Madhya Pradesh High Court
The New India Assurance Comp; Ltd vs Smt. Vandana Bathare on 2 November, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 2nd OF NOVEMBER, 2022
MA-01717-2013
BETWEEN:-
THE NEW INDIA ASSURANCE COMP. LTD.
BRANCH OFFICE NEHRUGANJ, NEAR B.S.NL
OFFICE THROUGH DIVISIONAL MANAGER,
NEW INDIA ASSURNACE COMPL LTD. DIVI.
OFFICE 29 (MADHYA PRADESH)
.....APPELLANT
(BY SHRI DINESH KAOSHAL - ADVOCATE)
AND
1. SMT. ARCHANA W/O LATE SAJAL TIWARI,
AGED ABOUT 32 YEARS, OCCUPATION: HOUE
WIFE M-2-35, VIVEKANAND, NAGAR, SHUDHAR
NAYAS COLONY, HOSHANGABAD (MADHYA
PRADESH)
2. AMAY S/O LATE SALAJ TIWARI, AGED ABOUT 6
Y E A R S , OCCUPATION: MINOR THROUGH
NATURAL GUARDIAN MOTHER ARCHANA M-2-
35, VIVEKANAND NAGAR, SHUDHAR NAYAS
COLONY, TAH.&DISTT. HOSHNGABAD, M.P
(MADHYA PRADESH)
3. RAMESH KUMAR S/O JAGDISH PRASAD
TIWARI, AGED ABOUT 71 YEARS, OCCUPATION:
PENSIONER M-2-35, VIVEKANAND NAGAR,
SHUDHAR NAYAS COLONY, TAH.&DISTT.
HOSHNGABAD, M.P (MADHYA PRADESH)
4. BULAKI PRASAD YADAV D/O JAGANNATH
PRASAD YADAV, AGED ABOUT 54 YEARS,
OCCUPATION: TRUCK DRIVER BUDHANI GHAT,
TAHSIL BUDHANI, DISTT. SEHORE, M.P.
(MADHYA PRADESH)
Signature Not Verified
SAN
5. KESHAW YADAV S/O CHOKHELAL YADAV KALI
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.11.05 14:06:18 IST
MANDIR KE PAEECHHE, GWALTOLI, DISTT.
HOSHANGABAD, M.P. (MADHYA PRADESH)
2
.....RESPONDENTS
(SHRI SUSHIL GIRI - ADVOCATE FOR RESPONDENT NO.5)
MISC. APPEAL No. 1708 of 2013
BETWEEN:-
(THE NEW INDIA ASSURANCE COMP; LTD
THROUGH DIVISIONAL MANAGER 290, C
NAPIER TOWN, JABALPUR, (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI DINESH KAOSHAL - ADVOCATE)
AND
1. SMT. VANDANA BATHARE) W/O SHYAM LAL,
AGED ABOUT 35 YEARS, OCCUPATION: DRIVER
ADAMGARH ROAD TEH. & DISTT.
HOSHANGABAD (MADHYA PRADESH)
2. BULAKI PRASAD YADAV D/O JAGANNATH
PRASAD YADAV, AGED ABOUT 54 YEARS,
OCCUPATION: TRYCJ DRIVER BUDHANI GHAT,
TAHSIL BUDHANI, DISTT. SEHORE, M.P.
(MADHYA PRADESH)
3. KESHAW YADAV S/O CHOKHELAL YADAV KALI
MANDIR KE PEECHHE, GWALTOLI, DISTT.
HOSHANGABAD, M,P. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUSHIL GIRI - ADVOCATE FOR RESPONDENTS NO. 2 & 3)
MISC. APPEAL No. 1717 of 2013
BETWEEN:-
THE NEW INDIA ASSURANCE COMP; LTD
THROUGH DIVISIONAL MANAGER NEW INDIA
ASSURANCE COMP. LTD. DIVISONAL OFFICE,
290, NAPIER TOWN (MADHYA PRADESH)
.....APPELLANT
Signature Not Verified
SAN (BY SHRI DINESH KAOSHAL - ADVOCATE)
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.11.05 14:06:18 IST
AND
1. SMT. VANDANA BATHARE W/O HARISH
3
BATHARE, AGED ABOUT 21 YEARS,
OCCUPATION: HOUE WORK BEHIND KALI
MANDIR GAWALTOLI, HOSHANGABAD
(MADHYA PRADESH)
2. KU. DHARA BATHARE D/O LATE HARISH
BATHARE, AGED ABOUT 10 YEARS,
OCCUPATION: MINORS THROUGH NATURAL
GUARDIAN AND MOTHER VANDANA BATHARE
BEHIND KALI MANDIR GWALTOLI
TAH.&DISTT. HOSHANGABAD,M.P. (MADHYA
PRADESH)
3. SMT. GEETA BATHARE W/O DAYARAM
BATHARE, AGED ABOUT 45 YEARS,
OCCUPATION: HOUSE WORK BEHIND KALI
MANDIR GWALTOLI TAH.&DISTT.
HOSHANGABAD,M.P. (MADHYA PRADESH)
4. DAYARAM BATHARE S/O LATE MIHILAL
BATHARE, AGED ABOUT 50 YEARS, BEHIND
KALI MANDIR GWALTOLI TAH.&DISTT.
HOSHANGABAD,M.P. (MADHYA PRADESH)
5. KU. SEEMA BATHARE D/O LATE MIHILAL
BATHARE, AGED ABOUT 20 YEARS, BEHIND
KALI MANDIR GWALTOLI TAH.&DISTT.
HOSHANGABAD,M.P. (MADHYA PRADESH)
6. KU. SULABHA BATHARE D/O DAYARAM
BATHARE, AGED ABOUT 18 YEARS, BEHIND
KALI MANDIR GWALTOLI TAH.&DISTT.
HOSHANGABAD,M.P. (MADHYA PRADESH)
7. MAHENDRA BATHARE S/O DAYARAM
BATHARE, AGED ABOUT 16 YEARS,
OCCUPATION: MINOR THROUGH NATURAL
GUARDIAN AND FATHER DAYARAM BATHER
BEHIND KALI MANDIR GWALTOLI
TAH.&DISTT. HOSHANGABAD,M.P. (MADHYA
PRADESH)
8. YOGESH BATHARE S/O DAYARAM BATHARE,
AGED ABOUT 15 YEARS, BEHIND KALI MANDIR
GWALTOLI TAH.&DISTT. HOSHANGABAD,M.P.
(MADHYA PRADESH)
Signature Not Verified 9. BULAKI PRASAD YADAV S/O JAGANNATH
PRASAD YADAV, AGED ABOUT 54 YEARS,
SAN
Digitally signed by ASHWANI PRAJAPATI
OCCUPATION: TRUCK DRIVER BUDHANI GHAT,
Date: 2022.11.05 14:06:18 IST
TAHSIL BUDHANI, DISTT. SEHORE, M.P.
(MADHYA PRADESH)
4
10. KESHAW YADAV S/O CHOKHELAL YADAV KALI
MANDIR KE PEECHHE, GWALTOLI, DISTT.
HOSHANGABAD, M,P. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI GHANSHYAM BARMAN - ADVOCATE FOR RESPONDENTS
NO. 1 TO 8 AND SHRI SUSHIL GIRI - ADVOCATE FOR
RESPONDENTS NO. 9 AND 10)
MISC. APPEAL No. 1720 of 2013
BETWEEN:-
(THE NEW INDIA ASSURANCE COMP; LTD
THROUGH DIVISIONAL MANAGER 290, C
NAPIER TOWN, JABALPUR, (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI DINESH KAOSHAL - ADVOCATE)
AND
1. SMT. INTAZ BE W/O LATE SHRI SHARIF KHAN,
AGED ABOUT 30 YEARS, AZAD WARD PINJARA
MOHALLA, TAHSIL BABAI, DISTRICT
HOSHANGABAD (MADHYA PRADESH)
2. ASHIF S/O LATE SHARIF KHAN, AGED ABOUT 12
Y E A R S , OCCUPATION: MINOR THROUGH
NATURAL GUARDIAN AND BALIMA SMT.
IMTAZ BE AZAD WARD PINJARA MOHALLAH,
BABAI-TAHSIL, DISTT. HOSHANGABAD
(MADHYA PRADESH)
3. DANISH S/O LATE SHARIF KHAN, AGED ABOUT
8 YEARS, OCCUPATION: MINOR THROUGH
NATURAL GUARDIAN AND BALIMA SMT.
IMTAZ BE AZAD WARD PINJARA MOHALLAH,
BABAI-TAHSIL, DISTT. HOSHANGABAD
(MADHYA PRADESH)
4. SMT. MASOOM BE W/O SHAKUR KHAN, AGED
ABOUT 65 YEARS, AZAD WARD PINJARA
MOHALLAH, BABAI-TAHSIL, DISTT.
HOSHANGABAD (MADHYA PRADESH)
Signature Not Verified
SAN
5. BULAKI PRASAD YADAV S/O JAGANNATH
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.11.05 14:06:18 IST PRASAD YADAV, AGED ABOUT 54 YEARS,
OCCUPATION: TRUCK DRIVER BUDHANI GHAT,
5
TAHSIL BUDHANI, DISTT. SEHORE, M.P.
(MADHYA PRADESH)
6. KESHAW YADAV S/O CHOKHELAL YADAV KALI
MANDIR KE PEECHHE, GWALTOLI, DISTT.
HOSHANGABAD, M,P. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUSHIL GIRI - ADVOCATE FOR THE RESPONDENT NO.6)
MISC. APPEAL No. 1725 of 2013
BETWEEN:-
THE NEW INDIA ASSURANCE COMP. LTD.
THROUGH DIVISONAL MANAGER, NEW INDIA
ASSURANCE COMP. LTD. DIVISONAL OFFICE ,
290, NAPIER TOWN, JABALPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI DINESH KAOSHAL - ADVOCATE)
AND
1. PANKAJ S/O SHRI RAMESH KUMAR TIWARI,
AGED ABOUT 47 YEARS, HARDA (MADHYA
PRADESH)
2. SMT. SHAKUNTALA W/O PANKAJ TIWARI,
AGED ABOUT 40 YEARS, OCCUPATION: HOUSE
WIFE HARDA DISTT.. M.P. (MADHYA PRADESH)
3. BULAKI PRASAD YADAV D/O JAGANNATH
PRASAD YADAV, AGED ABOUT 54 YEARS,
OCCUPATION: TRUCK DRIVER BUDHANI GHAT,
TAHSIL BUDHANI, DISTT. SEHORE, M.P.
(MADHYA PRADESH)
4. KESHAW YADAV S/O CHOKHELAL YADAV KALI
MANDIR KE PEECHHE, GWALTOLI, DISTT.
HOSHANGABAD, M,P. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI J.A. SHAH - FOR RESPONDENTS NO. 1 AND 2 AND SHRI
SUSHIL GIRI - ADVOCATE FOR RESPONDENTS NO.3 AND 4)
Signature Not Verified
SAN
MISC. APPEAL No. 1732 of 2013
Digitally signed by ASHWANI PRAJAPATI
Date: 2022.11.05 14:06:18 IST
6
BETWEEN:-
(THE NEW INDIA ASSURANCE COMP; LTD
THROUGH DIVISIONAL MANAGER 290, C
NAPIER TOWN, JABALPUR, (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI DINESH KAOSHAL - ADVOCATE)
AND
1. VIRENDRA YADUVANSHI S/O LATE SHRI
KISHAN YADUVANSHI, AGED ABOUT 55 YEARS,
S. P. M. COLONY TEH,. & DIST. HOSHANGABAD
(MADHYA PRADESH)
2. SMT. RUKMANI YADUVANSHI W/O VIRENDRA
YADUVANSHI, AGED ABOUT 48 YEARS, S.P.M.
COLONY, TAHSIL & DISTT. HOSHANGABAD,
M.P. (MADHYA PRADESH)
3. BULAKI PRASAD YADAV D/O JAGANNATH
PRASAD YADAV, AGED ABOUT 54 YEARS,
OCCUPATION: TRUCK DRIVER BUDHANI GHAT,
TAHSIL BUDHANI, DISTT. SEHORE, M.P.
(MADHYA PRADESH)
4. KESHAW YADAV S/O CHOKHELAL YADAV KALI
MANDIR KE PEECHHE, GWALTOLI, DISTT.
HOSHANGABAD, M,P. (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SUSHIL GIRI - ADVOCATE FOR RESPONDENTS NO. 3 AND
4)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
These six appeal filed by the appellant Insurance Company under Section 173 of the Motor Vehicles Act, 1988, originate from a common award dated Signature Not Verified SAN 31.01.2013, passed by learned First Addl. Motor Accident Claims Tribunal, Digitally signed by ASHWANI PRAJAPATI Hoshangabad (M.P.), in Claim cases No.90/2011 (Smt. Archna and others Vs. Date: 2022.11.05 14:06:18 IST 7 Bulaki Prasad Yadav), 12/2012 (Dinesh Saini Vs. Bulaki Prasad Yadav and others), 89/2011 (Smt. Vandana Bathe Vs. Bulaki Prasad Yadav), 99/2011 (Smt. Intaj Bi Vs. Bulaki Prasad and others), 88/2011 (Pankaj and another Vs. Bulaki Prasad Yadav and others) and 86/2011 (Virendra Yaduwanshi and another Vs. Bulaki Prasad and others), raising common grounds in all these cases and specific grounds in two cases to challenge the impugned award.
2. It is pointed out that common ground in all these cases are that vehicle (Dumper) bearing registration No.MP-04-GA/0419, was being driven without certificate of fitness and, therefore, there being violation of the terms and conditions of the policy as was proved by the Insurance Company by examining Shri Anil Kumar Akhaipuriya, Administrative Officer (Development), New India Assurance Company Limited, Branch Office Itarsi, District Hoshangabad, mentioning therein that fitness certificate was not produced by the owner driver of the offending vehicle bearing registration No. MP-04- GA/0419, which had hit Jeep bearing registration No.MP-05-BA/0276, in which injured/ deceased were travelling.
3. It has come on record that non-applicants No. 1 and 2 were proceeded ex- parte as they did not appear before the learned Claims Tribunal nor filed any written statement.
4. Brief facts of the present case are that on 25.07.2010, deceased Amit, Harish Bathre, Sharif Khan, Sajal Tiwari and Anubha Tiwari were travelling in the Jeep bearing registration No. MP-05-BA/0276 from Bhopal to Hoshangabad, when at about 01:30 p.m. near 'Bhoot Bungalow" on National Highway No.69, non-applicant No.2 was driving Dumper No.MP-04-GA/0419 Signature Not Verified SAN rashly and negligently, had hit the said jeep, as a result, said jeep had overturned Digitally signed by ASHWANI PRAJAPATI Date: 2022.11.05 14:06:18 IST and Amit, Anubha Tiwari, Harish Bathre, Sajal Tiwari died on the spot, whereas 8 Sharif Khan, who was treated at Obedullaganj, Bhopal and Nagpur, died on 17.08.2010. Dinesh Saini had sustained permanent disability on account of injuries sustained by him in the accident. Case Crime No.303/2010 was regisetered under Sections 279, 337, 304-A of IPC against the owner drivr of the Dumper No. MP-04-GA/0419.
5. It is submitted that Insurance Company had examined one Dilip Mehra, Clerk from office of Regional Transport Officer, Bhopal, who deposed that he had brought permanent record of fitness of vehicle bearing registration No.MP- 04-GA/0419. On the basis of the record, he deposed that fitness certificate was issued from 27.05.2008 to 26.05.2009 and then 27.05.2009 to 26.05.2010 and then from 15.09.2010 to 14.09.2011. As per records, no fitnes was available on the date of the accident i.e. 25.7.2010.
6. This evidence of Dilip Mehra has remain unrebutted though in cross- examination, this witness had admitted that in case of expiry of fitness certificate owner is free to make an application to the nearest office of Regional Transport Officer and by depositing tax can obtain temporary fitness certficate and he was not having any knowledge that if any temporary fitnes certificate was issued in favour of the vehicle owner. But, the fact of the matter is that neither the vehicle owner nor the driver appeared and produced fitness certifiate of the vehicle at the time of the accident. Thus, factum of non-availability of fitness certificate for the offending vehicle at the time of the accident, stood proved.
7. Shri Kaoshal, points out that as per Ex.D/2, there is a prescription of Signature Not Verified SAN limitation as to use and this limitation clearly points out that "the policy covers Digitally signed by ASHWANI PRAJAPATI use only under a permit within the meaning of the Motor Vehicles Act, 1988 or Date: 2022.11.05 14:06:18 IST 9 such a carriage falling under sub-section (3) of Section 66 of the Motor Vehicles Act, 1988. The policy does not cover use for (a) Organised racing (b) Pace Making (c) Reliability Trials (d) Speed Testing."
8. Thus, there being terms and conditions for use of vehicle under a permit and that being violated, it is submitted that Insurance Company should be exonerated. Reliance is placed on the judgment of Kerala High Court in case of Pareed Pillai Vs. Oriental Insurance Co. Ltd. (MACA No.2030 of 2015, decided on 09.10.2018), so also on the judgment of Coordinate Bench at Gwalior in United India Insurance Company Ltd. Vs. Vinod and others (M.A.No.1054/2015, decided on 25.06.2019), wherein, Coordinate Bench had held that since the offending vehicle was not having the fitness certificate on the date of the accident, therefore, the terms and conditions of the insurance policy were violated and, thus, the Insurance Company is not jointly and severally liable to make payment of compensation. However, in the light of the judgment passed by the Hon'ble Supreme Court in the cases of Amrit Paul Singh Vs. Tata AIG General Insurance Co. Ltd. [(2018) 7 SCC 558] and Shamanna and another Vs. Divisional Manager, the Oriental Insurance Co. Ltd. and others [(2018) 9 SCC 650], the Insurance Company shall be liable to make payment of compensation amount with liberty to recover the same from the owner.
9. Therefore, as far as Misc. Appeal No.1708/2013 (The New India Insurance Company Ltd. Vs. Dinesh Saini and others), Misc. Appeal No.1717/2013 (The New India Assurance Company Ltd Vs. Smt. Vandana Bathare and others), Misc. Appeal No.1720/2013 (The New India Insurance Company Ltd. Vs. Smt. Signature Not Verified SAN Intaz Be and others), Misc. Appeal No.1725/2013 (The New India Assurance Digitally signed by ASHWANI PRAJAPATI Date: 2022.11.05 14:06:18 IST Company Ltd. Vs. Pankaj and others) and Misc. Appeal No.1732/2013 (The 10 New India Insurance Company Ltd. Vs. Virendra Yaduvanshi and others), are concerned, they are allowed in part and disposed of with an observation that for want of fitness certificate, absence of which is proved by not only Shri Dilip Kumar, Administrative Officer of the Insurance Company and following the judgment of Coordinate Bench in United India Insurance Company Limited Vs. Vinod Kumar and others (supra) and also taking into consideration the judgment of the Supreme Court in the case of National Insurance Company Limited Vs. Challa Bharathamma and others [(2004) 8 SCC 517], wherein, in para 12, it is held as under :-
"12. The High Court was of the view that since there was no permit, the question of violation of any condition thereof does not arise. The view is clearly fallacious. A person without permit to ply a vehicle cannot be placed on a better pedestal vis-a-vis one who has a permit, but has violated any condition thereof. Plying of a vehicle without a permit is an infraction. Therefore, in terms of Section 149(2) defence is available to the insurer on that aspect. The acceptability of the stand is a matter of adjudication. The question of policy being operative had no relevance for the issue regarding liability of the insurer. The High Court was, therefore, not justified in holding the insurer liable."
Also taking into consideration the law laid down by the Supreme Court in Amrit Pal Singh (supra), the Insurance Company shall satisfy the award and will be entitled to recover the same from the owner of the offending vehicle.
10. So far as Misc. Appeal No.1707/2013 (The New India Insurance Company Ltd. Vs. Smt. Archana and others) and Misc. Appeal No.1717/2013 Signature Not Verified SAN (The New India Assurance Company Ltd Vs. Smt. Vandana Bathare and Digitally signed by ASHWANI PRAJAPATI Date: 2022.11.05 14:06:18 IST others) are concerned, additional grounds have been taken in regard to quantum 11 of compensation and that need to be dealt with separately.
11. In case of Misc. Appeal No.1707/2013 (New India Assurance Company Ltd. Vs. Smt. Archana and others), it is submitted by learned counsel for the Insurance Company that claimant's husband Salaj Tiwari was only 12 th passed. Learned Claims Tribunal has arbitrarily relied on Ex.P/12, which is a certificate issued by the authorised signatory of Bhartiya Samruddhi Finance Limited, showing employment of the deceased Salaj Tiwari as Assistant Manager- Insurance, with Basic Pay of Rs.11,000/- per month and Cost of Company Rs.3,99,960 per annum. It is submitted that excessive amounts have been awarded in favour of the claimants.
12. On the other hand, learned counsel for the claimants opposes the prayer and submits thatjust compensation has been awarded in favour of the claimants. Earlier deceased Salaj Tiwari was working as Sales Development Manager with HDFC Stanard Life Insurance. As per Ex.P/14, his Gross salary was Rs.2,17,199/- from 02.05.2006 to 31.03.2007. Ex.P/14 is the Form No.16, issued by the employer.
13. As per Ex.P/15, which is a Form No.12BA under Rule 26A(2)(b), showing statements of particulars of perquisites, other fringe benefits or amenities and profits in lieu of salary with value thereof. For the financial year 2008-09, taxable salary is certified by the Associate Vice President Accounts of the HDFC Standard Life Insurance Company Limited at Rs.3,49,768/-. Form No.16 issued by HDFC Standard Life Insurance Company Ltd. gives designation of the deceased Salja Tiwari as Assistant Branch Manager and Signature Not Verified depicts his remmuneration as Rs.3,72,188/-. It also shows that income tax of SAN Rs.23,206/- was deducted from the emoluments of Shri Salaj Tiwari.
Digitally signed by ASHWANI PRAJAPATI Date: 2022.11.05 14:06:18 IST14. Form No.16 (Ex.P/16) for a period of six months from 09.07.2009 to 12 25.01.2010, issued by Kotak Mahindra Old Mutual Life Insurance Limited, is also available on record.
15. Thus, it is evident from Ex.P/15 that when deceased was drawing Gross salary of Rs.3,72,188/- when he was working with HDFC Standard Life Insurance Company Ltd. as Assistant Manager and then proportionately his package had gone up when he was working as Manager with Kotak Mahindra Old Mutual Life Insurance Limited, as is revealed from Ex.P/16, then taking into consideration the emoluments as are mentioned in EX.P/12, cannot be said to be excessive or arbitrary. Only one aspect is to be examined in the light of Ex.P/13-A, which gives complete break up of remmuneration and when these documents are taken into consideration, then computation of compensation by taking remmuneration mentioned in Ex.P/12 and Ex.P/13 cannot be said to be arbitrary or illegal by any stretch of imagination.
16. It has come on record that age of the deceased was 36 years at the time of accident. Deceased Salja is survived by wife and a child of six years, besides senior citizen parents, therefore, one third deduction is to be made, but this deduction is to be made after deducting the amount of income tax. Slab prescribed for the payment of income tax for the relevant financial year 2011-12 prescribed 'Zero Tax' up till Rs.1,60,000/- and then 10% from one Rs.1,61,000/- to Rs.5,00,000/- since Tribunal has construed income of the deceased to Rs.4,00,000/- per annum. Therefore, when Rs.1,60,000/- is deducted, then @ 10%, Rs.24,000/- income tax will be payable, which is to be deducted. Therefore, before making one third deduction, Rs.24,720/- towards Signature Not Verified SAN income tax which includes 3% education cess is to be deducted. Thus, net Digitally signed by ASHWANI PRAJAPATI Date: 2022.11.05 14:06:18 IST dependency of the family will come out to Rs.2,50,187/-. When multiplier of 15 13 is applied, then pecuniary compensation will come out to Rs.37,52,805/-, over and above which claimants are entitled to a sum of Rs.70,000/- under the head of non-pecuniary compensation and besides this, another sum of Rs.40,000/- is payable to the minor child of deceased under the head of loss of parental consortium taking total compensation to Rs.38,62,805/- in place of Rs.40,20,000/-.
17. Thus, there will be reduction to the tune of Rs.1,57,000/- from the awarded amount. Besides, it is directed that Insurance Company will be liable to satisfy the award and will be entitled to recover the compensation from the owner of the offending vehicle. To this extent, Misc. Appeal No.1707/2013 (The New India Assurance Company Ltd. Vs. Smt. Archana and others) is allowed and impugned award pertaining to Claim Case No.90/2011 is set aside.
18. In Misc. Appeal No.1717/2013 (The New India Assurance Company Ltd. Vs. Smt. Vandana Bathare), additional ground is taken by the Insurance Company that deceased Harish Bathare has been arbitrarily treated as owner of the truck and his income is computed at Rs.1,80,000/- per annum, whereas, he was a driver on the said dumper. It is submitted that he is a driver on the said dumper, was at best entitled to compute his wages applicable on the date of the accident to a skilled worker and not @ Rs.15,000/- per month or Rs.1,80,000/- per annum. It is submitted that learned Tribunal has arbitrarily relied on the evidence of one Manish Yadav S/o M.S. Yadav, who was examined on behalf of claimants and who deposed that he is working in Tata Mutual Finance Limited Bhopal. He had facilitated transaction of purchase of a truck M-1613 bearing registration No. MP-04-GA/713, Chassis No.373145 LTZ 144934, Signature Not Verified SAN Engine No.697 TC56 LTZ 157008, dated 27.12.2006, which was originally sold Digitally signed by ASHWANI PRAJAPATI Date: 2022.11.05 14:06:18 IST to Shekhar Sahu S/o Ghanshyam Sahu and was financed for Rs.9,81,320/-. On 14 09.02.2009, said dumper was purchased by Harish Bathre, intimation of which was given by him in the office of the Company and Harish Bathre had paid instalments vide Ex.P/97 to Ex.P/100.
19. Shri Kaushal, submits that there is no agreement to sale on record to substantiate the transaction and when receipts Ex.P/97 to Ex.P/100 are in the name of Shekhar Sahu, then it cannot be said that any instalments were paid by the husband of the claimant, namely, Shri Harish Bathre. Taking these arguments, prayer is made for reduction of compensation.
20. Learned counsel for claimants in his turn, submits that Ex.P/64 is the agreement which was executed on 09.02.2009 between Shekhar Sahu and Harish Bathre in regard to truck bearing registration No. MP-04-GA/0713. This document Ex.P/64 makes it clear that truck was handed over to Shri Harish Bathre for operation.
21. It is pointed out that as per the evidence of Satyendra Singh, Public Information Officer of M.P. State Mining Corporation, permit in regard to transport sand was given for Truck bearing registration No.MP-04-GA/0713 vide Ex.P/20 to Ex.P/22, Ex.P/47 and Ex.P/48 to Ex.P/58.
22. There are affidavits of Raghuvir Gour and Govind Yadav, admitting payment of wages of Rs.6,500/- per month to them and, therefore, when a person had engaged two drivers, paying them monthly wages of Rs.6500/- per month each or Rs.13,000/- per month or Rs.1,56,000/- per annum, then considering income of the deceased at Rs.1,80,000/- per annum cannot be said to be excessive, specially when claimant Smt. Vandana Bathre has proved the Signature Not Verified SAN agreement and also one Jagmohan Ram has been examined in support of the Digitally signed by ASHWANI PRAJAPATI transfer of Truck bearing registration No. MP-04-GA/0713, depicting owner of Date: 2022.11.05 14:06:18 IST 15 said truck having been vested in deceased Harish Bathre under hypothecation to Tata Finance Company.
23. Taking these aspects into consideration, computation of income by the learned Claims Tribunal in Claim Case No.89/11 and then making appropriate deduction cannot be said to be excessive or arbitrary as deceased Harish Bathre was paying instalments of Rs.20,000/- of said truck. Therefore, findings given by the learned Tribunal in this regard, is just and correct. Therefore, Misc. Appeal No.1717/2013 (The New India Assurance Company Ltd. Vs. Smt. Vandana Bathare) on the ground of quantum fails and is dismissed. Other common ground of fitness certificate is available in this case also and, therefore, in the light of the judgments discussed in Amrit Paul Singh Vs. Tata AIG General Insurance Co. Ltd. (supra), Insurance Company is liable to satisfy the award and will be entitled to recover the same from the owner of the offending vehicle.
24. In above terms, these appeals stand disposed of.
25. Let record of Claims Tribunal be sent back.
(VIVEK AGARWAL) JUDGE A.Praj.v Signature Not Verified SAN Digitally signed by ASHWANI PRAJAPATI Date: 2022.11.05 14:06:18 IST