Madhya Pradesh High Court
National Insurance Co. Ltd. vs Mahila Madeena on 29 October, 2025
Author: Hirdesh
Bench: Hirdesh
NEUTRAL CITATION NO. 2025:MPHC-GWL:27344
1 MA-454-2005
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 29th OF OCTOBER, 2025
MISC. APPEAL No. 454 of 2005
NATIONAL INSURANCE CO. LTD.
Versus
MAHILA MADEENA AND OTHERS
Appearance:
Shri B.N.Malhotra - Advocate for the appellant/Insurance Company.
Shri Kripal Singh Batham and Shri Akshat Kumar Jain - Advocate for
the respondent 1 to 8/claimants.
ORDER
This Miscellaneous Appeal under Section 173(1) of the Motor
Vehicles Act has been filed at the instance of the Insurance Company
challenging the impugned award dated 29.01.2005 passed by the Third
Motor Accident Claims Tribunal, District Morena (M.P.) in Claim Case No.
73/2003, whereby the Claims Tribunal awarded compensation of Rs.
2,23,000/- in favour of the claimants and directed the Insurance Company to
pay the compensation to the claimants and thereafter recover the same from
the owner and driver of the offending vehicle.
2. The date of accident and negligence are not in dispute, and the
findings recorded by the Claims Tribunal in this regard are not under
challenge.
3. As per the findings of the Claims Tribunal, in the case of death of
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Mehboob due to a motor accident, the Tribunal awarded compensation to the
tune of Rs. 2,23,000/- along with interest.
4. Learned counsel for the appellant/Insurance Company submitted
that at the time of the accident, deceased Mehboob Shah was travelling on
the tractor bearing registration No. MP-06-JA-0937. It was contended that
the Insurance Company had not received any premium for gratuitous
passengers travelling on the tractor. Therefore, the Insurance Company
cannot be held liable to pay compensation, and accordingly, it was prayed
that the Insurance Company be exonerated from the liability to pay
compensation to the claimants.
5. On the other hand, learned counsel for the respondents/claimants
supported the impugned award and prayed for dismissal of the appeal.
6. No one appeared on behalf of respondent Nos. 9 and 10 (owner and
driver of the offending vehicle) despite service of notice.
7. It is pertinent to mention here that the owner and driver of the
offending vehicle have not filed any appeal or cross-appeal to challenge the
findings of the Tribunal with respect to the direction of "pay and recover".
8. Heard learned counsel for the parties and perused the entire record.
9. From perusal of the FIR (Ex. P/2), it is evident that the deceased
was sitting on the tractor, and due to the rash and negligent driving of the
driver of the offending vehicle, the accident occurred resulting in the death
of the deceased. This fact has been corroborated by the evidence of the
appellant's own witness.
10. Considering the evidence on record and the findings of the
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Tribunal, it is found that the Claims Tribunal discussed all aspects of the
evidence in detail and rightly held that at the time of the accident, the
deceased was travelling on the tractor. The finding recorded by the Tribunal
in paragraph No. 15 of its judgment is correct in the eyes of law, and hence,
no interference is warranted in this regard.
11. The Claims Tribunal awarded compensation in favour of the
claimants and imposed the liability to pay the same upon the Insurance
Company with liberty to recover the amount from the owner and driver of
the offending vehicle.
12. The question which arises for consideration is whether the
Insurance Company is liable to pay compensation with liberty to recover the
same from the owner and driver, or whether it is to be totally exonerated
from liability?
13. The Insurance Company filed the insurance policy on record,
which clearly mentions that the offending vehicle was insured for
agricultural purposes. However, at the time of the accident, the vehicle was
being used for carrying a Barat party. Such use of the vehicle constituted a
clear breach of the terms and conditions of the policy, as no premium had
been paid for carrying any gratuitous passenger.
14. In National Insurance Company Limited vs. Bakaridan & Others ,
2017 ACJ 2524, it was held that if a passenger travelling on the mudguard of
a tractor dies in an accident caused by rash and negligent driving, the
Insurance Company cannot be saddled with liability, as the seating capacity
of a tractor is only one person, i.e., the driver. Since no premium is paid for
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carrying passengers on the tractor or trolley, the owner alone would be liable
for payment of compensation.
15. In the present case, it is evident that the deceased was travelling on
the tractor either as a passenger or as a labourer. Therefore, the deceased
cannot be treated as a third party within the meaning of the policy, and since
no premium was received for any such passenger or labourer, the Insurance
Company cannot be held liable.
16. In New India Assurance Co. Ltd. vs. Asha Rani , AIR 2003 SC
607, the Hon'ble Apex Court has held that passengers are not permitted to
travel on a tractor, and consequently, the Insurance Company cannot be held
liable. The claimants are entitled to recover compensation only from the
owner and driver of the tractor, who shall be jointly and severally liable to
pay the same.
17. In the case at hand, as the deceased was travelling on the tractor
and the Insurance Company had not taken any premium for passengers
travelling thereon, the Insurance Company cannot be held liable to pay
compensation. The claimants are entitled to recover compensation only from
the driver and owner of the offending vehicle, who shall be jointly and
severally liable.
18. Accordingly, the findings of the Claims Tribunal on this issue are
modified. The Insurance Company is hereby exonerated from liability to pay
compensation to the claimants. The claimants shall be entitled to recover the
awarded compensation amount from the owner and driver of the offending
vehicle.
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19. The respondents/claimants (Nos. 1 to 8) have, however, argued that
they are entitled to enhancement of compensation. It is to be noted that the
claimants have neither filed any appeal seeking enhancement nor have they
filed any cross-objection under Order 41 Rule 22 of the Code of Civil
Procedure seeking such relief.
20. This argument was countered by learned counsel for the
appellant/Insurance Company, who submitted that in the absence of any
appeal or cross-objection, the compensation amount awarded by the Tribunal
cannot be enhanced. In support of his submission, reliance was placed on
Mohammed Masood vs. The New India Assurance Co. Ltd. , Civil Appeal
No. 12567/2024, wherein the Hon'ble Supreme Court held in paragraph 6.1
that claimants are not entitled to seek enhancement of compensation when
they have not filed any appeal or cross-appeal/cross-objection.
21. On the other hand, learned counsel for the respondents/claimants
submitted that although no cross-appeal or cross-objection has been filed, the
claimants are still entitled to receive just and proper compensation. In
support of his contention, he placed reliance on National Insurance Company
Ltd. vs. Suseelamma and Others, 2023 SCC Online AP 1725 .
22. Heard learned counsel for parties and perused the record
23. The Division Bench of A.P. High Court in the case of
Suseelamma (supra) has held as under:-
'' 51. In Helen C. Rebello (Mrs) and others vs. Maharashtra State
Road Transport Corporation and another MANU/SC/0621/1998 :
(1999) 1 SCC 90, [LQ/SC/1998/973] the Hon'ble Apex Court held
that the word "just", as its nomenclature, denotes equitability,
fairness and reasonableness having a large peripheral field. The
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largeness is, of course, not arbitrary; it is restricted by the
conscience which is fair, reasonable and equitable, if it exceeds; it
is termed as unfair, unreasonable, unequitable, not just. Thus, this
field of wider discretion of the Tribunal has to be within the said
limitations and the limitations under any provision of this (Motor
Vehicles) Act or any other provision having the force of law.
52. The relevant part from Para 28 of Helen C. Rebello (supra)
reads as under:-
"............The word "just", as its nomenclature, denotes equitability,
fairness and reasonableness having large peripheral field. The
largeness is, of course, not arbitrary; it is restricted by the
conscience which is fair, reasonable and equitable, if it exceeds; it
is termed as unfair, unreasonable, unequitable, not just. Thus, this
field of wider discretion of the Tribunal has to be within the said
limitations and the limitations under any provision of this Act or
any other provision having force of law. In Law Lexicon, 5th
Edn., by T.P. Mukherjee "just" is described:
"The term 'just' is derived from the Latin word Justus. It has
various meanings and its meaning is often governed by the
context. 'just' may apply in nearly all of its senses, either to ethics
or law, denoting something which is morally right and fair and
sometimes that which is right and fair according to positive law. If
connotes reasonableness and something conforming to rectitude
and justice something equitable, fair (vide p. 1100 of Vol. 50,
Corpus Juris Secundum). At p. 438 of Words and Phrases, edited
by West publishing Co., Vol.23 the true meaning of the word
"just" is in these terms:
'The word "just" is derived from the Latin justus, which is from
the Latin jus, which means a right and more technically a legal
right-a-law. Thus "jus dicere" was to pronounce the judgment; to
give the legal decision. The word "just" is defined by the Century
standard Dictionary as right in law or ethics and in Standard
Dictionary as conforming to the requirements of right or of
positive law, in Anderson's Law Dictionary as probable,
reasonable, Kinney's Law Dictionary defines "just" as fair,
adequate, reasonable, probable; and justa cause as a just cause, a
lawful ground. Vide Bregman v. Kress (81 NYS 1072 83 App
Div1), NYS at p. 1073."
53. Nagappa vs. Gurudayal Singh and others
MANU/SC/1107/2002 : (2003) 2 SCC 274, [LQ/SC/2002/1279]
the Hon'ble Apex Court held that under the Motor Vehicles Act,
there is no restriction that the Tribunal/Court cannot award
compensation amount exceeding the claimed amount. The
function of the Tribunal/Court is to award "just" compensation
which is reasonable on the basis of evidence produced on record.
Further, in such cases there is no question of claim becoming
time-barred or it cannot be contended that by enhancing the claim
there would be change of cause of action.
54. It is apt to refer Paragraph Nos.14 and 21 as follows:-
"14. In case, where there is evidence on record justifying the
enhanced Compensation for the medical treatment which is
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required because of the injury caused to a claimant due to the
accident, there is no reason why such amendment or enhanced
compensation should not be granted. In such cases, there is no
question of introducing a new or inconsistent cause of action.
Cause of action and evidence remain the same. Only question is
application of law as it stands.
21. For the reasons discussed above, in our view, under the MV
Act, there is no restriction that the Tribunal/court cannot award
compensation amount exceeding the claimed amount. The
function of the Tribunal/court is to award "just" compensation
which is reasonable on the basis of evidence produced on record.
Further, in such cases there is no question of claim becoming
time-barred or it cannot be contended that by enhancing the claim
there would be change of cause of action. It is also to be stated
that as provided under sub- section (4) to Section 166, even the
report submitted to the Claims Tribunal under sub-section (6) of
Section 158 can be treated as an application for compensation
under the MV Act. If required, in appropriate cases, the court may
permit amendment to the claim petition.
Is it permissible under the Act to award compensation by
instalments or recurring compensation to meet the future medical
expenses of the victim'
57. In Sharanamma v. North East Karnataka RTC ] the Hon'ble
Apex Court held that when an appeal is filed under Section 173 of
the MV Act before the High Court, the normal rules which apply
to appeals before the High Court are applicable to such an appeal
also.
58. Paragraph-10 in Sharanamma (supra) is reproduced as under:-
"10. When an appeal is filed under Section 173 of the Motor
Vehicles Act, 1988 (hereinafter shall be referred to as "the Act"),
before the High Court, the normal rules which apply to appeals
before the High Court are applicable to such an appeal also. Even
otherwise, it is well-settled position of law that when an appeal is
provided for, the whole case is open before the appellate court and
by necessary implication, it can exercise all powers incidental
thereto in order to exercise that power effectively. A bare reading
of Section 173 of the Act also reflects that there is no curtailment
or limitations on the powers of the appellate court to consider the
entire case on facts and law."
59. In view of the aforesaid, this Court is of the considered
view that appeal to the appeal under Section 173 of the Motor
Vehicle Act to the High Court in the absence of a different
procedure having been provided, either under the MV act or the
APMV Rules, 1989, and the applicability of Order 41 CPC also
not having been excluded, in view of the judgment of the Hon'ble
Apex Court, the normal rules which apply to the appeals before
High Court, are applicable.
60. Order 41 CPC is that normal rule, which applies to appeals
before the High Court.
61. Order 41 Rule 33 of C.P.C reads as under:-
"33. Power of Court of Appeal :-
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The Appellate Court shall have power to pass any decree and
make any order which ought to have been passed or made and to
pass or make such further or other decree or order as the case may
require, and this power may be exercised by the Court
notwithstanding that the appeal is as to part only of the decree and
may be exercised in favour of all or any of the respondents or
parties, although such respondents or parties may not have filed
any appeal or objection and may, where there have been decrees in
cross-suits or where two or more decrees are passed in one suit, be
exercised in respect of all or any of the decrees, although an
appeal may not have been filed against such decrees:
Provided that the Appellate Court shall not make any order under
Section 35-A, in pursuance of any objection on which the Court
from whose decree the appeal is preferred has omitted or refused
to make such order."
"
63. In Pannalal vs. State Of Bombay and others
MANU/SC/0240/1963 : AIR 1963 SC 1516 [LQ/SC/1963/35] ,
with respect to Order 41, Rule 33, the Hon'ble Apex Court held
that wide wording of Order 41, Rule 33 CPC, was intended to
empower the appellate court to make whatever order it thinks fit,
not only as between the appellant and the respondent but also as
between respondent and a respondent. It empowers the appellate
court not only to give or refuse relief to the appellant by allowing
or dismissing the appeal, but also to give such other relief to any
of the respondent as "the case may require". It was further held
that if there was no impediment in law, the High Court in appellate
court therefore, though allowing the appeal of the defendant by
dismissing the plaintiff's suit against it, but the
plaintiff/respondents decree against any or all the other defendants
who were parties to the appeal as respondents. While the very
words of the rule make this position abundantly clear the
illustration puts the position beyond argument.
65. In Pralhad and others vs. State of Maharashtra and another
MANU/SC/0704/2010 : (2010) 10 SCC 458, [LQ/SC/2010/979]
the Hon'ble Apex Court held that the provisions of Order 41, Rule
33 CPC is clearly an enabling provision, whereby the appellate
court is empowered to pass any decree or make any order which
ought to have been passed or made, and to pass or make such
further or other decree or order as the case may require. Therefore,
the power is very wide and in this enabling provision, the crucial
words are that the appellate court is empowered to pass any order
which ought to have been made as the case may require. The
expression "order ought to have been made" would obviously
mean an order which justice of the case requires to be made. This
is made clear from the expression used in the said Rule by saying
"the court may pass such further or other order as the case may
require". This expression "case" would mean the justice of the
case. Of course, this power cannot be exercised ignoring a legal
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interdict or a prohibition clamped by law.
66. It is apt to refer Para No.18 as under:-
"18. The provision of Order 41 Rule 33 CPC is clearly an enabling
provision, whereby the appellate court is empowered to pass any
decree or make any order which ought to have been passed or
made, and to pass or make such further or other decree or order as
the case may require. Therefore, the power is very wide and in this
enabling provision, the crucial words are that the appellate court is
empowered to pass any order which ought to have been made as
the case may require. The expression "order ought to have been
made" would obviously mean an order which justice of the case
requires to be made. This is made clear from the expression used
in the said Rule by saying "the court may pass such further or
other order as the case may require". This expression "case" would
mean the justice of the case. Of course, this power cannot be
exercised ignoring a legal interdict or a prohibition clamped by
law."
24. In view of the aforesaid discussion, this Court is of the considered view
that for doing justice and to award just compensation, the provisions of Order 41
Rule 33 are to be invoked which are being invoked accordingly, therefore, this
Court find that there is no legal interdict or a prohibition under law, rather the
mandate of law is to award just compensation. There is also no prejudice being
caused to a person of just compensation.
25. In the case of Surekha and Others vs. Santosh and Others , Civil
Appeal No. 476 of 2020, the Hon'ble Supreme Court, in a decision rendered
by a Three-Judge Bench, held that it is well settled that while dealing with
matters of insurance claim compensation arising out of motor accidents, the
Court should not adopt a hyper-technical approach. The primary duty of the
Court is to ensure that just compensation is awarded to the affected person or
claimants. It was further held that the claimants are entitled to receive
compensation even they failed to file any cross-appeal or cross-objection.
26. In view of the aforesaid legal position, this Court proceeds to
determine the just compensation payable to respondent Nos. 1 to 8 under the
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provision. With respect to the income of the deceased, the Claims Tribunal
assessed the monthly income of the deceased as Rs. 1,500/-. The accident
occurred on 18.04.2003. Smt. Asgari (A.W.1), mother of the deceased,
deposed before the Tribunal that her son was working as a labourer and used
to earn Rs.150-200 per day. However, she was unable to produce any
documentary evidence in support of the said income and also failed to
establish that the deceased was a skilled labourer.
27. This Court is of the considered view that, in the absence of any
reliable documentary evidence regarding the income of the deceased, the
same must be determined on the basis of the Minimum Wages Act . As the
accident took place on 18.04.2003, the minimum wages for an unskilled
labourer at that time were Rs. 2,048/- per month. Therefore, the Tribunal
erred in assessing the income of the deceased at Rs. 1,500/- per month. The
income of the deceased is accordingly reassessed at Rs. 2,048/- per month.
28. As regards loss of income and future prospects, in light of the
judgment of the Hon'ble Supreme Court in National Insurance Co. Ltd. vs.
Pranay Sethi, (2017) ACJ 2700, the claimants are entitled to an addition of
40% towards future prospects. Further, as per the judgment in Sarla Verma
and Others vs. Delhi Transport Corporation and Another , (2009) 6 SCC 121,
considering the age of the deceased as 28 years, the appropriate multiplier
would be 17. One-fourth (¼) of the income is to be deducted towards
personal expenses of the deceased. In view of the decision of the Hon'ble
Apex Court in United India Insurance Co. Ltd. vs. Satinder Kaur and Others ,
(2020) ACJ 2131 , respondent No. 1 (wife), respondent Nos. 2 and 8
(daughters), and respondent No. 3 (mother) are each entitled to consortium.
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29. Accordingly, respondents/claimants are entitled to get
compensation under the following heads :-
Heads Amount
Monthly income 2048/-PM
Total Income 2048 X 12 =24,576/- PA
Future prospects 24,576(40%)
Income+Future prospects (24,576 + 9830 = 34,406)
Personal Expenses 1/4 8,601
Multiplier (17) 25,805X17 =4,38,685
Other Heads (Funeral and loss
30,000/-
of estate)
Loss of consortium (Parents and wife) 40000 X 4 = 1,60,000/-
Total Rs.6,28,685/-
29. Thus, the just and proper amount of compensation in the present
case comes to Rs. 6,28,685/-, as against the amount of Rs. 2,23,000/-
awarded by the Claims Tribunal. Accordingly, the appellants/claimants are
entitled to an enhanced compensation of Rs. 4,05,685/- over and above the
amount already awarded by the Claims Tribunal, payable by the owner and
driver of the offending vehicle.
30. It is made clear that subject to deposit of Court fees by the
claimants before the Registry of this Court, the claimants are entitled to
aforesaid enhanced compensation amount to the extent indicated above and
upon such compliance, the Registry shall issue certified copy of this
judgment. The aforesaid enhanced compensation amount shall carry
interest at the same rate as fixed by the learned Claims Tribunal, from the
date of filing of the claim petition till its realization. The said amount shall
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be paid by the owner and driver of the offending vehicle within a period of
three months from the date of receipt of the certified copy of this judgment.
All other conditions imposed by the learned Claims Tribunal shall remain
intact.
31. In view of the above, the Miscellaneous Appeal filed by the
appellant/Insurance Company stands disposed of in the aforesaid terms.
32. It is appreciated that Shri Akshat Jain- Advocate assisted the
Court to conclude this case.
33. Copy of this order be sent to the concerned Tribunal for
information and compliance.
(HIRDESH)
JUDGE
Prachi
