Madhya Pradesh High Court
Smt.Gomti Devi vs Balveer Singh on 14 May, 2024
Author: Sunita Yadav
Bench: Sunita Yadav
1
MA. NO. 1402 OF 2011
IN THE HIGHCOURTOF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 14th OF MAY, 2024
MISC. APPEAL No. 1402 of 2011
BETWEEN:-
SMT. GOMTI DEVI W/O LATE JEEVAN LAL,
AGED ABOUT 45 YEARS, R/O NEW
1.
VIVEKANAND COLONY, GWALIOR (MADHYA
PRADESH)
JITENDRA S/O LT. JEEWANLAL, AGED ABOUT
17 YEARS, OCCUPATION: BEHIND GOVT.
2. SCHOOL, ROSHANPURA, DABRA, DISTT.
GWALIOR PRE. NEW VIVEKANAND COLONY,
GWALIOR (MADHYA PRADESH)
KU. NEHA D/O LT. JEEWANLAL, AGED ABOUT
15 YEARS, OCCUPATION: BEHIND GOVT.
3. SCHOOL, ROSHANPURA, DABRA, DISTT.
GWALIOR PRE. NEW VIVEKANAND COLONY,
GWALIOR (MADHYA PRADESH)
KU. SHIVANI D/O JEEWANLAL, AGED ABOUT 11
YEARS, OCCUPATION: BEHIND GOVT.
4. SCHOOL, ROSHANPURA, DABRA, DISTT.
GWALIOR PRE. NEW VIVEKANAND COLONY,
GWALIOR (MADHYA PRADESH)
KU. PREETI D/O LT. JEEWANLAL, AGED ABOUT
10 YEARS, OCCUPATION: 2-5 MINOR TH:
MOTHER SMT. GOMTI DEVI W/O LT.
5. JEEWANLAL BEHIND GOVT. SCHOOL,
ROSHANPURA, DABRA, GWALIOR,PRE. NEW
VIVEKANAND COLONY, GWALIOR (MADHYA
PRADESH)
.....APPELLANTS
(MR. B.D.VERMA - ADVOCATE FOR THE APPELLANTS - CLAIMANTS)
AND
1. BALVEER SINGH S/O KALYAN SINGH, AGED
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 5/16/2024
04:29:51 AM
2
MA. NO. 1402 OF 2011
ABOUT 35 YEARS, OCCUPATION: TRACTER
DRIVER R/O OONT KHANA, RADHA VIHARI
ROAD, DHOLPUR, RAJASTHAN (MADHYA
PRADESH)
PREETAM SINGH KAMARIA S/O LAKKHU
KAMARIA OCCUPATION: VILL. JUJHARPUR,
2. THANA DHEERPURA, DISTT. DATIA PRE. VILL.
ADUPURA, THANA BILAUA, DISTT.GWALIOR
(MADHYA PRADESH)
THE NEW INDIA ASSURANCE COMPANY LTD.
TH: ZONAL MANAGER, ZONAL OFFICE,
3.
STATION ROAD, PHOOLBAGH, LASHKAR,
GWALIOR GWALIOR (MADHYA PRADESH)
DURGESH SINGH S/O CHOTE SINGH
BHADORIA, AGED ABOUT 39 YEARS,
4.
OCCUPATION: VILL. PHOOPH, DISTT. BHIND
(MADHYA PRADESH)
ASHOK SINGH TOMAR S/O ARUN SINGH
TOMAR, AGED ABOUT 48 YEARS,
5. OCCUPATION: GOVERDHAN COLONY, GOLA
KA MANDIR, NEAR PETROL PUMP, BHIND
ROAD, GWALIOR (MADHYA PRADESH)
BAJAJ ALLIANZ GENERAL INSURANCE
COMPANY LTD. TH: DIVISIONAL MANAGER,
6.
H.I.G.10, FIRST FLOOR, SHIVAJI NAGAR, NEAR
PETROL PUMP BHOPAL (MADHYA PRADESH)
.....RESPONDENTS
(MR. KAMAL S. ROCHLANI - ADVOCATE FOR RESPONDENT NO. 3 AND MR.
NIRENDRA SINGH TOMAR - ADVOCATE FOR RESPONDENT NO. 6)
..........................................................................................................................
This appeal coming on for hearing this day, the court passed the
following:
JUDGMENT
This appeal been filed assailing the award dated 12.8.2011 passed by Sixth Additional Motor Accident Claims Tribunal, Gwalior (M.P.) in Claim Case No. 17/2011 filed by the appellants - claimants for grant of compensation on account of death of Jeevanlal in a road traffic accident Signature Not Verified Signed by: ALOK KUMAR Signing time: 5/16/2024 04:29:51 AM 3 MA. NO. 1402 OF 2011 occurred on 13.5.2008 involving offending vehicle Tractor bearing registration No.MP32-M-1208 and Dumper bearing registration No.MP07- GA-0335. At the time of accident, respondent No. 1 - Balveer Singh was the driver and respondent No. 2 - Preetam Singh was the owner of the Tractor whereas Tractor was insured with respondent No. 3 - New India Assurance Company Ltd. Further, respondent No. 4 - Durgesh Singh was the driver and respondent No. 5 - Ashok Singh was the owner of the offending Dumper whereas Dumper was insured with respondent No. 6 - Bajaj Allianz General Insurance Co. Ltd.
2. Learned claims tribunal after hearing the rival parties and going through the evidence available on record partially allowed the claim petition of the claimants and awarded compensation to the tune of Rs.3,75,000/- which was directed to be paid by respondents No. 1, 2, 4 and 5 i.e. owners and drivers of the Tractor and Dumper jointly and severely and both the insurance companies were exonerated from the liability to pay the compensation.
3. Learned counsel for the appellants - claimants argued that learned claims tribunal has wrongly exonerated the insurance companies from the liability to pay the compensation ignoring the fact that in respect to Tractor No.MP32-M-1208, insurance company of the tractor, the New India Assurance Co. Ltd. is liable to pay the compensation as deceased Jeevanlal Signature Not Verified Signed by: ALOK KUMAR Signing time: 5/16/2024 04:29:51 AM 4 MA. NO. 1402 OF 2011 comes within the purview of third party. Even learned claims tribunal has erred in not applying the principal of "pay and recover". It is further argued that learned claims tribunal has also calculated income of the deceased on the lesser side and it should have been fixed at the rate of Rs.4,000/- per month. Further argument is that appellants - claimants are also entitled for future prospects and compensation in other heads as prescribed in the case of National Insurance Company vs. Pranay Sethi & Ors; 2017 ACJ 2700. Hence, prayed to set aside the impugned award and grant just and proper compensation to the appellants - claimants.
4. Learned counsel for respondent No. 3 - New India Assurance Co. Ltd. Supported the impugned award and prayed for rejection of the appeal.
5. Learned counsel for respondent No. 6 - Bajaj Allianz General Insurance Co. Ltd. Argued that since deceased was travelling in Dumper No.MP07-GA-0335 as a passenger in breach of policy conditions as dumper was insured for carrying goods. It is further argued that the amount awarded for compensation is just and proper. Hence, prayed to dismiss the present appeal.
6. Heard and perused the record.
7. The factum of death of deceased Jeevanlal on account of this accident has not been challenged by the respondents. On the basis of evidence Signature Not Verified Signed by: ALOK KUMAR Signing time: 5/16/2024 04:29:51 AM 5 MA. NO. 1402 OF 2011 available on record, learned claims tribunal has rightly held that the deceased was travelling on the Dumper No.MP07-GA-0335 as a passenger whereas the dumper was insured as goods carrying vehicle. Similarly, learned claims tribunal has also not erred in giving finding that the accident occurred on account of contributory negligence of the driver of Dumper No.MP07-GA- 0335 and driver of Tractor No.MP32-M-1208.
8. So far as the question of liability of insurance companies to pay the compensation is concerned, since this is a case of composite negligence, therefore, there should be apportionment between the insurance companies in respect to liability.
9. Learned counsel for respondent No. 6 - Bajaj Allianz General Insurance Co. Ltd. argued that in the light of the cases of Oriental Insurance Co. Ltd. vs. Brij Mohan and Ors.; 2007 ACJ 1909, New India Assurance Co. Ltd. vs. Vedwati & Ors.; 2007 ACJ 1043, National Insurance Co. Ltd. vs. Baljit Kaur & Ors.; 2004 ACJ 428 and Balu Krishna Chavan vs. Reliance General Insurance Co. Ltd. & Ors.; 2023 ACJ 1546, insurance company is not liable to pay the compensation and principal of "pay and recover" is not applicable in this case.
10. On the other hand, learned counsel for the appellants argued that in the light of the cases of V. Renganathan & Anr. vs. Branch Manager, United Signature Not Verified Signed by: ALOK KUMAR Signing time: 5/16/2024 04:29:51 AM 6 MA. NO. 1402 OF 2011 India Insurance Co. Ltd. & Anr.; 2023 ACJ 623, Kempaiah & Ors. vs. S.S. Murthy & Anr.; 2017 ACJ 1722, Oriental Insurance Co. Ltd. vs. Smt. Biddo Devi (deceased) & Os., Manuara Khan & Ors. vs. Rajesh Kr Singh & Ors., Mamoni Saikia Mohanty & Ors. vs. Rajesh Kr & Ors.; MACD 2017 (1) SC 19, the appellants are entitled to get compensation from the New India Assurance Co. Ltd. which has insured the Tractor deceased being the third party so also in respect to Bajaj Allianz General Insurance Co. Ltd which has insured the dumper, principle of "pay and recover" shall be applicable.
11. It is also apparent from the record that the accident was the result of rash and negligent driving of the drivers of both the tractor as well as dumper. Since deceased comes within the purview of "third party" so far as Tractor No.MP32-M-1208 is concerned, therefore, the fiding of learned claims tribunal that the New India Assurance Co. Ltd., which had covered the risk of the tractor, is not liable to pay the compensation is against the law and the same is hereby set aside and it is held that respondent No. 3 - New India Assurance Co. Ltd. is liable to pay the compensation to the claimants.
12. So far as question of breach in policy conditions of the tractor is concerned, merely on the ground that at the time of accident, trolley was loaded with sand, it cannot be said that the tractor was being used for other than the purpose of agriculture. It is a trite law that if insurance company Signature Not Verified Signed by: ALOK KUMAR Signing time: 5/16/2024 04:29:51 AM 7 MA. NO. 1402 OF 2011 takes any defence, then the burden to prove the said defence is on the insurance company. In this case, New India Assurance Co. Ltd. has examined Permanend Verma as DW-2. According to this witness, at the time of accident, tractor-trolley was being plied in breach of conditions of the insurance policy because it was being used for other than agricultural purpose, however, in his cross-examination at para 4 and 5, this witness has failed to explain as to for what purpose the sand was being carried in the tractor-trolley and also admitted that he does not know why the sand was being carried in the tractor-trolley and admitted the possibility of use of sand in agricultural purpose. Even this witness has failed to state whether any investigation report has been filed by the insurance company in this case or not. Under these circumstances, when no investigation report has been filed to explain the use of sand being carried in the tractor-trolley, learned claims tribunal has wrongly held that ther eis a breach of policy conditions because the tractor was being used for other than agricultural purpose and wrongly exonerated the New India Assurance Co. Ltd. from the liability to pay the compensation.
13. This is a case of composite liability. It is apparent that deceased was travelling on the dumper in breach of insurance policy, therefore, learned claims tribunal has rightly exonerated the Bajaj Allianz General Insurance Co. Ltd. from the liability to pay the compensation. However, in the light of Signature Not Verified Signed by: ALOK KUMAR Signing time: 5/16/2024 04:29:51 AM 8 MA. NO. 1402 OF 2011 the judgment passed by this Court in M.A. No. 235 of 2013, this Court deems it appropriate to apply the principle of "pay and recover" in the interest of justice so far as it relates to Bajaj Allianz General Insurance Co. Ltd. who was the insurer of Dumper. Even in the case of Balu Krishna Chavan (supra), the Apex Court held that "It is well settled that if insurance company is not liable to pay the compensation then there shall be no direction of 'pay and recover', however, considering the facts arising in each case, such direction is required to be made to meet the ends of justice."
14. So far as income of the deceased is concerned, learned claims tribunal on the basis of evidence available before it has rightly assessed the income of the deceased as Rs.3000/- per month.
15. However, appellants - claimants are also entitled for compensation under the head of "future prospects" as well as in other conventional heads.
16. In view of the case law of Pranay Sethi (supra) as well as Smt. Sarla Verma & Ors. vs. Delhi Transport Corporation & Ors.; AIR 2009 SC 3104, considering the annual income of the deceased to be Rs.36,000/-, 3/4th dependency (36000 x 3/4 = 27000), 40% future prospects (27000 x 40/100 = 10800/-), multiplier of 13 and Rs.70,000 in other heads, total compensation amount comes to Rs.5,61,400/- [(27000 + 10800) x 13 + 70000/-].
17. As such, the total amount awarded to the claimants is enhanced from Signature Not Verified Signed by: ALOK KUMAR Signing time: 5/16/2024 04:29:51 AM 9 MA. NO. 1402 OF 2011 Rs.3,75,000/- to Rs.5,61,400/-. The enhanced amount comes to Rs.1,86,400/- (Rupees One Lakh Eighty Six Thousand and Four Hundred only), with interest at the rate as fixed by the tribunal in the award which is directed to be paid to the claimants by respondents No. 3 - New India Assurance Co. Ltd. and respondent No. 6 - Bajaj Allianz General Insurance Co. Ltd. jointly and severely in the same apportionment as directed by the claims tribunal. Respondent No. 6 - Bajaj Allianz General Insurance Co. Ltd. shall have liberty to recover the compensation amount paid by it from respondents No. 4 and 5 - Driver and Owner of the Dumper respectively. The enhanced amount of compensation Rs.1,86,400/- shall be payable to the claimants within 12 weeks from the date of production of a certified copy of this order. Rest of the award impugned passed by the Tribunal shall remain intact.
18. If the enhanced amount of compensation is in excess to the valuation of appeal, the difference of the Court fee (if not already paid) shall be deposited by the appellants / claimants within four weeks' from today and proof thereof shall be submitted before the Registry. Thereafter, Registry shall issue the certified copy of the order passed today.
19. Appeal stands allowed to the aforesaid extent and disposed of.
(SUNITA YADAV)
AKS JUDGE
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 5/16/2024
04:29:51 AM