Madhya Pradesh High Court
The Oriental Insurance Company Limited vs Smt. Omwati on 11 December, 2017
THE HIGH COURT OF MADHYA PRADESH
MA-1292-2006
(THE ORIENTAL INSURANCE COMPANY LIMITED Vs SMT. OMWATI )
sh
6
Gwalior, Dated : 11-12-2017
e
ad
Shri B.K. Agarwal, learned counsel for the
Pr
appellant/Insurance Company.
Shri R.P. Gupta, learned counsel for the respondents.
a This Miscellaneous Appeal has been filed by the Insurance hy Company challenging the Award dated 11.10.2006 passed by the ad 4th Additional Motor Accidents Claims Tribunal, Shivpuri, M whereby a sum of Rs.7,57,480/- has been awarded in favour of the claimants.
of The facts which are not in dispute are that an accident had rt occurred on 30th October, 2005 at 08.45 P.M. when the deceased ou was driving his motorcycle and hit a Jeep No.UP 93-D 9113 C parked on the road which was not seen by the deceased and had collided from behind. It is also not in dispute that the deceased h ig was working as a Patwari in the State of Madhya Pradesh and his H age at the time of accident was 31 years. Taking all these facts into consideration, the Claims Tribunal has taken his income to be Rs.6,695/- per month and after deduction of Rs.910/- income for dependency is taken to be Rs.5,785/- per month.
It is the contention of the appellant-Insurance Company that it was a case of contributory negligence and, therefore, Claims Tribunal should have deducted 50 % from the amount admissible and has placed reliance on the judgment of Supreme Court in case of Raj Rani and Others Vs. Oriental Insurance Company Limited and Others as reported in MACD 2009 (SC) 345 wherein in paragraphs 4 and 7 it has been held that it is a case of contributory negligence, therefore, the compensation should have sh been reduced to 50 %. He has also placed reliance on the e judgment of this Court in case of Smt. Kalpana Devi Pandey ad and Others Vs. Gabbar Singh Baghel as reported in 2010 (2) Pr TAC 996 (M.P.) which also laid down the same principle of law.
Counsel for the appellant further submits that since there a hy were three riders on the motorcycle, therefore, there was fundamental breach of policy and in view of such facts, the ad Insurance Company should not be made liable to bear any M compensation.
of On the other hand, learned counsel for the respondents- claimants has filed cross objections and has submitted that future rt prospects have not been taken into consideration and as per the ou law laid down by the Hon'ble Supreme Court in case of National C Insurance Company Ltd. Vs. Pranay Sethi and Others as h reported in 2017 MACD 137, 50 % of the income has to be added ig as future prospects. It is also submitted that besides, the H deduction should be 1/5th instead of 1/3rd, inasmuch as five persons were dependent on the deceased, therefore, deduction will be 1/5th and not 1/3rd. He has also placed reliance on the judgment of Full Bench in the case of Devisingh Vs. Vikrantsingh and Others as reported in 2007 (4) MPHT 535 wherein the Full Bench of this Court held that violation of Section 128 of the Motor Vehicles Act forbids a driver of two wheeled motorcycle from carrying more than one pillion rider on the motor cycle driven by him breach of this provision, per se, by a motor cyclist does not raise a presumption either about contributory negligence on the part of the motor cyclist or on the part of pillion sh riders or about composite negligence on the part of the e motorcyclist. It is only when casual connection is established ad between the accident and the violation of the provision of Section Pr 128 that the question of contributory negligence or of composite negligence can arise.
a hy Counsel for the respondents further submits that the judgment in case of Rajrani (supra) as relied by the Insurance ad Company cannot be given precedence, inasmuch as no time of M accident was given in the case of Rajrani (supra) but in the of present case, accident had taken place at 8.30 P.M., and, therefore, the issue of contributory negligence is to be discarded. From the rt evidence which has come on record especially PW-3 Narayan, ou who was one of the pillion riders, it is apparent that he admitted C that because of long line of trucks, the driver could not see the h jeep and collusion took place with the jeep. He has denied that at ig the time of accident two pillion riders were riding the motor H cycle.
In view of such evidence, it is apparent that principle of contributory negligence has to be applied looking to the fact that motorcycle had hit the jeep from behind. Therefore, the ratio of the law laid down in the case of Rajrani (supra), as has been confirmed by this Court in case of Smt. Kalpana Devi Pandey (supra), will apply in full force. Therefore, there has to be deduction of total income by 50 %. However, the fact remains that in the light of the law laid down by Hon'ble Supreme Court in the case of Pranay Sethi (supra), 50 % addition has to be made. Therefore, when 50 % addition is made to the income arrived at sh by the Tribunal, it will come out Rs.8,677/-. Out of this, 1/5th e deduction has to be made for the amount which deceased was ad spending on himself, then the notional income will come out Pr Rs.6,742/- per month. It has come in paragraph 20 of the impugned Award that date of birth of the deceased was a hy 07.12.1974. Therefore, on the date of accident, he was 31 years old and, therefore, multiplier of 16 will be applicable. Hence, the ad compensation amount will come to Rs.13,32,864/-, uut of which, M a further deduction of 50 % shall be made by way of contributory of negligence, then the amount will be Rs.6,66,432/-. In terms of the judgment rendered in Pranay Shetty (supra), wherein the rt Supreme Court streamlined p the reasonable figures of ou conventional heads, shall substitute the figures ordered by the C Claims Tribunal namely Rs.15,000/- from loss of estate, h Rs.40,000/- for loss of consortium and Rs.15,000/- for funeral ig expenses. Besides this, the children will also entitled to loss of H love and affection and since deceased is survived by three children, therefore, each one will be entitled for Rs.15,000/- each for loss of love and affection, therefore, the total amount of compensation will be Rs.7,81,432/- which the claimants will be entitled to receive along with interest @ 6 % from the date of the award till date of actual payment.
In the above terms, this appeal and the cross objections are disposed of.
(VIVEK AGARWAL) JUDGE esh ad mani Pr a SUBASR Digitally signed by SUBASRI MANI hy DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474011, st=Madhya Pradesh, 2.5.4.20=a649f7a3438773bf2121835104753 I MANI 746385b9875063a47872ca437af06fff8ef, 2.5.4.45=032100B5FBD6FFB92D489F37879 CB5EB91D2812611546B7D1562BEE45CECD ad 006142951, cn=SUBASRI MANI Date: 2017.12.17 12:33:54 +05'30' M of rt ou C h ig H