Smt. Anita vs Tejlal
2024 Latest Caselaw 5643 MP

Madhya Pradesh High Court

Smt. Anita vs Tejlal on 23 February, 2024

                             1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                    AT JABALPUR
                         BEFORE
        HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
                ON THE 23 rd OF FEBRUARY, 2024
                  MISC. APPEAL No. 2600 of 2015

BETWEEN:-
1.    SMT. ANITA W/O LATE RAVISHANKAR SAHU,
      AGED    ABOUT    30  YEARS,  R/O GRAM
      MACHAGORA,     PS   CHOURAI   DISTRICT
      CHHINDWARA (MADHYA PRADESH)

2.    AMANKUMAR S/O LT RAVISHANKAR SAHU,
      AGED ABOUT 10 YEARS, OCCUPATION: MINOR
      THR. MOTHER ANITA SAHU GRAM MACHAGORA,
      PS CHOURAI (MADHYA PRADESH)

3.    PAWANKUMAR S/O LT RAVISHANKAR SAHU,
      AGED ABOUT 8 YEARS, OCCUPATION: MINOR
      THR. MOTHER ANITA SAHU GRAM MACHAGORA,
      PS CHOURAI (MADHYA PRADESH)

4.    BUDDHULAL S/O ROSHAN SAHU, AGED ABOUT 63
      Y E A R S , OCCUPATION:    NONE R / O GRAM
      MACHAGORA,         PS   CHOURAI    DISTRICT
      CHHINDWARA (MADHYA PRADESH).

5.    LACHCHOBAI W/O BUDDHULAL SAHU, AGED
      ABOUT 58 YEARS, OCCUPATION: NONE R/O GRAM
      MACHAGORA,       PS   CHOURAI     DISTRICT
      CHHINDWARA (MADHYA PRADESH)

                                                    .....APPELLANTS
(BY SHRI M.R. VERMA - ADVOCATE)

AND
1.    TEJLAL S/O SHRI PATIRAM UIKEY, AGED ABOUT
      54 YEARS, PATALESHWAR WARD NO. 18 P.S
      KUNDIPURA DISTT. (MADHYA PRADESH)

2.    NEELKANTH S/O SHRI DEVILAL SAHU, AGED
      ABOUT   40  YEARS, OCCUPATION: VEHICLE
      OWNER GRAM MACHAGORA, PS CHOURAI
      (MADHYA PRADESH)
                              2
3.    THE ROYAL SUNDARAM GENERAL INSURANCE
      CO. LTD. VISHRANTI MELARAM TOWERS NO.
      2/319, RAJEEV GANDHI SALAI, KARAPAKKAM
      CHENNAI (TAMILNADU) (TAMIL NADU)

                                                   .....RESPONDENTS
(BY SHRI R.P. MISHRA - ADVOCATE FOR RES. NO.2 AND SHRI VINEET
KUMAR PANDEY - ADVOCATE FOR RES. NO.3)

                  MISC. APPEAL No. 495 of 2016

BETWEEN:-
ROYAL SUDERAM INSURANCE COMPANY LIMITED
THROUGH VISHRANTI MELARAM TOWERS NO. 2/319,
RAJEEV GANDHI SALAI KARAPAKKAM CHENNAI
TAMILNADU (TAMIL NADU)

                                                     .....PETITIONER
(BY SHRI VINEET KUMAR PANDEY - ADVOCATE)

AND
1.    SMT. ANEETA W/O RAVISHANKER SAHU, AGED
      ABOUT 30 YEARS, MACHAGORA PS. CHOURAI
      (MADHYA PRADESH)

2.    AMAN KUMAR S/O RAVISHANKER SAHU, AGED
      ABOUT 10 YEARS, OCCUPATION: MINOR THR.
      MOTHER SMT. ANEETA W/O RAVISHANKER
      SAHU MACHAGORA PS. CHOURAI (MADHYA
      PRADESH)

3.    PAVAN KUMAR S/O RAVISHANKER SAHU, AGED
      ABOUT 8 YEARS, OCCUPATION: MINOR THR.
      MOTHER SMT. ANEETA W/O RAVISHANKER
      SAHU MACHAGORA PS. CHOURAI (MADHYA
      PRADESH)

4.    BUDDHULAL S/O ROSHAN SAHU, AGED ABOUT 63
      YEAR S, OCCUPATION: NONE MACHAGORA PS.
      CHOURAI (MADHYA PRADESH)

5.    LACHCHOBAI W/O BUDDHULAL SAHU, AGED
      ABOUT   58    YEARS, OCCUPATION:  NONE
      MACHAGORA PS. CHOURAI (MADHYA PRADESH)

6.    TEJLAL S/O PATIRAM UIKE, AGED ABOUT 54
      YE A R S , OCCUPATION: NONE PATALESHWAR
                                     3
      WARD NO.       18,   P.S.   KUNDIPURA,   (MADHYA
      PRADESH)

7.    NEELKANTH S/O DEVILAL SAHU, AGED ABOUT 40
      YEAR S, OCCUPATION: NONE MACHAGORA PS.
      CHOURAI (MADHYA PRADESH)

                                                             .....RESPONDENTS
(BY SHRI M R VERMA - ADVOCATE FOR RES. NO. 1 TO 4 AND SHRI R.P.
MISHRA - ADVOCATE FOR RES. 6 AND 7)

      This appeal coming on for admission this day, th e court passed the
following:
                                   JUDGMENT

The Since both these appeals are arising out of common award dated 06.11.2015 passed in MACC Nos.44/2014, therefore, they are being heard together and decided by this common order.

2. Miscellaneous appeal No. 2600/15 has been preferred by the appellant/claimant for further enhancement of Rs. 1,00,000/- of the amount awarded by Additional MACT, Amarwada District Chhindwara in M.A.C.C. No.44/2014 whereby MACT has awarded an amount of Rs. 5,35,000/- along with interest @ 6% per annum w.e.f. 01.09.2014, whereas M.A. No. 495/2016 has been filed by the insurance company for seting aside the impugned award dated 06.11.2015 passed in M.A.C.C. No.44/2014 by the Additional MACT, Amarwada District Chhindwara.

3. The facts necessary for disposal of the present appeal in brief are that on

05.06.2014 at about 09:30 PM deceased Ravishanker was travelling in goods carrier pickup van bearing registration no. MP/28/G/0868. At that relevant time, the said pickup van was driven by respondent no.6 Tejilal and owned by respondent no.7 Neelkanth. While the vehicle was on the way and reached village Umaria Isra, Chhindwara Seoni road, due to rash and negligent driving of

the driver it met with an accident and turned turtle, due to which, Ravi Shanker sustained grievous injuries and succumbed to the same on the spot.

4. It is submitted by the learned counsel of appellant of claimants Smt. Anita and others that the impugned award has passed by the learned Tribunal is awarding meager compensation.The deceased was not only skilled labour but also was cultivating the land owned and possessed by his father i.e., present appellant No.4 and was earning Rs.3 Lacs per year from the agriculture land and was receiving salary of Rs.5,500/-from the work of Hamali. The learned Tribunal has not applied proper multiplier in the case and the amount of award is too less therefore it is requested to enhance the compensation amount suitably. The claim is filed for the enhancement of Rs. 1 lac.

5. Per contra, while opposing the appeal of the claimants, the learned counsel of appellant/ insurance company submits that the learned claims tribunal committed an apparent error of law in holding that at the time of accident the deceased was not traveling as a passenger in the vehicle and was employed as a coolie. In para 26 of its written statement appellant has specifically taken a plea that the deceased along with other persons was travelling in the vehicle at the time of accident and, therefore the insurance company is not liable for payment of compensation amount. But such pleading was overlooked by the learned tribunal. The finding of the learned tribunal is based only on the pleading made by the driver and owner of the vehicle in their statement. No document has been filed by the owner and driver to prove that the deceased was employed as coolie in their vehicle and they were paying salary to him. The driver and owner despite contesting the case have not appeared in the witness box to depose this fact. Had they appeared in the witness box, the appellant/ insurance company would have got an opportunity to cross-examine them to ascertain the true

facts.

6. It is also submitted that the learned claims tribunal committed an apparent error in disbelieving the statement of the insurance company witness shri Prashant. This witness has proved the insurance policy and its terms and conditions and as per the terms and condition, it is been clearly mentioned that the passengers cannot be carried in the goods carrying vehicle. The deceased was sitting in the goods carrying vehicle as a passenger therefore the insurance company is not liable for payment of compensation.

7. The learned counsel of appellant/insurance company relied on the citation of Hon'ble Supreme Court in case of Pramod Kumar Agrawal Vs. Mushtari Begum reported in 2004(8) SCC 667, National Insurance Company limited Vs. Ajit Kumar reported in 2003 AIR SCW page 3093, Oriental Insurance Company limited Vs. Divi Reddy Konda Reddy reported in 2003 (3) SCC 339, New India Assurance Company limited Vs. Kamla & Others reported in 2001 AIR page 1419 and National Insurance Company limited Vs. Bommitthi and others reported in 2005 ACJ page 721. The learned counsel of appellant/ insurance company prays to set-aside the impugned award and to exonerate the insurance company for payment of compensation.

8. Having heard the learned counsel for the parties and perusal of record. The citations put-forth by the learned counsel of the insurance company are as regards the law laid down in that cases that the passenger in goods vehicle cannot be carried and in case of accident the risk of such passenger is not covered under the policy and that there is no statutory liability on the owner of the vehicle to get the vehicle insured for such passengers. The vehicle owner is

not required to get insurance in respect of passenger travelling in the goods carriage. There is no dispute on this aspect of law but what is important in this case is to see whether the deceased was traveling in the offending vehicle which is a goods carrier as a passenger or as a coolie in that vehicle.

9. The witness of claimants Anita in her statement reiterated the facts regarding the accident and she also categorically stated that her husband Ravi Shanker was going with the offending vehicle as a coolie on that vehicle and he was employed with the non-applicant no.2 on the salary of Rs.4000/- and in addition to that he used to get Rs.50/- per day as allowance and her husband/deceased was getting Rs.5500/- as a salary from non-applicant No.2. This witness remain intact in cross-examination on the statement and she denied in clear terms that on the date of accident her husband along with other passengers was traveling in the offending vehicle on hire and reward.

10. Though the witness examined on behalf of non-applicant/insurance company Prashant has stated that as per the insurance policy of offending

vehicle, no passenger is allowed to travel in offending vehicle which is a goods carriage and unauthorized passengers are not covered in the policy but this witness in his cross-examination admits that he has not adduced any evidence with regard to the fact that the offending vehicle was not being used as a goods carrier but used for carrying the passenger on hire and reward. This witness also stated in the chief-examination that at the time of accident there was no valid fitness of the offending vehicle but he admits in the cross-examination that with regard to the non-availability of fitness he has not examined any employee or officer of the concerned RTO and no document from RTO office has been produced by him. He admits in clear terms that Ex. D-2 insurance policy contained the fact that the premium for coolie on the vehicle has been obtained

by the insurance company. He also admits that no investigation report is filed on their behalf.

11. Therefore, the witness examined on behalf of non-applicants/insurance company, is not an eye witness of the incident, he though deposes about the non-availability of fitness and that unauthorized passengers were being carried by the offending vehicle but no available best evidence in this behalf has been adduced by insurance company to prove the aforesaid facts, no documents adduced and no official of the concerned RTO has been examined by the insurance company whereas the burden was on the insurance company to prove this fact. The claimants witness Anita (PW-1) is found to be reliable vis-à-vis the statement of Prashant examined on behalf of insurance company. Insurance company in written statement has taken a specific plea regarding the fact that deceased along with other persons was travelling in the offending vehicle as passenger but plea per se is not sufficient. To prove the fact cogent and reliable evidence is necessary which is found lacking on the record.

12. Therefore it is not proved that at the time of accident deceased was travelling in the offending vehicle as unauthorized passenger but it is found proved that he was travelling as a coolie on the vehicle and for that purpose premium has been paid under the policy (Ex. D/2) therefore the finding of learned Tribunal on issue no.3 is not found to be defective, illegal or perverse.

13. The aforesaid citation in such circumstances is of the help to non- applicant/insurance company.

14. So far as the appeal of claimants is concerned the learned tribunal has found it proved that the deceased was a coolie of non-applicant no.2 and was in receipt of the salary of Rs.3000/- but there is no admission of Anita (AW-1)

that her husband was getting only Rs.3000/-from non-applicant no.1. As on the date of accident the minimum wage of unskilled labour as per the circular of labour department was Rs. 5895/- per month therefore the statement of Anita (AW-1) regarding the income of deceased as Rs. 5500/- per month is found to be believable therefore assuming income of the deceased as Rs.5500/- per month if calculation is made then it is found that the amount of compensation is enhanced by more than 1 lac. It is pertinent to be mentioned here that according to the age of the deceased which was admitted by Anita (AW-1) in cross examination as 38 years at the time of accident, the multiplier of 15 and deduction 1/4 is also rightly applied by the learned tribunal according to the number of claimants and as per the calculation made with adding 40% of future prospects the amount of enhancement found to be more than 1 lac since this claim petition is filed for enhancement of 1 lac therefore the enhancement of 1 lac may be conveniently passed in favour of the claimants, apart from the awarded amount.

15. Therefore the appeal filed on behalf of the insurance company M.A. No.495/2016 is being bereft of merit is hereby dismissed. The appeal M.A. No.2600/2015 filed on behalf of the claimants is partly allowed by enhancing compensation of Rs.1 lac in favour of the claimants in addition to the claim already awarded in favour of the claimants by the learned tribunal. Other terms and conditions as stipulated in the impugned award shall remain intact.

16. Let the record of the tribunal be sent back for information and necessary compliance.

17. A copy of this judgment be also kept in the record of MA No. 495/2016.

(RAJENDRA KUMAR VANI) JUDGE L.R.