending vehicle is dismissed whereas
Misc. Appeal No. 6085/2022 filed by the claimants is allowed.
22. MA No. 5501/2022 and MA No. 6085/2022 are disposed off accordingly.
(ACHAL KUMAR PALIWAL)
JUDGE
Digitally
L.R. signed by
LALIT SINGH RANA
Date: 2024.08.06
15:23:47 +05'30'
