Deceased Suresh S/O Indersingh Through ... vs Vishal Chouhan
2024 Latest Caselaw 12954 MP

Madhya Pradesh High Court

Deceased Suresh S/O Indersingh Through ... vs Vishal Chouhan on 8 May, 2024

Author: Anil Verma

Bench: Anil Verma

                                                        1
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                                AT INDORE
                                                     BEFORE
                                         HON'BLE SHRI JUSTICE ANIL VERMA
                                               ON THE 8 th OF MAY, 2024
                                             MISC. APPEAL No. 3619 of 2023

                           BETWEEN:-
                                 DECEASED SURESH S/O INDERSINGH THROUGH
                                 LRS:-
                           1.    SUNITABAI W/O SURESH, AGED ABOUT 29 YEARS

                           2.    NISHA D/O SURESH, AGED ABOUT 8 YEARS,
                                 MINOR    THROUGH    NATURAL GUARDIAN
                                 MOTHER SUNITABAI W/O SURESH

                           3.    SHIVANI D/O SURESH, AGED ABOUT 7 YEARS,
                                 MINOR    THROUGH    NATURAL   GUARDIAN
                                 MOTHER SUNITABAI W/O SURESH

                           4.    ASHWIN S/O SURESH, AGED ABOUT 6 YEARS,
                                 MINOR   THROUGH     NATURAL  GUARDIAN
                                 MOTHER SUNITABAI W/O SURESH

                           5.    INDERSINGH S/O RAMSINGH, AGED ABOUT 59
                                 YEARS (DECEASED)

                           6.    BANIBAI W/O INDERSINGH, AGED ABOUT 58
                                 YEARS,
                                 ALL R/O - VILLAGE SOYLA, TEHSIL GANDHWANI,
                                 DIST. DHAR (MADHYA PRADESH)

                                                                              .....APPELLANTS
                           (BY SHRI SACHIN PARMAR - ADVOCATE)

                           AND
                           1.    VISHAL CHOUHAN S/O JAGDISH CHOUHAN R/O
                                 PIPLI TEHSIL GANDHWANI DISTT. DHAR
                                 (MADHYA PRADESH)

                           2.    RAMESH RATHORE S/O KHEMJI R/O  PIPLI,
                                 TEHSIL GANDHWANI DIST. DHAR (MADHYA
                                 PRADESH)

                           3.    IFFCCO TOKIYO GENERAL INSURANCE CO. LTD.,
Signature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 09-05-2024
10:33:24
                                                        2
                                 COMMERCE HOUSE FIRST FLOOR 7, RACE
                                 COURSE ROAD, INDORE DIST. INDORE (MADHYA
                                 PRADESH)

                                                                                       .....RESPONDENTS
                           (SHRI MAYANK UPADHYAY - ADVOCATE FOR RESPONDENT
                           NO.3/INSURANCE COMPANY)

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

1. Appellants have preferred this appeal under Section 173(1) of the Motor Vehicles Act, 1988 (hereinafter referred as "MV Act") for the enhancement of the compensation amount awarded in Claim Case No.141/2020 passed by the 2nd Member, MACT, Manawar, District Dhar, whereby an

amount of Rs.12,64,500/- was awarded to the appellants/claimants towards the compensation.

2. The relevant and necessary facts of the case are that on 10.5.2020 deceased Suresh and his wife Sunita Bai were peeing their children in front of Madan's house by the side of the road, at that time respondent No.1 driven the offending vehicle Bolero bearing Registration No. MP09-CE-0766 rashly and negligently and dashed to Suresh, due to which he fell down on the road and sustained grievous injuries, due to which he died during the treatment in the hospital. Respondent No.2 is the owner of the offending vehicle and vehicle was insured with respondent No.3/insurance company at the time of accident.

3. Appellants/claimants have preferred the claim petition before the below Tribunal under Section 166 of the MV Act claiming compensation on account of death of Suresh. Appellant No.1 is the wife of the deceased, appellants No.5 & 6 are parents of the deceased and rest of the appellants are the sons and daughters of the deceased. Deceased was running Trala on rent and also doing

farming and earning Rs.1 Lakh per annum. Appellants were dependents upon the deceased and they have been deprived from the earning of the deceased.

4. Respondents No.1 and 2 denied all these allegations by stating that the deceased along with his wife and 3 children was travelling on a motorcycle and due to the negligence of the deceased, they fell down on the floor and deceased has been died due to some unknown disease. At the time of accident deceased was not having any valid licence. False claim petition has been filed against them.

5. Respondent No.3 before the trial Court also denied all the allegations by stating that at the time of accident deceased was travelling on a motorcycle with 4 persons. Motorcycle owner and the insurance company are the necessary parties, but they are not implicated in this case. The accident was occurred due to the negligence of both the drivers. Therefore, the insurance company is not liable for any compensation.

6. The below Tribunal after framing the issues and recording evidence and after appreciating the evidence available on record, partly allowed the claim petition by passing an award of Rs.12,64,500/-towards the compensation along with interest @6% per annum. Being aggrieved by the findings given by the below Tribunal, this appeal has been preferred by the appellants.

7. Learned counsel for the appellants submits that the below Tribunal

has committed grave error in assessing the annual income of the deceased. As per the statement of Sunita Bai (AW-1) the annual income of the deceased was about Rs.1 Lakh. The below tribunal has erred in calculating the daily wages and also erred in deducting 1/4 amount towards loss of dependency. Hence, he prays for enhancement of the compensation amount awarded by the below Tribunal.

8. Per contra, learned counsel for the respondent No.3/insurance company opposes the prayer by submitting that the impugned award is just, proper and adequate and not deserve for any interference.

9. I have heard learned counsel for both the parties at length and perused the record.

10. From perusal of the evidence available on record, it appears that the said accident was caused by the offending vehicle which was being driven by respondent No.1 and respondent No.2 is the owner of the said vehicle and vehicle was duly insured with the respondent No.3. There is no material on record to show that there was any breach of the insurance policy done by the owner or driver of the offending vehicle. Respondents have failed to prove that at the time of accident deceased was driving any motorcycle and due to his own negligence the accident was occurred.

11. The moot question to be addressed in the appeal preferred by the appellants is, as to whether the Tribunal was justified in awarding Rs.12,64,500/- to the appellants?

12. The below tribunal has considered the deceased's monthly income as Rs.5,000/-. Although it has been mentioned that the deceased was doing business of Trala on rent and also doing farming but the applicant did not produce any relevant document regarding the said business and the agricultural land owned or possessed by the deceased. But in view of the guideline issued by the Labour Department of Govt. of M.P. regarding the notional income for the year 2020, the deceased's income should be considered as Rs.6,000/- per month. The age of the deceased was 30 years, therefore, the trial Court has rightly applied the multiplier of 17 and looking to the number of dependents

rightly deducted 1/4th amount towards the self expenses. In the light of the judgment of Hon'ble Apex Court in the case of National Insurance Company Vs. Pranay Sethi reported in AIR 2017 SC 5157, 40% amount should have been added towards future prospects, whereas the tribunal has wrongly considered it as 30%. Therefore, the loss of dependency comes to Rs.6000 x 12 = 72,000/- (-) Rs.18,000/- (1/4th deduction) = Rs.54,000/- x 17 = Rs.9,18,000/- ( ) Rs.3,67,200/- (40% future prospects) = Rs.12,85,200/-. The amount awarded by the Tribunal under the other heads is just and proper.

13. In view of the above, the appellants are entitled to Rs.12,85,200/- under the head of loss of dependency, whereas the below Tribunal has awarded only Rs.9,94,500/- under this head.

14. Accordingly, the appeal is partly allowed. The compensation as awarded by the tribunal deserves to be and is accordingly enhanced by a sum of Rs.2,90,700/-. The enhanced amount will bear interest at the same rate as awarded by the tribunal and will be governed by the same conditions as contained in the award of the tribunal. No order as to costs.

C.C. as per rules.

(ANIL VERMA) JUDGE trilok