Madhya Pradesh High Court
Dheeraj vs Mukesh Rathore on 23 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
MISC. APPEAL No. 2633 of 2010
BETWEEN:-
THE NEW ASSURANCE COMPANY LIMITED THROUGH
THE DIVISIONAL MANAGER OFFICE 290 NAPIER TOWN
JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY MS. ANJALI BANERJEE - ADVOCATE)
AND
1. SHRI MUKESH RATHORE S/O PHOOLCHAND
RATHORE, AGED ABOUT 37 YEARS, OCCUPATION:
AGRICULTURISTS VILL JHADPA TAHSIL AND
DISTT HARDA (MADHYA PRADESH)
2. PHOOLCHAND RATHORE S/O PANNALAL
ROTHORE, AGED ABOUT 60 YEARS, OCCUPATION:
AGRICULTURIST, VILL.JHADPA, DISTT.HARDA
(MADHYA PRADESH)
3. DHEERAJ, AGED ABOUT 19 YEARS, VILL.JHADPA,
DISTT.HARDA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SAMARTH SINGH RAJPOOT - ADVOCATE FOR RESPONDENT
NO.3)
MISC. APPEAL No. 1054 of 2010
BETWEEN:-
DHEERAJ S/O KAMAL SINGH GOND, AGED ABOUT 19
YEARS, JHADAPPA TEH. & DISTT. HARDA. (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI SAMARTH SINGH RAJPOOT - ADVOCATE)
AND
Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 24-02-2024
13:01:02
2
1. MUKESH RATHORE S/O PHOOLCHAND RATHORE,
AGED ABOUT 37 YEARS, OCCUPATION:
AGRICULTURIST & GHEE BUSINESS JHADAPPA
TEH. & DISTT. HARDA. (MADHYA PRADESH)
2. PHOOLCHAND S/O PANNALAL RATHORE, AGED
ABOUT 60 YEARS, OCCUPATION: AGRICULTURIST
JHADAPA, DISTT. HARDA (MADHYA PRADESH)
3. THE NEW INDIA ASSURANCE 2ND LINE ITARSI,
HOSHANGABAD (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI JAYANT NEEKHRA - ADVOCATE FOR RESPONDENT NO.3)
Reserved on : 12.01.2024
Pronounced on : 23.02.2024
These Miscellaneous Appeals having been heard and reserved for
order, coming on for pronouncement on this day, Justice Gajendra Singh
pronounced the following:
ORDER
T hes e appeals are preferred feeling aggrieved by the award dated
29.01.2010 in Claim Case No.84/2009 by Additional Member, Motor Accident
Claims Tribunal, Harda whereby a compensation of Rs.4,35,400/- have been
awarded in favour of Dheeraj Gond (appellant in M.A. No.1054/2010) with
@7.5% interest from the date of application by personal injuries caused for
motor vehicle accident.
2 . Appeal No.1054/2010 has been preferred for enhancement of
Rs.7,64,600/- whereas miscellaneous appeal No.2633/2010 has been preferred
for exoneration of the appellant-Insurance Company to pay compensation to
the claimant.
3. Facts in brief are that appellant in Miscellaneous Appeal No.1054/2010
filed an application under Section 166 of Motor Vehicles Act, 1988 before
Additional Member, Motor Accident Claims Tribunal, Harda on 01.09.2008
stating that he was aged about 19 years and doing the work of agricultural
operations and of mason. On 01.11.2007, he had gone to the field of Jamnadas
Gurjar in the village Jhadpa for working on a thresher which was operated
through the Tractor bearing registration No.MP-05-F-9373. He was supplying
the soya crop to the thresher. The driver of the tractor Shri Mukesh Rathore
asked the claimant to give pressure to the crop so that the thresher could
function properly. On such asking, the claimant requested the driver to slow
down the speed of thresher. The driver assured that he is stopping the thresher
and the claimant should remove the crop. The claimant started removing the
c ro p and it was at this moment that without informing to the claimant, the
thresher was started as a result of which the right hand of the claimant got
entangled in the thresher and was amputated from the wrist. The claimant was
taken to the Government Hospital at Harda for treatment by the family members
and he remained in the hospital for 17 days. Report of the accident was given to
the Police from the Hospital itself. When no action was taken by the police,
complaint was made to the S.P., Harda, Thereafter, investigation was carried
out. According to the claim averments, due to amputation of right hand from
the wrist, the claimant is facing difficulties in taking food, lifting weight, doing
the work of mason, driving vehicle, personal work, household and cannot do
the work of labour. He stated that by doing the work of mason, he was earning
Rs.250/- per day. By working on thresher, he was earning Rs.200/- per day and
because of the amputation of his hand in the accident in question, he is unable
to earn anything. The respondent no.1 and 2 filed their written statement
denying the averments made in the claim petition and praying for dismissal of
the claim petition. The respondents no.1 and 2 stated that if any compensation
is determined to be paid to the respondent no.3, the liability is that of the
appellant with whom the tractor was insured. Appellant-insurer filed its written
statement denying all averments made in the claim petition. In additional
statement, the petition/insurer stated that the thresher is not a part of the tractor
nor it is a vehicle. It was further stated that there was no registration of the
thresher and that the insured had not paid any premium for the thresher. It was
further averred that on the date of accident, the respondent no.2 did not have
any valid and effective driving license to drive the tractor and the claimant
himself is responsible for the accident due to his own negligence. The appellant
therefore submitted that it is not at all responsible and liable to pay
compensation to the respondent no.3-claimant.
4 . Claims Tribunal on the basis of the pleadings framed six issues
recorded evidence and held that accident tool place due to rash and negligent
driving of the thresher by the respondent no.1 and claimant/injured suffered
amputation of his right hand in the said accident causing permanent disability to
him. The appellant-insurer is responsible to pay the compensation to the
claimant as the accident arose due to use of the tractor and the use of thresher
was for agricultural purpose. Insurance company failed to prove that on the
date of accident, the respondent no.1-driver did not have valid driving license
and the claimant is entitled to compensation with interest at the rate of 7.5% per
annum from the date of award.
5 . Feeling dissatisfied with the award, Miscellaneous Appeal
No.1054/2010 is filed on the ground that Tribunal wrongly calculated the
income of the appellant. Tribunal wrongly applied the multiplier of 16. Tribunal
did not award adequate compensation in other heads. Rate of interest is on
lower side. It ought to have been awarded @12% of interest and interest should
have been awarded from the date of application.
6. Miscellaneous Appeal No.2633/2010 is preferred on the ground that
Tribunal has failed to see that there was no registration of thresher which was
being used through the tractor and no premium was paid by the respondent
no.2 for the thresher. The Tribunal failed to see that the tractor was not
responsible for the accident and claimant was himself negligent while working
on thresher. Tribunal has not appreciated the evidence recorded in the case in
right earnest resulting in absolutely unsustainable finding and in passing
erroneous award. There was no valid driving license with the respondent no.1-
Driver who drive the tractor and this was in violation of the insurance policy and
Tribunal has not appreciated this fact.
7. Heard.
8. Perused the record.
9. Following questions arises for consideration in these appeals :-
(i) Whether Tribunal committed error in fastening
the liability on the insurer of Tractor No.MP-05-F-9373
despite the fact that claimant sustained injury during
working with thresher ?
( ii) Whether Tribunal has committed error in
fastening the liability on New India Insurance Company
Limited ignoring the fact that driver of Tractor Vehicle
No.MP-05-F-9373 Mukesh Rathore does not possess
valid effective driving license ?
(iii) Whether Tribunal committed error in calculating
the amount of compensation awarded in favour of
claimant-Dheeraj ?
(iv) Whether Tribunal has committed error in
awarding the interest from the date of award in instead of
date of application ?
Issue No.1 :-
10. Tribunal in para-7 of the award fastening the liability on the insurer of
Tractor Vehicle No.MP-05-F-9373 concluded that the Tractor Vehicle No.MP-
05-F-9373 owned by Phoolchand and driven by Mukesh Rathore was
registered for agricultural purposes and at the time of incident, the tractor was
being used for threshing purposes and the process of threshing is within the
scope of agricultural purposes. So, there was no violation of insurance policy
(Ex.D-1) issued by appellant of Appeal No.2633/2010 and claimant-appellant
engaged in working with thresher was third party for the purpose of
compensation claim.
11. The Development Officer New India Insurance Company Natwar
Meheshwari (DW-1) has stated in para-1 of the statement that Ex.D-1 is Kishan
Package Policy which insured the tractor (Vehicle No.MP-05-F-9373), trailor
(M.P.-05-F-9476) and driver and third party. It is stated that no premium was
paid regarding any accident from thresher.
12. The issue has been settled in HDFC EGRO General Insurance
Company Ltd. vs. Smt. Bisrati Bai and others in M.A. No.2859/2018 order
dated 18.08.2022 the High Court of M.P. at Jabalpur. It is held as under :-
"2 2 . In Krishnaji@Kisanji Ramaji Tadas v. Umesh
Rambhau Shrirame, decided by Bombay High Court on
30th April, 2016, it is held that when definition of a
motor vehicle as provided under Section 2(28) and that of
tractor provided under Section 2(44) is read then in light
of the judgment of Supreme Court in Chairman,
Rajasthan State Road Transport Corporation v. Santosh,
(2013) 7 SCC 94, thresher being energized by a tractor
a n d being operated through the tractor is to be
considered to be a motor vehicle as power of propulsion
to the thresher is transmitted from an external source
namely a tractor. And then placing reliance on the
judgment of this High Court in case of United India
Insurance Company Ltd. v. Smt. Anandi Devi (supra), it
is held that insurance company is liable to compensate."
1 3 . Accordingly, Tribunal has not committed any error in fastening
liability on New India Insurance Company holding that claimant was thrid party
with reference to Policy (Ex.D-1). Hence the issue no.1 is decided against the
appellant of Appeal No.2633/2010 i.e. New India Insurance Company Ltd.
Issue No.2 :-
1 4 . Tribunal in para-14 of the award has recorded the findings that
Insurance Company has failed to prove that driver of the Tractor Vehicle
No.MP-05-F-9373 has no valid and effective driving license on the date of
incident. Perusal of the testimony of Development Officer (DW-1) does not
render this finding incorrect as there is no evidence in this regard. Issue No.2 is
also decided in favour of claimant.
Issue No.3 & 4 :-
15. Tribunal has assessed the age of victim 20 years and applied the
multiplier of 16 and assessing the per month income of the appellant as
Rs.2,000/- on the basis of 25 working days assessed the total compensation for
loss of future income as Rs.2,30,400/- on the basis of 60% permanent
disability.
16. Tribunal has wrongly applied the multiplier of 16 for the age of 20
years instead of 18. So the proper multiplier to be applied is 18. Tribunal has
committed error in assessing the income of appellant only Rs.2,000/- per month
on the basis of 25 working days. At the date of accident, the minimum wages of
unskilled labour was Rs.2,651/- per month. Round off the figure, the income of
the claimant is assessed as Rs.2,650/-. 40% amount has to be added in the head
of future prospect. So the monthly income of appellant of claimant comes to
Rs.3,710/- per month and on that basis the total loss of future income comes to
Rs.4,80,816/-. Tribunal has awarded only Rs.2,30,400/-. So the claimant is
entitled for enhancement of Rs.2,50,416/- in the head of loss of future income.
Tribunal has also awarded only Rs.5,000/- in the head of medical expenses,
attendant expenses, nutritious diet and transportation expenses observing that
no evidence has been brought on record to substantiate the expenses in those
heads.
17. Claimant-Dheeraj (PW-1) stated in para-5 of the award that he was
treated by Dr. Bharat Katkar. Expenses of Rs.1,00,000/- were incurred. The
fact that claimant was treated by Dr. Bharat Katkar has not been effectively
challenged in his cross-examination and Dr. Bharat Katkar (PW-2) also stated
that he treated the claimant but he also stated that he treated the Dheeraj at
Government Hospital, Harda. Ex.P-1 is the discharge card issued by District
Rogi Kalyan Samiti, Government Hospital Harda where appellant was treated
through admission from 01.11.2017 to 17.11.2017. The statement that Dheeraj
was treated at Private Hospital is not true. Considering the fact that appellant
suffered amputation and he was admitted in hospital for a sufficient period and
suffered mental and physical pain and suffering, amount of Rs.15,000/- is
awarded in the head of mental pain and suffering. Tribunal has committed error
in awarding the interest from the date of award. It should have awarded interest
from the date of application. So, the Insurance Company has to pay the interest
from the date of application i.e. 01.09.2008 at the @7.5%.
18. In the light of available evidence, the award in the head of medical
expenses, attendant expenses and nutritious diet, transportation expenses does
not require interference and issue no.3 and 4 are decided in favour of claimant.
19. Accordingly, in the light of findings recorded in issue no.1 and 2
miscellaneous appeal no.2633/2010 is dismissed.
20. In the light of findings on issue no. 3 and 4, the miscellaneous appeal
no.1054/2010 is partly allowed and total compensation of Rs.2,65,416/-is
further enhanced with interest @7.5% per annum from the date of application
i.e. 01.09.2008.
(GAJENDRA SINGH)
JUDGE
HK
