Madhya Pradesh High Court
Smt. Premlata vs Vireshwar Sikarwar on 22 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:15239
1 MA-1033-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 22nd OF JULY, 2025
MISC. APPEAL No. 981 of 2012
NEW INDIA ASSURANCE COMPANY LTD. HAVIND DIVISIONAL
OFFICE NO. 2 MOTI MAHAL ROAD, LASHKAR GWALIOR
Versus
SMT. PREMLATA AND OTHERS
Appearance:
Shri Shrinivas Gajendragadkar - Advocate for the appellant/Insurance
Company.
Shri Rajkumar Singh Kushwah - Advocate for the respondents No.1 to
4.
WITH
MISC. APPEAL No. 1033 of 2012
SMT. PREMLATA AND OTHERS
Versus
VIRESHWAR SIKARWAR AND OTHERS
Appearance:
Shri Raj Kumar Singh Kushwah - Advocate for appellants.
Shri Shrinivas Gajendragadkar - Advocate for respondent No.3/Insurance
Company.
ORDER
These appeals filed under section 173 (1) of the Motor Vehicles Act
are being decided by this common order, as they are arising out of the same
accident.
2 . M.A.No.981/2012 (New India Assurance Co. Ltd. Vs. Smt.
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Premlata and Others ) has been filed by appellant Insurance Company
against the award dated 28.06.2012 passed by the Second Motor Accident
Claims Tribunal, Morena in MACC No.15/2011 whereby learned MACT
has awarded compensation of Rs.2,00,000/- in favour of the claimants for the
death of Satish Jatav and M.A.No.1033/2012 ( Premlata and Others Vs.
Vireshwar Sikarwar and Others) has been filed by the appellants/claimants
for enhancement of the compensation by Rs.4,00,000/- awarded by the
Claims Tribunal against the same award dated 28.06.2012 in MACC
No.15/2011, whereby MACT has awarded compensation amount of
Rs.2,00,000/- along with interest @ 6% per annum to the claimants on
account of death of deceased Satish Jatav in a road accident.
3. Hereinafter for convenience the appellant/Insurance Company shall
be referred as "the Insurance Company" and claimants Smt. Premlata and
Others shall be referred as "the claimants".
4.The facts necessary for disposal of these appeals, in short, are that on
30.01.2011 at 8.30 pm deceased Satish Jatav was going from Sabalgarh to
Morena on his motorcycle, as soon as he reached opposite to Sikarwar
Farm, the respondent No.2 Jitendra Goswami was driving the offending
vehicle rashly and negligently and by coming in wrong direction, dashed the
motorcycle of the deceased, as a result of which, he sustained grievous
injuries on head, hands and whole body. The deceased was brought to
Kailaras Hospital. From there, he was taken to District Hospital Morena,
then to J.A. Hospital, Gwalior and ultimately he was referred to Lok Nayak
Hospital, New Delhi, where, during treatment, he died.
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5 . It is submitted by the learned counsel for the appellant/Insurance
Company that the learned Tribunal has erroneously held the Insurance
Company liable, whereas it is a clear-cut case of false implication of the
offending vehicle. As per the postmortem report Ex.P/4 and statement of
father of deceased Sripati, which have been filed by Ex.D/1 and Ex.D/2,
clearly show that the deceased fell from the bike after hitting the tree nearby
the road. Therefore, there is no involvement of the offending vehicle in the
accident. It is also submitted that the F.I.R. of the accident has been lodged
after enormous delay on 06.04.2011, while the accident occurred on
30.01.2011. While placing the reliance upon the judgment of Division
Bench of this Court in case of Arun Kumar Patel and another Vs. Smt.
Terasi Saket and Others, ILR (2008) M.P.282 , it is submitted that it is a case
of false implication. The Insurance Company is not at all liable to pay
compensation. There is no ground for enhancement of the compensation
amount. The assessment of compensation is appropriate, however, the
Insurance Company is not liable to pay compensation. He also placed a
reliance upon the judgment of the Division Bench of this Court in the case of
Kanhaiyalal and Another Vs. Sitabai and six others in Misc. Appeal No.300
of 1998 decided on 24.04.2003.
6. Per contra, the learned counsel appearing on behalf of the claimants
has submitted that the claimants have adduced Feluram(AW-2) as an
eyewitness to the accident and he has supported the version as stated in the
claim petition and the document Ex.P/2 F.I.R. as well as other documents
connected thereto and the charge-sheet Ex.P/1 supported the factum of
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accident as stated by Feluram (AW-2). There is no rebuttal of evidence on
behalf of the non-applicant. The non-applicant's witnesses Arvind (AW-1)
and Parmanand (AW-2) are not eyewitnesses to the accident and, therefore,
they did not render the veracity of the statement of Feluram (AW-2)
doubtful. On the basis of oral and documentary evidence and material on
record, learned tribunal has rightly observed in paragraphs 8 to 13 that the
factum of accident is proved so also involvement of the offending vehicle
has been found proved. There is no ground to interfere with those findings.
It is further submitted by the learned counsel for the claimants that the
learned Tribunal has awarded the amount of compensation on lower side.
The learned Tribunal has assumed the income of deceased as Rs.15,000/- per
year, while on the date of accident, the minimum wage of labour was
Rs.4145/- per month. Deceased was 22 years old at the time of accident,
therefore appropriate multiplier is 18 and claimants are also entitled to 40%
future prospects. Learned tribunal has assessed the dependency of Widow
and her daughter on the deceased and therefore rightly applied 2/3rd
dependency on the deceased. On other heads also, the amount of
compensation is on the lower side. Keeping in view these arguments, he
prays for enhancement of the compensation amount.
7. Heard the learned counsel for the parties and perused the record.
8. The factum of accident has been challenged by Insurance Company
on the ground that it is a case of false implication. In this regard, the
applicants have adduced Premlata (AW-1) and eyewitness to the accident
Feluram (AW-2). Premlata is not an eyewitness to the accident. She denied
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the fact that her husband does not have the skill to drive motorcycle. She
also denied that her husband was riding the motorcycle rashly and
negligently and due to the slip of motorcycle he sustained injuries and
offending vehicle has caused no accident. Feluram (AW-2) is the eyewitness
to the accident and he categorically stated in his statement that on
30.01.2011, he and Siyaram were going from Kailaras to Sabalgarh by
motorcycle. At 7.30 PM, a Muruti van bearing registration No.MP07 BB
0162 has over overtaken them and by driving it rashly and negligently by the
driver of the vehicle has dashed the motorcycle of Satish, who was riding the
motorcycle. The collision is so forceful that the motorcycle and Satish were
thrown away and hit with the tree. After the accident, the offending vehicle
of the driver has fled away. He followed the offending vehicle and after two
kilometers, they have stopped the offending vehicle. But the driver of the
offending vehicle had ran away. They noted the registration number of the
Maruti Van. Thereafter, the driver of Maruti Van took the offending
vehicle.
9 . Feluram (AW-2) has been cross-examined by the non-applicants
and Insurance Company. He also described in the cross-examination that at
the time of accident, there was darkness, but they had seen the offending
vehicle clearly and taken the registration number noted. He categorically
denied the suggestions put by the non-applicants that the accident by
offending vehicle has not caused the accident and Satish himself being riden
the motorcycle rashly and negligently had slipped and sustained the injuries.
He expressed his unawareness regarding the fact that Sripati has intimated to
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Police Delhi that deceased was collided with a tree.
10. Feluram (AW-2) has been cross-examined by the non-applicants at
length, but he remained intact in the remained in the cross-examination on
the version given by him in the chief examination. Though, he admitted that
he has not lodged any F.I.R. However, generally, the members of the public
did not want to indulge in police cases to save them from police and court
proceedings. After the accident, the deceased was taken to the hospital and
thereafter the family members have also reached there and taken the
deceased to Morena and thereafter to Delhi hospital, therefore, it was not
quite natural for this witness to lodge F.I.R. separately especially when the
deceased has immediately been referred to the Police Kailaras and Police
Kailaras has got conducted MLC of the deceased as per Ex.P/8. Therefore,
police had the information regarding the accident.
11. The F.I.R. Ex.P/2, though, has been registered on 20.04.2011,
while the date of information is mentioned as 06.04.2011. When we go
through this F.I.R. it reveals that the merg intimation has been received from
the Delhi police on 06.04.2011 and after registering the merg case and
completion of merg enquiry, this F.I.R., EX.P/2 has been registered on
20.04.2011. Therefore, it cannot be said that the F.I.R. has been lodged with
the enormous delay. At the cost of repetition, it has been again mentioned
here that on the date of accident 30.01.2011, the deceased was brought to the
Police station Kailaras, police got conducted the MLC of the deceased which
is Ex.P/8. Therefore, Police held the information of the accident on the date
of the accident itself.
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12. Ex.P/3, Ex.P/4, Ex.P/5 and Ex.P/6 are the documents of
postmortem report which have been conducted on 04.02.2011 by Lok Nayak
Hospital, New Delhi. Ex.P/4 contains the history that the father of the
deceased has unfolded that his son Satish's motorcycle slipped and then
admitted to the hospital. Ex.P/6 also contains the fact that the deceased was
hit by his motorcycle with tree. It is pertinent to mention here that the father
or other family members were with the deceased while treatment in Delhi
hospital, but none of the member of the deceased's family or the father of the
deceased were the eyewitnesses to the accident. Since they have not seen the
accident directly, therefore, the version stated in Ex.P/4 and Ex.P/6 does not
dent the claimant's version and factum of accident.
13. Ex.P/11 is the spot map in which the location of motorcycle has
been shown near Banyan tree which is nearby the road, between the road and
railway line however, as the witness Feluram has stated in his chief
examination that the collision was so forceful that motor cycle and Satish
were hit with the tree. Therefore, after the accident the location of
motorcycle was nearby tree does not denote that the deceased was negligent
himself, colliding with the tree would not found to be believable, especially
in absence of cogent evidence in that regard.
14. Ex.P/12 is the seizure memo of offending vehicle and Ex.P/7 is the
arrest memo of respondent Jitendra Goswami, against whom the police after
getting the investigation complete has filed the charge-sheet under Sections
304-A of IPC. The seizure memo and arrest memo have been prepared on
20.04.2011. Ex.P/14 and Ex.P/15 are MLC report of the deceased at New
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Delhi. Ex.P/16 is a mechanical examination report. Ex.P/1 is the final
charge-sheet filed against the driver of the offending vehicle Jitendra in
which Feluram has been stated as an eyewitness in witness list No.5.
Therefore, the factum that Feluram was the eyewitness of the accident is
beyond any doubt. The statement of Feluram (AW-2) is unrebuttable. The
appellant Insurance/Company has examined though Arvind Goyal (NAW-1)
who is the investigating officer for Insurance Company and Parmanand
Varma, who is the officer of the Insurance Company but both are not the
eyewitnesses to the accident. Arvind (NAW-1) has admitted that Ex.D/2,
which is said to be the statement of father of the deceased did not contain the
fact that the father was with the deceased at the time of accident and the
statement contains no fact qua the father had seen the accident. Parmanand
(NAW-2) has also admitted in his cross-examination that Police after the
investigation has filed the charge-sheet against the offending vehicle and
offending vehicle was insured with them under the policy Ex.D/4.
1 5 . In the case of Bimla Devi Vs. Himachal Road Transport
Corporation AIR 2009 SC 2819 it is ruled by the Hon'ble Apex Court that in
claim cases the claimant is not under the obligation to adduce cogent
evidence. The claim cases are to be decided on the principle of
preponderance of probability. Principle of beyond reasonable doubt is not
applicable in such cases.
16. In the case of Rajendra Singh Vs. Sheetal Das, 1992(1) M.P.W.N.
104, it has been observed that if the driver of the offending vehicle is not
examined on behalf of the non-applicants, a presumption may be drawn
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against him that he was driving the offending vehicle rashly and negligently.
17. In case of National Insurance Company Ltd Vs. Sanjay Kumar &
Ors, II(2011) ACC 75 it has been held by the Punjab & Haryana High Court
that when driver of the offending vehicle is facing criminal trial, prima facie
it can be presumed that he was responsible for accident.
18. In sum and substance of the foregoing discussion, it can be said
that there is no inordinate delay on the part of the claimants in lodging the
F.I.R. Since Police Kailaras had the information on the date of accident
itself about the accident and thereafter, the family members were remain
busy with the deceased in providing the treatment to the deceased in Morena
and thereafter in Delhi. Delhi Police has registered a merg intimation on the
death of deceased on 04.02.20211 and since the police proceedings have
been started, therefore, no separate F.I.R. was required to be lodged by the
claimants of this case. The delay has been caused in registering the F.I.R.
and investigation is attributed to the Police, for which the claimants cannot
be blamed.
19. In case of Kanhaiyalal (supra) and Arun Kumar Patel (supra ), in
the light of the attending facts and circumstances of the case, it is not found
proved that the deceased was died in the alleged accident; therefore, no
compensation was awarded. But, here in this case, regard being had to the
attending facts and circumstances of the case coupled with the evidence,
both oral and documentary and material available on record which clearly
depicts that claimants have successfully established the factum of accident
and involvement of offending vehicle in the accident and rash and negligent
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driving of the respondent - Jitendra. Learned Tribunal did not err in
concluding in deciding Issue No.1 in affirmative and Issue No.2 in negative.
20. As far as the enhancement is concerned, the learned Tribunal had
awarded the compensation as Rs.2,00.000/-. The learned tribunal has
assumed the income of the deceased as Rs.15,000/- per year. Though, the
income of the deceased in this case is not found proved, inasmuch as no
documents are filed and got proved which might be available. Mere
assertion in that regard is not sufficient to prove income as held by the Apex
Court in the case Syed Basheer Ahamed and others vs. Mohammed Jameel and
another, (2009) 2 SCC 225 In case of Syad Bhasseen.
21. In absence of cogent and reliable proof of the income, the learned
Tribunal ought to assume the income of the deceased as per the minimum
wage of unskilled labour prevailing in the State of Madhya Pradesh at that
time and declared by the Labour Department by their notification. As per
the notification, the minimum wage of unskilled labour was Rs.4,145/- per
month. Since the claimants are wife, daughter, father and mother, therefore,
the dependency is 2/3rd on the deceased, applying the multiplier of 18
looking to the age of the deceased, and adding 40% of future prospects are
appropriate. The computation of compensation is as under:
Amount of
compensation
Sr. Head awarded by Amount of Compensation assessed by this Court
Claims
Tribunal
Income of Rs. 15,000/per
1 Rs.4145/- per month
deceased years
3 Future Prospects - 40%
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(4145x12=49740)x2/3=Rs.33160+40%=46424x18=
5. Loss of income 18,000/-
Rs.8,35,632/-
Loss of
6. Nil 40,000x4= 1,60,000/-
consortium
Funeral
7. 10,000/- 15,000/-
Expenses
8. Loss of Estate 10,000/- 15,000/-
9 Total 2,00,000/- 10,25,632/-
Additional
10. Rs.8,25,632/-
enhancement
22. Ex-consequenti, the appeal filed on behalf of the Insurance
Company (M.A.No.981/2012) being bereft of merit and is hereby dismissed
and the appeal filed on behalf of the claimants (M.A.No.1033/2012) is
allowed in part by enhancement of the compensation amount of
Rs.8,25,632/- in addition to the compensation awarded by the Claims
Tribunal. The enhanced amount of compensation shall carry 6% interest per
annum from the date of filing of the application till its realization. Rest of
the terms and condition of the impugned award passed by the learned
Tribunal shall remain intact.
23. Although the appellants have valued this appeal at Rs.4,00,000/-
and have paid court fees on the said amount, however, in view of the
decision of the Apex Court in Kavita Balthiya and Others vs. Santosh Kumar
and Another in Civil Appeal No. 8053/2024 (@ SLP (C) No. 16558/2024) , it
is directed that the appellants shall pay the court fees on the remaining
amount of Rs.4,25,632/- (i.e., Rs.8,25,632/ - Rs.4,00,000/-) within a period
of one month from the date of receipt of the certified copy of this order.
Failing which, the present order shall not be given effect to. It is further
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clarified that on this amount of Rs.4,25,632/- the interest as aforesaid shall
be counted from the date of deposition of court fee on the said amount.
24. With the aforesaid, this miscellaneous appeal is disposed off.
(RAJENDRA KUMAR VANI)
JUDGE
mani
