Madhya Pradesh High Court
Smt.Deepesh Sharma vs Vishambhar Singh on 1 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 1 st OF MAY, 2024
MISC. APPEAL No. 994 of 2010
BETWEEN:-
SMT. DEEPESH SHARMA W/O KAMALKANT SHARMA,
AGED ABOUT 21 YEARS, R/O VILLAGE RATANPUR
PRESENTLY R/O SATYANARAYAN SHARMA KA MAKAN,
MAHAVEERPURA ,MORENA (MADHYA PRADESH)
.....APPELLANT
(BY SMT. MEENA SINGHAL - ADVOCATE)
AND
1. VISHAMBHAR SINGH S/O ASHARAMAJ R/O
GRAM SURJANPUR, TEH.AND DISTT. MORENA
(MADHYA PRADESH)
2. DILIP SHARMA S/O SURESH SHARMA R/O GRAM
SURAJANPUR, TAH & DISTT. MORENA (MADHYA
PRADESH)
3. UNITED INDIA ASSURANCE CO.LTD. THROUGH
DIVISIONAL MANAGER, DIVISIONAL OFFICE,
CENTER POINT COPLEX PHOOLBAGH GWALIOR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI RAJESH GUPTA - ADVOCATE FOR RESPONDENT NO.3)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
This miscellaneous appeal has been preferred by the appellant/claimant
for enhancement of the amount awarded by 4th Additional MACT, Morena,
SOODAN PRASAD vide award dated 06.05.2010 in Claim Case No.327/2009 whereby MACT has
awarded an amount of Rs. 2,05,640/- alongwith interest @ 7% per annum to the
claimant for the injury suffered in a vehicle accident.
2. The necessary facts for disposal of this appeal are that on 25.02.2009 at
about 6 pm within the territorial limits of police Station City Kotwali, Morena in
front of shop of Bansal Cement on the road respondent No.2/driver of tractor
bearing registration No.MP06/J.A. 8807 by driving the said tractor rashly &
negligently dashed the motorcycle on which appellant & one another lady
Hemu Sharma along with her brother Kuldeep Sharma were going, as a result of
which appellant fell down on the road and tyres of tractor ran over her waist,
hip and stomach and she sustained fractures & and her fetus of 12 weeks old
was also destroyed. Hemu Sharma and brother of the appellant also sustained
injuries and motorcycle was got damaged.
3. Learned counsel for the appellant submits that appellant - Deepesh Sharma
has suffered grievous injuries in the accident. Her three months fetus has
destroyed in the accident. She was admitted in Distt. Hospital, Morena, from
where she was referred to J.A. Hospital, Gwalior, and thereafter in private
hospital she was admitted and underwent treatment. She sustained various
fractures. Fracture was also caused in pelvis bone. She had undergone
treatment under the supervision of Gynecologist Dr. Sudha Maheshwari and Dr.
B.L.Rajput & Dr. Rakesh Gupta. She is facing immense problem while moving.
She was doing the work of stitching and thereby earning Rs.3,500/- per month.
No future prospect has been awarded by learned Tribunal. The income is
assessed as Rs.2,100/- per month which is on lower side. Claims Tribunal has
applied multiplier of 16 which is not appropriate as the appellant was 21 years
of age at the time of accident. Appropriate multiplier is 18 for the purpose of
computation of compensation. For the loss of her three months fetus only a
sum of Rs.50,000/- has been awarded which is on lower side. For the special
diet and transportation charges only a sum of Rs.25,000/- has been awarded.
No amount has been awarded for pain & suffering. Therefore, prays to enhance
the compensation by Rs. five lac.
4. Per contra, learned counsel for the respondent/Insurance Company
opposed the prayer on the ground that appropriate award has been passed in
favour of the claimant and there is no ground for enhancement.
5. Having heard learned counsel for the parties and on perusal of the record,
it is found that learned Claims Tribunal has concluded that at the time of
accident claimant was 21 years of age, therefore, the appropriate multiplier
would have been 18 instead of 16 in the light of dictum of Hon'ble Apex Court
in the case of Sarla Verma v Delhi transport Corporation, AIR 2009 SC
3104. Appellant is also entitled to get future prospect at the rate of 40% in the
light of dictum of Apex Court in the case of National Insurance Company
Ltd. vs. Pranay Sethi 2017 (16) SCC 680.
6. As far as income of the appellant is concerned, though it is stated by the
appellant that before accident she was doing the work of stitching and thereby
earning Rs.3,500/-, but since there is no cogent and reliable evidence as regards
occupation & earning of appellant, such contention cannot be accepted. It is
settled principle of law that mere assertion in regard to the income of the
deceased is not sufficient. Cogent and reliable evidence to prove the income of
the deceased is inevitable in claim cases. In this regard, the decision of the Apex
Court in the case of Syed Basheer Ahamed and others vs. Mohammed
Jameel and another, (2009) 2 SCC 225 is referable. The relevant paras 14
SOODAN PRASAD and 21 of that judgment in this regard are as infra:
"14.Similarly, although the Act is a beneficial legislation, it can
neither be allowed to be used as a source of profit, nor as a
windfall to the persons affected nor should it be punitive to the
person(s) liable to pay compensation. The determination of
compensation must be based on certain data, establishing
reasonable nexus between the loss incurred by the dependants of
the deceased and the compensation to be awarded to them. In a
nutshell, the amount of compensation determined to be payable to
the claimant(s) has to be fair and reasonable by accepted legal
standards.
21.In the instant case, the main grievance of the appellant is that
the High Court erred in reducing the monthly income of the
deceased from Rs 7000 to Rs 4000. More so, when the claim of
the appellants was that the deceased was earning about Rs 20,000
per month. It needs little emphasis that insofar as the question of
earnings of the deceased is concerned, the onus lies on the
claimants to prove this fact by leading reliable and cogent evidence
before the Tribunal. A bare assertion in the claim petition in that
behalf is not sufficient to discharge that onus."
7. In absence of cogent & reliable evidence as regards occupation & income
of the appellant, it would be appropriate to assume the notional income of the
appellant as per the minimum wages of an unskilled labourer declared by the
Labour Department. On the date of accident, the minimum wages of an
unskilled labourer was Rs.3,195/-. Thus, it would be in the fitness of things to
assume the income of the appellant as Rs.3,195/- per month.
8. Appellant suffered 20% permanent disability which has been found proved
by the learned Claims Tribunal.
9. Learned Claims Tribunal has awarded a sum of Rs.50,000/- for loss of
fetus. However, in the considered opinion of this Court under this head
appellant is entitled for a sum of Rs.1,50,000/-. Appellant suffered various
fractures and also undergone long treatment, therefore, she is also entitled to a
sum of Rs.50,000/- for pain & suffering.
10. Similarly sum of Rs.25,000/- for special diet & transportation charges
looking to long treatment of appellant is increased to Rs.40,000/-.
11. In the case of Pinki Roy vs. Lekha Roy Chowdhury and others, 2021
ACJ 1695 relied upon by the appellant, it was found proved that the injured
lady was engaged in tailoring work, but in the instant case it is not found proved
that injured was engaged in tailoring work or stitching work and having income
of Rs.3,500/- per month.
12. In the case of Muhammed vs. United India Insurance Co. Ltd. and
others, 2023 ACJ 894 relied upon by the appellant, Hon'ble Apex Court
relying upon the passport observed that injured has worked abroad and
assessed his income as Rs.9,000/- per month, but in this case, the factual matrix
is distinguishable.
13. In the case of Kirti and others vs. Oriental Insurance Co. Ltd., 2021
ACJ 1 relied upon by the appellant, it is held that in case of death of pregnant
wife future prospects shall also be awarded to the claimant.
14. In case of National Insurance Co. Ltd. vs. P.Suresh and others,
2019 ACJ 1727 relied upon by the appellant, the High Court of Madras has
awarded a sum of Rs.2,50,000/- in case of death of fetus in the obtaining facts
& circumstances of that case. In this case, however, looking to the facts and
circumstances of this case, in the considered opinion of this Court, amount of
Rs.1,50,000/- would be appropriate for loss of fetus.
15. Though it is revealed from the evidence that at the time of accident beside
driver two pillion riders were sitting on the motorcycle, but in this regard,
Signature Notlearned
Verified Tribunal after considering the entire evidence has rightly concluded that
Signed by: MADHU
SOODAN PRASAD
riding the motorcycle with two pillion riders is not the cause of accident and
Signing time: 05-05-2024
02:49:20 AM
such conclusion is supported by the evidence on record. Therefore, contention
in this regard on behalf of respondent/Insurance Company is not tenable.
16. The final calculation would be as under assuming income of the appellant
as Rs. 3195 (yearly as Rs. 38340) :-
Loss of income (20% PD) Rs. 7668
Future prospect 40% Rs. 3067
----------------------------------------------------------------
Total loss of income Rs. 10735
------------------------------------------------------------------
Multiplier of 18 to 10735 Rs. 193230
Medical expenses Rs. 50000
For loss of fetus Rs. 150000
For pain & suffering Rs. 50000
For special diet & transportation Rs. 40000
--------------------------------------------------------------------
Total Rs. 4,83,230/-
----------------------------------------------------------------------
1 7 . The learned Claims Tribunal has awarded Rs.2,05,640/- in favour of the
appellant. Thus, claimant is further entitled to Rs.2,77,590 in addition to the
award already passed in her favour.
18. In the result, this M.A. is allowed by enhancing the compensation to
Rs.2,77,590/- in addition to the award passed in favour of the claimant. The
remaining terms and conditions of the impugned award shall remain intact.
(RAJENDRA KUMAR VANI)
JUDGE
ms/-
