Madhya Pradesh High Court
Ramveer Sharma vs Shyam Sharma on 9 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
MISCELLANEOUS APPEAL No. 2804 of 2019
BETWEEN:-
1. RAMVEER SHARMA S/O LATE SHRI
VIDHYARAM SHARMA, AGE - 54 YEARS,
OCCUPATION - KUCH NAHI
2. PURUSHOTTAM SHARMA S/O LATE SHRI
VIDHYARAM SHARMA THROUGH LR'S
A. SMT. RADHA W/O LATE SHRI
PURUSHOTTAM SHARMA, AGE 43 YEARS
B. RAHUL S/O LATE SHRI PURUSHOTTAM
SHARMA, AGE 25 YEARS
C. RAVI S/O LATE SHRI PURUSHOTTAM
SHARMA, AGE 23 YEARS
3. SURESH SHARMA S/O LATE SHRI
VIDHYARAM SHARMA, AGE 39 YEARS,
OCCUAPATION PRIVATE JOB
ALL RESIDENTS OF VIJAYLAXMI VIHAR
DHARMVEER PETROL PUMP KE PASS,
THANA GOLA KA MANDIR, GWALIOR,
DISTRICT GWALIOR (M.P.)
........APPELLANTS
(MS. MEENA SINGHAL - ADVOCATE FOR APPELLANTS)
AND
1. SHYAM SHARMA S/O SHRI KESHAV
PRASAD SHARMA, PERMANENT R/O
KHEDIYA MOHOLLA WARD NO.10
GORMI, THANA GORMI, DISTRICT
BHIND, PRESENT R/O MANAS VIHAR
GHOSIPURA A.B.ROAD GWALIOR,
DISTRICT GWALIOR, M.P. (DRIVER AND
OWNER MOTOR CYCLE NO.
MP07/MA3136)
2. UNITED INDIA INSURANCE COMPANY
LTD. THROUGH DIVISIONAL MANAGER,
MANDAL KARYALAYA, PHOOLBAGH
Signature Not Verified
Signed by: AMAN TIWARI
Signing time: 2/9/2024
5:00:16 PM
2
LASHAKAR, DISTRICT GWALIOR
(MADHYA PRADESH)
........RESPONDENTS
(SHRI ARVIND KUAMR AGARWAL - ADVOCATE FOR RESPONDENT
NO.2)
---------------------------------------------------------------------------------------
Reserved on : 07.02.2024
Pronounced on : 09.02.2024
---------------------------------------------------------------------------------------
This Miscellaneous Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Binod Kumar Dwivedi pronounced the following:
JUDGMENT
The appellants/claimants have filed this appeal under Section 173
of the Motor Vehicles Act, 1988 (for brevity, the 'Act') assailing the
award dated 12.02.2019 passed by the Third Additional Motor Accident
Claims Tribunal Gwalior (for brevity, the 'Claims Tribunal') in Claim
Case No.1800111/2016 whereby the Claims Tribunal has awarded a
total sum of Rs.1,05,000/- with interest to the claimants for the death of
one Nahar Sharma who died in a vehicle accident.
2. It is undisputed that the offending vehicle, on the date of accident
i.e. 02.01.2014, was insured with respondent No.2/Insurance Company.
Respondent No.1 was proceeded as ex-parte before the Tribunal. The
deceased Nahar Sharma was unmarried. During the pendency of the
Claim Case before the Tribunal, appellant No.2-Purshottam Sharma
(brother of deceased) died and his LR's were brought on record as the
appellants No.2(a) to 2(c) are Lr's of Purshottam Sharma. The
appellants No.1 and 3 are brothers of deceased.
3. The necessary facts for disposal of this appeal are that on
02.01.2014, deceased Nahar Sharma was going from his village
Guthina Malanpur to Latkanpur Gohad, District Bhind. At about 04:30
pm, as soon as he reached Gwalior Bhind road in front of Guthina Pulia
under the limits of Police Station Malanpur, at that time respondent
No.1 came on a motor cycle bearing Registration No.MP07 MA3136
from back side in rash and negligent manner and dashed to the
petitioner's motor cycle. As a result of which, the deceased fell head
long from the motorcycle on the road and suffered fatal injuries on
different parts of his body.
3.1 The deceased in injured state was taken to the Government
Hospital Gohad for treatment, where after initial treatment he was
referred to J.A Hospital for further treatment where he was admitted and
given treatment from 02.01.2014 to 18.01.2014. He was discharged on
18.01.2014 and thereafter he was admitted to Birla Hospital Gwalior on
18.01.2014, where the right hand of the deceased was operated upon
and amputated. The deceased was admitted in Birla Hospital from
18.01.2014 to 30.01.2014, but due to lack of relief, he was got
discharged on 30.01.2014. The deceased succumbed to the injuries on
10.06.2014, the intimation about which was given to Police Station
Malanpur, but postmortem on the body of the deceased was not got
conducted by the Police. The last rites of the deceased were performed
in village Guthina. The FIR was registered at Police Station Malanpur
at Crime No.06/2014 under Sections 279, 337, 338 of IPC. The charge-
sheet was filed before the Court of competent jurisdiction.
4. It has been submitted before the Tribunal that the appellants No.1
to 3 are brothers of the deceased Nahar Sharma. The deceased was 45
years old and used to earn Rs.10,000/- per month by running a grocery
and general store shop. Apart this, he used to earn Rs.15,000/- per
month from the dealing in real estate. Thus, he was earning Rs.25,000/-
per month. All the appellants were dependents on the deceased.
Appellant No.1 being heart patient is unable to do any work and
Appellant No.3 was only earning Rs.4,000/- per month from a private
job and also dependent on the deceased, a bachelor. On account of the
death of the deceased in the accident, the appellants filed claim petition
for compensation of Rs.94,75,0000/- along-with interest.
5. Respondent No.2 by filing written statements opposed the
pleadings in the claim petition and stated that the appellants are not
dependents of the deceased. The income of the deceased has also been
exaggerated to get the higher amount of compensation. The FIR was
registered belatedly after six days of the accident, which itself creates
doubt of collusion between the appellants and respondent No.1.
Respondent No.1 was not having valid and effective driving license,
therefore, Insurance Company is not liable to pay any compensation.
6. On the pleadings, issues were framed. Parties were afforded
opportunity to adduce evidence in support of their pleadings. Thereafter
the impugned award has been passed.
7. Learned counsel for the appellants submits that learned Tribunal
has failed in returning the finding that the deceased was of 67 years of
age on the date of accident. The findings regarding dependency is also
not based on legal proposition. Ample evidence has been adduced to
prove that appellants are dependents of the deceased, therefore, they are
entitled for getting enhanced amount of compensation as claimed in the
appeal.
8. Learned counsel for respondent No.2/Insurance Company submits
that no reliable document regarding age of the deceased was placed on
record by the appellants except the Death Certificate (Exhibit P-82)
which itself reveals the age of deceased as 67 years, therefore,
appellants cannot contend that the learned Claims Tribunal has wrongly
assessed the age of the deceased as 67 years on the date of accident.
Undisputedly, deceased Nahar Sharma was bachelor. The appellants are
not his dependents, therefore, on this count also, learned Claims
Tribunal has not committed any error. In the aforesaid circumstances,
learned counsel for the respondent No.2 supporting the award passed by
the Claims Tribunal prays for dismissal of the appeal.
9. Heard learned counsel for the parties and perused the record.
10. The findings returned by learned Claims Tribunal that the
accident took place due to rash an negligent driving of respondent No.1
as found proved, has not been challenged. It is also not in dispute that
after prolonged treatment from the date of accident, the deceased died
on 10.06.2014. The Claims Tribunal, in Para 25 and 26 of the impugned
award, has also returned a finding that the death of the deceased was
due to injuries caused in the accident. This finding has also not been
challenged by the respondent No.2/Insurance Company.
Regarding age of the deceased :
11. It has been mentioned in the claim petition that deceased was 45
years of age on the date of accident. This has been supported by
Ramveer Sharma (AW-1), Jitendra Sharma (AW-2), Smt. Radha (AW-5)
in their Court statements. Admittedly, no documentary proof like Voter
card, Adhar card has been placed on record by the appellants. Though
the Death certificate (Exhibit P-82) produced by the appellants reveals
the age of the deceased as 67 years but in the light of the evidence
available in the form of statements as mentioned hereinabove, it is clear
that the age of the deceased could not have been 67 years' of age, on the
date of the accident. The documents placed on record, Discharge
Summary (Ticket) of BIMR hospital (Exhibit P-4), PMLC (Exhibit P-
5), Exhibit-75 to Exhibit-77 which are treatment record of the deceased,
reveal that the age of the deceased was 50 years. It is also to be kept in
mind that Ramveer (AW-1) who is elder brother of the deceased Nahar
Sharma filed affidavit under Order 18 Rule 4 CPC by mentioning his
age as 50 years and stating therein the age of deceased Nahar Sharma as
45 years.
11.1. In cross examination, in Para 16, he stated that he did not
remember his date of birth but the year was 1963 or 1964, which has
not been controverted by the evidence from the respondent side. Thus,
Ramveer elder brother of the deceased was 50 years of age on the date
of his statement before the Court in the year 2015. In such situation, the
deceased who was younger to him, by no stretch of imagination, can be
said to be the age of 67 years on the date of accident. Thus, it appears
that some mistake has crept in the Death Certificate (Exhibit P-82)
regarding age of deceased. Though this document has been filed by the
appellants but in the facts and circumstances of the case and looking to
the other evidence on record, it cannot be held that the age of the
deceased was 67 years on the date of the accident.
11.2. In view of above, the Claims Tribunal has failed to appreciate
evidence on record & returning the finding that deceased was 67 years
of age on the date of the accident i.e. 02.01.2014. Thus, as per aforesaid
discussion, the age of the deceased is taken 50 years on the date of the
accident.
Regarding Income of the deceased:
12. As far as the income of the deceased as Rs.25,000/- per month is
concerned, except oral statements, no cogent documentary evidence has
been placed on record to prove that the deceased was earning income of
Rs.25,000/- per month on the date of the accident i.e. 02.01.2014. In
paragraph No.35 of the impugned award, learned Claims Tribunal has
taken the income of the deceased as Rs.5520/- per month as unskilled
labour which is as per the chart approved by the State Legal Services
Authority based on the Minimum Wages Act; therefore, no fault can be
found in the assessment of the income of the deceased.
Regarding dependency of the appellants :
13. It has been vehemently contended from the respondent side, as
deceased was bachelor, his mother can only be considered as dependent
on him. To bolster his contention, learned counsel for respondent No.2
has placed reliance on the case of Smt.Sarla Verma Vs. Delhi
Transport Corporation, 2009 ACJ 1298 and Smt. Manjuri Bera Vs.
Oriental Insurance Company Ltd. and Others, 2007 (2) T.A.C. 431
(S.C.).
13.1. Per contra, learned counsel for the appellants relying upon
judgments passed in the case of New India Assurance Company Ltd.
Vs. Pradeep Chauhan & Others, MACD 2013 (1)(MP)253;
Anandha Lakshmi vs Tamil Nadu State Transport Corporation
Ltd., 2018 ACJ 1057; Mont ford Brothers and Others vs. United
India Insurance Co. Ltd. 2014 ACJ 667 (SC); Mahant Shyamdas
Vs. Lalaram M. Kori and Ors., 2008 ACJ 1783 (MP); New Indian
Assurance Company Ltd. Vs. Jasinta Kujur and Others, 2008(4)
TAC 186 (Chattisgarh); Gajanand and others Vs. Virendra Singh
and Others, 2010 ACJ 145; Gafran and others vs. Tilakraj Kapoor
and others, 2005 ACJ 1711; Chandan Singh and others Vs. SEW
Construction Company Ltd. And others 2003 ACJ 1382 and the
order dated 06.10.2018 passed by the Coordinate Bench of this
Court in M.P. No.248/2005 (United India Insurance Company Ltd.
Vs. Vinod & Others), submits that under Section 166(1)(c) of the Act,
the word "legal representative" has been used. The appellants through
the evidence of Ramveer (AW-1), Smt. Radha (AW-5) have proved that
appellants were dependent on the income of the deceased. In the
absence of rebuttal evidence and in the light of the aforesaid judgments,
appellants come under the purview of dependents.
13.2. It is not in dispute that legal representatives of can file claim
petition under Section 166 of the Act but amount in the head of loss of
dependency can be given only if dependency is proved by cogent
evidence. In all the aforesaid judgments cited on this point by learned
counsel for the appellants, when by the evidence it was proved that the
claimants in those cases were dependent on the deceased, the amount
under the head of loss of dependency was awarded. In the present case,
Ramveer Sharma (AW-1), Smt. Radha (AW-5), in their Court statements
clearly made out their point of dependency. Nothing adverse has
surfaced in their cross examination and moreso, no evidence in rebuttal
has been adduced from the respondent side in this regard to make the
evidence of the appellants unreliable. In considered opinion of this
Court, learned Claims Tribunal failed to appreciate evidence adduced
regarding dependency of the appellants on the deceased. The discussion
and finding in this regard in para 37 to 45 is based on misreading of the
evidence on record, therefore, findings of the Claims Tribunal that
appellants were not dependent o the income of the deceased is
vulnerable and cannot be given stamp of approval by this Court. Thus,
it is held that the appellants were dependents of deceased and they are
entitled for the compensation arising out of the death of the deceased.
Regarding Future Prospects :
14. As the age of the deceased is found proved 50 years on the date of
the accident, therefore, in view of para-59.4 of the judgment in the case
of National Insurance Co. Ltd. vs. Pranay Sethi 2017 (16) SCC 680 ,
the claimants are also entitled to get 25% of the income, as future
prospects.
Regarding Multiplier :
15. In view of 50 years of age, multiplier of 13 would be applicable
as per the case of Sarla Verma vs. Delhi Transport Corporation
(2009) 6 SCC 121. Relevant paragraph-42 of above case reads as
under:-
"42. We therefore hold that the multiplier to be used
should be as mentioned in Column (4) of the table above
(prepared by applying Susamma Thomas [(1994) 2 SCC
176 : 1994 SCC (Cri) 335], Trilok Chandra (1996) 4 SCC
362] and Charlie[(2005) 10 SCC 720 : 2005 SCC (Cri)
1657] ), which starts with an operative multiplier of 18
(for the age groups of 15 to 20 and 21 to 25 years),
reduced by one unit for every five years, that is M-17 for
26 to 30 years, M-16 for 31 to 35 years, M-15 for 36 to 40
years, M-14 for 41 to 45 years, and M-13 for 46 to 50
years, then reduced by two units for every five years, that
is, M-11 for 51 to 55 years, M-9 for 56 to 60 years, M-7
for 61 to 65 years and M-5 for 66 to 70 years".
16. In view of above discussion, the appellants are entitled to the
following amount as compensation:-
Sr. Head Amount
No.
1 Income @ Rs.5,520/- pm x 12 Rs.66,240/-
2 Future prospects 25% Rs.16,560/-
3 Deduction towards personal Rs.27,600/-
rd
expenses (1/3 of Rs.66,240 +
Rs.16560 = 82,800/-)
4 Total annual income (Rs.82,800 Rs.55,200/-
-Rs.27600/-)
5 After applying Multiplier of 13 Rs.7,17,600/-
(Rs.55,200/- x 13), total loss of
dependency
6 Medical Expenses Rs.75,000/-
7 Funeral expenses Rs.16,500/-
8. Loss of estate Rs.16,500/-
Total compensation Rs. 8,25,600/-
17. Thus, the just and proper amount of compensation in the instant
case is Rs.8,25,600/- as against the award of the Tribunal of
Rs.1,05,000/-. Accordingly, appellants/claimants are entitled to an
additional sum of Rs.7,20,600/- over and above the amount which has
been awarded by the Tribunal.
18. Resultantly, the appeal is partly allowed by enhancing the
compensation amount by a sum of Rs.7,20,600/-. The enhanced amount
shall bear interest at the same rate as awarded by the Tribunal. The
other findings recorded by the Tribunal shall remain intact.
19. Appellants have valued the appeal only to the extent of Rs.4
lakhs and paid the Court fee accordingly. However, for the remaining
amount of Rs.3,20,600/-, the Court fee shall be paid by the appellants
within a period of 60 days from the date of the judgment of this Court
and thereafter the amount shall be released by the Insurance Company
on receiving the certificate. In case the certificate has not been filed
before the Insurance Company up to a period of three months, the
appellants/claimants shall not be entitled to receive the interest on the
enhanced amount of compensation.
20. In the result, the appeal is allowed in part and to the extent
indicated herein above.
(BINOD KUMAR DWIVEDI)
JUDGE
Aman
