Madhya Pradesh High Court
Shivdayal vs Ram Singh on 20 May, 2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
ON THE 20th OF MAY, 2024
MISC. APPEAL No. 2287 of 2011
BETWEEN:-
1. SHIVDAYAL S/O KALU
VISHWAKARMA, AGED ABOUT 52
YEARS, R/O VILLAGE PANIHARI P. S.
PRATHVIPUR DISTT. TIKAMGARH M.P.
2. KUSUM W/O SHIV DAYAL
VISHWAKARMA, AGED ABOUT 45
YEARS, R/O VILLAGE PANIHARI P. S.
PRATHVIPUR DISTT. TIKAMGARH M.P.
3. RAJ KUMARI W/O BHAGWANDAS
VISHWAKARMA, AGED ABOUT 24
YEARS, R/O VILLAGE PANIHARI P. S.
PRATHVIPUR DISTT. TIKAMGARH M.P.
4. ANKIT S/O BHAGWANDAS
VISHWAKARMA, AGED ABOUT 8
YEARS, OCCUPATION: THROUGH
NATURAL GUARDIAN MOTHER RAJ
KUMAR W/O BHAGWANDAS
VISHWAKARMA R/O VILLAGE
PANIHARI P. S. PRATHVIPUR DISTT.
TIKAMGARH M.P.
5. SONAM D/O BHAGWANDAS
VISHWAKARMA, AGED ABOUT 1
YEARS, OCCUPATION: THROUGH
NATURAL GUARDIAN MOTHER RAJ
KUMAR W/O BHAGWANDAS
VISHWAKARMA R/O VILLAGE
PANIHARI P. S. PRATHVIPUR DISTT.
TIKAMGARH M.P.
.....APPELLANTS
(BY SHRI R.K. SAMAIYA - ADVOCATE)
Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 5/24/2024
3:02:41 PM
AND
1. RAM SINGH S/O HALLULAL YADAV,
AGED ABOUT 22 YEARS, R/O VILLAGE
PANIHARI P. S. PRATHVIPUR DISTT.
TIKAMGARH M.P.
2. SURENDRA (DEAD)
(i) ROOPESH ALIAS GOLU, AGED
ABOUT 20 YEARS, S/O SURENDRA
GUPTA, R/O VILL. & POST
NAIGUNVA, P.S. & TEHSIL
PRUTHVIPUR, DISTT. TIKAMGARH
(MADHYA PRADESH)
(ii) SMT. MALTI, AGED 45 YEARS,
WIDOW OF SHRI SURENDRA GUPTA,
R/O VILL. & POST NAIGUNVA, P.S. &
TEHSIL PRUTHVIPUR, DISTT.
TIKAMGARH (MADHYA PRADESH)
(iii) SHRI PRASHANT, AGED ABOUT 15
YEARS, S/O SURENDRA GUPTA,
THROUGH HIS MOTHER SMT.
MALTIA AS LEGAL/NATURAL
GUARDIAN. R/O VILL. & POST
NAIGUNVA, P.S. & TEHSIL
PRUTHVIPUR, DISTT. TIKAMGARH
(MADHYA PRADESH)
3. INSURANCE COMPANY, THE
RELIANCE INSURANCE CO. LTD.
BRANCH OFFICE, BHOPAL, DISTT.
BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHANU PRAKASH VISHWAKARMA - ADVOATE FOR THE RESPONDENT
NO.1, SHRI VIVEK AHIRWAR - ADVOCATE FOR THE LRS OF RESPONDENT NO.2
AND SHRI RAKESH JAIN - ADVOCATE FOR THE RESPONDENT NO.3/INSURANCE
COMPANY)
This appeal coming on for admission this day, the court passed the
following:
Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 5/24/2024
3:02:41 PM
ORDER
Heard finally with the consent of learned counsel for the parties.
2. This Misc. Appeal has been filed under Section 173 of the Motor
Vehicle Act,1988 against the award dated 28/3/2011 passed in Claim Case
No.156/2010 whereby learned claims tribunal has passed an award of
Rs.4,79,000/- with 6% interest from the date of claim petition with the
direction that the amount will be recovered from the respondents No.1 and
3. Learned counsel for the appellants/claimants submits that learned
claims tribunal has illegally exonerated insurance company from the
liability of payment of compensation. For this, he has invited attention of
this Court towards paras 10 and 12 of the impugned award.
4. To bolster his submissions, learned counsel for the appellants has
also placed reliance on paras 18 and 19 of the judgment passed by the
Hon'ble Apex Court in the case of S. Iyyapan vs. United India
Insurance Company Ltd.; 2013(4) MPLJ 259 which reads as under :
"18. Reading the provisions of Sections 146 and 147 of the
Motor Vehicles Act, it is evidently clear that in certain
circumstances the insurer's right is safeguarded but in any
event the insurer has to pay compensation when a valid
certificate of insurance is issued notwithstanding the fact that
the insurer may proceed against the insured for recovery of
the amount. Under Section 149 of the Motor Vehicles Act,
the insurer can defend the action inter alia on the grounds,
namely, (i) the vehicle was not driven by a named person, (ii)
it was being driven by a person who was not having a duly
granted licence, and (iii) person driving the vehicle was
disqualified to hold and obtain a driving licence. Hence, in
our considered opinion, the insurer cannot disown its liability
on the ground that although the driver was holding a licence
to drive a light motor vehicle but before driving light motor
vehicle used as commercial vehicle, no endorsement to drive
commercial vehicle was obtained in the driving licence. In
any case, it is the statutory right of a third party to recover the
amount of compensation so awarded from the insurer. It is for
the insurer to proceed against the insured for recovery of the
amount in the event there has been violation of any condition
of the insurance policy.
19. In the instant case, admittedly the driver was holding a
valid driving licence to drive light motor vehicle. There is no
dispute that the motor vehicle in question, by which accident
took place, was Mahindra Maxi Cab. Merely because the
driver did not get any endorsement in the driving licence to
drive Mahindra Maxi Cab, which is a light motor vehicle, the
High Court has committed grave error of law in holding that
the insurer is not liable to pay compensation because the
driver was not holding the licence to drive the commercial
vehicle. The impugned judgment is, therefore, liable to be set
aside."
5. Learned counsel for the appellants has further placed reliance
on paras 23 and 24 of the judgment passed by the co-ordinate Bench of
this Court in MA No.2116/2005 (Sudesh Pandey vs. Sudhir Kumar and
others) on 1/5/2024. The relevant paras no.23 and 24 are extracted as
under :
"23. In the present case, the claimant himself examined as
PW-1, he stated that on 21.02.2004 at about 3:00 pm. while
he was proceeding from oriental insurance company to
Heeraganj on foot. When he reached near Mangatram
Hospital Nai Basti motor cycle bearing no.MP 21 C 6745
which was driven by its rider came in rash and negligent
manner and dashed from his back and caused injuries and he
was shifted to the hospital for treatment and Dr.Pradeep Soni
treated him, found fracture on left leg and fixed a plaster.
PW-3 Pradeep Soni who treated the claimant (PW-1) and
deposed that on 21.02.2004 he examined the injured Sudesh
Pandey who had admitted in the hospital and advised for X-
ray and his left leg ankle bone was fractured 3x3 inches back
and he was advised for X-ray on which left Calcanium bone
was fractured, the injured was admitted from 21.02.2004 to
30.03.2004 viz. the plaster was fixed in the left leg. In his
cross-examination, he stated that there is chance of causing
permanent disability. In support of his evidence, PW-4
another Doctor Naveen Kothari stated that the injured got
permanent disability 20 % due to fracture and he was member
of Medical Board and also signed on disability certificate
which was issued as Ex.P-10. On perusal of the disability
certificate issued by Medical Board shows 20% disability and
the age of claimant mentioned as 31 years. Therefore,
considering the evidence of PW-3 and PW-4 the disability
certificate accepting 20% of disability of the appellant would
be just and reasonable. The learned Tribunal ought to have
accepted the said assessment certified by the expert body, in
the said circumstances, the disability certificate issued by
Medical Board that the appellant suffers from disability of
20%, thus the calculation of compensation towards loss of
future earning as per judgment of Raj Kumar Vs. Ajay
Kumar6 will be as follows :
a) Annual income before the accident
(Rs.4,500x12= 54,000) .... Rs.54,000/-
b) Loss of future earnings per annum
(20% of the prior annual income) .... Rs.10,800/-
c) Multiplier applicable with reference
to age (appellant's age was 31 years
mentioned in the disability certificate
issued by the Medical Board)
(As per Sarla Verma's case) .... 16
d) Loss of future earnings (10800x 16) ....Rs.1,72,800/-
24. Therefore, the appellant/claimant is entitled to an amount
of Rs.1,72,800/- towards loss of future earnings."
6. Learned counsel for the appellants has further submitted that learned
claims tribunal has assessed income of the deceased as lower side and has
also not awarded any amount in future prospects. Therefore, by enhancing
the income in the head of future prospect, the award amount be enhanced
by Rs. 7,12,000/- as mentioned in the para IX of the appeal memo.
7. Per contra, learned counsel for the respondent no.3/insurance
company support the impugned award and submit that the deceased was
travelling as gratuitous passenger in the goods carrying vehicle. His
liability was not covered by the insurance company, therefore, learned
claims tribunal rightly exonerated the insurance company for payment of
compensation amount. He has also submitted that no case is made out for
enhancing the award amount by increasing the income of the deceased and
also paying amount in the head of future prospect.
8. To bolster his submissions, he has placed reliance on para 6 in
the case of Cholamandalam Ms General Ins. Co.Ltd. vs. Abdul Karim
Khan and others passed by co-ordinate Bench of this Court in
M.A.No.5896/2022 on 31/10/2023. The relevant para 6 is extracted as
under :-
"6. Though the Claims Tribunal has relied on
the judgment of the Supreme Court in the case of
Shivaraj v. Rajendra and another, (2018) 10 SCC
432 but it is true that the said judgment failed to
take into consideration a three- Judge Bench
decision in the case of New India Assurance Co.
Ltd. v. Asha Rani (supra) wherein it is held that if
there is no coverage, then there will be no liability
to pay compensation. When this aspect is taken into
consideration, then it is true that when there is no
coverage for gratuitous passengers travelling in a
goods carrying vehicle which too had capacity of
only two persons i.e. driver and one more, and three
persons were admittedly travelling besides the
driver then a direction to pay and recover, though
appears to be humanitarian but cannot be sustained
in the eye of law as there was no coverage for the
gratuitous passengers in the insurance policy."
9. He has also placed reliance on para 19 of the judgment passed
by Hon'ble the Supreme Court in the case of National Insurance
Company Limited vs. Rattani and others ; (2009) 2 SCC 75. The
relevant para 19 is extracted as under :
"19. In National Insurance Co. Ltd. v. Cholleti Bharatamma
this Court categorically held: (SCC p.433, paras 27-28)
27. The learned counsel appearing for the respondent,
submitted that from the aforementioned finding, it is evident
that the respondent was travelling as the owner of the goods.
We do not think that the said submission is correct. PW 2, in
his evidence, stated:
"I am doing tamarind business. I witnessed the accident
which took place about 3 years back at about 6 a.m. at
Borrampalem Junction beyond Talluru. At the time of the
accident I was in the crime lorry by the side of the driver.
Myself and 6 others were carrying tamarind in that lorry
belonging to us. We boarded the lorry along with our load of
tamarind at Dharamavaram to go to Rajanagaram. We were
selling the tamarind at Rajanagaram in retail by taking the
tamarind there in our lorry from our village of
Dharamavaram."
28. The Tribunal, therefore, correctly recorded that
according to PW 2, he was travelling with his goods as owner
thereof and not the deceased."
We, therefore, in the facts and circumstances of the case,
have no hesitation to hold that the victims of the accidents
were travelling in the truck as gratuitous passengers and in
that view of the matter, the appellant herein was not liable to
pay the amount of compensation to the claimants.
10. He has further placed reliance on para 14 of the judgment
passed by Hon'ble the Apex Court in the case of Oriental Insurance Co.
Ltd. vs. Premlata Shukla and others : (2007) 13 SCC 476. The relevant
para 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 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."
11. To buttress the point that FIR relied upon by the appellants will be
read as a whole.
12. Heard learned counsel for the parties and perused the record.
13. It is not in dispute that accident took place on 24/3/2008 wherein
deceased Bhagwandas Vishwakarma sustained injuries and died. The
offending vehicle, bearing registration no.UP 93-E-8995 was insured as
goods carriage vehicle, has been proved by Sales Officer Jaiveer Singh
(NAW/1). Insurance policy (Ex.D/1) also corroborates the statement of the
above witness. Learned claims tribunal in para 12 of the impugned award
has mentioned that respondent no.2/defendant no.2 , owner of the
offending vehicle has not dared to come before the claims tribunal to
prove the fact that deceased Bhagwandas was hired for loading and
unloading the offending vehicle. In such circumstances, learned claims
tribunal has concluded that the offending vehicle which is registered as
goods carrying vehicle was being used as passenger vehicle in violation of
the terms and conditions of the insurance policy, therefore, insurance
company is not liable to pay compensation.
14. Co-ordinate Bench of this Court in the case of
Cholamandalam Ms Gen Ins.Co. (Supra) has held that when there is no
coverage for gratuitous passenger travelling in goods carrying vehicle then
there is no liability on insurance company to pay compensation. It has
further been held that a direction to pay and recover in such cases though
appears to be humanitarian but cannot be sustained in the eye of law.
15. The judgment in the case of S. Iyyapan (Supra) relied upon by
the counsel for the appellants do not help as it is distinguishable from facts
of the case. In the instant case, the deceased was travelling in the goods
carrying vehicle and insurance company has not taken any premium for
covering the liability of the gratuitous passenger. Thus, in the conspicuous
of judgment referred above this Court is of the view that learned claims
tribunal has not committed any illegality in exonerating the insurance
company. Therefore, contention raised on behalf of the
appellants/claimants in this regard is not sustainable.
16. Learned counsel for the appellants has contended for
enhancement of the award on the ground that learned claims tribunal has
assessed income of the deceased in lower side. He has specifically
assailed the finding by learned claims tribunal in para 14 of the impugned
award that it was not possible for the deceased to work as Carpenter and
also as "Palledar".
17. Shivdayal (AW/1) has stated before the learned claims tribunal
that deceased Bhagwandas was earning Rs.200/- by working as Palledar
and also Rs.100/- from Carpentry. No cogent evidence has been led in this
regard. In the facts of the case, learned claims tribunal has assessed the
income of the deceased as Rs.3000/- p.m. and Rs.36,000/- per annum. In
absence of any evidence to the contrary, income of the deceased as taken
by the learned claims tribunal cannot be questioned. Therefore, the
contention raised by learned counsel for the appellants cannot be accepted
for taking enhanced income of the deceased. As far as grant of amount in
the head of future prospect is concerned, contention has substance on the
date of accident, the deceased was 33 years of age. As per the directions
contained in paragraph 59.4 in case of National Insurance Company
Ltd. vs. Pranay Sethi ; 2017(16) SCC 680 where the deceased was below
the age of 40 years self employed or on a fixed salary, an addition of 40%
of the established income should be the warrant. The relevant para 59.4 of
the judgment reads as under:-
"59.4 In case the deceased was self-employed or
on a fixed salary, an addition of 40% of the
established income should be the warrant where the
deceased was below the age of 40 years. An addition
of 25% where the deceased was between the age of
40 to 50 years and 10% where the deceased was
between the age of 50 to 60 years should be regarded
as the necessary method of computation. The
established income means the income minus the tax
component."
18. Thus, in the head of future prospects addition of 40% will be
considered. In the para 59.8, Pranay Sethi (supra), it has been held that
reasonable figures on conventional heads, namely, loss of estate, loss of
consortium and funeral expenses should be Rs.15000/-, Rs.40,000/- and
15000/- respectively.
19. In Magma General Insurance Company Limited vs. Nanu
Ram alias Chuhru Ram and Others, (2018) 18 SCC 130, concept of
spousal consortium to spouse, parental consortium to the dependent
children upon the pre matured death of parent and filial consortium to the
parents in case of an accidental death of child has been developed. Thus,
appellant no.3 Rajkumari is entitled for spousal consortium, Ankit and
Sonam, minor son and daughter of the deceased are entitled for parental
consortium @ Rs.40,000/- each.
20. In view of the above discussion, appellants are entitled to the
following amount as compensation:-
Sr.No. Head Compensation awarded
1. Income Rs.3000/- p.m.
2. Future prospects Rs.1200/- (40% of monthly income)
3. Deduction towards Rs.1050/- [1/4th of Rs.4200/(Rs.3000+Rs.1200)]
personal expenses
4. Total income Rs.3150/- (Rs.4200-Rs.1050) x 12=37,800/-
6. Loss of Rs.37,800 x 17 = Rs.6,42,600/-
dependency
7. Funeral expenses Rs.16,500/-
8. Loss of estate Rs.16,500/-
9. Loss of spousal Rs.44,000/-
consortium
10. Loss of parental Rs.88,000/-(Rs.44,000 X 2)
consortium to
appellants no.4 & 5
Total compensation = Rs.8,07,600/-(Eight Lakh Seven Thousand Six
Hundred only)
21. Thus, the just and proper amount of compensation in the instant
case is Rs.8,07,600/- (Rupees Eight Lakh Seven Thousand Six Hundred
only) as against the award of the Tribunal of Rs.4,79,000/-(Rupees Four
Lakh Seventy Nine Thousand only). Accordingly, appellants are entitled
to an additional sum of Rs.3,28,600/- (Rupees Three Lakh Twenty Eight
Thousand Six Hundred only) over and above the amount which has been
awarded by the Tribunal.
22. Resultantly, the appeal is partly allowed by enhancing the
compensation amount by a sum of Rs.3,28,600/- (Rupees Three Lakh
Twenty Eight Thousand Six Hundred only). The enhanced amount shall
bear interest at the same rate as awarded by the Tribunal. The other
findings recorded by the Tribunal shall remain intact.
23. Record of the claims tribunal be sent back along with the copy of
the order.
(BINOD KUMAR DWIVEDI)
JUDGE
m/-
