Madhya Pradesh High Court
Gulab Singh vs Daivesh on 13 March, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
1 M.A. Nos.971 of 2010 & 997 of 2010
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 13th OF MARCH, 2025
MISC. APPEAL No. 971 of 2010
GAR SINGH
Versus
DEVESH AND OTHERS
Appearance:
Smt.Meena Singhal, Advocate for appellant.
Shri Shrinivas Gajendragadkar and Shri Sunil Rathore, Advocates
for respondent No.3/Insurance Company.
MISC. APPEAL No. 997 of 2010
GULAB SINGH
Versus
DAIVESH AND OTHERS
Appearance:
Smt.Meena Singhal, Advocate for appellant.
Shri Shrinivas Gajendragadkar and Shri Sunil Rathore, Advocates
for respondent No.3/Insurance Company.
Signature Not Verified
Signed by: ANAND
SHRIVASTAVA
Signing time: 3/22/2025
6:03:56 PM
2 M.A. Nos.971 of 2010 & 997 of 2010
JUDGMENT
M.A No..971 of 2010 and M.A. No. 997 of 2010, filed under
section 173 of the Motor Vehicles Act, are being decided by this
common judgment, as they arise out of the same accident.
Both the aforesaid appeals have been filed against the common
Award dated 5/4/2010 passed by XIVth Additional Motor Accidents
Claims Tribunal, Gwalior in Claim Case Nos. 172/2009 and 171/2009
respectively.
2. Earlier, appellant in M.A. No.971/2010 had valued the appeal at
Rs.2,12,000/-, but thereafter the valuation was reduced and the appeal
has been re-valued at Rs.25,000/- only, whereas M.A. No.997/2010 has
been re-valued at Rs.50,000/- only.
3. Facts necessary for disposal of both the appeals, in short, are that
on 2/5/2009, appellants Gar Singh and Gulab Singh, who are brothers,
were going in a Jeep bearing registration No. MP06-B-1627. The driver
of Jeep, by driving it in a rash and negligent manner, caused an accident.
As a result, Gar Singh ( appellant in M.A. No.971/2010) sustained
injuries on his right leg, ribs and other parts of his body, while Gulab
Singh (appellant in M.A. No. 997/2010) suffered fracture of tibia and
fibula bone of left leg, as well as, injuries on other part of his body.
The owner and driver of offending Jeep were proceed ex parte,
whereas Insurance Company claimed that income, as well as, medical
expenses have been shown exorbitantly to take more compensation
amount. It was further alleged by the Insurance Company that owner
and driver have violated the terms and conditions of the Insurance
Policy. The vehicle was being used for commercial purposes, whereas it
was registered for personal use.
The Claims Tribunal, after framing issues and recording evidence
of parties, allowed the Claim Petitions and awarded Rs.23,000/- to
appellant Gar Singh, while Rs.55,000/- were awarded to appellant Gulab
Singh, by way of compensation.
Whether Insurance Company was rightly exonerated by the
Claims Tribunal ?
4. It is submitted by counsel for appellants that it is true that licence
of driver of the offending vehicle was not filed in the present case, but in
other claim cases i.e. Claim Case Nos. 69/10, 113/09 and 114/09 which
were also filed by the victims of the same accident, the licence of driver
was filed and in those cases it was held that driver of the offending
vehicle was having valid licence. It is submitted that accordingly I.A.
No. 2485/11 has been filed in M.A. No.971/2010 under Order 41 Rule
27, CPC for taking the Award passed in Claim Case Nos. 69/10, 113/09
and 114/09 on record.
It is further submitted that there is nothing on record to suggest
that injured/appellants were travelling in the offending vehicle after
making payment of fare.
5. Per contra, both the appeals have been vehemently opposed by
counsel for Insurance Company. It is submitted that the vehicle was
being used for commercial purposes and although there is nothing on
record to suggest that appellants had paid any fare to driver but as the
driver and owner of the Jeep are unknown to the appellants, therefore, it
has to be presumed that they were sitting after making payment of fare
to driver. It is submitted that once appellants have failed to prove that
why they took lift in the offending vehicle, therefore, the Claims
Tribunal committed no illegality by drawing a presumption that
appellants were travelling after making payment of fare.
It is further submitted that every claim case is to be decided on the
basis of material available on record and since appellants have not filed
copy of licence of the driver of offending vehicle, therefore, Claims
Tribunal did not commit any mistake by exonerating the Insurance
Company.
6. Heard, learned counsel for the parties.
7. Considered I.A. No.2485/11 (filed in M.A. No.971/2010) which is
an application under Order 41 Rule 27, CPC for taking copy of Award
dated 24/1/2011 passed by Ist Member, Motor Accidents Claims
Tribunal, Gwalior in Claim Case Nos. 69/10, 113/09 and 114/09 on
record.
8. Aforesaid three claim cases also arise out of the same accident. It
appears that some of the claimants filed their claim petitions which were
decided by Ist Member, Motor Accidents Claims Tribunal, Gwalior,
whereas claim petitions of appellants were decided by XIV th Motor
Accidents Claims Tribunal, Gwalior.
9. In Claim Case Nos. 69/10, 113/09 and 114/09, licence of driver of
the offending vehicle was filed and it was held that driver of the
offending vehicle was having a valid driving licence. Once the driver of
offending vehicle was having valid licence, then merely because driver
and owner of the offending vehicle were proceeded ex parte, this Court
cannot take a contrary view just because appellants have failed to
produce the copy of licence of driver of the offending vehicle.
10. Accordingly, I.A. No.2485/11 is allowed and copy of Award dated
24/1/2011 passed by Ist Member Motor Accidents Claims Tribunal,
Gwalior in Claim Case Nos.69/10, 113/09 and 114/09 is taken on record.
Since the aforesaid Award has been passed in judicial proceedings,
therefore, this Court can take judicial notice of the Award and it is not
necessary to remand the matter to the Claims Tribunal to give an
opportunity to the parties to produce licence of driver of the offending
vehicle.
11. Accordingly, it is held that driver of offending vehicle was having
valid licence at the time of accident.
12. So far as the question as to whether appellants were travelling in
the Jeep after making payment of fare or not is concerned, Claims
Tribunal has held that since owner and driver of the offending vehicle
were not known to appellants, therefore, it is to be presumed that they
were sitting after making payment of fare as 10 persons were sitting in
the Jeep. It is true that claim petitions are to be decided on the basis of
preponderance of probabilities, but the Claims Tribunal cannot draw its
inference without any basis. Counsel for respondent/Insurance Company
could not point out anything from the evidence of appellants to show
that they had paid the fare to the driver of offending vehicle. In absence
of anything on record to suggest that fare was paid by appellants, then
merely because owner and driver of offending vehicle were not known
to appellants, it cannot be inferred that they were travelling after making
payment of fare.
13. Thus, the findings recorded by the Claims Tribunal that the
offending vehicle was being plied in violation of terms and conditions of
the Insurance Policy because not only the driver of offending vehicle
was not having valid licence at the time of accident, but the vehicle was
also being used for commercial purposes, are hereby set aside and it is
held that driver of the offending vehicle was having valid licence and
the Jeep was not being used for commercial purposes.
M.A. No.971/2010 (Appellant Gar Singh)
14. So far as quantum of compensation is concerned, Claims Tribunal
has held that appellant could not work for a period of one month and has
awarded Rs.3000/- by way of loss of income.
15. It is submitted by counsel for appellant that appellant had
sustained fracture of his ribs and his monthly income was Rs.6,000/- as
he was a carpenter. It is submitted that although the Claims Tribunal
should have accepted that appellant was a Carpenter and his monthly
income was Rs.6,000/-, but even if Claims Tribunal was of the view that
appellant has failed to prove his monthly income, then the Tribunal
should have considered the notification issued under the Minimum
Wages Act to ascertain the notional income. It is submitted that on the
date of accident, minimum wages of an un-skilled labourer were
Rs.3520/- per month and, therefore, the Claims Tribunal has committed
material illegality by taking notional income of appellant as Rs.3000/-
per month. It is submitted that Claims Tribunal should have awarded
Rs.3520/- by way of loss of income per month instead of Rs.3000/-. It is
further submitted that compensation awarded under different heads i.e.
pain and suffering, special diet, transportation charges etc. are on a
lower side and, therefore, it is prayed that compensation amount may be
enhanced.
16. Where the claimant/injured had failed to prove his monthly
income, then notification issued under the Minimum Wages Act can be
treated as a guiding factor, according to which, on the date of accident
minimum wages of an un-skilled labourer were Rs.3520/-. Accordingly,
it is held that appellant is entitled to Rs.3,520/- by way of loss of
income in place of Rs.3000/- as awarded by the Claims Tribunal.
Appellant had produced documents to show the medical expenses which
have been taken note of by the Claims Tribunal. Counsel for appellant
could not point out any perversity in this regard. Accordingly, it is held
that appellant had spent Rs.8500/- towards medical expenses.
It is submitted that the Claims Tribunal has awarded Rs.11,500/-
in all towards mental and physical pain and suffering, special diet and
transportation charges.
In the considered opinion of this Court the aforesaid amount is on
a lower side. Since appellant had sustained fracture of 4 th and 8th ribs
(Ex.P/36) and the accident took place in the month of May, 2009,
therefore, an amount of Rs.10,000/- is awarded towards physical and
mental pain and suffering.
Similarly, appellant was hospitalized and on account of injury, he
must have required some special diet. Accordingly, Rs.5000/- are
awarded towards Special diet.
Since appellant was hospitalized, therefore, he must have been
looked after by his attender. Nothing has been awarded by the Claims
Tribunal towards expenses of attender. Accordingly, as the accident took
place in the month of May, 2009, therefore, Rs.3000/- are awarded
towards expenses of Attender and Rs.5000/- are awarded towards
transportation of Attender, as well as, appellant.
17. Accordingly, the appellant is entitled for the following
compensation amount:-
S.No. Head Compensation
1 Medical Expenses Rs.8,500/-
2 Loss of Income Rs.3,520/-
3 Pain and Suffering Rs.10,000/-
4 Special Diet Rs.5,000/-
5 Attender Rs.3,000/-
6 Transportation Rs.5,000/-
7 Total compensation Rs.35,020/-
11 Compensation awarded by Claims Rs.23,000/-
Tribunal
12 Compensation enhanced by Rs.12,020/-
18. Accordingly, the compensation amount is enhanced by further
sum of Rs12,020/-.
M.A.No.997/2010 (Appellant Gulab Singh)
19. It is submitted by counsel for appellant that appellant had suffered
fracture of tibia and fibula bone of left leg and he remained hospitalized
in Morena Hospital from 2/5/09 to 5/5/09. Appellant has also filed
documents to show that he remained hospitalized in the hospital of Dr.
Ghanshyam Mangal and it is the case of appellant that his treatment
continued from May 2009 to January 2010. Claims Tribunal has held
that appellant could not perform his professional work during the period
from May 2009 to January 2010. Although it is the case of appellant
that appellant was a skilled labourer and his monthly income was
Rs.6,000/-, but it is submitted that even if the appellant/claimant had
failed to prove the monthly income, then the notification issued under
the Minimum Wages Act should have been taken into consideration and
as per the said notification, the monthly income of an unskilled labourer
was Rs.3,520/- at the time of accident. Therefore, it is submitted that the
Claims Tribunal should have taken the monthly income of appellant as
Rs.3,520/-. It is further submitted that although the Claims Tribunal has
held that appellant was not in a position to work for 7-8 months and has
awarded Rs.25,000/- towards loss of income, but in fact appellant was
not able to work for one year, therefore, loss of income for 12 months @
Rs.3520/- per month should have been taken. It is submitted that
compensation awarded by Claims Tribunal under different heads is also
on a lower side.
20. So far as question of quantum of compensation towards medical
expenses is concerned, Claims Tribunal has considered the documents
filed by appellant relating to medical expenses and has rightly awarded
Rs.16200/- towards medical expenses.
So far as notional income of Rs.3000/- is concerned, the same is
liable to be enhanced in the light of notification issued under the
Minimum Wages Act. Appellant has failed to prove that he is skilled
labourer, therefore, treating him to be an unskilled labourer, it is held
that notional income of appellant has to taken as Rs.3520/- per month.
Although Claims Tribunal has held that appellant had failed to work for
a period of 7-8 months, but, at the rate of Rs.3000/- per month, has
awarded Rs.25000/- towards loss of income, which, in effect, comes to
8.33 months. Therefore, by taking notional income as Rs.3520/- per
month, it is held that appellant is entitled for Rs.29321.60/- (3520 x
8.33) rounded of to Rs.29322/- towards loss of income.
It is submitted that the Claims Tribunal has awarded Rs.13,800/-
in all towards mental and physical pain and suffering, special diet and
transportation charges.
In the considered opinion of this Court the aforesaid amount is on
a lower side. Since appellant had sustained fracture of tibia and fibula
bone and the accident took place in the month of May, 2009, therefore,
an amount of Rs.10,000/- is awarded towards physical and mental
pain and suffering.
Similarly, appellant was hospitalized and on account of injury, he
must have required some special diet. Accordingly, Rs.5000/- are
awarded towards Special diet.
Since appellant was hospitalized, therefore, he must have been
looked after by his attender. Nothing has been awarded by the Claims
Tribunal towards expenses of attender. Accordingly, as the accident took
place in the month of May, 2009, therefore, Rs.3000/- are awarded
towards expenses of Attender and Rs.5000/- are awarded towards
transportation of Attender, as well as, appellant.
21. Accordingly, the appellant is entitled for the following
compensation amount:-
S.No. Head Compensation
1 Medical Expenses Rs.16,200/-
2 Loss of Income Rs.29,322/-
3 Pain and Suffering Rs.10,000/-
4 Special Diet Rs.5,000/-
5 Attender Rs.3,000/-
6 Transportation Rs.5,000/-
7 Total compensation Rs.68,522/-
11 Compensation awarded by Claims Rs.55,000/-
Tribunal
12 Compensation enhanced by Rs.13,522/-
22. Accordingly, the compensation amount is enhanced by further
sum of Rs13,522/-.
23. It is also held that respondent/Insurance Company is jointly and
severally responsible for payment of compensation amounts to the
appellants. Other conditions of the Award shall remain the same.
24. With aforesaid modification, the Award dated 5/4/2010 passed by
XIVth Additional Motor Accidents Claims Tribunal, Gwalior in Claim
Case Nos. 171/2009 and 172 /2009, is hereby affirmed.
25. Accordingly, the appeals stand allowed to the extent indicated
above.
(G.S.Ahluwalia)
Judge
(and)
