Madhya Pradesh High Court
Branch Manager United India ... vs Smt. Chetna Rao on 30 January, 2024
Author: Hirdesh
Bench: Hirdesh
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 30TH OF JANUARY, 2024
MISC. APPEAL No. 358 of 2019
BETWEEN:-
BRANCH MANAGER UNITED INDIA INS. CO. LTD.
BRANCH OFFICE AT ITARSI TEHSIL ITARSI DISTT.
HOSHANGABAD, M.P. [ AS PER AWARD]
AT JABALPUR - THROUGH IN CHARGE, TP HUB,
UNITED INDIA INS.CO.LTD., RAJKIRAN BUILDING,
FIRST FLOOR WRIGHT TOWN JABALPUR (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI T.S. LAMBA - ADVOCATE)
AND
1. SMT. CHETNA RAO W/O LATE KAPIL RAO, AGED
ABOUT 25 YEARS
2. KU KHUSHI D/O LATE KAPIL RAO, AGED ABOUT 6
YEARS, MINOR THROUGH NATURAL GUARDIAN
MOTHER SMT CHETNA RAO
3. MOHAN RAO S/O LATE MANGILAL RAO, AGED
ABOUT 57 YEARS
4. SMT SUMAN RAO W/O LATE MOHAN RAO, AGED
ABOUT 53 YEARS,
[RESPONDENTS NO. 1 TO 4 ARE RESIDENTS OF
WARD NO 21 MARUTI NAGAR RASULIYA
HOSHANGABAD TAHSIL AND DISTRICT
HOSHANGABAD MP (MADHYA PRADESH)
5. SATISH KEWAT S/O GANSHYAM KEWAT, AGED
ABOUT 29 YEARS, RESIDENT OF KOTHI BAZAR
HOSHANGABAD, TAHSIL AND DISTRICT
HOSHANGABAD MP
6. M/S BANSAL CONSTRUCTION WORKS PVT . LTD.
TAWA COMPLEX E -2/88 ARERA COLONY BHOPAL
2
TAHSIL AND DISTRICT BHOPAL MP (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI JITENDRA KUMAR JAIN - ADVOCATE FOR RESPONDENT NO.1)
Reserved on : 18.12.2023
Pronounced on : 30.01.2024
This appeal having been heard and reserved for orders, coming on for
pronouncement this day, the Court passed the following:
ORDER
1. This appeal by the Insurance Company under Section 173 of the Motor Vehicle Act is arising out of the award dated 4.9.2018 passed by the Motor Accident Claims Tribunal, Hoshangabad in M.A.C.C.No. 221/2017 for reduction of compensation.
2. The brief facts of the case are that the applicants preferred claim application under Section 166 of the Motor Vehicle Act, 1988 against the non-applicants alleging that deceased Kapil Rao was going on his motorcycle and as soon as he reached Faujdar Petrol Pump, driver of Dumper No. MP-04-HE-4171 overtaking the motorcycle stopped the Dumper without giving any indication due to which Kapil Rao driving the motorcycle dashed against the Dumper and fell down and died during treatment. Accident was reported to the police.
3. Non-applicants No. 1 and 2 i.e. owner and driver did not file any written statement and remained ex-parte before the Tribunal.
4. Non applicant no 3 i.e. the present appellant filed written statement contending that as per the criminal papers itself deceased has dashed with 3 the Dumper from behind and had he been careful accident could have been avoided therefore deceased himself was contributory negligent in causing the accident. Income as pleaded by the applicants is also not genuine and excessive and unreasonable. Alternatively breach of insurance policy terms and conditions was also pleaded. Under these grounds Insurance Company pleaded for exonerating them from the liability to pay compensation.
5. On the basis of the pleadings Tribunal framed issues, recorded evidence and passed award against non-applicant.
6. Insurance Company filed this appeal being aggrieved by the award passed by the Tribunal and submitted that the Tribunal committed apparent error of law as well as of facts by holding appellant/ insurance company liable for excessive amount of compensation.
7. It is further submitted that the deceased himself was driving the motorcycle and he dashed the motorcycle against the dumper going ahead, therefore deceased himself was contributory negligent in causing the accident but Tribunal below ignoring the same has saddled liability against the driver of Dumper.
8. The Tribunal considered income of the deceased as Rs 15,418 /- per month which is excessive and unreasonable as the cheques said to be paid to the deceased in lieu of salary and exhibited by witness Rajaram Yadav does not correlate with the amount of salary as stated by this witness. There are material contradictions in the statements made by this witness 4 and documents exhibited as the amount mentioned upon cheques shows Rs 9789/- but the Tribunal took salary of Rs.15,418/- for calculating compensation which is highly unjustified, unreasonable and deserves to be reduced.
9. Learned counsel for the appellant further submitted that the Tribunal had committed error in deducting dependency income as one-fourth. He stated that applicant No.3 Mohan Rao is shown as father of the deceased and he was not proved to be dependent upon the deceased. So, Tribunal committed error in assessing dependency income as 3/ 4. Instead of 3 /4, 2/ 3 should dependency income.
10. On the other hand, learned counsel for the claimants / respondents prays for rejection of this appeal. He submitted that he filed cross- objection under Order 41, Rule 22 and prays for enhancement of the compensation on the ground that Tribunal has not added future prospects as per the directions of Hon'ble Apex Court in National Insurance Co.Ltd. Vs. Pranay Sethi and other, AIR 2017 SC 5157. He further contended that Tribunal has also not given parental and filial consortium as per the directions of Hon'ble Apex Court in United India Insurance Co.Ltd. Vs. Satinder Kaur @ Satvinder Kaur and others, 2020 SCC Online SC 410. On these grounds he prays for enhancement of compensation.
11. After hearing learned counsel for both the parties and perusal of the record, it is evident that the first ground taken by the Insurance Company 5 is that the deceased was liable for contributory negligence. Learned counsel for the Insurance Company submitted that the deceased was himself driving the motorcycle and he dashed the motorcycle against the dumper going ahead, therefore, deceased was himself contributory negligent in causing the accident.
12. From perusing the record on this point, it is found that claimants filed petition before the Tribunal and pleaded that driver of the offending vehicle overtook the motorcycle without giving any indication to the deceased, due to which deceased fell down and died during treatment.
13. A.W.2 Pradeep Sharma stated in his examination-in-chief by way of affidavit that deceased Kapil Rao was going on motorcycle and as soon as he reached near Faujdar Petrol Pump, driver of the offending vehicle i.e. dumper overtook the motorcycle and applied brake without giving any indication, due to which Kapil Rao dashed against the dumper. He denied suggestion by the Insurance Company before the Tribunal that he had not lodged the FIR. He further submitted that he was the eye-witness of the incident. Considering the evidence of this witness, it is found that he was intact in his cross-examination. The evidence of A.W.2 Pradeep Sharma reveals that there was no contributory negligence on the part of the deceased in this accident. Therefore, argument of the Insurance Company in this regard has no substance.
14. Learned counsel for the Insurance Company further submits that Tribunal committed error in holding that father of deceased i.e. Mohan Rao 6 was dependent upon the deceased. He further submitted that as per the directions of Hon'ble Apex Court in Sarla Verma Vs. Delhi Transport Corporation, 2009 ACJ 1298, father cannot be said to be dependent upon the deceased but in Sarla Verma Case (Para 15) it is held that in absence of evidence to the contrary, brother, sister and father cannot be considered dependent upon the deceased. In this regard, evidence of A.W.1 Chetna Rao is taken into consideration. She stated in examination-in chief by way of affidavit that all the claimants were dependent upon the income of the deceased. She clearly stated in para 19 of her cross-examination that her father and mother-in-law are dependent upon the income of the deceased. So, it is clearly established by way of evidence of A.W.1 Chetna Rao that father of the deceased was dependent upon the income of the deceased. So, Tribunal rightly deducted one-fourth income towards personal expenses of the deceased. Therefore, this ground of the Insurance Company also has no substance.
15. Learned counsel for the Insurance Company submitted that the Tribunal committed error in assessing income of the deceased as Rs.15,418/- per month, which is excessive, unreasonable and deserves to be reduced. The cheque said to be paid to the deceased in lieu of salary and exhibited by the witness Rajaram Yadav does not corelate with the amount of salary as stated by this witness.
16. A.W.1 Chetna Rao stated in her examination-in chief by way of affidavit in para 5 that her husband was working as a professional security 7 guard in Isha Protectional Security Guard Pvt. Ltd. He was posted as a security guard in AIMS Hospital, Bhopal and his pay was Rs.17,790/-. A.W. 3 Rajaram Yadav who is Sr. Supervisor in Isha Protectional Security Guard Pvt. Ltd. is examined as a witness by claimant. He stated in his examination in chief that deceased was posted as a security guard from 3.7.2017 to 27.08.2017. Kapil Rao, deceased used to get Rs.593/- per day. On the basis of that his income would be Rs.15,418/- per month. Company used to give pay to deceased by way of cheque Ex.P/54. Attendance Register for the month July, 2017 is Ex.P/55. Payment sheet is Ex. P/56. Certified copy of cheque given to Kapil Rao for the month of August, 2017 is Ex. P/57.
17. After considering the evidence of this witness, it is found that he was intact in his cross-examination. There is no ambiguity in his evidence. Counsel for the appellant submitted that cheque in question shows the amount of Rs.9789/-. In this regard, it is found that the accident occurred on 28.08.2017. Cheque No. 57 was issued in September, 2017 so it is in lieu of payment for the month of August, 2017. According to the evidence of A.W.3 Rajaram deceased received payment on the basis of per day duty so amount mentioned in the cheque is pay drawn by the deceased on the basis of days which he rendered duty. So, considering the evidence of A.W.3, the trial Court rightly held income of the deceased as Rs. 15,418/- so there is no need to interfere in the findings of the trial Court regarding income of the deceased so this argument has no substance. 8
18. Learned counsel for the respondent/ claimant filed cross appeal under Order 41, Rule 22 C.P.C. for enhancement of compensation and submitted that the trial Court has committed error in not adding future prospects. In National Insurance Co.Ltd. Vs. Pranay Sethi and other, AIR 2017 SC 5157, Hon'ble Apex Court held that in case the deceased was self employed or had fixed salary an addition of 40% of the established income should be warranted where the deceased was below 40 years. Considering the evidence of trial Court it is found that trial Court committed error in not adding future prospects in the income of the deceased and also found that the trial Court committed error in not adding parental and consortium as per the directions of Hon'ble Apex Court in United India Insurance Co.Ltd. Vs. Satinder Kaur @ Satvinder Kaur and others, 2020 SCC Online SC 410. Therefore in view of the cases of Pranay Sethi (Supra) and Satendra Singh (Supra), the amount of compensation should be as follows :-
1. Per month income of deceased Rs. 15,418/-
2. Towards future prospects (addition of Rs. 21,585 /-
40%)
3. Annual Income Rs.2,59,022 /-
4. Deduction 1/4th for personal expenses Rs. 64,755/-
5. Dependency Income Rs.1,94,265/-
6. On applying multiplier of 17 Rs.33,02,505/-
7. Parental and filial Consortium Rs.1,20,000/-
8. Loss of Estate/Funeral expenses Rs. 30,000/-
9. Total compensation ought to be awarded Rs.34,52,505 /-
10. Compensation awarded by Tribunal Rs.24,81,954/-
11. Enhanced Compensation (9-10) Rs.9,70,551 /-9
19. In cross-objection, the claimants have valued the appeal only to the extent of Rs. 5,00,000/- and paid the court fees. However, for the rest of the amount, the Court fee shall be paid within a period of one month from the date of receipt of certified copy of this order and thereafter the amount shall be released by the Insurance Company on receiving the certificate. In case the certificate is not filed before the Insurance Company within a period of three months, the claimants shall not be entitled to interest on the enhanced amount of compensation.
20. Rest of the findings of the Tribunal shall remain intact.
21. Accordingly, the instant appeal filed by the Insurance Company is dismissed. However, the cross-objection filed by the claimants is allowed.
(HIRDESH) JUDGE Vikram Digitally signed by VIKRAM SINGH Date: 2024.02.09 11:43:40 +05'30'