Madhya Pradesh High Court
Shubhanjal Jain vs Ankit Kumar on 5 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 5 th OF FEBRUARY, 2024
MISC. APPEAL No. 549 of 2020
BETWEEN:-
SHUBHANJAL JAIN, S/O GANESH KUMAR JAIN, AGED
ABOUT 26 YEARS NOW, CURRENT R/O PARASHURAM
MANDIR HOSTEL, SHIVAJI NAGAR, BHOPAL,
PERMANENT R/O 20/N, FROM BADA PUL TO BUS
STAND, DEV MURLIDHAR WARD, NEAR PETROL PUMP,
STATION ROAD, GOTEGAON, DISTRICT NARSINGHPUR
(MADHYA PRADESH)
.....APPELLANT
(BY MS. PRIYANKA TIWARI - ADVOCATE)
AND
1. ANKIT KUMAR, S/O SHRI DEVENEDRA PRASAD,
ADULT, R/O FLAT NO.7, PLOT NO.243, C SECTOR,
INDRAPUR, BHOPAL (MADHYA PRADESH)
2. NATIONAL INSURANCE COMPANY LTD., O/O
BRANCH NO.1, PLOT NO.38, OPPOSITE GTV
COMPLEX, NEW MARKET, T.T. NAGAR, BHOPAL
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI GULAB CHAND SUHANE - ADVOCATE FOR RESPONDENT NO.2)
This appeal coming on for admission this day, the Court passed the
following:
JUDGMENT
Heard.
2. This miscellaneous appeal has been preferred by the appellant/claimant
for enhancement of amount awarded by 20th MACT, Bhopal in M.A.C.C. No.
1774/2015 whereby MACT has awarded an amount of Rs. 2,06,817/- along
with interest @ 5 % per annum w.e.f. 26.10.2015 to the appellant.
3. Learned counsel for the appellant submits that the learned Tribunal
while assessing the permanent disability of the injured/appellant observed that
no permanent disability was caused to the appellant while the certificate Ex.P-13
shows that 40% permanent disability was sustained by the appellant. Dr.
Mahesh Dixit (AW-2) also admitted that as per the entire body the permanent
disability caused to the appellant may be upto 18-20%, but the learned Tribunal
on the ground that Dr. Mahesh Dixit (AW-2) was an orthopedic surgeon and he
has no knowledge of neurology and ophthalmology, therefore, these certificates
cannot be relied upon, but this observation is not as per law. It is also
contended by counsel for the appellant that the findings on issue nos. 3 and 4,
show that there was a breach of the condition of Insurance policy as at the
relevant point of time the offending vehicle/motorcycle was being driven without
valid and effective driving license. Even though, as per the settled law there
ought to be an order of pay and recover against the non-applicant
No.2/Insurance Company but no such order has been passed by the learned
Tribunal.
4 . Per contra, it is submitted by learned counsel for respondent
No.2/Insurance Company that the findings of the learned Tribunal are based on
proper appreciation of the evidence and therefore, there is no ground to
interfere in that findings.
5. Having considered the submissions made by both the parties and on
perusal of the record, it appears that the permanent disability certificate (Ex.P-
13) shows that there is 40% permanent disability to the appellant. The
certificate is signed by three members, who are medical specialists of Jai
Prakash District Hospital, Bhopal. One Dr. Mahesh Dixit was examined as
(AW-2), who though was an orthopedic surgeon but remaining members may
be experts in neurology and ophthalmology, therefore, this certificate cannot be
doubted on the ground that Dr. Mahesh Dixit (AW-2) was an orthopedic
surgeon. Having due regard to the statement of Dr. Mahesh Dixit (AW-2), who
has admitted in his evidence that as per the entire body, the permanent disability
may be assumed upto 18-20%. So in the considered opinion of this Court it
may be assumed safely as 18% of the entire body of the appellant injured.
Therefore, the learned Tribunal has erred in observing that there is no permanent
disability to the appellant/injured.
6. As far as the pay and recover order is concerned, law is settled on
this point that when a breach of condition is found on the basis of absence of
valid and effective driving license with the driver of the offending vehicle, then
the order of pay and recover can be issued against the non-applicants including
the Insurance Company. The Insurance Company is liable to pay first the
amount of award and thereafter liberty is granted to the Insurance Company to
recover it from the owner of the offending vehicle. In this case also, as per the
findings in issue Nos.3 and 4, the learned Tribunal has found that at the time of
accident non-applicant No.1 did not possess the valid and effective driving
license, therefore, there was a breach of Insurance policy and on that ground
alone the learned Tribunal has exonerated the Insurance Company. In the
considered opinion of this Court as per the settled law, the Insurance Company
is liable to first pay the compensation amount to the claimant and thereafter
company is at liberty to recover it from the owner of the offending vehicle.
7. Accordingly, as per the enhanced income, it comes to Rs.2,14,640/-,
but this appeal is filed for enhancement of Rs.1,50,000/-, therefore, in addition
to the amount awarded by learned 20th MACT, Bhopal Rs.1,50,000/- is
hereby enhanced in favour of the appellant/claimant apart from the award
already passed in favour of the claimant. It is made clear that the entire amount
of award including the enhanced amount as aforesaid be paid by the respondent
Insurance Company to the appellant/claimant and thereafter it may recover the
entire amount with interest from the owner of the offending vehicle, e.g.,
respondent No.1. Other terms and conditions held by the learned Tribunal
remain intact.
8. With the aforesaid observation, this miscellaneous appeal is disposed
off.
9. Interim application(s), if any, shall stand disposed off.
(RAJENDRA KUMAR VANI)
JUDGE
sjk
