The New India Assurance Co. Ltd. vs Smt. Durga Lodhi
2024 Latest Caselaw 16550 MP

Madhya Pradesh High Court

The New India Assurance Co. Ltd. vs Smt. Durga Lodhi on 6 June, 2024

                                                       1                       MA-2567-2020
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                               AT JABALPUR
                                                    BEFORE
                                    HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
                                            MISC. APPEAL No. 2567 of 2020

                           BETWEEN:-
                           THE NEW INDIA ASSURANCE CO. LTD. THRO OFFICE
                           JAWAHAR MARG NEAR BUNDELKHAND GARRAGE
                           CHATARPUR M.P. (MADHYA PRADESH)

                                                                             .....APPELLANT
                           (BY SHRI DINESH KAUSHAL - ADVOCATE FOR APPELLANT/INSURANCE
                           COMPANY)

                           AND
                           1.    SMT. DURGA LODHI W/O LATE LADLI ALIAS
                                 LADLA LODHI, AGED ABOUT 31 YEARS, GRAM
                                 MAUKHERA POST GULGANJ THANA- BIJAWAR
                                 DISTT. CHATARPUR (MADHYA PRADESH)

                           2.    HUKUM LODHI S/O LATE LADLI ALIAS LADLA
                                 LODHI, AGED ABOUT 10 YEARS, OCCUPATION:
                                 MINOR THR. GUARDIAN MOTHER SMT. DURGA
                                 W/O LATE LADLI ALIAS LADLA LODHI R/O GRAM
                                 MAUKHERA, POST GULGANJ, THANA BIJAWAR
                                 (MADHYA PRADESH)

                           3.    UMESH S/O LATE LADLI ALIAS LADLA LODHI,
                                 AGED ABOUT 6 YEARS, OCCUPATION: MINOR
                                 THR. GUARDIAN MOTHER SMT. DURGA W/O
                                 LATE LADLI ALIAS LADLA LODHI R/O GRAM
                                 MAUKHERA, POST GULGANJ, THANA BIJAWAR
                                 (MADHYA PRADESH)

                           4.    KU. RESHMA D/O LATE LADLI ALIAS LADLA
                                 LODHI, AGED ABOUT 4 YEARS, OCCUPATION:
                                 MINOR THR. GUARDIAN MOTHER SMT. DURGA
                                 W/O LATE LADLI ALIAS LADLA LODHI R/O GRAM
                                 MAUKHERA, POST GULGANJ, THANA BIJAWAR
                                 (MADHYA PRADESH)

                           5.    ABID KHAN S/O YUSUF KHAN R/O HALL WARD
                                 NO.4, ALIGANJ MOHALLA, BIJAWAR (MADHYA
                                 PRADESH)

Signature Not Verified
Signed by: HIMANSHU
KOSHTA
Signing time: 07-06-2024
17:32:31
                                                        2                                      MA-2567-2020
                           6.    RIYAJ KHAN S/O MUBARAK KHAN /O WARD NO.8,
                                 RATANGANJ, MOHALLA BIJAWAR (MADHYA
                                 PRADESH)

                                                                                        .....RESPONDENTS
                           (SHRI RAJKAMAL CHATURVEDI - ADVOCATE FOR THE RESPONDENTS
                           NO.1 AND 4 AND SHRI ANOOP KUMAR SAXENA - ADVOCATE FOR THE
                           RESPONDENTS NO.5 AND 6)


                                 Reserved on             :         15.04.2024
                                 Pronounced on           :         06.06.2024

                                 This Miscellaneous Appeal having been heard and reserved for order,
                           coming on for pronouncement on this day, Justice Devnarayan Mishra
                           pronounced the following:
                                                               ORDER

This miscellaneous appeal under Section 173(1) of the Motor Vehicles Act, 1988 has been filed being aggrieved with the impugned award passed in MACC No.12/2018 by Additional Member, Motor Accident Claim Tribunal, Bijawar District Chhattarpur vide order dated 03.03.2020 by which the Insurance Company has directed to pay the compensation amount of Rs.17,02,500/-.

2. In nutshell, the claim before the Claims Tribunal was that the deceased

-Ladli @ Ladla Lodhi on 29.09.2017 at 06:30 pm was going to his village Maukheda on the Taxi driven by respondent no.5. The vehicle was driven by respondent rash and negligent manner and hit the motorcycle in which deceased was riding. As a result, the vehicle turned over and the deceased suffered the injuries. He was rushed to the District Hospital, Chhattarpur for treatment where he died. FIR was lodged in criminal case as a crime no.182/2017 under Section 279, 337, 427 and 304-A of IPC was registered. Charge sheet was filed before the Judicial Magistrate, First Class, Bijawar. The deceased was 33 years old and

3 MA-2567-2020 earning Rs.15,000/- per month. Legal representatives of deceased filed the claim which was allowed by the Tribunal.

3. Shri Dinesh Kaushal, learned counsel for Insurance Company has submitted that the Claims Tribunal has fastened the liability on the Insurance Company though it was proved before the Claims Tribunal that the vehicle was driven without the permit and that is a clear breach of terms and conditions of the insurance policy. This fact is demonstrated from Ex.P-1 in the final report submitted by the police and the seizure memo (Ex.P-9). As per the para no.10 of the award. Driver Abid Khan has produced all the relevant documents except the permit. On that basis, as per the judgment of Apex Court in National Insurance Company Ltd. v. Rattani and others, 2009 (1) TAC 420 (SC) and Pappu and others v. Vinod Kumar Lamba and another, 2018 (1) TAC 360, insurance company is not liable.

4. Learned counsel for appellant has further submitted that without any evidence, the Claims Tribunal has assessed the income of the deceased Rs.12,500/- where the claim would have been decided on the basis of the assessment of the income of the notional income of unskilled labour that was

payable at the time of incident Rs.7,125/- monthly and after deducting 1/4th of the amount in personal and living expenses. The total award would have to be Rs.8,97,750/-.

5. Learned counsel for respondent-claimants has submitted that the Claims Tribunal has properly appreciated the evidence as the deceased was a mason and working in town and sometime in Delhi. Hence, the income is not in the higher side. He has further submitted that insurance company has not led any evidence to prove the fact that the vehicle was being driven by respondents

4 MA-2567-2020 no.5 and 6 in the violation of terms and conditions of the insurance policy. The vehicle was insured, hence, the Claims Tribunal has rightly fastened the liability on the insurance company. The appeal be dismissed.

6. Learned counsel for insurance company has not challenged the accident and the death of the deceased Ladli @ Ladla Lodhi. Hence, the factum of the incident and the involvement of the Taxi No.MP-16-R-2033 is affirmed by this Court. It is also clear from the award of the Claims Tribunal that the claimants are the legal representative of the deceased being the wife and the minor children.

7. As per the document annexed with petition, the age of the deceased in MLC report (Ex.P-3), merg intimation (Ex.P-4) and postmortem report (Ex.P-7) has been written 40 years. The assessment of the Claims Tribunal regarding the age of the deceased 40 years is affirmed. The company has not challenged the multiplier and other heads of the compensation, company has challenged only income of the deceased. On that point, I have gone through the statement of the appellant-Durga Lodhi (AW-1) has stated that husband was working as mason in Delhi, Punjab, Chhattarpur, Tikamgarh, Jhansi and earning Rs.500/- per day. In her cross-examination, she has clearly admitted that her husband was working on a contract but to prove the fact that her husband was a mason in the last line of the para-6 she has admitted that her husband was labourer. In para no.7 of the cross-examination, she has also admitted that she has not filed the income certificate of the deceased.

8. The witness Baphati Khan (AW-2) in para no.9 of the cross- examination has denied the suggestion that he never accompanied the deceased for labour work. He has also denied the suggestion that the deceased was not working as a labour in Delhi, Punjab, Chhattarpur, Tikamgarh, Jhansi and has

5 MA-2567-2020 stated that the deceased was working as a mason. By the claimants, no document of the income of the deceased has been produced.

9. As per the admission of the claimant-Durga Lodhi (AW-1), the deceased was a labourer. On that basis, the Claims Tribunal has wrongly assessed the income on the higher side and at the relevant time of death, on 22.09.2017, the minimum wages that was fixed for unskilled labour Rs.7,125/- per month. Thus, the income of the deceased would have been assessed on that basis.

10. Though, in this case, the claimant has not filed any appeal but as we are dealing the income of the deceased and assessed the income of the deceased being treated him as a labourer and his income is reduced to Rs.7,125/-. The age of the deceased as assessed by the Claims Tribunal that has not been challenged, was 40 years. In that situation, 25% of the income shall be added with the income of the deceased as future prospect as laid down in the case of National Insurance Company Ltd. Vs. Pranay Sethi and others, AIR 2017 SC 5157. On that basis, the compensation is calculated Rs.7,125/-, 25% of 7,125 in future prospect = 1,781/- total monthly income comes to Rs.8,906/-, 1/4th amount is deducted in the head of personal and living expenses as the number of dependent is four = 8906-2226=6680. Thus, the monthly loss of dependency comes to Rs.6,680/-. The total loss of dependency comes an amount of Rs.6,680x12x15=12,02,400/- and the Claims Tribunal has awarded Rs.16,87,500/- on this head.

11. The Claims Tribunal has awarded Rs.15,000/- additional in the head of loss of funeral expenses and that has been added in the award. Thus, awarded amount comes to Rs.17,02,500/- and further awarded amount

6 MA-2567-2020 Rs.40,000/- in the head of loss of consortium that has not been added in the award. If that amount is also added, the total awarded amount comes to Rs.17,42,500/-. No appeal has been filed by the claimants, hence, on the other heads, the award of Claims Tribunal is maintained.

12. Thus, loss of dependency Rs.12,02,400/- Rs.55,000/- = Rs.12,57,400/- is just compensation to loss. If this amount is deducted from the award amount awarded by the Claims Tribunal Rs.17,42,500/-. So, difference comes to Rs.4,85,100/-. Thus, this amount is deducted.

13. On the point of liability of the Insurance Company to indemnify the victims. From the record of the Claims Tribunal , it is clear that the insurance company has not filed any document nor had examined any witness to prove the fact that what were the conditions of the insurance policy and the vehicle was driven without the permit. It was basic liability of the insurance company to prove the terms and conditions of the policy and the type of vehicle for which it was being driven.

14. The insurance company has argued that the driver of the vehicle has not submitted the permit. In the cross-examination of the insurance company, he has denied the fact that he has not filed the permit before the Court in that situation it was liability of the insurance company to contradict the witness by filing the certificate issued by RTO of the concerned District. Furthermore, only on the basis that the police has filed the charge sheet against the respondent- driver under Section 66/192-A. This Court cannot conclude that the facts stated in the charge sheet are gospel truth.

15. The case cited by the National Insurance Company Ltd. v. Rattani and others. The case was that the persons were traveling with the 30% to 40% were traveling in Tata 407 truck and it was clear from the statement of

7 MA-2567-2020 the claimants that they were traveling as a Barati in the vehicle. On that basis, Apex Court has concluded that the Claims Tribunal was bound to infer that the vehicle was driven by without valid and effective driving license and without permit in the violation of the terms and conditions of the policy.

16. In the case of Pappu (supra), it was the case of the driving license and in that respect, Apex court has held that it was the liability of the owner to prove the basic fact that with his knowledge, the driver of the offending vehicle was authorised by him to drive the vehicle and the driver was having valid and effective driving license at the time of incident and on that basis, the burden of proof will shift to the insurance company. In this case, the driver of the offending vehicle has stated the fact that the vehicle was driven with all the documents necessary to ply the vehicle on road and this is not the fact of personal knowledge of the driver and in that situation, the insurance company was liable, to prove his defence that the vehicle was driven without valid permit, which he has failed.

17. It was the duty of Insurance Company to prove his defence. Hence, the insurance company cannot be exonerated and it cannot be held that offending vehicle No. MP-16-R-2033 was driven without valid permit and thus, the owner and the driver of the vehicle were operating the vehicle in the violation of the terms and conditions of the policy. Thus, the insurance company cannot be exonerated. Thus, the order of the Claims Tribunal on this point is affirmed.

18. This Court is of the view that the Insurance Company be directed to deposit the award amount before the Claims Tribunal and then recovered from the vehicle owner and driver. Thus, the appeal is partly allowed and it is directed that the claim is reduced from Rs.17,42,500/- to Rs.12,57,400/-. On

8 MA-2567-2020 the other issues, award of Claims Tribunal is affirmed. It is directed that the Insurance Company shall deposit the award amount before the Claims Tribunal within 90 days from the date of order of this Court. As Insurance Company shall also pay simple interest @6% on the above award amount from the date of application i.e. 11.01.2018 till the amount is deposited before the Insurance Company.

19. Looking to the facts, parties shall bear their own costs.

20. A copy of this order along with record be sent back to the Claim Tribunal for information and necessary action.

21. Record of this case be consigned to the Record Room.

(DEVNARAYAN MISHRA) JUDGE HK