Madhya Pradesh High Court
National Insurance Co Ltd vs Smt Sulochana on 12 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 12 th OF FEBRUARY, 2024
MISC. APPEAL No. 2811 of 2018
BETWEEN:-
NATIONAL INSURANCE CO LTD DIVISIONAL
MANAGER DIVISIONAL OFFICE SEVANI TOWER ZONE
II MP NAGAR, BHOPAL (MADHYA PRADESH)
.....APPELLANT
(BY MS. AMRIT KAUR RUPRAH - ADVOCATE)
AND
1. SMT SULOCHANA W/O LATE SHRI BABULAL,
AGED ABOUT 40 YEARS, VILLLL AAMAJHEER
DISTT SEHORE PRESENT VILL FANDA (MADHYA
PRADESH)
2. KU. GAYATRI D/O LATE SHRI BABULAL, AGED
ABOUT 18 YEARS, R/O VILLAGE AAMAJHEER,
DISTRICE SEHORE, PRESENT R/O VILLAGE
FANDA DISTRICT BHOPAL (MADHYA PRADESH)
3. KU. BASKANYA D/O LATE SHRI BABULAL, AGED
ABOUT 16 YEARS, OCCUPATION: THR. NATURAL
GUARDIAN SMT. SULOCHANA W/O LATE SHRI
BABULAL AGE 40 R/O VILLAGE AAMAJHEER,
DISTRICE SEHORE, PRESENT R/O VILLAGE
FANDA DISTRICT BHOPAL (MADHYA PRADESH)
4. LALIT S/O LATE SHRI BABULAL, AGED ABOUT 14
YEARS, OCCUPATION: THR. NATURAL GUARDIAN
SMT. SULOCHANA W/O LATE SHRI BABULAL AGE
40 R/O VILLAGE AAMAJHEER, DISTRICE SEHORE,
PRESENT R/O VILLAGE FANDA (MADHYA
PRADESH)
5. NILESH S/O LATE SHRI BABULAL, AGED ABOUT
12 YEARS, OCCUPATION: THR. NATURAL
GUARDIAN SMT. SULOCHANA W/O LATE SHRI
BABULAL AGE 40 R/O VILLAGE AAMAJHEER,
DISTRICE SEHORE, PRESENT R/O VILLAGE
2
FANDA (MADHYA PRADESH)
6. DINESH SINGH S/O PYARELAL R/O VILLAGE
AAMAJHEER, DISTT SEHORE (MADHYA
PRADESH)
7. GOVIND VERMA S/O SHRI CHUNNILAL VERMA
R/O VILLAGE AAMAJHEER, DISTT SEHORE
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI R.P. MISHRA - ADVOCATE FOR RES. NO.1 TO 5)
MISC. APPEAL No. 3362 of 2019
BETWEEN:-
NATIONAL INSURANCE CO. LTD. THR DIVISONAL
MANAGER SEVANI TOWER, ZONE II, M.P. NAGAR,
SIHORA DISTT. JABALPUR THR ASSISTANT MANAGER
T.P. HUB, JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY MS. AMRIT KAUR RUPRAH - ADVOCATE )
AND
1. SMT. VIDYA BAI W/O LATE SHRI RAMESH, AGED
ABOUT 40 YEARS, VILLAGE ICCHAWAR, DISTT
SEHORE, PRESENTLY RESIDING IN VILLAGE
FANDA, DISTT BHOPAL (MADHYA PRADESH)
2. NARENDRA S/O LATE SHRI RAMESH, AGED
ABOUT 15 YEARS, OCCUPATION: MINOR THR.
MOTHER AND NATURAL GUARDIAN SMT.
VIDHYA BAI R/O VILLAGE ICCHAWAR, DISTT
SEHORE PRESENTLY R/O IN VILLAGE FANDA,
BHOPAL (MADHYA PRADESH)
3. VIRENDRA S/O LATE SHRI RAMESH, AGED
ABOUT 10 YEARS, OCCUPATION: MINOR THR.
MOTHER AND NATURAL GUARDIAN SMT.
VIDHYA BAI R/O VILLAGE ICCHAWAR, DISTT
SEHORE PRESENTLY R/O IN VILLAGE FANDA,
BHOPAL (MADHYA PRADESH)
4. SMT. GAINDA BAI W/O SHRI BAIJNATH JHA,
AGED ABOUT 60 YEARS, R/O VILLAGE
ICCHAWAR, DISTT SEHORE PRESENTLY R/O IN
VILLAGE FANDA, BHOPAL (MADHYA PRADESH)
3
5. DINESH SINGH S/O SHRI PYARELAL R/O
AMAJHIR, MOGRARAM (MADHYA PRADESH)
6. GOVIND VERMA S/O SHRI CHUNNILAL VERMA
R/O VILLAGE AMAJHIR, (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI R.P. MISHRA - ADVOCATE FOR RES. NO.1 TO 3)
MISC. APPEAL No. 3225 of 2021
BETWEEN:-
1. SMT. SULOCHANA W/O LATE SHRI BABULAL,
AGED ABOUT 40 YEARS, GRAM AAMAJHEER
DISTT. SEHORE PRESENT R/O R/O GRAM FANDA
DISTT. BHOPAL (MADHYA PRADESH)
2. KU.GAYATRI D/O LATE BABULAL, AGED ABOUT
18 YEARS, OCCUPATION: MINOR THROUGH
NATURAL GUARDIAN MOTHER SMT.SULOCHANA
GRAM AAMAJHEER DISTT.SEHORE AT PRESENT
GRAM FANDA DISTT.BHOPAL (MADHYA
PRADESH)
3. KU.BASKANYA D/O LATE BABULAL, AGED ABOUT
16 YEARS, OCCUPATION: MINOR THROUGH
NATURAL GUARDIAN MOTHER SMT.SULOCHANA
GRAM AAMAJHEER DISTT.SEHORE AT PRESENT
GRAM FANDA DISTT.BHOPAL (MADHYA
PRADESH)
4. LALIT S/O LATE BABULAL, AGED ABOUT 14
Y E A R S , OCCUPATION: MINOR THROUGH
NATURAL GUARDIAN MOTHER SMT.SULOCHANA
GRAM AAMAJHEER DISTT.SEHORE AT PRESENT
GRAM FANDA DISTT.BHOPAL (MADHYA
PRADESH)
5. NEELESH S/O LATE BABULAL, AGED ABOUT 12
Y E A R S , OCCUPATION: MINOR THROUGH
NATURAL GUARDIAN MOTHER SMT.SULOCHANA
GRAM AAMAJHEER DISTT.SEHORE AT PRESENT
GRAM FANDA DISTT.BHOPAL (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI R.P. MISHRA - ADVOCATE)
4
AND
1. DINESH SINGH S/O SHRI PYARELAL GRAM
AAMAJHEER DISTT. SEHORE (MADHYA
PRADESH)
2. GOVIND VERMA S/O CHUNNILAL VERMA GRAM
AAMAJHEER DISTT.SEHORE (MADHYA PRADESH)
3. NATIONAL INSURANCE CO.LTD. THROUGH
DIVISIONAL MANAGER DIVISINAL OFFICE
SEWANI TOWER ZONE 2 MP NAGAR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI MS. AMRIT KAUR RUPRAH - ADVOCATE FOR RES. NO.3)
MISC. APPEAL No. 3226 of 2021
BETWEEN:-
1. SMT. VIDYA BAI W/O LATE SHRI RAMESH, AGED
ABOUT 40 YEARS, GRAM ICHHAWAR DISTT.
SEHORE PRESENT R/O GRAM FANDA DISTT.
BHOPAL (MADHYA PRADESH)
2. NARENDRA (MINOR) THR NATURAL GUARDIAN
MOTHER SMT VIDYA BAI) S/O LT. SHRI RAMESH,
AGED ABOUT 15 YEARS, GRAM-ICHHAWAR,
DISTT-SEHORE MP AT PRESENT GRAM FANDA,
DISTT.-BHOPAL MP (MADHYA PRADESH)
3. VIRENDRA (MINOR) THR NATURAL GUARDIAN
MOTHER SMT VIDYA BAI S/O LT SHRI RAMESH,
AGED ABOUT 10 YEARS, GRAM-ICCHAWAR,
DISTT-SEHORE MP AT PRESENT GRAM-FANDA,
DISTT-BHOPAL MP (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI R.P. MISHRA - ADVOCATE)
AND
1. DINESH SINGH S/O SHRI PYARELAL GRAM
AAMAJHEER MOGRARAM DISTT. SEHORE
(MADHYA PRADESH)
2. GOVIND VERMA S/O SHRI CHUNNILAL VERMA
GRAM-AAMAJHEER. MOGRARAM, DISTT-
SEHORE MP (MADHYA PRADESH)
5
3. THR DIVISIONAL MANAGER NATIONAL
INSURANCE COMPANY LTD. DIVISIONAL OFFICE
SEWANI TOWER , ZONE-2, MP NAGAR DISTT-
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MS. AMRIT KAUR RUPRAH - ADVOCATE FOR RES. NO.3 )
This appeal coming on for admission this day, th e court passed the
following:
JUDGMENT
Since these appeals are arising out of common accident, therefore, they
are being heard together and decided by this common order.
2. These two appeal i.e. M.A. No. 3362/2019 and MA No. 2811/2018 under
Section 173(1) of the Motor Vehicles Act, 1988 have been filed by the
appellant/insurance company against the award dated 29.04.2019 and
27.03.2018 passed by the 15th Additional Motor Accident Claims Tribunal,
Bhopal and 10th Additional Motor Accident Claims Tribunal, Bhopal in Claim
Case No. 924/2017 and Claim Case No. 1093/16 respectively whereby learned
tribunal has awarded an amount of Rs.8,59,600/- and Rs. 8,69,730 to the
claimants payable by the driver/owner of the offending vehicle and Insurance
Company jointly and severally, Other two appeals i.e. MA. No. 3226/2021 and
MA No. 3225/2021 have been filed by the LRs. of Ramesh and LRs. Babulal
for further enhancement of Rs. 1,00,000/- and Rs. 80,000/- respectively in
addition to the amount awarded by the learned tribunal.
3. The facts necessary for disposal of the present appeal in brief are that on
17.10.2015, Dinesh was going with Babulal on his motorcycle. when they
reached Icchawar near Paliwal Nursary, then Dinesh driving the motorcycle
bearing No. MP-37-MJ-0667 rashly and negligently hit the Ramesh walking on
foot. Due to which, Babulal fall down from the motorcycle and received
grievous injuries and Ramesh also received grievous injuries. Resultantly,
Ramesh and Babulal have died.
4. It is submitted by the learned counsel of insurance company that the case
o f Anil and others Vs. New India Assurance Company Limited and
others, 2018(2) SCC 482 has squarely applied in this case wherein no post
mortem was conducted and no hospital record was available to indicate that the
death has occurred due to the accident, complaint also lodged after more than
one month period and deceased was the brother of the owner of the offending
vehicle. Herein the FIR was lodged after two months of the alleged incident and
in that FIR also vehicle number of the said motorcycle was not mentioned. The
deceased was the real brother of the owner of the said motorcycle and owner
and driver of the said motorcycle remained ex-parte before the tribunal. No
paper of the treatment of Babulal was made available. Though, he sustained
injuries on 19.10.2015 and died on 27.10.2015, The mechanical examination of
said motorcycle shows that there was no damage found on that vehicle. The
offending vehicle motorcycle is alleged to be seized on 29.04.2016 that is after
the 4-5 month after the incident. Babulal was died due to fall from any vehicle
which is explicit from the report Ex. D/1 and D/2 Ex. D/2 is the first
information report contains the fact of falling of the Babulal. The testimony of
the Himmant Singh is not inspired the confidence of the Court and he was the
most and reliable person. Statement of Dev Kumar (NAW/1) and Santosh
Kumar Kaithal (NAW/2) were the investigator and proved that the incident in
question is not proved as put forth by the claimants. The marg report also
shows that Babulal sustained the injuries due to fall and not because of any
vehicular accident.
5. Per contra, learned counsel for the claimants submits that learned tribunal
has erred in calculating the compensation amount and has also erred in not
considering the right age of the deceased. Learned tribunal has not awarded for
loss of love & affection, loss of estate and parental loss. Therefore, the amount
may be enhanced in these heads.
6. Having heard learned counsel for the parties. Perusal of the record shows
that the incident was occurred on 17.10.2015 and to prove the factum of the
accident as put forth by the claimants Sulochana (AW-1) widow of lat Babulal
has been examined but she is not an eye witness of the incident. She admits
that the motorcycle was the ownership of her Jeth non applicant No. 2. She
denied the suggestion given by the insurance company that his husband has
sustained the injuries from falling from the motorcycle. The Himmat Singh
(AW-2) is the eye witness of the incident examined on behalf of the claimants
and he stated the entire details of accident in his statement that he was going by
motorcycle from Sehore to Ichhawar, on 17.10.2015 at about 8:20 in the night
near Paliwal Nursery, a motorcycle from his back side has overtaken him and
dashed Ramesh from back side. The motorcycle bearing registration number
MP-37-MJ-0667 and it was being driven by the driver Dinesh Singh (non
applicant No.1). He categorically stated that in the incident injured-Ramesh
sustained gracious injuries and pillion rider of motorcycle Babulal has also
sustained gracious injury who was fallen from the motorcycle due to
motorcycle remain imbalanced. This witness in his cross-examination remained
intact on the statement given by him in chief examination. Though he said in his
cross-examination that he has lodged the report in Ichhawar police station after
10-15 days but no such repot is on record. He denied the suggestion given by
the insurance company that since the accident was took place in the night,
therefore, he could not identify the driver of the motorcycle as well as the
registration of number of the motorcycle but he clarified that there was light of
nursery and in that light he has seen the registration number of the motorcycle.
This witness also intimated the registration number of the vehicle in his police
statement.
7. The document filed on behalf of the claimants including the first
information report (Ex. P/1) contained the details of the incident though the fact
contains are with regard to the injured Ramesh but since first information report
was lodged on 16.12.2015 which was with regard to the deceased Ramesh,
therefore, this FIR contained the fact regarding deceased Ramesh only.
However, it is to be pertinent to mention here that non-applicant No.3/insurance
company has filed the marg intimation Ex. D/2 which was lodged to the police
station Ichharwar, on the information given by the Dr. Nasruddin of Choithram
hospital, Indore which was regarding death of the deceased Babulal.
8. Though the serious question was raised regarding this marg intimation (Ex.
D/2) by the insurance company that the date of accident mentioned in this marg
intimation is 19.10.2015 while as per the prosecution and claimant case it was
17.10.2015. However while reading the contents of this marg intimation Ex.D/2
it reveals that the date 19.10.2015 is mentioned with regard to the date of
admission in the hospital and it does not indicate it to be the date of incident.
Therefore, the recital of this document is misread by the appellant/insurance
company. This document shows that the information given by the
Dr.Nasurdeen from Choithram hospital, Indore to police station Rajendra Nagar
and thereafter the Rajendra Nagar police sent it to police Ichhawar. The
information was communicated through this document is about the death of
Babulal on 27.10.2015 at 10-14 hours. This information was given by the police
station Rajendra Nagar in dehati marg nalishi No. 81/2015 and on that
information, police station Ichhawar has registered a marg case No. 15/2016
under Section 174 of Cr.P.C.
9. Thereafter, the police Ichhawar has enquired the case and during marg
inquiry it is found that in the said accident the injured Babulal was sitting with
non-applicant Dinesh who was driving the offending vehicle and after hitting the
Ramesh, motorcycle was remain imbalanced and therefore, Babulal was fallen
from the motorcycle and sustained the injuries. Therefore, D/2 contained the
fact that the Babulal was admitted in the hospital for the injuries sustained by
falling but it is not clarified in this marg intimation that wherefrom Babulal was
fallen? In these circumstances, it cannot be said that the Babul Lal has sustained
the injuries fallen otherwise then from the offending vehicle. The entire evidence
on record shows that Babulal has sustained injuries fallen from the offending
vehicle. The statement of non-applicant witness Dev Kumar (NAW/1) and
Santosh Kumar Kaithal (NAW/2) does not of much help to the
appellant/insurance company. Both the witnesses are the investigator of
appellant/insurance company and not any witness to the incident.
10. A complaint was also made on behalf of the appellant/insurance
company to police superintendent, Sehore which is Ex. D/4 but what steps
taken on this application by the police superintendent is not explained by the
insurance company, therefore, mere submitting a complaint to SP Sehore is not
of much help and does not create doubt on the veracity of the police case as
well as case of the claimant regarding the incident.
11. Ex. P/2 is the post mortem report of the deceased, Ex. P/3 is spot map
Ex. P/4 is the seizure memo by which the offending vehicle and there paper
have been seized by the police Ichhawar. The seizure memo was prepared on
29.04.2016 i.e. after 4-5 months of the accident, but whatever delay has been
caused in lodging the first information report and thereafter conducting marg
inquiry and in completion of investigation, it all was due to police proceedings
which does not affect adversely the case of claimants. The delay in seizing
offending vehicle is also caused by the police but on that ground alone, the
claimants case cannot not be discarded. Ex. P/5 is the vehicle inspection
report and contains the fact that no damage is found but it is pertinent to
mention here that this inspection report was prepared after the seizure of the
vehicle on 29.04.2016 after lapse of 5 months of the accident and possibility of
its rapair cannot be ruled out. The fact contained in inspection report Ex. P-5
does not render the claimant case doubtful.
12. Ex. P/6 to P/12 are the statements of the prosecution witnesses the
corroborate the story of the claimant and story of prosecution. The police
statement or marg statements contained the registration number of the offending
vehicle. Other fact regarding the accident Ex. D/13 is the challan filed by police
Ichhawar in the Court of JMFC Ichhawar and this report has contained the fact
that deceased Babulal was died due to fallen from the offending vehicle which
was being driven by the accused Dinesh rashly and negligently and dashed
Ramesh and thereafter due to imbalance of motorcycle Babulal was fallen from
the motorcycle. This story has been established by the witnesses of claimants
by the documentary as well as oral evidence on the anvil of the principal of
preponderance of probability. Mere fact that the deceased was the real brother
of the owner of the offending vehicle per se does not render the case of
claimants discardable. This case is not of absence of PM report and mere non
submission of treatment papers does not render case of claimants doubtful in
the facts and circumstances of the case. Therefore,dictum in the case of Anil
(Supra) is of no help to the appellant insurance company. The case of Ram
Charan Teli and others Vs. Driver Hiralal Patel passed in MA No.
2390/2020 and case of Tata AIG General Insurance Company Ltd. Vs.
Smt. Kamlabai Kachhi (Patel) and others in MA No. 4825/2018 passed
by Coordinate Bench of this Court are also distinguishable on the facts.
Similarly, in case of Vinod Kumar Vs. Mohammad Hafiz, 2012(3) MPLJ
6 5 0 the fact are also distinguishable wherein, it was found that the person
lodged the first information report was not the eye witness of the incident.
Similarly the case of National Insurance Company Ltd. Vs. Phoolwati and
others in M.A. No. 4304/2022 and National Insurance Company Ltd.
Vs. Smt Munni Bai Chouahn and others in MA. No. 5214/2023 passed
by Coordinate Bench of this Court are also distinguishable on the factS as
the delay in FIR alone is not a ground to reject the testimony of the witnesses
and the case of claimants in the facts and circumstances of the cases is found
to be trustworthy. The Appeals filed by the insurance company being bereft of
merit are hereby dismissed.
13. So far as the appeal of claimants are concerned, it is submitted by the
learned counsel for the applicants/claimants that the learned tribunal has
assessed the income of the deceased as Rs. 5,000/- per moths while on the date
of accident the minimum wage of unskilled labour was Rs. 6,575/- per month
and the income of the deceased ought to be taken as Rs. 6575/- per month in
case of deceased Ramesh as well as Babu Lal. Having regard to the age of the
deceased future prospectus 25% ought to be applied with the multiplier of 14.
Claimants has also entitled to the loss of consortium at the rate of Rs. 40,000/-,
therefore, the enhancd amount comes to rupees more than 3,00,000/-.
14. In this regard perusal of the impugned award shows that the learned
tribunal has adopted the multiplier as per the age of the deceased and deduction
towards the personal expenses of the deceased is rightly made on the annual
income. Annual income of the deceased ought to be taken at the rate of Rs.
6575/- per month and also the claimants are entitled to get the loss of estate and
funeral expenses at the rate of 15,000/- each while the loss of consortium is
allowable to each claimants at the rate of Rs. 40,000/- therefore, the claimant
are entitled to the enhanced compensation. It is worthy to mention here that the
claimants have filed the appeal for enhancement of Rs. 80,000/- in case of legal
representative of the deceased Babulal and in case of legal representative of
the deceased Ramesh it was Rs. 1,00,000/- and they have paid the court fees on
aforesaid amount.
15. Therefore, the award amount is enhanced to Rs. 80,000/- and Rs.
1,00,000/- in case of the LRs of Babul and Ramesh respectively in addition to
impugned award. Other terms and conditions of impugned award shall remain
intact.
16. In the result the both the appeals of appellant/insurance company are
dismissed as being bereft of merit, while the appeals on behalf of the LRs of
claimants are allowed in part to the extent as discussed above.
17. Let the record of the tribunal be sent back for information and necessary
compliance.
18. A copy of this judgment be also kept in the record of MA No. 3362/19,
MA No. 3225/2021 and MA No. 3226/2021.
(RAJENDRA KUMAR VANI)
JUDGE
L.R.
