Madhya Pradesh High Court
Cholamandalam Ms General Insurence Co. ... vs Smt. Shyambai Paraste on 9 May, 2024
1
IN THE HIGH COURT OF MADHYA PRADES
H
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 9th OF MAY, 2024
MISC. APPEAL No. 1420 of 2020
BETWEEN:-
CHOLAMANDALAM MS GENERAL INSURENCE
CO. LTD. THR. NEAR CHHOTI LINE FATAK DIST.
JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI TEJVINDER SINGH LAMBA - ADVOCATE )
AND
1. SMT. SHYAMBAI PARASTE W/O LATE
RAMDAS, AGED ABOUT 30 YEARS, VILL.
SILPUDI TEH. BARELA DIST. JABALPUR
(MADHYA PRADESH)
2. KU. SUSHMA BAI D/O LATE RAMDAS, AGED
ABOUT 14 YEARS, OCCUPATION: MINOR
THR. NATURAL GUARDIAN MOTHER SMT.
SHYAMBAI PARASTE W/O LATE RAMDAS
R/O VILLAGE SILPUDI, TAHSIL BARELA
(MADHYA PRADESH)
3. AKASH PARATE S/O LATE RAMDAS, AGED
ABOUT 10 YEARS, OCCUPATION: MINOR
THR. NATURAL GUARDIAN MOTHER SMT.
SHYAMBAI PARASTE W/O LATE RAMDAS
R/O VILLAGE SILPUDI, TAHSIL BARELA
(MADHYA PRADESH)
4. AMAR PARASTE S/O LATE RAMDAS, AGED
ABOUT 8 YEARS, OCCUPATION: MINOR
THR. NATURAL GUARDIAN MOTHER SMT.
SHYAMBAI PARASTE W/O LATE RAMDAS
R/O VILLAGE SILPUDI, TAHSIL BARELA
(MADHYA PRADESH)
5. SMT. CHAMELI BAI W/O LATE RAMSINGH,
Signature Not Verified
Signed by: LALIT SINGH
RANA
Signing time: 5/10/2024
5:13:23 PM
2
AGED ABOUT 55 YEARS, R/O VILLAGE
SILPUDI, TAHSIL BARELA (MADHYA
PRADESH)
6. SUSHMA BAI W/O SUNIL KUMAR R/O
VILLAGE SILPUDI, GRAM PANCHAYAT
BILGADA, PADWAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VINIT KUMAR MISHRA - ADVOCATE)
MISC. APPEAL No. 1302 of 2020
BETWEEN:-
1. SMT. SHYAMBAI PARASTE W/O LATE
RAMDAS, AGED ABOUT 30 YEARS,
OCCUPATION: HOUSE WIFE VILL.
SILPUDI TEH. BARELA DIST.
JABALPUR (MADHYA PRADESH)
2. KU.SUSHMA BAI D/O LATE RAMDAS
PARASTE, AGED ABOUT 14 YEARS,
OCCUPATION: MINOR THROUGH HER
NATURAL GUARDIAN MOTHER
SHYAMBAI PARASTE W/O LATE
RAMDAS PARASTE VILLAGE SILPUDI
TEHSIL BARELA DISTT.JABALPUR
(MADHYA PRADESH)
3. AKASH PARASTE S/O LATE RAMDAS
PARASTE, AGED ABOUT 10 YEARS,
OCCUPATION: MINOR THROUGH HER
NATURAL GUARDIAN MOTHER
SHYAMBAI PARASTE W/O LATE
RAMDAS PARASTE VILLAGE SILPUDI
TEHSIL BARELA DISTT.JABALPUR
(MADHYA PRADESH)
4. AMAR PARASTE S/O LATE RAMDAS
PARASTE, AGED ABOUT 8 YEARS,
OCCUPATION: MINOR THROUGH HER
NATURAL GUARDIAN MOTHER
SHYAMBAI PARASTE W/O LATE
RAMDAS PARASTE VILLAGE SILPUDI
TEHSIL BARELA DISTT.JABALPUR
(MADHYA PRADESH)
Signature Not Verified
Signed by: LALIT SINGH
RANA
Signing time: 5/10/2024
5:13:23 PM
3
5. SMT.CHAMELI BAI W/O LATE
RAMSINGH, AGED ABOUT 55 YEARS,
VILLAGE SILPUDI TEHSIL BARELA
DISTT.JABALPUR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI SHRI VINIT KUMAR MISHRA - ADVOCATE)
AND
1. SUNIL KUMAR S/O SHIV KUMAR
OCCUPATION: DRIVER AND OWNER
OFFENDING VEHICE LOADING AUTO
BEARING VILL. SILPUDI TEH. BARELI
DIST. JABALPUR (MADHYA PRADESH)
2. CHOLAMANDALAM GENERAL
INSURANCE CO.LTD. JABALPUR NEAR
CHOTI LINE FATHAK JABALPUR AT
PRESENT PAVAN COMPLEX
HATHITAAL INFRONT OF MUKTI
DHAM GUPTESHWAR JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI TEJVINDER SINGH LAMBA - ADVOCATE FOR RES. NO.2)
This appeal coming on for admission. this day, the court passed
the following:
ORDER
Both these appeals are arising out of common award dated
27.11.2019 passed in claim case No. 374/2015, therefore, being
disposed off by this common order.
2. Miscellaneous appeal No. 1420/2020 has been preferred by the
appellant/insurance company for exonerating from liability to pay the
compensation and Miscellaneous Appeal No. 1302/2020 has been
preferred by the claimants for further enhancement of Rs. 1,00,000/- in
additiona to the amount awarded by the 8th Additional MACT,
Jabalpur in Claim Case No. 374/2015 whereby MACT has awarded an
amount of Rs. 8,73,250/- along with interest at the rate of 6% from the
date of institution of claim petition.
3. The facts necessary for disposal of the present appeals in brief
are that on 03.05.2014 at about 2:30 PM deceased Ramdas with
luggage of tent was travelling in loading Auto bearing registration No.
MP-20-LA-4555 and due to negligence of Auto driver Sunil Kumar, it
turned turtle. The deceased sustained grievous injuries and succumbed
to them and offence of crime No. 95/2014 under Section 304-A of IPC
was registered against the driver of the offending vehicle Sunil Kumar.
4. Learned counsel for the appellant/insurance company submits
that in FIR (Ex. P/2) which was registered after inquiry of marg
intimation (Ex. P/3) registered on the information of Mem Singh. It
has been mentioned that he was traveling in Auto No. MP-20-LA-
4555 with luggage of tent from Chicham to Silpuri on the fateful day
03.05.2014. His father-in-law (Chacha Sasur) deceased was also
sitting in the Auto. Near power house in village Udaipur, Auto driver
Sunil Kumar left the Auto unattended in start condition and went for
urination. Father-in-law (Chacha Sasur) who was sitting in the driver's
seat applied gear, which caused turning turtle the auto and deceased
Ramdas suffered injuries. He was taken to doctor Jhariya who declared
him dead. The same facts have been narrated in the FIR (Ex. P/2)
which makes it amply clear that the deceased was traveling in the
offending vehicle loading auto as gratuitous passenger and by his own
negligence, accident took place. Therefore, liability of payment of
compensation cannot be fastened on the insurance company. To
bolster his submission, learned counsel for the appellant/insurance
company has relied paras 14 and 15 of the judgment by the Apex
Court in Oriental Insurance Company Lit. Vs. Premlata Shukla
and others, (2007) 13 SCC 476, is extracted as under:-
"14. Once a part of it is relied upon by both the
parties, the learned Tribunal cannot be said to have
committed any illegality in relying upon the other
part, irrespective of the contents of the document
having been proved or not. If the contents have been
proved, the question of reliance thereupon only upon
a part thereof and not upon the rest, on the technical
ground that the same had not been proved in
accordance with law, would not arise.
15. A party objecting to the admissibility of a
document must raise its objection at the appropriate
time. If the objection is not raised and the document is
allowed to be marked and that too at the instance of a
party which had proved the same and wherefor
consent of the other party has been obtained, the
former in our opinion cannot be permitted to turn
round and raise a contention that the contents of the
documents had not been proved and, thus, should not
be relied upon. In Hukam Singh [1969 PLR 908
(P&H)] the law was correctly been laid down by the
Punjab and Haryana High Court stating : (PLR p. 911,
para 8"
5. Learned counsel for the appellant/insurance company has further
relied para 26 of the judgment by the Apex Court in Oriental
Insurance Co. Ltd. Vs. Meena Variyal and others, 2007 ACJ 1284,
is extracted as under:-
"26. On the facts of this case, there is no finding that
Mahmood Hasan, another employee of the owner was
driving the vehicle. Even if he was, there is no finding of
his negligence. The victim was the Regional Manger of
the Company that owned the car. He was using the car
given to him by the Company for use. Whether he is
treated as the owner of the vehicle or as an employee, he
is not covered by the insurance policy taken in terms of
the Act -- without any special contract -- since there is
no award under the Workmen's Compensation Act that
is required to be satisfied by the insurer. In these
circumstances, we hold that the appellant - Insurance
Company is not liable to indemnify the insured and is
also not obliged to satisfy the award of the
Tribunal/Court and then have recourse to the insured, the
owner of the vehicle. The High Court was in error in
modifying the award of the Tribunal in that regard."
6. Further, he has relied para 14 of the judgment of Coordinate
Bench of MP High Court in Shahnaz Bee Vs. Nirmala Raod Lines,
Indore and others, 2011(1) MPLJ, is extracted as under:-
"14. Considering the impugned judgment whereby the
Tribunal has rejected the claim of the claimant, I find
that the order is in consonance with the provisions of law
since according to the recent judgments of the Apex
Court no liability can be mulcted either on the Insurance
Company when the negligence on the part of the driver
is not established and the fact that the passengers were
gratuitous passengers in a goods vehicle. The Insurance
Company is, therefore, rightly exonerated. I also place
my reliance on the decisions of the Apex Court in the
matter of National Insurance Company Ltd. v. Baljit
Kaur, 2004 (2) MPLJ (SC) 4 : (2004) 2 SCC 1 and
National Insurance Company Ltd. v. Prema Devi, (II)
(2008) ACC 1 (SC)."
7. Learned counsel for the appellant/insurance further submits that
being gratuitous passenger in the offending vehicle, he was not
covered by the insurance policy (Ex. D/3), hence insurance company
is not liable to pay compensation. On the above contention, learned
counsel for the appellant/insurance company submits that appeal may
be allowed and insurance company may be exonerated from the
liability to pay the compensation. Learned counsel for the insurance
company further contended that in MA No. 1302/2020 filed on behalf
of the claimants, no reasonable grounds for enhancing the
compensation amount have been given and proved, therefore, appeal
filed on behalf of the claimants may be dismissed.
8. Per contra, learned counsel for the respondent/claimants submits
that evidence tendered in the criminal case cannot be looked into for
adjudication of claim petition. He further submits that even if it is
accepted that offending vehicle was stationary at the time of accident
but it cannot be ignored that it was left unattended in start condition
by the driver & owner of this vehicle Sunil Kumar without taking
necessary precautions and therefore, it cannot be argued that he was
not negligent in the use of offending vehicle. In such circumstances,
insurance company cannot be exonerated. He has further contended
that in insurance policy (Ex. D/3) total three persons including one
passenger were covered and even after that deceased-Ramdas was not
gratuitous passenger as he was traveling in the offending vehicle with
his luggage of tent house. Appeal on behalf of the insurance company
is sans merit, hence it may be dismissed. To bolster his submission,
learned counsel for the claimants company has relied para 8 of the
judgment of Coordinate bench of this court in Shabbir Ahmad and
another Vs. MPSRTC, Bhapal, AIR 1984 MP 174 is extracted as
under:-
"8. We have gone through the award dt. 30-9-1981.
The learned Member of the Tribunal has disbelieved
the evidence of Sherinkhan (AW 2) mainly on the
ground that he was at a distance of about 225 feet
from the place of the accident. For this he has relied
upon a copy of the judgment of the Chief Judicial
Magistrate, Jhabua, in Criminal Case No. 385 of
1980, thereby acquitting the respondent 3 of the
charge under S.304A, I.P.C. This judgment of the
Criminal Court contains a reference to the spot
inspection made by the Magistrate himself and on that
basis the Tribunal has discarded the testimony of
Sherinkhan (AW 2) as unreliable. Suffice it to say that
this approach of the learned Member of the Tribunal
is palpably wrong. Firstly, the claimants were not a
party to the proceedings in which the spot map was
prepared and secondly the evidence in criminal case
cannot be used as a basis for discarding the testimony
of a witness recorded before the Tribunal itself. The
spot map prepared by the Magistrate has neither been
produced nor proved before the Tribunal by the
respondents. Such evidence recorded behind the back
of the appellants cannot be used against them. (See
Ram Dulare Shukla v. M.P.S.R.T. Corporation, 1970
Jab LJ 626 : 1969 MPLJ 922). A mere production of a
certified copy of the judgment of the Criminal Court
containing a reference to such a spot-map having been
prepared by the Magistrate is no evidence by itself
unless it is proved as a fact. Therefore, this evidence
should have been excluded from consideration by the
Tribunal. The fact that Nisar Ahmed (respondent 3)
was acquitted in the criminal case is not itself
sufficient to absolve him of his liability as a
respondent. In claim cases, acquittal may have some
bearing or relevance, but that by itself would not be a
proof of the fact that the driver was not negligent. The
learned Member of the Tribunal has overlooked the
numerous decisions that evidence recorded in a
criminal court and the findings arrived at therein
should not be used in claim cases. Such evidence for
the purposes of claim cases is inadmissible. Above all
it is a settled principle of law that any evidence
recorded behind the back of a party cannot be used
against him. The learned Member of the Tribunal
should not have disbelieved Sherinkhan (AW 2)
merely because he is shown to be at a distance of 225
feet from the place of accident, in the spot-map,
which is inadmissible."
9. Learned counsel for the claimants in their appeal for enhancement
of the compensation submits that learned claim tribunal has
erroneously assessed the income of the deceased Rs. 4,275/- per month
whereas on the date of acident 03.05.2014 as per the circular issued by
the labour department regarding minimum wages for unskilled labour
was fixed to Rs. 5845/- per month. In the head of parental consortium
to survivor children/claimants, compensation has not been awarded.
On the above grounds, learned counsel for the claimants prays for
enhancing of compensation amount by allowing their appeal.
10. Heard learned counsel for the parties and perused the record.
11. Learned counsel for the appellant/insurance company has firstly
contended that merg intimation (Ex.P/3) and FIR (Ex.P/2) relied upon
by the claimants would reveal that the deceased Ramdas was travelling
as gratuitous passenger in offending vehicle loading auto a goods
vehicle. His liability was not covered by insurance company in policy
(Ex.D/3). It was not negligence of the driver of the offending vehicle
but negligence of the deceased himself was the cause of accident. This
evidence has been overlooked by the learned claims tribunal.
Fastening the liability of payment of compensation on insurance
company is bad in law.
12. From perusal of merg intimation (Ex.P/3) which is the basis for
recording FIR (Ex.P/2) reveals that on the date of accident Memsingh
(AW/2) was travelling in the offending vehicle auto No.MP 20
LA/4555 with luggage of tent. Deceased Ramdas was also sitting in
the auto. Auto driver left unattended the offending vehicle in starting
condition and went for urination. In the meantime, deceased Ramdas,
sitting in the driver seat applied gear which caused auto turning turtle
and the deceased sustained injuries in the accident and succumbed to
them. Same version is narrated in the FIR (Ex.P/2). This is the very
first version of the cause of accident given by Memsingh (AW/2)
present on the spot. Memsingh (AW/2) in cross examination para 4
and 5 has specifically mentioned that merg intimation (Ex.P/3) and
FIR (Ex.P/2) bear his signatures. He also admitted that his uncle
Ramdas suddenly applied gear in the auto which caused turning turtle
of the auto resulting in serious injuries in the head of the deceased. He
has further admitted that at the time of accident, auto was not driven
by its driver. He was confronted by his statement (Ex.D/1) before the
criminal court wherein he has admitted his statement (Ex.D/1). Since
Merg intimation (Ex.P/2) and FIR (Ex.P/3) have been filed and relied
upon by the claimants, they cannot be allowed to disown contents of
these documents in the light of judgment in Oriental Insurance
Company (Supra) relied upon by the appellant/insurance company.
The appellants/claimants relying upon the judgment in Shabbir Ahmad
(Supra) has contended that evidence before the criminal court cannot
be looked into to discard the evidence before the claims tribunal.
13. The contention raised on behalf of claimants is not tenable as this
is not a case where evidence before the claims tribunal is being
discarded on the basis of evidence led before the criminal court.
Memsing (AW/2) in the statement before the claims tribunal has stated
that deceased Ramdas was travelling in the auto with his luggage of
tent, but this witness, in merg intimation (Ex.P/3) and FIR (Ex.P/2)
lodged by him has mentioned that he was travelling in the auto with
his luggage of tent and deceased Ramdas was also sitting in the auto.
Ex.P/2 and P/3 are the first version of the accident given by this
witness. Claimants have also relied upon these documents. Therefore,
in the light of the judgment in Oriental Insurance Company (Supra)
oral testimony of this witness before the claims tribunal against the
documentary evidence in Ex.P/2 and Ex.P/3 cannot be accepted for the
fact that deceased Ramdas was travelling in the auto with his luggage.
It is amply proved from the documentary and oral evidence on record
that on the date of accident, deceased was travelling in the offending
vehicle loading auto as gratuitous passenger. Insurance policy
(Ex.D/3) reveals that the offending vehicle was having only total
seating capacity of two. Neither any passenger was permitted to travel
in the auto nor any premium was taken for covering the liability of the
passenger. Therefore, the insurance company cannot be held liable for
payment of compensation with regard to the gratuitous passenger
travelling in the offending vehicle, a loading auto.
14. In the light of the aforesaid discussion, contention raised on
behalf of the insurance company has substance and is accepted.
Consequently, insurance company is exonerated from the payment
liability arising out of death of the gratuitous passenger deceased
Ramdas by setting aside the finding given by learned claims tribunal in
this regard in the impugned award.
15. As far as negligence of the driver of the offending vehicle is
concerned, contention by the learned counsel for the insurance
company cannot be accepted looking to the evidence that driver left
the offending vehicle loading auto unattended in the start condition
which ultimately resulted in the accident causing death of the
deceased. Had the vehicle being turned off, the accident could have
been avoided. Therefore, it cannot be inferred that driver was not in
any way negligent and his negligence was not the cause of accident.
Finding with regard to the negligence of the driver given by the
learned claims tribunal is impregnable. In such circumstances, owner
and driver of the offending vehicle Sunil Kumar cannot escape the
liability for payment of compensation.
16. Learned counsel for the appellants/claimants have assailed the
income of the deceased fixed by the claims tribunal as Rs.4250/-
which is below the minimum wages as fixed by the circular issued
under Minimum Wages Act by the Labour Department. Minimum
wages for unskilled labourer the circular has been admittedly fixed for
Rs.5845/- p.m.
17. Learned claims tribunal has awarded amount in the consortium
head only to appellant no.1, wife of the deceased but the learned
claims tribunal has not awarded any amount in the head, 'parental
consortium' to appellants no.2,3 and 4, who are daughter and sons of
the deceased. These claimants also entitled for the amount at the rate
of Rs.40,000/-.
18. In view of the above discussion appellants/claimants are
entitled to following amount as compensation -
Sr. Head Amount
No.
1 Income @ 5,845-pm x12 Rs.70,140/-
2 Future prospect 40% Rs.28,056 /-
3 Deduction towards personal expenses (¼ Rs.24,549/-
Rs.70,140+28,056
=98,196)
4 Total annual income for computation of Rs.73,647/-
dependency (Rs. 28,196 - Rs. 24549/-)
5 After Multiplier of 15 (Rs. Rs.73647/- x15) Rs.11,04,705/-
total loss of dependency
6 Funeral Expenses Rs.15,000/-
7 Loss of estate Rs.15,000/-
8 Consortium amount (40x4) Rs. 1,60,000/-
Total compensation Rs.12,94,705/-
19. Thus appellants/claimants are entitled for just and proper amount
of compensation in the instant case is Rs.12,94,705/- (Twelve lakh
ninety four thousand seven hundred five) as against award of the
Tribunal of Rs.8,73,250/- awarded by learned Claims Tribunal.
20. Appellants/claimants are entitled to an additional amount of
Rs.4,21,455/- (Four lakh twenty one thousand four hundred and fifty
five) over and above amount the amount awarded by the Tribunal.
21. The appeal of the claimants is allowed by enhancing the amount
of compensation as indicated herein above. Enhanced amount shall
bear interest at the same rate as awarded by the Tribunal. The other
findings recorded by the Tribunal shall remain intact.
22. Since the appellants/claimants have valued the appeal to the
extent of Rs.1,00,000/- only and paid court fees accordingly. The
amount of compensation has been enhanced by Rs.4,21,455/- (Four
lakh twenty one thousand four hundred and fifty five) therefore,
claimants will have to pay requisite court fees on rest the amount of
Rs.3,21,455/- (three lakh twenty one thousand four hundred and fifty
five) within 60 days from the date of order by this Court. In case
certificate of payment of additional court fee is not filed before the
learned Claims Tribunal within a period of 3 months from the date of
order of this court, the appellants/claimants shall not be entitled to get
the interest on the enhanced amount of compensation. Thus appeal of
claimants is partly allowed.
23. The appeal of insurance company is allowed and company is
exonerated from the liability to pay. Since appeal of insurance
company has been allowed and insurance company has been
exonerated from the liability therefore it is made clear that the
appellants/claimants shall be entitled to recover the compensation
amount only from the respondent No.1 Sunil Kumar, driver and owner
of the offending vehicle.
24. Appeals are disposed off to the extent as indicated herein above.
25. Let the record of the tribunal be sent back for information and
necessary compliance.
26. A copy of this judgment be also kept in the record of MA No.
1302/2020.
(BINOD KUMAR DWIVEDI)
JUDGE
L.R./M./Akm
