Madhya Pradesh High Court

Hdfc Egro General Insurance Company ... vs Mahila Dayavati on 10 July, 2025

           NEUTRAL CITATION NO. 2025:MPHC-GWL:14275




                                                              1                                  MA-112-2014
                               IN     THE      HIGH COURT OF MADHYA PRADESH
                                                     AT GWALIOR
                                                         BEFORE
                                       HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
                                                    ON THE 10th OF JULY, 2025
                                                   MISC. APPEAL No. 112 of 2014
                                HDFC EGRO GENERAL INSURANCE COMPANY LIMITED
                                                    Versus
                                        MAHILA DAYAVATI AND OTHERS
                          Appearance:
                                    Shri Bal Krishna Agrawal - Advocate for the appellant.
                                    None for the respondents though served.

                                                                  ORDER

This miscellaneous appeal has been preferred by the appellant/Insurance Company for setting aside the award dated 30.10.2013 passed by the Additional MACT, Pichhore, Distt. Shivpuri, in Claim Case No.50/2011 whereby learned MACT has awarded an amount of Rs.4,28,000/- along with interest @ 7% per annum to the claimant for the death of deceased Mukesh Lodhi in road accident.

2. The necessary facts for disposal of this appeal are that the deceased,

who was the husband of appellant, was keeping watch on the crop at his field situated at the bank of Budhna river in village Kundanpur. At 11.30 pm respondent No.1, driver of dumper bearing registration No.MP-33-H-1635 by driving it rashly & negligently, ran over deceased Mukesh Lodhi, due to which he died on the spot.

3. Learned counsel for the appellant/Insurance Company has submitted that

NEUTRAL CITATION NO. 2025:MPHC-GWL:14275

2 MA-112-2014 learned Tribunal has erred in deciding issue No.4 that Insurance Company has failed to prove that at the time of accident the offending vehicle was not having any valid and effective permit or fitness. He drew the attention of this Court to the statement of Lakhan Singh Bareliya (NAW-1), who is the employee of RTO Shivpuri. He stated in his chief examination that he after considering the entire record has issued certification that there was no permit and fitness with the offending vehicle on the date of accident. On his examination dated 17.05.2013 he has reiterated this fact even in cross- examination. However, when he was again called by the learned Tribunal on 10.10.2013 he took a somersault in his examination-in-chief by non- applicant No.2 that on 13.06.2011 the owner of the vehicle Reetesh Jain has deposited the fee in regard to permit, registration and fitness in the office of

Regional Transport Office which is depicted in Ex.D/4. It is also stated by him that on 14.06.2011 registration was issued, but due to some technical flaw computer copy of permit and fitness could not be issued. After removal of technical flaw, the copy of permit and fitness have been issued on 20.06.2011, therefore, on the date of accident i.e. 19.06.2011 there was valid and effective permit and fitness.

4. It is further submitted that the statement of this witness Lakhan Singh Bareliya (NAW-1) dated 10/10/2013 does not inspire confidence as he earlier stated that after due consideration and perusal of the record, he has issued certification Ex.D/1 and Ex.D/2. In the light of Ex.D/1 and Ex.D/2, the documents Ex.D/4 to Ex.D/7 cannot be believed, and therefore, learned Tribunal's conclusion to find it proved that Insurance Company has failed to

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3 MA-112-2014 prove that offending vehicle was not having valid and effective permit and fitness on the date of accident and resultanatly there is no breach of condition of insurance policy, is erroneous and is liable to be set aside. 5 . It is also submitted by learned counsel for the Insurance Company that learned Tribunal has assumed the dependency of sole claimant on the deceased as 1/3rd while it ought to be 50%. He relied upon the decision of Coordinate Bench of this Court in the case of Shriram General Insurance Co. Ltd. vs. Smt. Reena & Ors. decided on 05.09.2022 in M.A.No.2827/2018 and in the case of Shriram General Insurance Co. Ltd. Vs. Smt. Rani Jatav and others decided on 11.01.2016 in M.A.No.1162/2013 and submitted that dependency ought to be assessed as 50%. He also submitted that learned Tribunal has imposed penal interest @ 9% if the compensation has not been deposited within two months, but such penal interest cannot be awarded against Insurance Company. In this respect, he relied upon the decision of the Apex Court in the case of National Insurance Co. Ltd. vs. Keshav Bahadur and others, 2004 ACJ 648.

6. None appeared on behalf of the respondents even after service. 7 . Having heard learned counsel for the appellant and on perusal of the record, it is found that Lakhan Singh Bareliya (NAW-1) though has stated in his affidavit of chief examination and statement dated 17.05.2013 that there was no valid permit and fitness in respect of offending vehicle on the date of accident i.e. 19.06.2011, but when this witness has again been called on the prayer of non-applicant No.2, the owner of the offending vehicle, he on

10.10.2013 came with record in respect of the fee deposited for the permit,

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4 MA-112-2014 registration and fitness qua offending vehicle. He stated that such fee has been deposited in the office of Regional Transport Office on 13.06.2011 by the owner Reetesh Jain and the registration has been issued on the next day i.e. 14.06.2011 but due to some technical flaw the copy of permit and fitness could not be issued which were issued after removing the flaw on 20.06.2011. This witness categorically stated in para 10 that on the date of accident i.e. 19.06.2011 valid and effective permit and fitness were available in favour of the offending vehicle. He remained intact in his cross- examination. Since on 17.05.2013, when the record in respect of deposition of fee by the owner of the offending vehicle was not brought by this witness which was available on 10.10.2013, therefore, in the light of such record, his statement dated 10.10.2013 cannot be discarded being contradictory and as such the learned Tribunal has rightly concluded in the light of aforesaid statement that before the accident the owner of the vehicle has deposited required fee for permit, registration and fitness on 13.06.2011 and due to technical flaw fitness and permit could not be issued, but they were got prepared on 14.06.2011 and after removal of technical flaw such documents have been issued on 20.06.2011. In these circumstances, it is clear that these documents were prepared and available with the R.T.O. on the date of accident, hence, the conclusion of learned Tribunal in that respect is not found to be faulted with, perverse or illegal.

8. So far as the contention of learned counsel for the appellant as regards dependency is concerned, keeping in view the law laid down by the Coordinate Bench of this Court in the cases of Smt. Reena and Smt. Rani

NEUTRAL CITATION NO. 2025:MPHC-GWL:14275

5 MA-112-2014 (supra), it is appropriate to assume dependency of sole claimant as 50%.

9. So far as the contention of learned counsel for the appellant in respect of penal interest is concerned, the Hon'ble Apex Court in the case of Keshav Bahadur (supra) in para 14 of the said judgment has held as under :-

"Though Section 110-CC of the Act (corresponding to Section 171 of the new Act) confers a discretion on the Tribunal to award interest, the same is meant to be exercised in cases where the claimant can claim the same as a matter of right. In the above background, it is to be judged whether a stipulation for higher rate of interest in case of default can be imposed by the Tribunal. Once the discretion has been exercised by the Tribunal to award simple interest on the amount of compensation to be awarded at a particular rate and from a particular date, there is no scope for retrospective enhancement for default in payment of compensation. No express or implied power in this regard can be culled out from Section 110-CC of the Act or Section 171 of the new Act. Such a direction in the award for retrospective enhancement of interest for default in payment of the compensation together with interest payable thereon virtually amounts to imposition of penalty which is not statutorily envisaged and prescribed. It is, therefore directed that the rate of interest as awarded by the High Court shall alone be applicable till payment, without the stipulation for higher rate of interest being enforced, in the manner directed by the Tribunal."

Keeping in view the observations made in para 14 of the judgment, this Court is of the considered view that penal interest as imposed in this case by learned Tribunal is not lawful, therefore, it is set aside.

10. Consequently, the appeal filed by the Insurance Company is partly allowed in above terms and the amount of compensation is reduced as under