Madhya Pradesh High Court
Avdesh Mishra vs Dilip Sharma on 18 June, 2025
1 M.A.NO.1040/2010 & M.A. No.1461/2010
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 18th OF JUNE, 2025
MISC. APPEAL No. 1040 of 2010
AVDESH MISHRA
Versus
DILIP SHARMA AND OTHERS
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Appearance:
Shri S.S.Rajput - learned counsel for the appellant.
Shri Nirendra Singh Tomar - learned counsel for the respondent
No.3/Insurance Company.
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WITH
MISC. APPEAL No. 1461 of 2010
BAJAJ ALLIANZ GEN.INSURANCE CO.LTD.
Versus
AWDESH MISHRA AND OTHERS
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Appearance:
Shri Nirendra Singh Tomar - learned counsel for the
appellant/Insurance Company.
Shri S.S.Rajput - learned counsel for the respondent.
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Signature Not Verified
Signed by: MOHD AHMAD
Signing time: 6/20/2025
10:40:20 AM
2 M.A.NO.1040/2010 & M.A. No.1461/2010
JUDGMENT
Since both the aforesaid Misc. Appeals are arising out of common
Award dated 31.03.2010 passed by Member, Motor Accident Claims
Tribunal, Vidisha [hereinafter it shall be referred to as '' the Claims
Tribunal''] in Claim Cases No.193 of 2008, therefore, they are heard
together and are being disposed of by this common order.
2. MA No. 1040 of 2010 under Section 173(1) of Motor Vehicles Act,
1988 has been filed by claimant (herinafter referred to as
"appellant/claimant") on the ground of inadequacy of compensation and
seeking enhancement of compensation. MA No. 1461 of 2010 under
Section 173(1) of Motor Vehicles Act, 1988 has been filed by
appellant/Insurance Company(herein after referred to as "Insurance
Company") for dismissing the claim petition and to refund the deposited
amount to the appellant from the claimant.
3. The facts necessary for the disposal of the present appeals, in brief,
are that on 17.04.2008, when the claimant/appellant was going towards
his house, suddenly respondent- Dinesh, riding motorcycle bearing
registration No. MP-40-BD-0261 in a rash and negligent manner, came
and hit the claimant/appellant from the backside, as a result of which he
sustained grievous injuries.
4. It is submitted by the learned counsel for the appellant/claimant
that the learned Tribunal has assessed the income of the appellant on
lower side. The appellant/claimant had established that he was a
practising advocate and was earning Rs. 5,000/- to 6,000/- per month.
However, the learned Tribunal assessed his income as Rs. 15,000/- per
annum only, which is on lower side. It is further submitted that as per the
permanent disability certificate (Ex. P/21) and the statement of Dr.
B.L.Arya (PW-3), the appellant/claimant has sustained 40% permanent
disability, and the Tribunal has also found it to be proved. However, the
Tribunal considered the disability in reference to the whole body as only
10%, which is also on the lower side. The future prospects have not been
considered in light of the law laid down in the case of National
Insurance Company Ltd. vs. Pranay Sethi & Ors., 2017 ACJ 2700. The
delay of 5 months and 9 days in lodging the FIR has been satisfactorily
explained by the appellant in this case which has rightly been found
believable by the learned Tribunal. Hence, he prays for enhancement of
the compensation to the tune of Rs. 1.5 lakh.
5. Per contra, in support of M.A. No.1461/2010, learned counsel for
the appellant/respondent No.3 - the Insurance Company - submitted that
in the present case, the involvement of the insured motorcycle bearing
registration no. M.P.40-BD-0216 in the alleged incident has not been
proved by the claimant. It is argued that the FIR was lodged after an
inordinate delay of 5 months and 9 days, and no proper explanation has
been provided for such delay. The learned Tribunal erred in overlooking
the MLC and other medical documents related to the alleged incident.
The MLC and the doctor's prescription do not disclose that the
claimant/appellant sustained injuries in road accident. Therefore, the
claimant has failed to discharge the burden of proving that the incident
was caused by the insured vehicle. The learned Tribunal erred in drawing
an adverse inference against respondent No.2 - Dilip Sharma (owner of
the offending vehicle), and respondent No.3 - Dinesh (driver of the said
vehicle), as they did not appear before the Tribunal to tender their
evidence. Hence, the learned counsel prays for setting aside the impugned
award and for exonerating the Insurance Company from any liability to
pay the compensation amount. It is further argued that the alleged 10%
permanent disability has also not been proved, although this objection
was not taken in the appeal memo. Accordingly, he prays that the
impugned award may be set aside.
6. Heard the learned counsel for the parties and perused the record.
7. The perusal of the statement of the appellant (PW/1) reveals that
the incident took place on 17.04.2008, when he was crossing a bridge at
around 9:00 PM. Suddenly, respondent No.3- Dinesh came on a
motorcycle in a rash and negligent manner and hit the appellant from
behind, as a result of which he sustained injuries. The appellant stated
that the bone in his right leg was fractured at three places. He further
stated that on 20.09.2008, he filed an application before the
Superintendent of Police, Vidisha. After conducting an inquiry, the FIR
was lodged on 26.09.2008. Regarding the delay in lodging the FIR, he
explained that on 17.04.2008 (the date of the incident), he did not go to
the police station because the driver -Dinesh, did not take him there, and
he himself was not in a physical condition to go. The driver of the
offending vehicle - Dinesh, had assured him that he would reimburse the
expenses incurred for his treatment. However, when Dinesh failed to
fulfill this promise, the appellant approached the Superintendent of
Police, Vidisha. The averment of appellant is also supported by Anil
(PW/2). Although Anil has acquaintance with the appellant/claimant but
it did not reveal from his statement that he has given false statement due
to such acquaintance.
8. As stated by the appellant in his statement that upon submission of
the appellant's application, the Superintendent of Police (SP) conducted
an inquiry and after completing the inquiry, lodged an FIR on 20.06.2008.
After the investigation was concluded, the police found that the accident
had occurred as mentioned in the FIR, subsequently filed a charge sheet
(Ex.P/1) under Sections 279, 337, and 338 of the IPC against respondent
-Dinesh. It is also stated in the FIR (Ex.P/2), in paragraph 8, that the
delay in lodging the FIR was due to the injured party being under medical
treatment. There is no rebuttal evidence on record.
9 It is also pertinent to mention that the owner and rider of the
offending vehicle did not appear before the learned Tribunal to render
their testimony regarding the accident. In the case of Ravi vs.
Badrinarayan and Others, 2011 ACJ 911, the Hon'ble Supreme Court
held in paragraphs 20 and 21 as under:
20- It is well settled that delay in lodging the FIR
cannot be a ground to doubt the claimant's case.
Knowing the Indian conditions as they are, we
cannot expect a common man to first rush to the
police station immediately after an accident.
Human nature and family responsibilities occupy
the mind of kith and kin to such an extent that they
give more importance to get the victim treated
rather than to rush to the police station. Under
such circumstances, they are not expected to act
mechanically with promptitude in lodging the FIR
with the police. Delay in lodging the FIR thus,
cannot be the ground to deny justice to the victim.
In cases of delay, the courts are required to
examine the evidence with a closer scrutiny and in
doing so the contents of the FIR should also be
scrutinised more carefully. If the court finds that
there is no indication of fabrication or it has not
been concocted or engineered to implicate
innocent persons then, even if there is a delay in
lodging the FIR, the claim case cannot be
dismissed merely on that ground.
21.- The purpose of lodging the FIR in such type of
cases is primarily to intimate the police to initiate
investigation of criminal offences. Lodging of FIR
certainly proves the factum of accident so that the
victim is able to lodge a case for compensation but
delay in doing so cannot be the main ground for
rejecting the claim petition. In other words,
although lodging of FIR is vital in deciding motor
accident claim cases, delay in lodging the same
should not be treated as fatal for such proceedings,
if claimant has been able to demonstrate
satisfactory and cogent reasons for it. There could
be a variety of reasons in genuine cases for
delayed lodgement of FIR. Unless kith and kin of
the victim are able to regain a certain level of
tranquillity of mind and are composed to lodge it,
even if, there is delay, the same deserves to be
condoned. In such circumstances, the authenticity
of the FIR assumes much more significance than
delay in lodging thereof supported by cogent
reasons.
It is held by Hon'ble Apex Court that the relatives of the victim give more
importance to get the victim treated rather than to rush to the police
station. They are not expected to act mechanically with promptitude in
lodging the FIR with the police; therefore, the delay in lodging FIR is not
fatal in claim cases. Similar law has been laid down in the case of Karan
Singh vs. Anshuman and others 2010 ACJ 736, Bhwarlal Verma vs.
Sharad Tholiya and other 2007 ACJ 52.
10. 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.
11. In the case of Rajendra Singh vs. Sheetal Das, 1992 (1) MPWN
104, it was held that if the driver of the offending vehicle does not let
examine himself, an adverse inference will be drawn regarding his rash
and negligent driving. Keeping in view the law laid down in the
aforesaid cases, as well as the documents exhibited in the present case
such as the charge sheet, FIR, seizure memo, spot map, arrest memo,
MLC, etc the learned Tribunal has rightly found the factum of the
accident to be proved. Therefore, the appeal filed on behalf of the
appellant/respondent No.3- Insurance Company is found to be meritless.
12. As far as the appeal filed by the present appellant/claimant for
enhancement of the compensation amount is concerned, it is prayed on
the following three grounds:
(i) Future prospect has not been extended by the learned
Tribunal;
(ii) Income of the appellant is assessed on lower side; and
(iii) Permanent disability is also taken @ 10% which ought to
be 40%.
13. FIR Ex.P/1 reveals that the appellant Avdhesh was doing business
(Dukandari) but he stated in his statement that he was a practicing
advocate and he was earning Rs.5000/- to 6000/- per month. Although the
appellant has not submitted any documents regarding his income,
however, considering his profession, it can be reasonably presumed that
his income was more than Rs. 15,000/- per month. Taking into account
his social status, the facts, and the evidence on record, it can safely be
presumed that the appellant's annual income was Rs. 50,000/- per annum.
Therefore, the assessment of the appellant's income as Rs. 15,000 per
annum by the learned Tribunal appears to be on lower side.
14. As far as percentage of permanent disability suffered by the
appellant-Avdhesh, is concerned, Dr. B.L. Arya (PW/3) proved the
medical report (Ex. P/7), x-ray report (Ex. P/8), and the permanent
disability certificate (Ex. P/21). However, in his cross-examination, he
categorically admitted that the percentage of disability pertained
specifically to the limb, i.e., the right leg, and not in reference to the
entire body. He remained firm in his cross-examination regarding this
assessment. Having regard to the statement of this witness, the
assessment of 10% disability in reference to the entire body of the
appellant-Avdhesh, does not appear to be unreasonable or inappropriate.
15. Having regard to the income of appellant as 50,000/- per annum
and applying permanent disability as 10%, multiplier of 16 having regard
to the age of present appellant and future prospect @ 40% in view of the
decision of the Supreme Court in the case of Pranay Sethi and looking to
the age of the appellant, the loss of income comes to Rs.1,12,000/-. The
amount awarded by the learned tribunal for medical expenses
(Rs.20,000/-), for pain and suffering (Rs.5,000/-), for loss of comfort of
natural life on account of permanent disability (Rs.10,000/-) and for
special diet and transportation expenses (Rs.5,000/-) appears to be just
and proper. Thus, the total amount of compensation comes to
Rs.1,52,000/-. The Claims Tribunal has awarded compensation of
Rs.64,000/-. As such, the appellant is further entitled for a sum of
Rs.88,000/-. Rest of the terms and conditions of the impugned award
shall remain intact.
16. Consequently, M.A.No.1040/2010 filed on behalf of
appellant/claimant Avdesh Mishra is allowed in above terms &
M.A.No.1461/2010 filed on behalf of appellant/ Insurance Company is
hereby dismissed.
(RAJENDRA KUMAR VANI)
JUDGE
Ahmad
