Madhya Pradesh High Court
Chandabai vs Raisingh on 9 February, 2024
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 9th OF FEBRUARY, 2024
MISC. APPEAL No. 2877 of 2019
BETWEEN:-
CHANDABAI W/O DEVISINGH, AGED ABOUT 42
1. YEARS, NAHLI PS TALEN TEHSIL
NARSINGHGARH (MADHYA PRADESH)
RAKESH KUMAR MINOR THROUGH NATURAL
GUARDIAN MOTHER SMT CHANDABAI S/O
2. DEVISINGH, AGED ABOUT 16 YEARS, NAHLI P S
TALEN- NARSINGARH DISTT RAJGARH (MADHYA
PRADESH)
SITARAM S/O DEVISINGH, AGED ABOUT 19
3. YEARS, NAHLI P S TALEN TEH NARSINGARH
DISTT RAJGARH (MADHYA PRADESH)
GOVIND KUMAR MINOR THROUGH NATURAL
GUARDIAN MOTHER SMT CHANDABAI S/O
4. DEVISINGH, AGED ABOUT 14 YEARS, NAHLI P S
TALEN TEHSIL NARSINGARH DISTT RAJGARH
(MADHYA PRADESH)
SUGANBAI W/O LATE SHRI RAMPRASAD, AGED
ABOUT 72 YEARS, NAHLI P S TALEN TEHSIL
5.
NARSINGARH DISTT RAJGARH (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI SAIYAD ASHIF ALI WARSI - ADVOCATE FOR THE APPELLANTS) .
AND
RAISINGH S/O RAMSINGH RAJPUT, AGED ABOUT
1. 37 YEARS, VILLAGE MALKHEDI TEHSIL PACHOR
(MADHYA PRADESH)
2. BHAGWANSINGH S/O JASMATSINGH RAJPUT,
Signature Not Verified
Signed by: RASHMI
PRASHANT
Signing time: 27-02-2024
13:13:41
-2-
AGED ABOUT 44 YEARS, VILLAFGE CHITONI, TEH
SHUJALPUR DISTT SHAJAPUR (MADHYA
PRADESH)
MANAGER IFFCO TOKYO GENERAL INSURANCE
3. COMPANY LIMITED VIJAY NAGAR, SQUARE ,
INDORE (MADHYA PRADESH)
SUNITA D/O DEVISINGH, AGED ABOUT 24 YEARS,
VILLAGE NAHLI, PRESENT ADD- C/O HUSBAND
4. JEEVAN KUMAR, R/O VILLAGE TILWADMAINA
TEHSIL KALAPIPAL DISTT SHAJAPUR (MADHYA
PRADESH)
SANGEETA D/O DEVINSINGH, AGED ABOUT 22
YEARS, VILLAGE NAHLI , PRESENT ADD
5.
VILLAGE POLAYKALA TEHSIL POLAYKALA
DISTT SHAJAPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUDARSHAN PANDIT - ADVOCATE FOR THE RESPONDENT NO.3)
-------------------------------------------------------------
This appeal coming on for admission this day, the court passed the
following:
ORDER
With the consent of learned counsel for both the parties, the
appeal is heard finally at motion hearing stage.
2. The appellants have filed this appeal under Section 173 of the
Motor Vehicles Act being aggrieved with the compensation amount
awarded by learned Member, Motor Accident Claims Tribunal,
Shujalpur, District Shajapur (Madhya Pradesh) against the orders dated
14.03.2019 in Claim Case No.17/2017, whereby the claim petition filed
by the appellants under Section 163-A of the Motor Vehicles Act, 1988
was dismissed.
3. The appellants case before the Claims Tribunal in nutshell was
that on 15.01.2017 when the deceased Devisingh was returning from his
daughter's matrimonial home Polaykala to his village Nahli in
motorcycle bearing registration No. MP 39 ML 9817 and as soon as he
reached near Jethada Jodh, the offending vehicle bearing registration
No.MP 42 ML 0566 driven by Bhagwansingh rashly and negligently
dashed the motorcycle of the deceased as a result of which the deceased
fell down from his motorcycle and suffered grievous injuries and
sccumbed to death at the spot. The authorities of Police Station,
Shajapur registered a marg and Crime No. 45/2017 under Section 304-A
of the IPC was registered against the respondent No.2 Bhagwansingh.
4. The deceased body was sent for postmortem and after that
motorcyle was seized from the possession of the respondent No.2
Bhagwansingh and charge sheet was filed before the Judicial Magistrate
First Class, Shujalpur. The deceased was 43 years of age and was
working as Sweeper in Health Department, Nahli as a muster roll
employee and earning Rs. 40,000/- per annum. The appellants are the
legal heirs and were the dependents on deceased Devisingh. The
respondents No.4 and 5 were the daughters of the deceased and they
have denied to participate in the claim proceedings hence they have
been arrayed as respondents and prayed that compensation be granted.
5. Respondents No.1 and 2 has filed the reply and denied the
averments stated in the application but has stated that the motorcycle
bearing registration No. MP 42 ML 0566 was registered in the name of
Respondent No.1 Raisingh and was insured with respondent No.3,
Insurance Company from 19.11.2016 to 18.11.2017 and lastly prayed
that the application be rejected.
6. The Insurance Company filed reply to the application and denied
the averments and has taken a defense that no accident has taken place
with the vehicle insured with the Insurance Company. The appellants
and respondents No. 1 and 2 have a collusion. In this case the police
authorities have not complied with the provisions of Motor Vehicles Act.
Hence, the Insurance Company is not liable to pay the compensation.
7. The Tribunal on the basis of the averments framed the issues and
after recording the evidence of the parties dismissed the claim petition
on the ground that appellants have failed to prove the accident from the
motorcycle driven rashly and negligently by respondent No.2,
Bhagwansingh.
8. Learned counsel for the appellants argued that in this case the
police has registered the marg and in that marg it is clearly mentioned
that the deceased had died due to vehicular accident and FIR was
registered and the vehilce was recovered and seized from the possession
of the respondent No.2. As per Exhibit-P-12, the vehicle owner,
respondent No.l has clearly admitted that on the date of incident
15.01.2017 vehicle was driven by respondent No.2 and admitted that
accident occurred with that motorcycle bearing registration No. MP 42
ML 0566. The police has filed the charge sheet against the non-applicant
No.2 and the statement of appellant Chandabai was supported by an
independent witness Ramchandra (PW-2) and Bhagwansingh,
respondent No.2 has admitted that on 15.01.2017 he was driving the
offending vehicle MP 42 ML 0566 and from that the accident occurred
and only on the basis of admission in the cross examination that no
accident has occurred with this motorcyle the Claims Tribunal has
dismissed the claim petition.
9. Learned counsel for the appellants has further argued that in claim
cases the burden of proof is not as such as in the criminal cases and
argued that certified copy of the FIR, site inspection map, panchanama,
postmortem report and the charge sheet have been proved in the light of
the judgment passed by the Rajasthan High Court in the case of
Rajasthan State Road Transport Corporation Vs. Nand Kishore and
others reported in 2002 (2) ACJ 1564 and has argued that they have
proved the incident by the use of vehicle and in such circumstances the
appeal be allowed and the appellants be awarded the amount of
compensation.
10. Learned counsel Shri Sudarshan Pandit for the Insurance
Company, respondent No.3 has submitted that the appellants have failed
to prove the incident by use of the offending vehicle. FIR and marg was
registered against the unknown vehicle and after delay of 35 days the
motorcycle was recovered from the possession of respondents No. 1 and
2. Thus, the vehicle was falsely implicated in the case. Claims Tribunal
has properly ascertained the legal aspects of the case and, therefore,
there is no ground to interfere with the award passed by the Claims
Tribunal and prayed that the appeal be dismissed.
11. Heard the learned counsel for the parties and perused the record.
12. The appellant Chandabai (PW-1) has clearly stated that on
15.01.2017 her husband was returning from his daughter's matrimonial
home Polaykala to his village Nahli in motorcycle bearing registration
No. MP 39 ML 9817 at that time around 06:30 PM the accident
occurred. Her husband was brought to Shujalpur Hospital. The
postmortem was conducted over the dead body of the deceased and
handed over to his brother in law Modsingh.
13. This fact that the deceased died from the collusion of vehicle is
supported from the marg report 03/2017 registered under 174 Cr.PC
(Exhibit-P-2) and FIR (Exhibit-P-1), marg intimation (Exhibit-P-3),
Inquest report (Exhibit-P-5) and postmortem report (Exhibit-P-7), all
these documents clearly mentions that the deceased died due to
vehicular accident and the postmortem report conducted by the Doctor
opined that the deceased died due to injury in vital organs resulting in
cardiac respiratory failure. As per (Exhibit-P-8), the dead body was
handed over to Modsingh, brother of the deceased. Thus, from the
statement of the witnesses and above said documents it is clear that the
deceased died due to vehicle accident.
14. Chandabai (PW-1) has stated that the driver Bhagwansingh of the
motorcyle bearing number MP 42 ML 0566 was driving motorcycle
rashly and negligently and hit her husband's motorcycle, but it is clear
from the cross examination that at the time of incident she was at her
village Nahli and first of all Sodansingh has informed her the incident.
Thus, this witness was not present on the spot. Thus her statement on
"Hearsay".
15. Witness Ramchandra (PW-2) has stated that he is the resident of
village Sahedhkhedi and the village Sahedhkehedi and village Nahli are
nearly situated and he was knowing the deceased Devisingh. On the date
of incident he was returning from village Menagao on his motorcycle
with Sodansingh at 06:30 PM they reached near Jethdajod then they saw
that the driver of the mortocylce MP 42 ML 0566 coming from the
wrong direction hit the motorcyle of deceased Devisingh bearing No.MP
39 ML 9817. Public gathered there. He saw that the deceased was
Devisingh. From the mob someone has informed the incident to the
brother of deceased Devisingh and they have informed the incident to
Chandabai and Suganbai. In the cross examination he has clearly stated
that he has not lodged any FIR and has not given any statement to the
police authorities and he has also not signed any documents. He has
clearly denied the suggestion that he is deposing on the tutoring of
Chandabai, but he has admitted that he does not know who has
preprared his affidavit of chief examinaiton and he has come before the
Court on the request of Chandabai.
16. Tribunal on that basis has inferred that the affidavit of this witness
was prepared without his knowledge and this witness has not informed
the police and not given the statment to the police so this witness has not
witness the incident.
17. From this point, I am of the opinion that no suggestion was given
to this witness that he has not seen the incident so whole of the chief
examiantion cannot be washed out only on the statement that his name
is not mentioned in the charge sheet as witness or he has not informed
the police authorities.
18. Further more, Bhagwansingh (NAW-2) has submitted the
registration documents, driving licence and insurance policy. In the
cross examinaiton he has admitted that Police Station, Sujalpur has filed
charge sheet against him regarding to this incident and police has seized
mortocycle of Raisingh from his possession and his brother-in-law
Raisingh has told the police authorites that on the date of incident
motorcycle MP 42 ML 0566 was driven by him and from that near
Jethdajod the incident occured on 15.02.2017.
19. In this respect, it is clear that police has filed charge sheet against
the respondent No.2 Bhagwansingh and in that charge sheet it is clearly
stated that motorcycle bearing No. MP 42 ML 0566 was involved in the
case and the driver was Bhagwansingh. The name of the witness
Ramchandra is not stated as an eye witness. From this point it is seen
that the wife of the deceased Chandabai and Babulal's name were added
afterward and charge sheet prepared from Criminal Tracking Network
and Systems (CCTNS) the name of these witnesses were also not
mentioned so on that basis the name of Ramchandra does not find palce
in the charge sheet which cannot be disbelieved.
20. The document (Exhibit-P-12) that is the part of the charge sheet
the notice given to the vehicle owner Raisingh has clearly stated that on
15.01.2017 his brother in law (Jija) Bhagwansingh,S/o Jasmatsingh
Rajput was driving the vehicle and he has intimated him about the
incident.
21. From the above facts it is clearly proved that in the accident
motorcycle bearing registration No.MP 42 ML 0566 was involved and
the vehicle was driven by Bhagwansingh S/o Jasmatsingh Rajput,
respondent No.2 and the registered owner of the vehicle was Raisingh,
S/o Ramsingh Rajput.
22. Learned counsel for the Insurance Company has argued that
respondents No. 1 and 2 were in collusion, but to prove the fact that they
have not examined any witnesses, even the investigaiton report has not
been filed, so only on the basis of argument that the vehicle was seized
after 35 days it cannot be inferred that the motorcycle driven by
respondent No.2 was not invovled in the case.
23. So it is clearly proved that on the date of incident, the deceased
Devisingh died due to vehicle accident and vehicle bearing No. MP 42
ML 0566 was involved which was driven by respondent No.2. Thus, the
deceased died in the use of motor vehicle and the Insurance Company
has failed to prove the breach of the policy.
24. The claimants have filed the claim petiton under Section 163-A
and stated that the deceased was an employee in Health Department
working as Sweeper in muster roll and his annual income was
Rs.40,000/. Looking to the fact that the minimum wages applicable to
un-skilled labourer at that relevant time was Rs.5000/- to Rs.6,000/- per
month. The annual income of the deceased is not excess or
disproportionate. The annual income of the deceased is determined
Rs.40,000/- per annum. No document has been filed regarding the age
of the deceased so the age of the deceased will be decided on the
documents filed by the claimants.
25. In the marg intimation and doucments (Exhibit-P-2, P-3, P-4 and
P-5) the age of the deceased has been mentioned 45 years and the
Doctor who conducted the postmortem (Exhibit-P-7) has mentioned the
age of the deceased as 45 years, so I am of the opinion that the age of
the deceased at the time of accident was 45 years.
26. In this case the incident took palce before the notification of
Motor Vehicle Amendment Act, 2019. Hence, the claims have been
decided on the basis of law applicable at that time that was of
Structured Formula as provided in Table-2 of Motor Vehicles Act, 1988.
27. The apex Court in the case of Reshma Kumari & Ors vs Madan
Mohan & Another reported in AIR 2013 SC (SUPP) 474 regarding the
multiplier in 163-A cases held as under :-
"34. If the multiplier as indicated in Column (4)
of the table read with paragraph 42 of the Report in
Sarla Verma17 is followed, the wide variations in the
selection of multiplier in the claims of compensation
in fatal accident cases can be avoided. A standard
method for selection of multiplier is surely better than
a criss-cross of varying methods. It is high time that
we move to a standard method of selection of
multiplier, income for future prospects and deduction
for personal and living expenses. The courts in some
of the overseas jurisdictions have made this advance.
It is for these reasons, we think we must approve the
table in Sarla Verma17 for the selection of multiplier
in claim applications made under Section 166 in the
cases of death. We do accordingly. If for the selection
of multiplier, Column (4) of the table in Sarla
Verma17 is followed, there is no likelihood of the
claimants who have chosen to apply under Section
166 being awarded lesser amount on proof of
negligence on the part of the driver of the motor
vehicle than those who prefer to apply under Section
163A. As regards the cases where the age of the
victim happens to be upto 15 years, we are of the
considered opinion that in such cases irrespective of
Section 163A or Section 166 under which the claim
for compensation has been made, multiplier of 15 and
the assessment as indicated in the Second Schedule
subject to correction as pointed out in Column (6) of
the table in Sarla Verma17 should be followed. This is
to ensure that claimants in such cases are not awarded
lesser amount when the application is made under
Section 166 of the 1988 Act. In all other cases of death
where the application has been made under Section
166, the multiplier as indicated in Column (4) of the
table in Sarla Verma17 should be followed. "
28. As per the judgment delivered by the apex Court in the case of
Sarla Verma & others Vs. Delhi Transport Corportion and another
reported in 2009 AIR SCW 4992 has determined the multiplier of 14
for the age group of 42 to 45 and 1/4 of the amount income shall be
deducted in personal and living expenses as in this case the number of
dependents are five.
29. Though, this case is a Claim under 163-A of the Motor Vehicle
Act, 1988 and in that case under the head of loss of estate, funeral
expenses and loss of consortium a fixed amount is provided in Table-1
of the Motor Vehicles Act, 1988.
30. In light of the principle laid down in above cases, the deceased
wife is entitled for Rs. 40,000/- and the appelalnts were entitled for an
amount of Rs. 15,000/- on the head of funeral expenses and Rs.
15,000/- for the loss of estate. On the above basis the claim amount is
as under :-
The income of the deceased Rs. 40,000/- per annum
(After deduction of ¼ in living Rs,40,000-10,000= Rs.30,000/-
and personal expenses) Multiplier of 14 (30,000 x14)
Loss of Dependency =Rs. 4,20,000/-
Funeral Expenses Rs. 15,000/-
Loss of Estate Rs. 15,000/-
Consortium to appellant No.1 Rs. 40,000/-
TOTAL Rs. 4,90,000/-
31. Thus, the just compensation amount is Rs. 4,90,000/- (Rupees Four
lac Ninety thousand) as compensation.
32. The Insurance Company/respondent no.3 on the awarded amount
shall also pay the simple interest at the rate of 7% from the date of
application i.e. 20.06.2017 till the amount is deposited before the
Claims Tribunal. The Insurance Company shall deposit the amount
within a month from the date of recipt of copy of the order.
33. On the amount being depsoited in the Claims Tribunal, the Claim
Tribunal shall disburse the amount to the appellants, as per the law laid
down by the Apex Court in the case of General Manager, Kerala
S.R.T.C vs Susamma Thomas reported in 1994 AIR SCW 1356.
34. This appeal is finally disposed of. The respondent No.3 Insurance
company shall also bear the expenses of the appellants.
35. Record be sent back to the learned MACT alongwith the copy of
this order.
(DEVNARAYAN MISHRA)
JUDGE
rashmi
