Madhya Pradesh High Court

Vikrampuri @ Vicky Goswami vs Mohan Prajapati on 13 May, 2024

Author: Sunita Yadav

Bench: Sunita Yadav

1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 13 th OF MAY, 2024
MISC. APPEAL No. 789 of 2017

BETWEEN:-
PAWAN DHAKAD S/O SHRI RAMCHARAN @ CHURAN
DHAKAD, AGED ABOUT 20 YEARS, GRAM BHATNAVER
AT PRE. C.P. COLONY MURAR (MADHYA PRADESH)

.....APPELLANT
(MR. GYAN SINGH YADAV - ADVOCATE FOR THE APPELLANT -
CLAIMANT)

AND
1. MOHAN PRAJAPATI S/O SHRI CHOTELAL
PRAJAPATI, AGED ABOUT 22 YEARS,
OCCUPATION: DRIVERI KAMLAGANJ BABU
QWATER ROAD (MADHYA PRADESH)

2. MANOJ SHARMA S/O OMPRAKASH SHARMA
OCCUPATION: DRIVER HOUSING BOARD
COLONY L.I.G. FIRST 117/118 (MADHYA PRADESH)

3. DIVISIONAL EFCO TOKIO GENERAL INSUREANCE
COMPANY LTD. DIVISIONAL OFFICER FOURTH
FLOR ORIYENTAL TOWAR L.I.C. OFFICE KE PAAS
CITY CENTER (MADHYA PRADESH)

.....RESPONDENTS
(MR. SOHIT MISHRA - ADVOCATE FOR RESPONDENT NO. 2 AND MR.
BAL KRISHNA AGRAWAL - ADVOCATE FOR RESPONDENT NO. 3 -
INSURANCE COMPANY)

MISC. APPEAL No. 790 of 2017

BETWEEN:-
VIKRAMPURI @ VICKY GOSWAMI S/O SHRI SURENDRA
PURI, AGED ABOUT 20 YEARS, GRAM BHATNAVER
SHIVPURI AT PRE. C.P. COLONY MURAR (MADHYA
PRADESH)
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 5/15/2024
09:29:29 PM
2
.....APPELLANT
(MR. GYAN SINGH YADAV - ADVOCATE FOR THE APPELLANT -
CLAIMANT)

AND
1. MOHAN PRAJAPATI S/O SHRI CHOTELAL
PRAJAPATI, AGED ABOUT 22 YEARS,
OCCUPATION: DRIVERI KAMLAGANJ BABU
QWATER ROAD (MADHYA PRADESH)

2. MANOJ SHARMA S/O SHRI OMPRAKASH
SHARMA OCCUPATION: OWNER VEHICLE
HOUSING BOARD COLONY LIG FIRST 117/118
(MADHYA PRADESH)

3. NA IFFCO TOKYO GENERAL INSURANCE CO. LTD.
OFFICE 4TH FLOOR ORIENT TOWER LIC OFFICE
KE PASS CITY CENTRE (MADHYA PRADESH)

.....RESPONDENTS
(MR. SOHIT MISHRA - ADVOCATE FOR RESPONDENT NO. 2 AND MR. BAL
KRISHNA AGRAWAL - ADVOCATE FOR RESPONDENT NO. 3 -
INSURANCE COMPANY)

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

Since common question of law is involved in aforesaid M.A. Nos. 789 of 2017 and 790 of 2017, therefore, they are heard analogously and are decided by this common judgment. For the sake of convenience, facts mentioned in M.A. No. 789 of 2017 are taken into consideration.

These appeals have been filed assailing the judgment dated 11.4.2017 passed by First Motor Accident Claims Tribunal, District Gwalior (M.P.) in Claim Case No.132/2013 filed by claimant - Pavan Dhakad (appellant in M.A. No. 789 of 2017) and in Claim Case No.135/2013 filed by Vikrampuri @ Vicky Goswami (appellant in M.A. No. 790 of 2017) for grant of compensation on account of injury sustained by them in a road traffic accident occurred on

21.1.2013 involving offending vehicle Auto Rickshaw bearing registration No.MP33-R-0666. At the time of accident, respondent No. 1 - Mohan Prajapati was the driver and respondent No. 2 - Manoj Sharma was the owner of the offending vehicle and the vehicle was insured with respondent No. 3 - insurance company.

Driver and owner of the offending vehicle remained absent before the learned claims tribunal and were proceeded ex-parte.

Insurance company filed its written statement and denied the averments made in the claim petition and further stated that offending vehicle was being plied in violation of policy terms and conditions, therefore, insurance company is not liable to pay the compensation.

Learned counsel for the appellants - claimants in both the appeals argued that learned claims tribunal has wrongly fastened the liability on the owner of the offending vehicle ignoring the settled principle of law laid down in the case of Mukund Dewangan vs. Oriental Company Limited, [Civil Appeal No.5826 of 2011 decided on 3/7/2017]. He has further submitted that even if the breach of permit is found to be proved, learned claims tribunal should have applied the principle of pay and recover. It is further argued that learned claims tribunal has also not awarded any compensation under the head of future prospects.

Learned counsel for respondent No. 3 - insurance company opposed the submissions made by learned counsel for the appellants - claimants and by filing cross-objections vide Document No.103/2023 and 104/2023 in M.A. No. 789 of 2017 and 790 of 2017 respectively argued that learned claims tribunal has erred in assessing the compensation amount and granted compensation on the higher side by applying the multiplier method and also erred in holding the

permanent disability of the claimants on the higher side. Income of the claimants has also been assessed on the higher side by learned claims tribunal. Hence, prayed to modify the impugned award accordingly.

Learned counsel for respondent No. 2 has argued that as per the judgment passed by Hon'ble Apex Court in the case of Mukund Dewangan (supra), a person holding license of Light Motor Vehicle can driver transport vehicle of such class without endorsement, therefore, there was no breach of driving license. Therefore, learned claims tribunal has erred in shifting the liability of paying the compensation on respondent No. 2 - owner of the offending vehicle.

Heard learned counsel for the rival parties and perused the record. So far as the question of validity of driving license of the driver of the offending vehicle is concerned, it is not disputed that he was having driving license of Light Motor Vehicle.

The Apex Court in the case of Mukund Dewangan (supra) has held that "if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect."

In view of the above case law, the finding of learned claims tribunal that respondent No. 1 - driver of the offending vehicle did not have valid license to driver of the offending vehicle is hereby set aside.

However, learned claims tribunal has rightly held that at the time of accident, the offending vehicle was being plied in breach of the route permit.

The Supreme Court in the cases of Shivaraj Vs. Rajendra; [(2018) 10 SCC 432], Manuara Khatun Vs. Rajesh Kumar Singh; [2017 ACJ 1031] & Shamanna and another Vs. Divisional Manager Vs. the Oriental

Insurance Co. Ltd. and others, [(2018) 9 SCC 650] observed that in the case of breach of policy, directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured be given by applying the principle of "pay and recover". The Insurance Policy is a contract between the insured and the insurer and the insurer agrees to indemnify the insured against all the claims arising out of use of vehicle, however, such contract is subject to the conditions that the vehicle shall not be plied or driven contrary to the provisions of law as well as Insurance Policy. Thus, it is clear that the insurer/Insurance Company can get away from its liability of indemnifying the insured by proving that the vehicle was being used contrary to the Insurance Policy. However, the claimants are completely stranger to the contract between the insured and the insurer. Once, the Insurance Company had agreed to indemnify the insured than it would be a dispute between the insured and the insurer as to whether the vehicle was being used contrary to the conditions of Insurance Policy or not? But the claimants cannot be made to suffer because of interse dispute between the insured and the insurer. Once, the vehicle is insured, then the Insurance Company must satisfy the award and if it is found by the Claims Tribunal that the vehicle was being used contrary to the conditions of Insurance Policy, then the right to recover the amount can be given to the Insurance Company without filing a separate suit against the insured.

Consequently, the findings of Tribunal to exonerate the respondent No. 3

- Insurance Company from its liability to pay the compensation is hereby affirmed, however, in the light of principles laid down by Apex Court as above, it is directed that the Insurance Company shall pay the compensation to the appellants - claimants which may be recovered from the respondent No.1 -

driver and respondent No.2 - owner.

So far as permanent disability of the appellants caused in this accident is concerned, to prove the same, claimant Pawan Dhakad has examined Dr. Shiv Pratap Raghuwanshi and claimant Vicky Goswami has examined Dr. A.L. Sharma, who have proved the disability certificate and corroborated the version of the claimants that claimant Pawan Dhakad has sustained 45% permanent disability whereas claimant Vicky Goswami has sustained 38% permanent disability. Nothing emerged in their cross-examination so as to raise doubt over their statements, therefore, learned claims tribunal has rightly held that claimant Pawan Dhakad has sustained 45% permanent disability and claimant Vicky Goswami has sustained 38% permanent disability.

Learned claims tribunal on the basis of material and evidence available on record has also rightly assessed the income of the claimants and no interference is warranted in the same.

In view of the above as well as in the light of case law of National Insurance Company vs. Pranay Sethi & Ors.; 2017 ACJ 2700, considering the annual income of the claimant - Pawan Dhakad to be Rs.60,000/-, multiplier of 18, loss of future earning capacity @ 45%, future prospect @ 40%, Rs,1,00,000/- for attendant, travel expense, pain and suffering and special diet, and Rs.65,468/- for medical expenses, total compensation amount comes to Rs.8,45,868/- [Rs.4,86,000/- (60,000 x 18 x 45%) 1,94,400/- (40% future prospect on 4,86,000/-) 1,00,000 65,468/-]. The tribunal has awarded a sum of Rs.6,51,468/- to claimant - Pawan Dhakad. The enhanced amount comes to Rs. 1,94,400/- (Rupees One Lakh Ninety Four Thousand Four Hundred

only). T he enhanced amount of compensation i.e. Rs.1,94,400/- s hall carry interest as awarded by learned claims tribunal from the date of claim application till realization. The enhanced amount of compensation shall be payable to the appellant - claimant by the Insurance Company within a period of 12 weeks from the date of production of certified copy of this order with right to recover the same from respondents No. 1 and 2 - driver and owner of the offending vehicle respectively. Rest of the award passed by learned claims tribunal shall remain intact.

In view of the above as well as in the light of case law of Pranay Sethi (supra), considering the annual income of the claimant - Vikrampuri @ Vicky Goswami to be Rs.60,000/-, multiplier of 18, loss of future earning capacity @ 38%, future prospect @ 40%, Rs,75,000/- for attendant, travel expense, pain and suffering and special diet, and Rs.13,762/- for medical expenses, total compensation amount comes to Rs.6,63,322/- [Rs.4,10,400/- (60,000 x 18 x 38%) 1,64,160/- (40% future prospect on 4,10,400/-) 75,000 13,762/-]. The tribunal has awarded a sum of Rs.4,99,162/- to claimant - Vicky Goswami. The enhanced amount comes to Rs. 1,64,160/- (Rupees One Lakh Ninety Four Thousand Four Hundred only). T h e enhanced amount of compensation i.e. Rs.1,64,160/- s hall carry interest as awarded by learned claims tribunal from the date of claim application till realization. The enhanced amount of compensation shall be payable to the appellant - claimant by the Insurance Company within a period of 12 weeks from the date of production of certified copy of this order with right to recover the same from respondents No. 1 and 2 - driver and owner of the offending vehicle respectively. Rest of the award passed by learned claims tribunal shall remain intact.

Appeals stand allowed to the aforesaid extent and disposed of and cross- objections stand dismissed.

Original copy of this judgment be kept in M.A. No. 789 of 2017 and certified copy of this judgment be kept in connected M.A. Nos. 790 of 2017.

(SUNITA YADAV) JUDGE AKS