Madhya Pradesh High Court
Ramakant Mishra vs Pramod Kumar & Ors. on 20 June, 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 23th OF JUNE, 2022
MISC. APPEAL No. 733 of 2000
Between:-
RAMAKANT MISHRA, S/o Tirath Prasad Mishra,
aged about 55 years, Occupation- Agriculture, R/o
Village Mangawa, Tehsil- Sirmour, District Rewa
(M.P)
.....PETITIONER
(NONE FOR APPELLANT)
AND
1. PRAMOD KUMAR, S/o Sadashiv Tiwari, aged about
35 years, R/o Village Marhi, Thana Raipur, Teh-
Raipur, District Rewa
2. MOHAN LAL S/O KISHORI LAL KOLE, AGED
ABOUT 30 YEARS, VILLAGE AMIRITI, P.S.
MANGAWANA (M.P)
3. THE NEW INDIA COM. LTD. COM. LTD. SATNA
(M.P)
4. RAJNISH S/O SADASHIV TIWARI VILLAGE
MARHI, THANA RAIPUR, TEHSIL RAIPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAKESH JAIN, ADVOCATE FOR RESPONDENT NO.3 )
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
Signature Not Verified
SAN
Digitally signed by TARUN KUMAR
SALUNKE
Date: 2022.06.30 11:37:09 IST
2
This appeal is filed under section 173 of Motor Vehicle Act, 1988 by the appellant/claimant being aggrieved of award dated 15/01/2000 passed by the Additional Motor Accident Claims Tribunal Rewa in Claim Case No. 8/1999 dismissing the claim of the applicant.
As nobody is appearing for the appellant, record is perused with the help of Shri Rakesh Jain, learned counsel for the respondent/The New India Insurance Company Limited.
The brief facts of the case, which are not disputed are that on 15-16 October, 1990 Sachidanand, S/o Ramkant was travelling on a tractor bearing registration No.MPBA7794, Trolley No.MPBA7795. Tractor was driven rashly and negligently by the respondent no.2 Mohanlal, as a result of which Sachidanand fell down and sustained injuries from trolley as a result of which he died.
At the time of incident, Kapour Chand, Kailash and other were seating on the bonnet of the tractor. Incident was seen by Panchlal and others. It has come on record that trolley was loaded with utensils. Tractor-Trolley were insured with New India Insurance Company. Criminal case No. 149/1990 was instituted under section 279, 304A, 201 of IPC, in which it was found that respondent no.2 Mohanlal and Shyamlal were guilty of the offence. It has also come on record that a sum of Rs.25,000/- was paid to the claimants under section 140 of Motor Vehicles Act in terms of the order dated 27/08/1992. It has also come on record that at the time of accident, age of the deceased was 18 years and beside his studies, he was earning as a labourer to support his family. He had lost his mother when he was only 2 and 1/2 years of age. Respondents though denied factum of accident and learned Tribunal also rejected the claim but the evidence which has come on record is contrary to the appreciation made by learned Claims Tribunal.
Shri Pramod Kumar, owner of the tractor admit that on the date of incident he had given his tractor to procure seeds (wheat and gram) along with his relative Ramjit, S/o Nathuram Pandey at about 6 PM. In cross examination, he admitted that he was not with the tractor at the time of incident. He admitted that criminal case was registered against the driver. Further he admitted that tractor was taken by Mohanlal and Mohanlal was not examined in the criminal court. He admitted that tractor Signature Not Verified was seized by the police and he had received tractor from the court in superdiginama. He admitted SAN Digitally signed by TARUN KUMAR SALUNKE Date: 2022.06.30 11:37:09 IST that his mother is owner of offending tractor. He had produced registration of Trolley and admitted 3 his name is also mentioned as joint owner.
Defence witness is Mohanlal. This witness has admitted that deceased Daroga @ Sachidanand was traveling on his tractor, when he was returning to Katra. He was accompanied with Shyamlal. However he developed story that 3-4 Km before Katra, Daroga asked him to hault his vehicle so to permit him to ease himself and when Daroga got down from the tractor he was hit by a truck, which came from behind. He and Shyamlal picked up Daroga and when they were carrying him to Mangawa, he died on the way. He admitted that report of the incident was lodged by Shyamlal.
In cross examination this witness admitted that deceased and Shyamlal were seating by his side in the tractor, it was winter season. He also admitted that accident took place close to the wheels of the trolley. He could not give description of the truck. He further admitted in para 9 of his cross examination that the area in which accident took place is a rural area and very few vehicles travel in that area. He also admitted that he had parked his tractor by the side of the road. Shyamlal had made report in his presence at the police station and he admitted that criminal case was registered against him in which he obtained bail.
This witness has admitted that headlight of the tractor were On and Shyamlal was sitting on the bonnet of the tractor behind the driver seat. This witness was siting on the driver seat.
Claimant examined one Mohd. Jahir (DW-2), who is said to be eyewitness. He adduced that people were travelling in the tractor to attend Lalgaon Mela. He was sitting in the tractor along with Daroga and other 3-4 persons. Daroga had fallen down in front of the house of tailor on account of rash and negligent driving of the tractor. As a result trolley had crushed the deceased.
In his cross examination, this witness has clearly mentioned that he had given statement to the police. He has denied suggestion that he was not a passenger in the offending vehicle. He admitted that he was sitting in the trolley. He admitted that he was travelling to Lalgaon where his Maushi resides. Thus this testimony of the independent witness could not be doubted. Learned Tribunal has arbitrarily discarded the testimony of this independent witness.
Signature Not VerifiedSAN Shri Rakesh Jain, learned counsel for the respondent no.3 submits that even if this is accepted that Digitally signed by TARUN KUMAR SALUNKE accident had taken place with the insured tractor-trolley and not with the truck as story is sought to Date: 2022.06.30 11:37:09 IST be made by the witness Mohanlal (PW-2) and defence has not examined Shyamlal author of the 4 FIR, there was no occasion for Tribunal to have doubted the evidence merely on the basis of surmise. However he submits that in case of National Insurance Co. Ltd. Vs. Bakaridan & others, 2017 ACJ 2524, Gwalior Bench of this High Court has held that if death of a passenger travelling on the mudguard of tractor when tractor met with accident due to its rash and negligent driving, then Insurance Company cannot be fastened liability as sitting capacity of tractor is only one person i.e. driver and no premium is paid for carrying passenger by the side of driver and thus only owner and Insurance Company will be responsible for the payment of compensation.
In view of such facts, once this court has recorded a finding that there is plethora of evidence to accept that deceased died because of accident, which he met on account of fall from the bonnet of the tractor and being crushed by tyre of the trolley bearing registration No.MPBA7795 adequate compensation is to be paid in favour of the claimant.
Accident took place on 15-16 October, 1990 with tractor bearing registration No.MPBA7794 & Trolley No.MPBA7795 then notional income of the deceased can be considered at Rs.15000/- per annum @ Rs.1200/- per month. Since deceased was a bachelor, dependency of the claimant will be Rs.7500/- per year. When 40% is added then annual dependency will be 10,500/- per annum. when multiplier of 18 is applied as prescribed in case of Sarla Verma (Smt). & others Vs. Delhi Transport Corporation & another, (2009) 6 SCC 121 , then total pecuniary compensation comes out to Rs.1,89,000/-. Beside this claimant is entitled for Rs.30,000/- under head of non-pecuniary compensation, taking total compensation to Rs.2,29,000/-(Rupees Two lakhs twenty nine thousand) which will carry interest @ 7.5% per annum.
Thus in view of the law laid down in case of New India Assurance Co. Ltd. Vs. Asha Rani & others, AIR 2003 SC 607, since passenger is not allowed on the tractor, thus Insurance Company cannot be fastened with the liability and claimants will be entitled to recover the awarded compensation only from the owner and driver of the tractor, who shall be jointly and severally liable to pay the compensation.
In above terms appeal is disposed of.
Signature Not Verified SAN Digitally signed by TARUN KUMAR SALUNKE Date: 2022.06.30 11:37:09 IST 5(VIVEK AGARWAL) JUDGE tarun Signature Not Verified SAN Digitally signed by TARUN KUMAR SALUNKE Date: 2022.06.30 11:37:09 IST