Madhya Pradesh High Court
Smt.Anita Bai Uikey vs Shiv Singh Maravi on 17 February, 2024
Author: Amar Nath Kesharwani
Bench: Amar Nath Kesharwani
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
ON THE 17th OF FEBRUARY, 2024
MISC. APPEAL No. 6373 of 2023
BETWEEN:-
1. SMT. ANITA BAI W/O LATE RAJKUMAR UIKEY,
AGED ABOUT 41 YEARS
2. SANTOSH UIKEY S/O LATE RAJKUMAR UIKEY,
AGED ABOUT 21 YEARS
3. SUBHASH UIKEY S/O LATE RAJ KUMAR UIKEY,
AGED ABOUT 20 YEARS
ALL RESIDENT OF VILLAGE THODA P.S. AND TEHSIL
BICHHIYA DISTRICT MANDLA MADHYA PRADESH.
.....APPELLANTS
(BY SHRI SANJAY SAINI - ADVOCATE )
AND
1. SHIV SINGH MARAVI S/O KUNNU LAL MARAVI,
AGED ABOUT 38 YEARS, DRIVER OF CAR R/O
BHANGDATOLA VILLAGE BHAU BICHHIYA POLICE
STATION AND TEHSIL BICCHIYA DISTRICT MANDLA
M.P. (DRIVER OF THE OFFENDING VEHICLE)
2. ABHISHEK PURI S/O LATE KAMAL PURI
GOSWAMI, AGED ABOUT 35 YEARS, R/O
BHANGDATOLA VILLAGE BHAU BICHHIYA P.S. AND
TEHSIL BICHHIYA DISTRICT MANDLA M.P. (OWNER
OF OFFENDING VEHICLE)
3. THE SBI GENERAL INSURANCE CO. LTD.
THROUGH BRANCH MANAGER - BRANCH OFFICE
REGAL TOWERS 2ND FLOOR BESIDE KARTIK HOTEL
Signature Not Verified
Signed by: ANAND KRISHNA
SEN
Signing time: 2/28/2024
5:45:12 PM
2
NEAR TAIYAB LAI PETROL PUMP JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
( SERVICE OF NOTICE ON RESPONDENT NO.1 AND 2 IS DISPENSED
WITH VIDE ORDER DATED 02.02.2024 )
(NON FOR RESPONDENT NO.3 THOUGH SERVED )
---------------------------------------------------------------------------------------
This appeal coming on for admission this day, the court passed the following:
ORDER
Heard on admission.
Admit.
This is an appeal filed by the appellants/claimants for enhancement
of awarded amount under Section 173(1) of the Motor Vehicles Act, 1988
against the award dated 31.07.2023 passed by Member Motor Accident
Claims Tribunal, Mandla M.P. in MACC No.218/2021 by which the
Claims Tribunal has awarded a total sum of Rs.6,37,000/- (Six Lakhs
Thirty Seven Thousand) with interest @ 7.5% per annum to the claimants
for the death of Rajkumar Uikey, who died in motor vehicle accident.
2. According to claimants, the compensation awarded by the learned
Tribunal is on lower side, hence need to be enhanced. So the question that
arises for consideration is whether any case for enhancement of
compensation awarded by the Tribunal on facts/ evidence adduced is made
out and if so to what extent?
3. It is not necessary to narrate the entire facts in detail, such as how
the accident occurred, who was negligent in driving the offending vehicle,
who is liable for paying compensation etc. It is for the reason that all these
findings are recorded in favour of claimants by the Tribunal. Secondly, the
findings though recorded in favour of claimants are not under challenge at
the instance of any of the respondents such as owner/driver or insurance
company either by way of cross-appeal or cross-objection. In this view of
the matter, there is no justification to burden the judgment by detailing
facts on all these issues.
4. As observed supra, it is a death case. On 24.12.2020, Rajkumar
Uikey aged 42 years, met with a motor vehicle accident and died, giving
rise to file claim petition by legal representatives (appellants herein), out of
which this appeal arises seeking enhancement of compensation for his
death. The case was contested by the respondents. Parties adduced
evidence. The Claims Tribunal by impugned award partly allowed the
claim petition filed by claimants and, as stated supra, awarded a sum of
Rs.6,37,000/- (Six Lakhs Thirty Seven Thousand), after deducting 30% as
contributory negligence, as compensation. The breakup is as under :-
Towards loss of dependency Rs.8,40,000/-
Towards funeral expenses Rs.15,000/-
Towards Loss of estate Rs.15,000/-
Towards filial consortium Rs.40,000/-
5. Learned counsel for the appellants submitted that learned tribunal
has held in para 16 of the impugned award that respondents have failed to
lead legal evidence in support of the pleadings regarding contributory
negligence of the deceased. Learned tribunal has wrongly presumed 30%
contributory negligence of the deceased for want of wearing helmet and
non-production of driving licence of the deceased, hence finding of issue
No.1-B is erroneous and perverse which should be set-aside. In support of
his submissions, learned counsel for the appellants has relied upon the
judgments of Hon'ble Supreme Court in the case of Sudhir Kumar Rana
vs. Surinder Singh (2008) 12 SCC 436, Mohammed Siddique vs.
National Insurance Company Ltd. (2020) 3 SCC 57.
6. Learned counsel for the appellant also submitted that learned
tribunal has assessed the income of the deceased at Rs.6,000/- (Six
Thousand) monthly in para 22 of the impugned award which should be
Rs.8,400/- (Eight Thousand Four Hundred) per month, as per the minimum
wages act prevailing on the date of incident. Learned counsel further
submitted that learned tribunal has not awarded any amount in the head of
parental consortium to the appellants No. 2 and 3. He also submitted that
as per the principle of law laid down by the Hon'ble Supreme Court in the
case of National Insurance Company Limited Vs. Pranay Sethi &
others, (2017) 16 SCC 680 in para 59.8, the award under the
conventional heads should be increased @ 10% in every 3 years and
submitted that since it is a case of the year 2020 and judgment of Pranay
Sethi (supra) is of the year 2017, hence the amount in the head of
conventional heads i.e. Consortium, loss of estate and funeral expenses
should be Rs.44,000/-, 16,500/- and 16,500/- respectively. In view of
above, learned counsel for the appellants prayed that the appeal be
allowed and amount of compensation be enhanced substantially.
7. I have heard learned counsel for the appellant, gone through the
impugned award and perused the entire record.
8. From perusal of record it is evident that the deceased was
married, therefore, learned tribunal has rightly deducted 1/3 towards
personal expenses. However, it appears that the income of the
deceased assessed by the learned Tribunal at Rs.6,000/- (Six
thousand) per month for an incident which took place in the year 2020
appears to be on lower side, which should be Rs.8,400/- (Eight
Thousand Four Hundred) as per the Minimum wages Act. Keeping in
view age of the deceased, multiplier of 14 appears to be just and
proper. Thus, when the income of the deceased is taken into
consideration at Rs.8,400/- (Eight Thousand Four Hundred) and 25%
is added towards future prospects keeping in view the law laid down
by Hon'ble Apex Court in the case of Pranay Sethi (Supra), yearly
income of the deceased comes to Rs.1,26,000/- (One Lakh Twenty
Six Thousand). 1/3 is to be deducted towards personal expenses from
the yearly income, which comes to Rs.84,000/- (Eighty Four
Thousand) and after applying multiplier of 14, keeping in view the
age of deceased, amount towards loss of dependency comes to
Rs.11,76,000/- (Eleven Lakhs Seventy Six Thousand).
9. It also appears from the record that the learned tribunal has
awarded a sum of Rs.40,000/- towards loss of filial consortium to
appellant No.1, which should be Rs.44,000/- in the light of the
principle of law laid down in the case of Pranay Sethi (supra) in para
59.8 as the incident is of the year 2020. Further, the tribunal has not
awarded any amount towards parental consortium to appellant No.2
and 3. Hence, an amount of Rs.44,000/- each should be awarded to
appellant No.2 and 3. Though the tribunal has awarded Rs.15,000/-
(Fifteen Thousand) in the head of funeral expenses and Rs.15,000/-
(Fifteen Thousand) in the head of loss of estate, however, the same
should be Rs.16,500/- and 16,500/- respectively in the light of para
59.8 of the case of Pranay Sethi (supra).
10. Though learned tribunal has presumed contributory negligence of
the deceased in the alleged incident for want of wearing helmet and non-
production of driving licence of the deceased, however, in the case of
Sudhir Kumar Rana vs. Surinder Singh 2008 AIR (SC) 2405 Hon'ble
Apex court has held that the question of contributory negligence would
arise only when both parties are found to be negligent. It is one thing to say
that the appellant was not possessing any licence but no finding of fact has
been arrived at that he was driving rashly and negligently which
contributed to the accident, one fails to see as to how, only because he was
not having a licence, he would not be held to be guilty of contributory
negligence. Para nos.6, 7 and 8 of Sudhir Kumar Rana (supra) are
reproduced below :
"6. A contributory negligence may be defined as negligence
in not avoiding the consequences arising from the negligence
of some other person, when means and opportunity are
afforded to do so. The question of contributory negligence
would arise only when both parties are found to be negligent.
7. The question is, negligence for what? If the
complainant must be guilty of an act or omission which
materially contributed to the accident and resulted in injury
and damage, the concept of contributory negligence would
apply. [See New India Assurance Company Ltd. v. Avinash
1988 ACJ 322 (Raj.)]
In T.O. Anthony v. Kavarnan & Ors. [(2008) 3 SCC
748, it was held
"6. 'Composite negligence' refers to the
negligence on the part of two or more persons.
Where a person is injured as a result of
negligence on the part of two or more wrong
doers, it is said that the person was injured on
account of the composite negligence of those
wrong-doers. In such a case, each wrong doer, is
jointly and severally liable to the injured for
payment of the entire damages and the injured
person has the choice of proceeding against all or
any of them. In such a case, the injured need not
establish the extent of responsibility of each
wrong-doer separately, nor is it necessary for the
court to determine the extent of liability of each
wrong-doer separately. On the other hand where
a person suffers injury, partly due to the
negligence on the part of another person or
persons, and partly as a result of his own
negligence, then the negligence of the part of the
injured which contributed to the accident is
referred to as his contributory negligence. Where
the injured is guilty of some negligence, his
claim for damages is not defeated merely by
reason of the negligence on his part but the
damages recoverable by him in respect of the
injuries stands reduced in proportion to his
contributory negligence.
7. Therefore, when two vehicles are involved
in an accident, and one of the drivers claims
compensation from the other driver alleging
negligence, and the other driver denies
negligence or claims that the injured claimant
himself was negligent, then it becomes necessary
to consider whether the injured claimant was
negligent and if so, whether he was solely or
partly responsible for the accident and the extent
of his responsibility, that is his contributory
negligence. Therefore where the injured is
himself partly liable, the principle of 'composite
negligence' will not apply nor can there be an
automatic inference that the negligence was
50:50 as has been assumed in this case. The
Tribunal ought to have examined the extent of
contributory negligence of the appellant and
thereby avoided confusion between composite
negligence and contributory negligence. The
High Court has failed to correct the said error."
8. If a person drives a vehicle without a licence, he
commits an offence. The same, by itself, in our opinion, may
not lead to a finding of negligence as regards the accident. It
has been held by the courts below that it was the driver of the
mini-truck which was being driven rashly and negligently. It
is one thing to say that the appellant was not possessing any
licence but no finding of fact has been arrived at that he was
driving the two-wheeler rashly and negligently. If he was not
driving rashly and negligently which contributed to the
accident, we fail to see as to how, only because he was not
having a licence, he would be held to be guilty of contributory
negligence."
(Emphasis supplied)
11. Thus, keeping in view the principle of law laid down in the case of
Sudhir Kumar Rana (supra), it can safely be said that just because the
deceased was not having driving licence it cannot be presumed that the
deceased was negligent in driving and contributed to the incident.
Therefore, the finding of the learned tribunal regarding the contributory
negligence is not based on proper appreciation of evidence, hence, findings
of issue No.1-B are hereby set-aside.
12. Thus, the appellants/claimants shall be entitled for the following
amount of compensation :-
Rs.11,76,000/- Towards loss of dependency
Rs.16,500/- Towards funeral expenses
Rs.16,500/- Towards loss of estate
Rs.44,000/- Towards loss of filial consortium to appellant
No.1
Rs.88,000/- Towards loss of parental consortium to
appellants No.2 and 3 (44000x2)
-----------------------------------------------------------------------------
Rs.13,41,000/- Total
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13. Thus, the appellants/claimants are entitle for a total sum of
Rs.13,41,000/- (Thirteen Lakhs Forty One Thousand) instead of
Rs.6,37,000/- (Six Lakhs Thirty Seven Thousand). The enhanced amount
of Rs.7,04,000/- (Seven Lakhs Four thousand) shall carry interest @ 6%
p.a. from the date of application till the date of payment. The payment of
enhanced amount be made within a period of two months from the date of
receipt of certified copy of this order. Other terms and conditions of the
award shall remain intact.
14. It is pertinent to mention here that the appellant has valued the
appeal as Rs.4,00,000/- (Four lakhs) and paid the Court fee as per
valuation, therefore, appellant is directed to pay the Court fee on additional
amount of Rs.3,04,000/- (Three Lakhs Four Thousand) also within a period
of 30 days from the date of receipt of certified copy of this order. If the
Court fee is not paid within the stipulated period, then this order will be
restricted only up to the amount of Rs.4,00,000/- (Four Lakhs).
15. With the aforesaid, appeal is partly allowed and disposed of.
16. Records of the claims Tribunal be sent back alongwith the copy of
this order for information and necessary compliance.
No order as to costs.
(AMAR NATH (KESHARWANI))
JUDGE
@s
