Madhya Pradesh High Court
Mahila Shanti vs Kuldeep Singh Tomar on 29 August, 2022
Author: Deepak Kumar Agarwal
Bench: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 29th AUGUST, 2022
MISC. APPEAL No. 264 of 2017
Between:-
SHRIRAM GENERAL INSURANCE
CO. LTD THR ITS MANAGER E-8 EPIP
RICO INDUSTRIAL AREA SITAPUR
JAIPUR RAJASTHAN (RAJASTHAN)
.....APPELLANT
(BY SHRI BAL KRISHNA AGRAWAL-ADVOCATE)
AND
MAHILA SHANTI W/O LATE SHRI
SANTOSH SINGH, AGED ABOUT 53
1. YEARS, R/O VILL. ESAAH THANA
DIMNI DIST. MORENA (MADHYA
PRADESH)
GAJENDRA S/O LATE SHRI
SANTOSH, AGED ABOUT 25 YEARS,
2. OCCUPATION: NA R/O VILL. ESAAH
THANA DIMNI DIST. MORENA
(MADHYA PRADESH)
RAJVEER S/O LATE SHRI SANTOSH,
AGED ABOUT 23 YEARS,
3. OCCUPATION: NA R/O VILL. ESAAH
THANA DIMNI DIST. MORENA
(MADHYA PRADESH)
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 03-09-2022
05:48:58 PM
2
RAJESH S/O LATE SHRI SANTOSH
SINGH, AGED ABOUT 20 YEARS,
4. OCCUPATION: NA R/O VILL. ESAAH
THANA DIMNI DIST. MORENA
(MADHYA PRADESH)
KULDEEP SINGH TOMAR S/O SHRI
LAKHAN SINGH TOMAR
5. OCCUPATION: NA R/O KHAJURI
ROAD AMBAH DISTT. MORENA
(MADHYA PRADESH)
RAGHVENDRA SINGH TOMAR S/O
SHRI HARENDRA SINGH TOMAR
6. OCCUPATION: NA R/O VILL. THARA,
TEHSIL AMBAH DISTT. MORENA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI RAMESH PRASAD GUPTA- ADVOCATE FOR
RESPONDENTS NO.1,2,3,4.
BY SHRI KRIPAL SINGH BATHAM- ADVOCATE FOR
RESPONDENT - 5)
&
MISC. APPEAL No. 569 of 2017
Between:-
MAHILA SHANTI W/O LATE SHRI
SANTOSH SINGH, AGED ABOUT 53
1. YEARS, R/O VILL. AISAHA P.S. DIMNI
PARGANA & DIST. MORENA
(MADHYA PRADESH)
GAJENDRA S/O LATE SHRI SANTOSH
SINGH, AGED ABOUT 25 YEARS,
2. OCCUPATION: NA R/O VILLAGE
AISAHA P.S. DIMANI PARGANA &
DISTT. MORENA (MADHYA PRADESH)
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 03-09-2022
05:48:58 PM
3
RAJESH S/O LATE SHRI SANTOSH
SINGH, AGED ABOUT 23 YEARS,
3. OCCUPATION: NA R/O VILLAGE
AISAHA P.S. DIMANI PARGANA &
DISTT. MORENA (MADHYA PRADESH)
RAJESH S/O LATE SHRI SANTOSH
SINGH, AGED ABOUT 20 YEARS,
4. OCCUPATION: NA R/O VILLAGE
AISAHA P.S. DIMANI PARGANA &
DISTT. MORENA(MADHYA PRADESH)
.....APPELLANTS
(BY SHRI RAMESH PRASAD GUPTA- ADVOCATE )
AND
KULDEEP SINGH TOMAR S/O SHRI
LAKHAN SINGH TOMAR R/O KHAJURI
1.
ROAD AMBAH DIT. MORENA (MADHYA
PRADESH)
RAGHVENDRA SINGH TOMAR S/O
HARENDRA SINGH TOMAR
2. OCCUPATION: NA R/O VILLAGE
THARA PARGANA AMBAHA DISTT.
MORENA (MADHYA PRADESH)
SHRI RAM INSURANCE COMPANY
LTD. E-8 EPIP REECO INDUSTRIAL
3.
AREA SITAPUR, JAIPUR (RAJASTHAN)
THROUGH DIVISIONAL MANAGER
.....RESPONDENTS
(BY SHRI BAL KRISHNA AGRAWAL- ADVOCATE FOR
RESPONDENT - 3)
&
CIVIL REVISION No. 23 of 2017
Between:-
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 03-09-2022
05:48:58 PM
4
SHRIRAM GENERAL INSURANCE CO.
LTD E-8 EPIP RICO INDUSTRIAL AREA
SITAPUR JAIPUR RAJASTHAN
(RAJASTHAN) THR ITS MANAGER
.....APPELLANT
(BY SHRI BAL KRISHNA AGRAWAL- ADVOCATE)
AND
RAMPHES S/O SHRI DEVLAL
BAGHELE, AGED ABOUT 38 YEARS, R/O
1. VILL. GOSHPURA P.S. SARAI CHOLA
TEH. AND DISTT. MORENA (MADHYA
PRADESH)
KULDEEP SINGH TOMAR S/O SHRI
LAKHAN SINGH TOMAR OCCUPATION:
2.
NA R/O KHAJURI ROAD AMBAH DISTT.
MORENA (MADHYA PRADESH)
RAGHVENDRA SINGH TOMAR S/O SHRI
HARENDRA SINGH TOMAR
3. OCCUPATION: NA R/O VILL THARA,
TEHSIL AMBAH DISTT. MORENA
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI KRIPAL SINGH BATHAM- ADVOCATE FOR
RESPONDENT -2)
&
CIVIL REVISION No. 24 of 2017
Between:-
SHRIRAM GENERAL INSURANCE CO.
LTD E-8 EPIP RICO INDUSTRIAL AREA
SITAPUR JAIPUR RAJASTHAN
(RAJASTHAN) THR ITS MANAGER
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 03-09-2022
05:48:58 PM
5
.....APPELLANT
(BY SHRI BAL KRISHNA AGRAWAL- ADVOCATE)
AND
RADHESHYAM S/O SHRI RAM LAKHAN
KUSHWAHA, AGED ABOUT 25 YEARS,
1. R/O VILL. GOSHPURA P.S. SARAI
CHHOLA TEH. AND DISTT. MORENA
(MADHYA PRADESH)
KULDEEP SINGH TOMAR S/O LAKHAN
SINGH TOMAR R/O KHAJURI ROAD
2.
AMBAH DISTT. MORENA (MADHYA
PRADESH)
RAGHVENDRA SINGH TOMAR S/O
HARENDRA SINGH TOMAR R/O
3.
VILLAGE THARA TEHSIL AMBAH
DISTT. MORENA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI KRIPAL SINGH BATHAM- ADVOCTE FOR
RESPONDENT -2)
&
CIVIL REVISION No. 25 of 2017
Between:-
SHRIRAM GENERAL INSURANCE CO.
LTD E-8 EPIP RICO INDUSTRIAL AREA
SITAPUR JAIPUR RAJASTHAN
(RAJASTHAN) THR ITS MANAGER
.....APPELLANT
(BY SHRI BAL KRISHNA AGRAWAL- ADVOCATE)
AND
Signature Not Verified
Signed by: MADHU
SOODAN PRASAD
Signing time: 03-09-2022
05:48:58 PM
6
RAMSEVAK S/O SHRI DWARIKA
PRASAD, AGED ABOUT 20 YEARS, R/O
1.
VILL. ESAAH THANA DIMNI TAH. &
DIST. MORENA (MADHYA PRADESH)
KULDEEP SINGH TOMAR S/O LAKHAN
SINGH TOMAR R/O KHAJURI ROAD
2.
AMBAH DISTT. MORENA (MADHYA
PRADESH)
RAGHVENDRA SINGH TOMAR S/O
HARENDRA SINGH TOMAR R/O
3.
VILLAGE THARA TEHSIL AMBAH DISTT.
MORENA (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI KRIPAL SINGH BATHAM- ADVOCATE FOR
RESPONDENT - 2)
These appeals & revisions coming on for hearing this
day, the court passed the following:
ORDER
This order shall govern the disposal of M.A.No.264/2017, M.A.No.569/2017, CR.No.23/2017, CR.No.24/2017 and CR.No.25/2017.
2. Brief facts of the case are that on 16.12.2010 claimant Ramsewak along with 4 bags of Bajra, claimant -Ramfes along with 4 goats and claimant Radheshyam along with 4 goats were travelling in loading vehicle MP06-L-0394 along with deceased Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 7 Santosh Singh, who was cleaner in the said vehicle. The said vehicle was in the ownership of respondent- Kuldeep and was driven by respondent -Raghvendra Singh. The driver of the said vehicle Raghvendra Singh was driving the vehicle rashly and negligently, due to which vehicle was capsized, as a result of which aforesaid claimants and deceased- Santosh got injured. They were admitted in hospital and due to serious injuries, deceased was referred to J.A. Hospital Gwalior and during treatment he died. Soon after this accident, FIR against driver of the aforesaid vehicle No.MP06-L-0394 was lodged after 1hrs. 45 minutes at Police Station Ambah by Radheshyam. On that basis, Crime No.433/2010 under Sections 279 and 337 of IPC was registered. In his report, Radheshyam has stated that he resides at Village- Gospura and today he was going to buy goats from Ambah market and on the way, he sat on the aforesaid vehicle alongwith Ramfes and Rambaran. Due to negligent driving of the driver of aforesaid vehicle, despite warning, vehicle was Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 8 capsized, due to which, Ramfes and he received injuries. Thereafter, driver of the aforesaid vehicle ran away. During investigation, statement under Section 161 of Cr.P.C. of deceased- Santosh was recorded in which he has specifically stated that on the fateful day, he alongwith son Rajesh was going on the aforesaid loading vehicle, but due to negligent driving of the driver of said vehicle, the vehicle was capsized. Thereafter, he was brought to Ambah Hospital. Afterwards he was referred to Gwalior. Similar statement was given by his son. He has stated that deceased- Santosh was cleaner in the aforesaid vehicle and Rajesh, Radheshyam and Ramfes were traveling with their goats. During treatment, Santosh died on 23.12.2010. Charge-sheet has been submitted against the driver of the aforesaid vehicle. Thereafter, claimants- Radheshyam, Ramfes and Ramsevak filed claim application under Section 166 of MACT Act and wife of deceased- Santosh namely Shanti filed an application under Section 166 of the Motor Vehicles Act for compensation. The Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 9 said applications were decided by the common award dated 31.11.2016 passed in claim Case Nos.130/2012, 60/2015, 63/2015 and 64/2015 by Second Additional Motor Accident Tribunal, Morena. Learned Tribunal after going through the evidence in para No.28 is of the opinion that claimants could not prove that deceased Santosh was traveling in the aforesaid vehicle as a cleaner, but assessed his income as Rs.3,000/- on notional basis and awarded compensation of Rs.3,16,000/- in favour of the claimants. So far as claim of Ramsewak in Case No.60/2015 is concerned, Tribunal found that he got simple injuries and no medical papers and bills were submitted and awarded compensation Rs.250/- under the head of travelling and Rs.1,000/- under the head of pain and suffering. Hence total sum of Rs.1250/- was awarded to the claimant- Ramsewak. So far as claimant- Ramfes in Case No.63/2015 is concerned, tribunal is of the opinion that he also sustained simple injuries and therefore, a sum of Rs.1,000/- under the head of attender charges, Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 10 Rs.1,000/- under the head of nutritious diet, Rs.250/- under the head of travelling, Rs.1,000/- under the head of pain and suffering and Rs.310/- under the head of medical expense was awarded. Hence, total Rs.3,560/- was awarded to claimant- Ramfes. So far as claimant Radheshyam is concerned, tribunal found that he sustained grievous injuries on his nose, therefore, tribunal awarded Rs.8,559/- in his favour and fastened the liability on insurance company to first pay the aforesaid compensation and then recover the same from the owner of the offending vehicle namely Kuldeep Singh.
3. Aggrieved by the aforesaid order of pay and recover, insurance company has filed M.A.No.264/2017, CR.No.23/2017, CR.No.24/2017 and CR.No.25/2017 and M.A.No.569/2017 has been filed by the legal heirs of deceased- Santosh. The said appeal has been filed on the ground that income of Rs.3,000/- per month assessed by the tribunal is on lower side.
Signature Not VerifiedSigned by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 11
4. Learned counsel for the insurance company during arguments submitted that all three claimants namely- Ramsewak, Ramfes and Radheshyam and deceased Santosh were travelling in aforesaid vehicle as gratuitous passengers and were carrying their cattle and goods in the said vehicle. In these situation, learned tribunal erred in directing the insurance company to first pay the compensation to the claimants and thereafter recover the same from the owner of the aforesaid vehicle. In support of his submission, learned counsel has relied upon the Division Bench judgment of this Court in the case of Krishna Prasad Chaturvedi and others Vs. Smt. Kamla Chaturvedi and another, 2007(II) MPWN 112.
5. Learned counsel for the claimants in support of his contention has submitted that as per insurance policy of the aforesaid vehicle, owner of the said vehicle paid premium of Rs.75/- for Non Fair Paying Passenger - NFPP Excluding Signature Not Verified Employees and placed reliance upon the judgment of Hon'ble Signed by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 12 Apex Court in the case of United Insurance Company Ltd. Vs. K.M. Poonam & Ors. rendered in 2011(2) ACJ 917 wherein it has been held that "the number of persons to be compensated being in excess of the number of persons who could validly be carried in the vehicle, the question which arises is one of apportionment of the amounts to be paid. Since there can be no pick and choose method to identify the five passengers, excluding the driver, in respect of whom compensation would be payable by the Insurance Company, to meet the ends of justice we may apply the procedure adopted in Baljit Kaur's case (supra) [National Insurance Co. Ltd. vs. Baljit Kaur & Ors.,(2004) 2 SCC 1] and direct that the Insurance Company should deposit the total amount of compensation awarded to all the claimants and the amounts so deposited be disbursed to the claimants in respect to their claims, with liberty to the Insurance Company to recover the amounts paid by it over and above the compensation amounts payable in respect of the persons covered by the Insurance Policy Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 13 from the owner of the vehicle, as was directed in Baljit Kaur's case. It has also been held that out of the said claimants, the claimants in whose favour the highest award was passed shall be construed as liability of the insurance company.
6. Learned counsel for the claimants has further submitted that deceased Santosh has died in the aforesaid accident. During evidence, it has not come on record that injured and deceased had paid any fare to the driver or owner of the offending vehicle. Hence they will come in the category of Non Fare Paying Passengers. Insurance Company has deducted premium of Rs.75 under this head for one passenger. In the light of the judgment of the Apex Court in the case of Baljeet Kaur (supra) claimant in whose favour the highest award was passed shall be construed as liability of the insurance company.
7. Heard learned counsel for the parties and perused the record.
8. On going through the policy of the offending vehicle, it Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 14 appears that insurance company has deducted premium of Rs.75 towards NFPP for one passenger. Four persons namely Santosh, Ramsevak, Ramfes and Radheshyam were travelling in the aforesaid goods vehicle. Santosh died in the accident and in his favour highest award was passed by the learned Claims Tribunal. In the light of the judgment of the Apex Court in the case of Baljeet Kaur (supra) liability of highest award should be fastened on the insurance company.
9. In National Insurance Co. Ltd. vs. Sujan Singh and others decided in M.A.No.301/2002 on 16.11.2017 Coordinate Bench of this Court has decided that when insurance company has taken premium for gratuitous passenger, then it is liable to pay the compensation. In the present case, Insurance Company has taken premium for one gratuitous passenger, hence, in the light of the decision in the case of Baljeet Kaur (supra) insurance company is liable to pay the compensation in regard to death of deceased Santosh. In regard to other injured, who are Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 15 gratuitous passengers and no premium was paid in regard to them, insurance company is not liable to indemnify the owner. Please see decision of the Apex Court in the case of National Insurance Co. Ltd. v. Bommithi Subbaayamma and others, (2005) 12 SCC 243. Accordingly, following the Division Bench decision of this Court in Krishna Prasad (supra) in regard to other injured it is held that only owner of the offending vehicle is liable for payment of compensation and thus in these matters finding of the Claims Tribunal in regard to pay and recover against the insurance company is set aside.
10. In view of the above, civil revisions filed by the insurance company is allowed and in these matters insurance company is not liable to pay the compensation first and then recover the same from the owner of the vehicle.
11. However, insurance company is liable to indemnify the claimants for the death of deceased Santosh, hence, Misc. Appeal filed by the insurance company is dismissed.
Signature Not VerifiedSigned by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 16
12. As regards M.A.No.569/2017 filed by the legal heirs of deceased Santosh for enhancement of compensation is concerned, learned Claims Tribunal assessed the monthly income of the deceased as Rs.3,000/- per month on notional basis. However, as per the guidelines of M.P. State Legal Services Authority on the date of accident minimum wages of even an unskilled labourer were Rs.4,145/-. Accordingly, notional income of the deceased is assessed as Rs.4,145/- per month. Thus, his annual income would be Rs.49,740/-. As the deceased was having 4 dependents, 1/4th of the income of the deceased is to be deducted towards his personal expenses. Thus, total amount comes to Rs.37,305/-. If multiplier of 7 is applied in this amount as applied by the learned Claims Tribunal, then total amount comes to Rs. 2,61,135/-. Beside this, claimants are entitled to a sum of Rs.70,000/- under miscellaneous heads (loss of estate, loss of consortium and funeral expenses). Thus, Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM 17 claimants are entitled to compensation of Rs.3,31,135/-. The Claims Tribunal awarded a compensation of Rs.3,16,000/-. Thus, claimants are further entitled to compensation of Rs.15,135/-. The impugned award with regard to rate of interest is modified from 9% to 6%. Rest of the terms and conditions of the award shall remain as it is.
13. In the result, CR.Nos.23/2017, CR.No.24/2017 and CR.No.25/2017 filed by the Insurance Company are allowed, M.A.No.264/2017 filed by the Insurance Company is dismissed and M.A.No.569/2017 filed by the claimants are allowed as indicated above.
(DEEPAK KUMAR AGARWAL) Judge Ashish*/ms/-
Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 03-09-2022 05:48:58 PM