Dharmendra Gond vs Mukesh Rawat
2024 Latest Caselaw 12415 MP

Madhya Pradesh High Court

Dharmendra Gond vs Mukesh Rawat on 3 May, 2024

                                           1
           IN    THE       HIGH COURT OF MADHYA PRADESH
                                 AT GWALIOR
                                   BEFORE
                  HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
                                 ON THE 3 rd OF MAY, 2024
                              MISC. APPEAL No. 3705 of 2017

          BETWEEN:-
          DHARMENDRA GOND S/O SHRI MOOLCHAND GOND,
          AGED ABOUT 24 YEARS, R/O GRAM KERUA P.S
          BHITARWAR DISTT. GWALIOR (MADHYA PRADESH)

                                                                    .....APPELLANT
          (BY SMT. MEENA SINGHAL - ADVOCATE)

          AND
          1.    MUKESH RAWAT S/O SHRI LAKHA SINGH RAWAT
                R/O DIHALYA PS KRERA DISTT. SHIVPURI
                (MADHYA PRADESH)

          2.    LAKHAN SINGH S/O GULAB SINGH R/O SHABD
                PRATAP AASHRAM MAHAVEER COLONY THANA
                BAHODAPUR    DISTT  GWALIOR   (MADHYA
                PRADESH)

          3.    DEVENDRA SINGH S/O GOKUL SINGH GURJAR
                R/O GRAM SIHORE THANA SIHORE DISTT
                SHIVPURI (MADHYA PRADESH)

          4.    GOKUL SINGH GURJAR S/O HARVILAS SINGH
                GUR J AR R/O GRAM SIHORE THANA SIHORE
                DISTT SHIVPURI (MADHYA PRADESH)

          5.    THE NEW INDIA INSURANCE COM. LTD.
                THROUGH DIVISIONAL MANAGER, MANDAL
                OFFICE CITY CENTER LIC OFFICE KE PAS, THANA
                VISHVVIDYALAYA DISTT GWALIOR (MADHYA
                PRADESH)

                                                                 .....RESPONDENTS
Signature Not(NONE
              Verified FOR RESPONDENTS NO.1 TO 4.
Signed by: MADHU SHRI KAMAL KUMAR ROCHALANI - ADVOCATE FOR RESPONDENT NO.5)
SOODAN PRASAD
Signing time: 15-05-2024
10:32:48 PM     Th is appeal coming on for hearing this day, t h e court passed the
                                                      2
               following:
                                                      ORDER

This miscellaneous appeal has been preferred by the appellant/claimant for enhancement of the amount awarded by 4th MACT, Gwalior, vide award dated 24.08.2017 in Claim Case No.300054/2015 whereby MACT has awarded an amount of Rs. 1,16,000/- alongwith interest @ 7.5% 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 31.5.2012 appellant was going from his village Kerua to Basgarh Karera by sitting in bus bearing registration No.MP07/P-1299 near the seat of driver. The said bus was driven by its driver rashly & negligently. The passengers sitting in the said bus

repeatedly told the driver to run the bus slowly, but he did not pay any heed to their requests and in between Sihore- Hareda road the bus dashed tractor No.MP33/A 1985 with whom trolley No.MP33A/1986 was attached, by going on the wrong side, due to which appellant suffered grievous injury in his right hand and he became unconscious on the spot.

3. Learned counsel for the appellant submits that after first aid the appellant was admitted in Distt. Hospital, Shivpuri. Multiple fractures were found in his lower & mid humerus bone. He was thereafter referred to JA Hospital, Gwalior and then admitted in M.M. Hospital where on 2.6.2012 he was operated. He remained admitted there upto 6.6.2012. After discharge, when there was no improvement in his injury, he was again admitted in the said hospital on 2.7.2012 and skin grafting was done. Despite long treatment, he suffered permanent disability. At the time of accident, he was a hale & hearty young man Signature Notof 18 years of age & was doing the work of carpenter and earning Rs.6,000/-

Verified Signed by: MADHU SOODAN PRASAD per month, but due to the injury suffered in the said accident, he is unable to Signing time: 15-05-2024 10:32:48 PM

perform his work. The appellant due to the injury suffered in the accident could not perform his work for six months, however, learned Claims Tribunal has awarded only Rs.15,000/- under this head assuming his income as Rs.5,000/- per month for three months. The appellant also incurred Rs.3,00,000/- for his treatment, but only Rs.50,000/- has been given under this head. Similarly, under the head of transportation expenses, special diet and attender charges very megre amount has been awarded. Under the head of grievous hurt, only Rs.20,000/- has been awarded. Therefore, prays to enhance the compensation suitably.

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. Insurance Company has also filed cross-objections mentioning therein that driver of the offending bus remained ex-parte before the learned Tribunal and owner of the offending bus in his written statement denied that accident has occurred due to negligence of driver of the offending bus. In fact, the said accident has occurred due to rash & negligent driving of driver of the offending tractor-trolley. Respondents No.3 & 4/driver & owner of the offending tractor- trolley in their written statement denied any accident being caused by their tractor-trolley and their tractor-trolley has been falsely implicated in the case.

The Insurance Company in its written statement contended that FIR of the incident was lodged by the claimant himself only against driver of tractor- trolley, and therefore, there was no negligence of the driver of the offending bus and as such insurance company is not liable for compensation. Learned Claims

Tribunal has erred in holding that offending bus and tractor-trolley are jointly &

severally liable for compensation.

6. Heard learned counsel for the parties and perused the record.

7. The factum of accident and that the appellant/claimant was sitting in the bus is not disputed by the respondents. What is disputed by respondent/Insurance Company is the finding of learned Tribunal on the point of negligence. Learned Tribunal on the basis of evidence adduced by both the sides has concluded that the accident occurred due to the negligence of the drivers of both the vehicles-bus bearing registration No.MP07/P-1299 and tractor and trolley bearing registration No.MP33/A 1985 & MP33A/198. Learned Tribunal has not found a case of contributory negligence on the part of the appellant.

8 . At the outset, it is submitted by the learned counsel for the appellant/claimant that cross-objection filed on behalf of respondent/Insurance Company is not tenable as the Insurance Company has deposited the amount of compensation and it has not filed any appeal, therefore, after satisfying the award in absence of any appeal, Insurance Company cannot file cross- objection. Learned counsel relied upon the judgment in case of Guddi Devi and others v. Madhya Pradesh State Road Transport Corporation and others, 2008 ACJ 1545 it is held by the Division Bench of this Court that cross-objection by one of the defendants against other defendant is not maintainable in an appeal by the claimants.

9. In case of Bherusingh and others vs. Mahesh & Others, 2014 ACJ 642 Coordinate Bench of this Court in a motor accident claim case has held that Insurance Company filed cross-objection in an appeal filed by the claimants for enhancement of compensation after satisfying the award, in that case it is

SOODAN PRASAD held that Insurance Company can approach the Court without satisfying the

award and once award is satisfied and no appeal is filed by the Insurance Company, then Insurance Company cannot file cross-objection.

10. In light of law laid down in aforesaid cases, the cross objection of respondent/Insurance Company is not tenable as it did not file any appeal and after satisfying the impugned award in an appeal filed on behalf of claimant for enhancement of amount of award, it has filed this cross objection.

11. However, for the sake of argument assuming cross-objection as tenable, it is found that on the basis of mere head on collision, it cannot be deemed that it is a case of contributory negligence and FIR cannot be given weightage as against ocular evidence before the Tribunal. FIR or charge-sheet cannot be taken as conclusive proof qua negligence by ignoring evidence on record.

12. In case of Gurudeep Singh vs. Shekh Sadab & Others decided on 16.05.2019 in M.A.No.231 of 2009 Coordinate Bench of this Court has held that merely on the ground of accident taking place head on, finding of contributory negligence cannot be recorded in absence of evidence on the point, contributory negligence was not found proved.

13. Evidence on behalf of the respondent/Insurance Company has been adduced on the point that FIR (Ex.D/3) was lodged by appellant Dharmendra himself and in that FIR it has been stated that the driver of the tractor & trolley by driving it negligently rammed the bus (offending vehicle) and thereby caused the accident in which he has sustained injury. However, in the claim petition it has been stated that the driver of the bus was negligent and that was the cause of accident. In this behalf, when we go through the documents and ocular evidence on record, it is found that appellant Dharmendra has supported the

version stated in the claim petition while denied the version of FIR (Ex.D/3) by

stating that he has not lodged the FIR and it does not bear his signatures. The

statement of Dharmendra (AW-1) is supported by the evidence of Vineet Bhargava (AW-3) who was also travelling in the same bus with the appellant and both these witnesses remained intact in their cross-examination. Though Vineet Bhargava (AW-3) is not a listed witness in the police Challan (Ex.D/2), but that per se is not a ground to reject the testimony of this witness. Santosh Mishra (AW-2) and Dr. B.K.Diwan (AW-4) have been examined to prove the injuries sustained by the appellant and his treatment for such grievous injury.

14. Respondent/Insurance Company has examined Pramod Agrawal (NAW-

1), who is the investigator, but he is not an eye-witness to the incident and this fact has been admitted by this witness in cross-examination. He has also admitted in cross-examination that since he was not present at the time of accident, therefore, he cannot say that whose negligence was the reason of accident. He also admitted that he cannot say that how and in which manner appellant was sitting in the bus.

15. This witness Pramod Agrawal (NAW-1) has stated in para 6 of the

affidavit that appellant himself was taking his hand out of the window of the bus, and therefore, he sustained injury, but the fact remains that it is not mentioned specifically in the written statement of the respondent/Insurance Company as well as this fact also does not find place in the report (Ex.D/1) of the investigator. Though such mention is there in para 4 of the report where the statement of this witness is quoted verbatim, but his statement in original has not been filed with this report, therefore, such statement cannot be taken into consideration. Further, in conclusion on the last page of this report, it has not been stated that the claimant himself has taken his hand out of the window of

SOODAN PRASAD the bus, and therefore, he sustained the fracture. Here it is pertinent to mention

that putting the hand on window is having different meaning than taking his hand out of the window of the bus. Therefore, in absence of specific averments and cogent and reliable evidence on the point of contributory negligence, the learned Tribunal has rightly not found proved the contributory negligence on the part of the appellant.

16. In case of Ghanshyam vs. Manager, Madhya Pradesh State Road Trans. Corpn. and another, 2012 ACJ 111 Coordinate Bench of this Court has held that if there is no evidence that claimant had kept his arm outside the window, finding of contributory negligence cannot be upheld.

17. In case of Smt. Anju Gurjar and others vs. Hariom & Ors. decided on 09.03.2018 in M.A.No.810 of 2014 Coordinate Bench of this Court has held that merely examination of investigator of insurance company on behalf of insurance company in absence of any eye-witness to the accident does not render any support to the stand of insurance company.

18. In case of National Insurance Co. Ltd. Vs. Chamundeswari and others, 2021 ACJ 2558, it is held by the Hon'ble Apex Court that if any evidence before the tribunal runs contrary to the contents in the first information report, the evidence which is recorded before the Tribunal has to be given weightage over the contents of the first information report. Similarly in case of R.P.Gautam vs. R.N.M.Singh & Anr., AIR 2008 MP 68 Coordinate Bench of this Court has observed that FIR or police investigation not always condition precedent for awarding compensation. Claim cannot be dismissed simply because FIR is not lodged. Even after registration of offence papers of such investigation cannot be treated as substantive evidence for claim case.

In case of Mathew Alexander vs. Mohammed Shafi and another, Signing time: 15-05-2024 10:32:48 PM 2023 (3) T.A.C. 353 (SC) Hon'ble Apex Court has ruled that appellant has to

establish negligence on the part of driver of offending vehicle. Opinion in final report would not have any bearing in claim petition filed by the appellant.

20. In case of Iffco-Tokio General Ins. Co. Ltd. Vs. Gavadakattu Venkata Ramanamma and others, 2023 ACJ 1591 High Court of Andhra Pradesh has ruled that negligence of a person cannot be judged based on charge-sheet. Allegations in charge-sheet have to be proved but no evidence is led to prove the same. FIR or charge-sheet cannot be taken as conclusive proof of negligence by ignoring the evidence on record.

21. The said vehicle-Bus was not mechanically examined, therefore, it cannot be concluded that there was no damage found on the bus, hence on this point also the contention of learned counsel for the respondent/Insurance Company cannot be accepted. The driver of the bus has not examined himself before the learned Tribunal and he remained ex-parte before the Tribunal. This fact does not render any assistance to the respondent/Insurance Company on their stand, rather it supports the case of the appellant.

22. Albeit appellant's witnesses have supported the version of claim petition but keeping in view the documents on record, police case and fact surfaced from the evidence, learned Tribunal has rightly concluded that this is a case of composite negligence as drivers of both the vehicles were rash and negligent in driving their vehicles.

23. In case of Khenyei vs. New India Assurance Co. Ltd. and others, II (2015) ACC 657 (SC) the Hon'ble Apex Court has observed that claimant/plaintiff is entitled to sue both or any one of joint tortfeasors and to recover entire compensation as liability of joint tortfeasors is joint and several.

of compensation between two tortfeasors vis-a-vis

plaintiff/claimant is not permissible. Claimant can recover at his option whole damages from any one of them. Full Bench of this Court in case of Smt. Sushila Bhadoriya and others vs. M.P. State Road Transport Corporation and another, (2005) ACJ 831 has also ruled in similar line. Similarly, in case of Pawan Kumar and another vs. Harkishan Dass Mohan Lal and others, 2014 ACJ 704 the same law has been reiterated. Ergo, the learned Tribunal has rightly saddled liability to pay compensation on all the respondents jointly and severally.

24. So far as quantum of compensation is concerned, in absence of cogent and reliable evidence on the point of occupation and income of the appellant, learned Tribunal has rightly assumed the income of the appellant as Rs.5,000/- per month. Undisputedly there is no evidence to prove that appellant has sustained permanent disability, but it is revealed from the evidence on record that the appellant has sustained grievous injury in his right hand where multiple fractures were found and his treatment was going till December, 2012. Considering the evidence on record, learned Tribunal has awarded Rs.50,000/- for medical expenses which seems to be appropriate considering the exhibited documents. So far as the award on other heads is concerned, regard being had to the injuries sustained by the appellant and treatment undergone during the period, an award on the head of mental agony Rs.30,000/- instead of Rs.15,000/-, on the head of transportation charges Rs.10,000/- instead of Rs.4,000/-. on the head of attenders expenses Rs.10,000/- instead of Rs.6,000/- and on the head of special diet Rs.10,000/- instead of Rs.6,000/- would be appropriate. Similarly having regard to the fact that appellant had undergone

treatment for six months, the amount of salary for six months would be

appropriate to be awarded instead of three months salary as granted by the

learned Tribunal. Therefore, keeping in view such enhancement, total enhancement would be Rs.44,000/- in addition to the amount already awarded in favour of the appellant.

25. In the result, the amount of Rs.44,000/- is hereby enhanced in addition to the award already granted in favour of the appellant by learned Tribunal. Remaining terms and conditions of the impugned award shall remain intact. Accordingly, this appeal and cross-objections are disposed of.

(RAJENDRA KUMAR VANI) JUDGE ms/-