Madhya Pradesh High Court
Vipul Sirothiya vs Dashrat Prasad Bohare on 26 June, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:13209
1 MA-958-2016
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 26th OF JUNE, 2025
MISC. APPEAL No. 958 of 2016
VIPUL SIROTHIYA AND OTHERS
Versus
DASHRAT PRASAD BOHARE AND OTHERS
Appearance:
Shri R.P. Gupta - Advocate for appellants/claimants.
Shri B.K. Agrawal - Advocate for respondent No.2/Insurance
Company.
WITH
MISC. APPEAL No. 780 of 2016
UNIVERSAL SOMPO GENERAL INSURANCE CO. THR.
Versus
SMT. RAJNI SIROTHIYA AND OTHERS
Appearance:
Shri B.K. Agrawal - Advocate for appellant/Insurance Company.
Shri R.P. Gupta - Advocate for respondents No.1 to 3/claimants.
MISC. APPEAL No. 781 of 2016
UNIVERSAL SOMPO GENERAL INSURANCE CO. THR.
Versus
VIPUL SIROTHIYA AND OTHERS
Appearance:
Shri B.K. Agrawal - Advocate for appellant/Insurance Company.
Shri R.P. Gupta - Advocate for respondents No.1 to 3.
Signature Not Verified
Signed by: AMAN TIWARI
Signing time: 7/2/2025
8:11:40 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:13209
2 MA-958-2016
MISC. APPEAL No. 953 of 2016
SMT. RAJANI SIROTHIYA AND OTHERS
Versus
DASHARTH PRASAD BOHARE AND OTHERS
Appearance:
Shri R.P. Gupta - Advocate for appellants/claimants.
Shri B.K. Agrawal - Advocate for respondent No.2/Insurance
Company.
ORDER
I.A. No.4292/2016 filed in M.A. No.958/2016, is an application for
condonation of delay in filing the appeal.
2. As per office report, the appeal (M.A. No.958/2016) is barred by
27 days. The application is supported by an affidavit.
3. For the reasons stated in the application and submissions
advanced, I.A. No.4292/2016 filed in M.A. No.958/2016 is allowed. Delay
in filing the appeal (M.A. No.958/2016) is hereby condoned.
4. These four connected Miscellaneous Appeals arise out of the same
accident and are being decided by this common order.
5. These appeals challenge the common award dated 30.04.2016,
passed by the Second Additional Tribunal Gwalior to the Court of First
Additional Motor Accident Claims Tribunal, Gwalior, in Claim Cases No.
72/2016 and 62/2016.
6. M.A. No.958/2016 has been filed by the appellants-claimants
seeking enhancement of the compensation amount awarded by learned
Claims Triubnal in respect of the death of Ku. Mohini Sirothiya in a road
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accident. M.A. No. 953/2016 has been filed by the appellants/claimants for
enhancement of compensation amount awarded in respect of the death of
Sameer Sirothiya in the same accident. On the other hand, M.A. Nos.
781/2016 and 780/2016 have been filed by the Insurance Company
challenging the award.
7. The facts necessary for the disposal of these appeal are that, on
11.07.2012, the deceased Sameer Sirothiya borrowed a Tata Safari vehicle
bearing registration number MP-09-CF-7574 from Dashrath to visit the
Mahakaleshwar Temple in Ujjain. On 12.07.2012, at around 4:30 am, while
he was returning with his family in the same vehicle and upon reaching near
Shivhare Dhaba on the highway road, Police Station Amola, District
Shivpuri, at that time the vehicle developed a technical fault, lost control, and
collided with divider. As a result, Sameer Sirothiya and his daughter Ku.
Mohini, who was seated beside him, sustained grievous injuries and died.
Smt. Rajni and Vipul also suffered injuries in the accident.
8. M.A. No.953/2016 & M.A. No.780/2016
8(i). It is submitted by the learned counsel for the claimants that the
learned Tribunal has limited the award amount to Rs.2,00,000/-, while the
compensation calculated is Rs. 5,21,000/- for the accidental death of Sammer
Sirothiya. The learned Tribunal ought to have awarded the full amount of
Rs.5,21,000/- in respect of the accident which has been found proved. Hence,
it is prayed that the compensation amount be enhanced in the interest of
justice.
8(ii). Learned counsel for the Insurance Company submits that the
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premium was paid in the insurance policy only for the owner and not for the
driver who had borrowed the vehicle from the owner. Therefore, the
conclusion of the Tribunal is erroneous and liable to be set aside. The
claimants are not entitled to compensation.
9. M.A. No.958/2016 & M.A. No.781/2016
9(i). It is submitted by the learned counsel for the claimants that the
learned Tribunal has awarded a sum of Rs.2,00,000/- as compensation for the
death of Ku. Mohini in the accident, which is on the lower side. The
deceased was a 12-year-old school-going girl. It is submitted that having
regard to the judgment dated 13.10.2023 passed by the Coordinate Bench of
this Court in M.A. No. 5815/2019 (Lalla Mahate & Others v. Kailash
Ahirwar & Others) and the order dated 29.08.2022 passed by the Coordinate
Bench in M.A. No. 183/2017 ( Smt. Indra & Others v. Brajkishor Yadav &
Others), a fair and just compensation would be in between Rs. 4 to 5 lakhs.
This appeal is filed for enhancement of the compensation amount by Rs.2
lakhs; therefore, it is prayed that the compensation awarded by the Tribunal
may safely be enhanced by Rs. 2 lakhs. He has also relied upon the judgment
passed by the Hon'ble Apex Court in case of Ramkhiladi and Another Vs.
United India Insurance Company, (2020) 2 SCC 550 .
9(ii) Per contra, learned counsel appearing for the Insurance
Company submits that since the deceased was a 12-year-old school-going
girl, the learned Tribunal has rightly assessed the compensation under
Section 163-A of the Motor Vehicles Act. There is no ground for
enhancement of compensation amount. He also relied upon the judgment of
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the Hon'ble Apex Court in the case of Rajendra Singh and Others v. National
Insurance Company and Others, (2020) 7 SCC 256 .
10. Heard learned counsel for the parties and perused the record.
11. The perusal of the policy (Exh. D-1) reveals that it is a Private
Car Package Policy. The premium for basic third-party liability under the
policy is Rs. 2,750/-, for a paid driver is Rs. 25/-; and for P.A. cover for
Owner-Driver of Rs. 2 Lakhs, a premium of Rs. 100/- has been paid as
premium in the policy. It is not disputed in this case that the deceased,
Sameer, had borrowed the Tata Safari vehicle from respondent Dashrath to
visit the Mahakal Temple in Ujjain. The deceased Sameer, being the
borrower of the offending vehicle, was in the position of an owner-driver.
Therefore, the premium of Rs. 100/- paid under the policy (Exh. D-1)
squarely covers the accidental death of the deceased Sameer, though it is
limited upto Rs. 2 Lakhs as per the terms of the policy. Accordingly, the
learned Tribunal has rightly concluded that, for the death of the deceased
Sameer, the Insurance Company is liable to pay compensation not more than
Rs.2 lakhs. In this regard, the conclusion of the learned Tribunal is not found
to be perverse or dehors the evidence on record.
12. In the case of Ramkhiladi (supra), the Hon'ble Apex Court has
held in that case that the claim petition under Section 163-A was not
maintainable by the borrower/permissive user of the vehicle against the true
owner and/or insurer of the vehicle, as such borrower/permissive user steps
into the shoes of the true owner, and the true owner cannot be both the
claimant and the recipient. In a claim petition under Section 163-A, the
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deceased/victim must be a third party in relation to the vehicle in question.
Since owners/borrowers/permissive users are not "third parties" in relation to
their own or borrowed vehicles, they are not covered by statutory insurance
under Section 147. Thus, the claim of owner/borrower/permissive user
would be limited to personal accident coverage in respect of own-use of the
vehicle. Therefore, the Hon'ble Apex Court held that in the case of
owner/borrower/permissive user of the vehicle, if the accident is caused with
the said vehicle, the liability of the Insurance Company is limited to the
personal accident coverage only.
13. In the present case, since under the policy (Exh. D-1), coverage
of Rs.2 Lacs is there by paying premium of Rs.100/- for owner and driver,
the liability of the Insurance Company for the death of the borrower-owner,
deceased Sameer, has rightly been held limited upto Rs. 2 Lakhs.
14. So far as the compensation awarded in respect of the death of
Ku. Mohini is concerned, the learned Tribunal has awarded Rs. 2 Lakhs as
compensation. However, Ku. Mohini was not in the capacity of owner,
driver, or paid driver. She being a third party, the amount of compensation
cannot be limited to Rs. 2 Lakhs. The learned Tribunal, in paragraph 20 of
the impugned award, has concluded that Ku. Mohini was a third party.
Therefore, it erred in limiting the compensation amount to Rs.2 Lakhs. In
respect of the amount of compensation for the accidental death of Ku.
Mohini, learned counsel for the claimants has relied upon the judgment
passed in the case of Lalla Mahate (supra) and the order passed in the case of
Smt. Indra (supra). Both these cases relate to the compensation awarded for
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the death of a child. However, it is not clear from the orders whether they
were passed in claim petitions filed under Section 163-A of the Motor
Vehicles Act.
15. The present case (M.A. No.958/2016) arises out of a claim petition
filed under Section 163-A of the Motor Vehicles Act. The judgment of the
Hon'ble Apex Court in the case of Rajendra Singh (supra) pertains to a claim
petition filed under Sections 163-A and 166 of the Motor Vehicles Act. In
that case, the Hon'ble Apex Court made observations in paragraphs 12 to 16,
which are as under :
"12. The second deceased was a school-going child aged about 12
years. She had a whole future to look forward in life with all
normal human aspirations. She died prematurely due to the
accident at a very tender age for no fault of hers even before she
could start to understand the beauty and joys of life with all its ups
and downs. The loss of a human life untimely at childhood can
never be measured in terms of loss of earning or monetary loss
alone. The emotional attachments involved to the loss of the child
can have a devastating effect on the family which needs to be
visualised and understood. Grant of non-pecuniary damages for
the wrong done by awarding compensation for loss of expectation
in life is therefore called for.
13. Undoubtedly the injury inflicted by deprivation of the life of
the child is very difficult to quantify. The future also abounds with
uncertainties. Therefore, the courts have used the expression "just
compensation" to get over the difficulties in quantifying the figure
to ensure consistency and uniformity in awarding compensation.
This determination shall not depend upon financial position of the
victim or the claimant but rather on the capacity and ability of the
deceased to provide happiness in life to the claimants had she
remained alive. The compensation is for loss of prospective
happiness which the claimant would have enjoyed had the child
not died at the tender age. Since the child was studying in a school
and opportunities in life would undoubtedly abound for her as the
years would have rolled by, compensation must also be granted
with regard to future prospects. It can safely be presumed that
education would have only led to her better growth and maturity
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with better prospects and a bright future for which compensation
needs to be granted under non-pecuniary damages. (See R.K.
Malik v. Kiran Pal [R.K. Malik v. Kiran Pal, (2009) 14 SCC 1 :
(2009) 5 SCC (Civ) 265 : (2010) 1 SCC (Cri) 1265] .)
14. The income of the minor girl child is incapable of precise
fixation. We find no reason to interfere with the assessed notional
income of the second deceased. In R.K. Malik v. Kiran Pal [R.K.
Malik v. Kiran Pal, (2009) 14 SCC 1 : (2009) 5 SCC (Civ) 265 :
(2010) 1 SCC (Cri) 1265] , considering grant of future prospects
for the deceased child aged about 10 years it was observed as
follows : (SCC p. 14, paras 32-33)
"32. A forceful submission has been made by the
learned counsel appearing for the appellant claimants
that both the Tribunal as well as the High Court [R.K.
Malik v. Kiran Pal, 2006 SCC OnLine Del 611 : ILR
(2006) 1 Del 866] failed to consider the claims of the
appellants with regard to the future prospects of the
children. It has been submitted that the evidence with
regard to the same has been ignored by the courts
below.
33. On perusal of the evidence on record, we find merit
in such submission that the courts below have
overlooked that aspect of the matter while granting
compensation. It is well-settled legal principle that in
addition to awarding compensation for pecuniary losses,
compensation must also be granted with regard to the
future prospects of the children. It is incumbent upon
the courts to consider the said aspect while awarding
compensation."
15. In New India Assurance Co. Ltd. v. Satender [New India
Assurance Co. Ltd. v. Satender, (2006) 13 SCC 60 : (2008) 1 SCC
(Cri) 96] , the deceased victim of the accident was a nine year old
school-going child. Considering the claim for loss of future
prospects in absence of a regular income, it was observed that the
compensation so determined had to be just and proper by a
judicious approach and not fixed arbitrarily or whimsically. The
uncertainties of a young life were noticed in the following terms :
(SCC p. 64, para 12)
"12. In cases of young children of tender age, in view
of uncertainties abound, neither their income at the time
of death nor the prospects of the future increase in their
income nor chances of advancement of their career are
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capable of proper determination on estimated basis. The
reason is that at such an early age, the uncertainties in
regard to their academic pursuits, achievements in
career and thereafter advancement in life are so many
that nothing can be assumed with reasonable certainty.
Therefore, neither the income of the deceased child is
capable of assessment on estimated basis nor the
financial loss suffered by the parents is capable of
mathematical computation."
16. The deduction on account of contributory negligence has
already been held by us to be unsustainable. The determination of
a just and proper compensation to the appellants with regard to the
deceased child, in the entirety of the facts and circumstances of
the case does not persuade us to enhance the same any further
from Rs 2,95,000 by granting any further compensation under the
separate head of "future prospects". It may only be noticed that
R.K. Malik [R.K. Malik v. Kiran Pal, (2009) 14 SCC 1 : (2009) 5
SCC (Civ) 265 : (2010) 1 SCC (Cri) 1265] does not consider
Satender [New India Assurance Co. Ltd. v. Satender, (2006) 13
SCC 60 : (2008) 1 SCC (Cri) 96] on the grant of future prospects
as far as children are concerned."
16. In the aforesaid case, the accident had also occurred in the year
2012, and the facts of the aforesaid said case are substantially similar to the
present case.
17. In view of the above discussion, in the considered opinion of this
Court, in M.A. No. 958/2016 , the appellants/claimants are entitled to a total
compensation of Rs. 2,95,000/- for the death of Ku. Mohini in the road
accident, whereas the learned Tribunal has awarded only Rs.2,00,000/- as
compensation. Therefore, the amount of compensation is enhanced in lump
sum by Rs.95,000/-. Accordingly, M.A. No.958/2016 filed by the claimants
is partly allowed by enhancing Rs.95,000/- as compensation in addition to
the amount already awarded by the Tribunal in favour of the claimants. The
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remaining terms and conditions as stipulated in the impugned award shall
remain intact.
18. M.A. No. 953/2016 filed by the claimants, and M.A. Nos.
781/2016 and 780/2016 filed by the Insurance Company, being devoid of
merit, are hereby dismissed.
(RAJENDRA KUMAR VANI)
JUDGE
Aman
