Madhya Pradesh High Court
Sunita Bai vs Surendra Kumar Kole on 30 May, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. APPEAL No. 2837 of 2022
BETWEEN:-
1. SUNITA BAI W/O LAKHANLAAL SONI,
AGED ABOUT 46 YEARS, GRAM
PATHARHATA, THANA AMDRA,
DISTRICT- SATNA, M.P. (MADHYA
PRADESH)
2. BRIJENDRA SONI S/O LAKHANLAAL
SONI, AGED ABOUT 26 YEARS, R/O
GRAM PATHARHATA THANA AMDRA
DISTRICT SATNA M.P. (MADHYA
PRADESH)
3. SULABH KUMAR SONI S/O
LAKHANLAAL SONI, AGED ABOUT 26
YEARS, R/O GRAM PATHARHATA
THANA AMDRA DISTRICT SATNA M.P.
(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI KAPIL PATWARDHAN - ADVOCATE)
AND
1. SURENDRA KUMAR KOLE S/O
PARDESHI KOLE, AGED ABOUT 40
YEARS, INDIRA GANDHI WARD KATNI,
DISTRICT- KATNI, M.P. (MADHYA
PRADESH)
2. ABHISHEK PANDEY S/O ARUN KUMAR
PANDEY R/O NAROTTAM SHARMA
WARD NEAR VAISHYA HOSPITAL
KATNI DISTRICT KATNI M.P. (MADHYA
PRADESH)
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 01-06-2024
15:45:10
2
3. NATIONAL INSURANCE COMPANY LTD.
THROUGH BRANCH MANAGER
BRANCH OFFICE IN FRONT OF
KATAYEGHAT MOD BARGWAN
JABALPUR ROAD KATNI DISTRICT
KATNI M.P. (MADHYA PRADESH)
.....RESPONDENTS
(MS. AMRIT KAUR RUPRAH - ADVOCATE FOR RESPONDENT NO.3)
MISC. APPEAL No. 3257 of 2022
BETWEEN:-
NATIONAL INSURANCE CO.LTD.
THROUGH DY. MANAGER T.P. HUB
JABALPUR BRANCH CIVIL CENTRE
KARAMCHAND CHOWK DISTT. JABALPUR
(MADHYA PRADESH)
.....APPELLANT
(BY MS. AMRIT KAUR RUPRAH - ADVOCATE)
AND
1. SUNITA BAI W/O LT. LAKHAN LAL
SONI, AGED ABOUT 46 YEARS,
VILLAGE PATHARHATA P.S. AMDARA
DISTT. SATNA (MADHYA PRADESH)
2. BRAJESH SONI S/O LATE LAKHAN LAL
SONI, AGED ABOUT 28 YEARS,
VILLAGE PATHARHATA P.S. AMDARA
DISTT. SATNA (MADHYA PRADESH)
3. SULABH KUMAR SONI S/O LATE
LAKHAN LAL SONI, AGED ABOUT 26
YEARS, VILLAGE PATHARHATA P.S.
AMDARA DISTT. SATNA (MADHYA
PRADESH)
4. SURENDRA KUMAR KOL S/O SHRI
PARDESHI LALKOL INDIRA GANDHI
WARD, KATNI (MADHYA PRADESH)
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 01-06-2024
15:45:10
3
5. ABHISHEK PANDEY S/O ARUN KUMAR
PANDEY R/O NAROTTAM SHARMA
WARD NEAR VAISHYA HOSPITAL
KATNI DISTRICT KATNI M.P. (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI KAPIL PATWARDHAN - ADVOCATE)
MISC. APPEAL No. 3259 of 2022
BETWEEN:-
NATIONAL INSURANCE CO.LTD.
THROUGH DY. MANAGER T.P. HUB
JABALPUR BRANCH CIVIL CENTRE
KARAMCHAND CHOWK DISTT. JABALPUR
(MADHYA PRADESH)
.....APPELLANT
(BY MS. AMRIT KAUR RUPRAH - ADVOCATE)
AND
1. MATHURA SAHU S/O PADDU SAHU,
AGED ABOUT 60 YEARS, GRAM
PATHARHATA, POST SABHAGANJ,
JHUKEHI, ZILA- SATNA, M.P. (MADHYA
PRADESH)
2. SURENDRA KUMAR KOL S/O SHRI
PARDESHI LAL KOL, AGED ABOUT 60
YEARS, R/O INDIRA GANDHI WARD
KATNI (MP) (MADHYA PRADESH)
3. ABHISHEK PANDEY S/O ARUN KUMAR
PANDEY R/O NAROTTAM SHARMA
WARD NEAR VAISHYA HOSPITAL
KATNI DISTRICT KATNI M.P. (MADHYA
PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS)
----------------------------------------------------------------------------------------------
Reserved on : 02.05.2024
Signature Not Verified
Signed by: S HUSHMAT
HUSSAIN
Signing time: 01-06-2024
15:45:10
4
Pronounced on : 30.05.2024
----------------------------------------------------------------------------------------------------
These appeals having been heard and reserved for orders, coming on
for pronouncement on this day, the court passed the following:-
ORDER
This common order shall govern disposal of MA No. 2837 of 2022
(Sunita Bai and Ors Vs. Surendra Kumar Kole and Ors.), MA No. 3257 of
2022 ( National Insurance Co. Ltd. Vs. Sunita Bai and Ors.) and MA No.
3259 of 2022 ( National Insurance Company Ltd. Vs. Mathura Sahu and
Ors.). All the appeals are arising out of common award dated 15.02.2022
passed in MACC Nos. 560/2019 and 620/2019 by Member, Motor Accident
Claims Tribunal Katni, Distt. Katni.
2. MA No. 3259 of 2022 and MA. No. 3257 of 2022 have been filed by
appellant - Insurance Company seeking exoneration from liability to pay the
compensation / setting aside of the impugned award whereas MA No.
2837/2022 has been filed on behalf of claimants seeking enhancement of
compensation.
3. Learned counsel for the appellant-Insurance company in MA No.
3257/2022 and 3258/2022 submits that in the instant case accident occurred
on 09.05.2019 and Lakhan Lal Soni expired on 22.05.2019. After death of
Lakhan Lal, information was sent by concerned hospital to police station on
22.05.2019. FIR has been registered on 27.06.2019, after delay of 1 month
and 18 days against the vehicle MP-21CA/4608. It is urged that in merg
intimation sent by concerned hospital / merg intimation / MLC / PM report
and other related medical documents, which have been prepared immediately
after the accident, number of vehicle is not mentioned. It is also urged that in
discharge summary prepared by Dharamlok Hospital, Katni it is stated that
accident has occurred by two wheeler and not by four wheeler. It is also
urged that applicant witness Vijay Sahu is a planted witness and injured
Mathura Sahu is an interested witness because he has himself filed claim
petition. It is also urged that police statements of all thewitnesses have been
recorded between 09.05.2019 and 27.06.2019. Number of vehicle is not
mentioned in any document. It is not clear from the evidence on record as to
how number of offending vehicle came to the knowledge of investigating
officer. It is also urged that injured Mathura Sahu did not lodge any report. If
he had seen the number of offending vehicle, then, certainly he would have
lodged the report. He also did not give statement to police immediately after
the accident stating that accident has occurred from the offending vehicle.
4. In the accident Lakhan, Mathura and Bhuri got injured. It is also urged
that Vijay Sahu is of the same village and society to which
deceased/applicants belong. Applicant witness Vijay Sahu has deposed that
he took injured to Government hospital and not to any private hospital
whereas Dharamlok Hospital is a private hospital and not a Government
hospital. Hence applicant witness Vijay Sahu and Mathura Sahu are not
reliable and trustworthy witnesses and applicant witness Sunita Bai is not an
eyewitness.
5. In view of above, it is submitted that in the instant case FIR is delayed
and there is no explanation for the same. Delay in registering the FIR also
goes to show that applicant witness did not know the number of offending
vehicle, thereby no report was lodged immediately after the accident.
Tribunal has wrongly relied upon the testimony of Vijay Sahu and Mathura
Sahu. The vehicle has been falsely implicated in the case. It is also urged, by
relying upon the Sarla Verma & others vs. Delhi Transport Corporation
& another reported in (2009) 6 SCC 121 that ½ has rightly been deducted
by the Tribunal and it is not mentioned in Sarla Verma (supra) that if
deceased is married then minimum 1/3 is to be deducted. On above grounds,
it is urged that appeal filed by the appellant -insurance company be allowed
and appeal filed by the claimants be dismissed.
6. Learned counsel for the appellant-claimants in MA No. 2837/2022
submits that in the instant case, insurance company has not examined
investigating officer and no evidence had been adduced in rebuttal to that
filed by the applicant-claimants. Further in cross-examination of applicant
witnesses Mathura Sahu and Vijay Sahu nothing has come out so as to render
them as unreliable or untrustworthy. Therefore, the Tribunal has rightly found
established that accident occurred from the offending vehicle.
7. So far as quantum of compensation is concerned, learned counsel for
the appellants-claimants has submitted that in the instant case accident
occurred on 09.05.2019 and Tribunal has determined deceased's monthly
income as Rs.6,000/- per month. Whereas on the date of accident minimum
wages of an unskilled labour was Rs. 7,700/- per month. Therefore,
deceased's monthly income should have been determined accordingly. The
Tribunal has rightly applied multiplier of 13 and has added 25% as future
prospects. But after referring to Sarla Verma (supra) and the judgment of
this Court in the case of Oriental Insurance Vs. Mukesh Kumar Tiwari
andOrs. ( M.A. No. 3311/2022 dated 16th August, 2022) learned counsel
for the claimants submits that in the instant case deceased was married and
he was also having two sons. Therefore, Tribunal has wrongly deducted ½ for
personal and living expenses instead 1/3 should have been deducted for
personal and living expenses. Therefore, compensation awarded by the
Tribunal be suitably enhanced and appeals filed by the Insurance company be
dismissed.
8 I have heard learned counsel for the parties and perused the record of
the case.
9. So far as issue, whether offending vehicle has been falsely implicated
in the instant accident, is concerned, it is correct that instant accident
occurred on 9.5.2019 and Lakhan has expired on 22.5.2019 and marg
intimation has been lodged on 22.05.2019 and in marg intimation no vehicle
number has been mentioned. FIR has been registered on 27.6.2019 i.e. after a
delay of 1 month and 18 days against car bearing registration number MP-21-
CA-4608. It is correct that in MLC, marg intimation, Pm report and other
medical documents, prepared immediately after the accident, number of
offending vehicle is not mentioned.
10. From record of the case, it is evident that in the instant accident,
Lakhan has expired whereas applicant witnesses Mathura and Ghuri have
sustained injuries. With respect to present accident, Charge sheet has been
filed against driver of offending vehicle after investigation into instant
accident. It is also evident from FIR, which has been registered after marg
enquiry and from Ex.P/5, that injured Lakhan was not in a fit condition to
give statement.
11. Perusal of cross examination of applicant witness Vijay Sahu, especially,
on behalf of driver of offending vehicle and insurance company reveals that no
such specific suggestions have been given to the witness with respect to non-
involvement of offending vehicle in the accident and nothing substantive has
come out in his cross examination so as to render him unreliable or
untrustworthy witness. It is correct that applicant witness Vijay Sahu has stated
in his cross examination that he took Lakhan, Ghuri and injured Mathura to
Government Hospital, Katni whereas from record of the case, above persons
were taken to the private hospital. In this Court' opinion, just on the basis of
above discrepancy, applicant witness Vijay Sahu's testimony cannot be
discarded.
12. Similarly, perusal of applicant witness Mathura Sahu, who was injured in
the same accident, also reveals that he has been cross examined on behalf of
insurance company and driver of offending vehicle but nothing substantive has
come out in his cross examination so as to render him unreliable or
untrustworthy.
13. In the instant case, driver of offending vehicle has remained present
before the Tribunal but he has not examined himself where as he was the most
material witness and no explanation has been furnished for the same on behalf
of the driver of the offending vehicle. Therefore, adverse inference can be
drawn against the driver of the offending vehicle that he caused instant accident
by driving the vehicle rashly and negligently, therefore, he did not get himself
examined before the tribunal.
14. In the instant case, applicant has examined Vijay Sahu and Mathura, who
are eye witness to the incident. No evidence in rebuttal on behalf of respondents
has been adduced and they have also not examined the investigating officer.
Deposition of applicant witnesses also stands corroborated from the documents
of the criminal case. Further, in the instant case, claimants are not required to
prove their case beyond reasonable doubt and they can prove it, by
preponderance of probabilities.
15. Further, evidence of applicant witnesses cannot be discarded on any ground
mentioned by the learned counsel for the appellant insurance company in his
submissions. It cannot be said that Tribunal has wrongly relied upon applicant
witnesses. There is nothing on record to prove that there is any relation between
owner, driver and claimants.
16. Hence, in view of discussion in the forgoing paras, in this Court's opinion,
from evidence on record, it is not proved that offending vehicle has been falsely
implicated in the case. Therefore, findings recorded by the Tribunal with respect
to above are affirmed and submissions of learned counsel for the
appellant/insurance company are rejected.
17. So far as quantum of compensation is concerned, in the instant case,
accident occurred on 9.5.2019 and on the date of accident, minimum wages of
an unskilled labour were Rs.7700/- per month. Therefore, deceased's monthly
income is determined as Rs.7700/- and 25% future prospects are to be added
and multiplier of 13 is to be applied.
18. So far as deduction for personal and living expenses is concerned, learned
counsel for the appellant submits that Tribunal has wrongly deducted 1/3.
Admittedly, in the instant case, deceased was a married person and he was also
having two sons. Hence, in view of law laid down in the case of Sarla Verma
and Delhi Transport Corporation and Anr. AIR 2009 SC 3104 and by Co-
ordinate Bench of this Court in the case of The Oriental Insurance Company
Vs. Mukesh Kumar and others passed in MA 3311/2022 dated 16.8.2022,
Tribunal has wrongly deducted 1/3 for personal and living expenses and not ½
as deducted by the Tribunal. Therefore, 1/3 is to be deducted for personal and
living expenses.
19. Hence, in view of above, compensation is re calculated:-
S.No. HEADS COMPENSATION
1. Monthly income of the deceased Rs.7700/-
2. Add future prospects 25% Rs.9625/-
3. Less Personal and Living Expenses 1/3
4. Monthly Loss of Dependency Rs.6419/-
5. Annual Loss of Depedency Rs.77,028/-
7 Total Loss of Dependency Rs.10,01,364/-
8 Consortium Rs.1,20,000/-
9 Compensation for Loss of Estate Rs 15,000/-
10 Funeral Esp. Rs.15,000/-
11 Total compensation RS 11,51,364/-
12 Compensation awarded by Rs. 7,80,000/-
Tribunals
13 Actual Compensation Rs. 3,71,364/-
20. Hence, compensation awarded by the Tribunal is enhanced by
Rs.3,71,364/-.
21. Enhanced amount of compensation i.e. Rs.371364/- shall carry interest at
the rate awarded by the Tribunal. Other findings of the Tribunal shall remain
intact.
22. Appellant has valued his appeal for Rs.2,00,000/-. Therefore, appellants
shall be entitled to receive the enhanced amount only after paying deficit court
fees.
23. Hence, in view of above, appeal filed by the insurance company ie.. MA
No.3257/2022 and 3259/2022 are dismissed and MA No.2837/2022 is allowed
and disposed off to the extent indicated hereinabove.
(ACHAL KUMAR PALIWAL)
JUDGE
Nks/sh
