Madhya Pradesh High Court
Smt. Gyarsibai And 5 Ors. vs Babusingh And Anr. on 17 August, 2023
Author: Pranay Verma
Bench: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
MISC. APPEAL No. 117 of 2012
BETWEEN:-
SMT. GYARSIBAI W/O SABRIYA, AGED ABOUT 52
1. YEARS, R/O. AGAR TEH. KUKSHI DISTT. DHAR
(MADHYA PRADESH)
SMT.MANGLIBAI W/O KALU, AGED ABOUT 50 YEARS,
2. OCCUPATION: NOTHING, R/O. AGAR,TEH.KUSHI
DISTT.DHAR (MADHYA PRADESH)
SUNIL S/O LATE KALU BHILALA, AGED ABOUT 19
3. YEARS, R/O.AGAR,TEH.KUSHI DISTT.DHAR (MADHYA
PRADESH)
ANIL S/O LALTE KALU BHILAL, AGED ABOUT 19
4. YEARS, OCCUPATION: MINOR, R/O.
AGAR,TEH.KUSHI DISTT.DHAR (MADHYA PRADESH)
SURAJ S/O LATE SABRIYA BHILALA, AGED ABOUT 6
5. YEARS, OCCUPATION: MINORE, R/O.
AGAR,TEH.KUSHI DISTT.DHAR (MADHYA PRADESH)
SHEETAL S/O LATE SABRIYA BHILALA, AGED ABOUT
6. 3 YEARS, OCCUPATION: MINOR, R/O.
AGAR,TEH.KUSHI DISTT.DHAR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI MANISH S. JAIN - ADVOCATE)
AND
BABUSINGH S/O CHAGANSINGH, AGED MAJOR
OCCUPATION: DRIVER & VEHICLE OWNER GRAM.
1.
R/O. AGAR TEH.KUKSHI DISTT.DHAR (MADHYA
PRADESH)
SHRIRAM GENERAL INSURANCE COMPANY LTD.
2. B.O.YESHWANT NIWAS ROAD,OPP.HIGH COURT, 301,
ROYAL-GOLD,INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANOJ JAIN, ADVOCATE FOR RESPONDENT NO.2./INSURANCE CO. )
MISC. APPEAL No. 183 of 2012
BETWEEN:-
2
BRANCH MANAGER SHRIRAM GENERAL
INSURANCE CO.LTD. THOUGH ITS BRANCH
MANAGER, 301, ROYAL GOLD OPP.HIGH COURT
INDORE (MADHYA PRADESH)
.....APPELLANTS
((BY SHRI MANOJ JAIN, ADVOCATE FOR APPELLANT / INSURANCE CO. ) )
AND
GYARSIBAI W/O SABARIA, AGED ABOUT 22
1. YEARS, R/O. AGAR TEH.KUKSHI DISTT.DHAR
(MADHYA PRADESH)
MAGLIBAI W/O KALU, AGED ABOUT 50
2. YEARS, R/O. AGAR,TEHSILKUKSHI (MADHYA
PRADESH)
SUNIL S/O KALU, AGED ABOUT 19 YEARS, R/O.
3.
AGAR,TEHSIL KUKSHI (MADHYA PRADESH)
ANIL S/O KALU , AGED ABOUT 18 YEARS, R/O.
4.
AGAR,TEHSIL KUKSHI (MADHYA PRADESH)
SURAJ S/O SABARIYA, AGED ABOUT 6 YEARS,
5. R/O. AGAR,TEHSIL KUKSHI (MADHYA
PRADESH)
SHEETAL D/O SABARIYA, AGED ABOUT 3
YEARS, OCCUPATION: MINOR U/G GYARSIBAI,
6.
R/O. AGAR,TEHSIL KUKSHI (MADHYA
PRADESH)
BABUSINGH S/O CHHAGANSINGH
OCCUPATION: DRIVER & OWNEROF
7.
VEHICLE, R/O. AGAR,TEHSIL KUKSHI
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANISH S. JAIN - ADVOCATE)
_________________________________________________________________________
Reserved on :- 5.7.2023
Pronounced on :-17.8.2023
_________________________________________________________________________
These appeals having been heard and reserved for orders, coming on for
pronouncement this day, HON'BLE JUSTICE PRANAY VERMA,
pronounced the following
ORDER
Since both these appeals arise out of the same award, they have been heard together and are being decided by a common order. M.A.No.183/2012 3 has been preferred by the Insurance company whereas M.A.No.117/2012 has been preferred by the claimants.
2. As per the claimants, on 27.6.2010 deceased Sabariya was travelling on his motorcycle at about 6.00 PM from Bagh to his village Agar. At that time non-applicant No.1 drove the offending vehicle bearing registration No. M.P. 11 LA 0125 insured with non-applicant No.2 in a rash and negligent manner and dashed it against the motorcycle of Sabariya as a result of which he suffered injuries. He was taken to the hospital for treatment but was declared dead. At the time of accident the deceased was aged about 24 years and was working as a labourer and was earning Rs.6000/- per month and also Rs.50/- per day as allowance. The applicant No.1 is the widow, applicant No.2 is the mother and applicants No.3 to 6 are children of the deceased.
3. On such contentions the claimants filed an application under Section 166 of the Motor Vehicles Act before the claims tribunal for award of a total sum of Rs.9,50,000/- to them by way of compensation on account of death of deceased Sabariya.
4. The non-applicant No.1 contested the application by filing his written statement generally denying all the averments as made therein. The non- applicant No.2 also filed its written statement submitting that both the drivers of the vehicle were not having any valid and effective driving licence on the date of accident and that since it was a head on collision it was a case of 4 contributory negligence and the amount of compensation deserves to be awarded accordingly.
5. By the impugned award the claims tribunal has held that on 27.6.2010 at about 6.00 PM non-applicant No.1 drove the offending vehicle bearing registration No.M.P. 11 LA 0125 in a rash and negligent manner and dashed it against the motorcycle in which the deceased was travelling as a result of which he suffered grievous injuries and eventually expired. At the time of his death he was aged 24 years and was earning Rs.6000/- per month. It has further held that non-applicant No.1 was possessed of a valid driving licence on the date of accident and there was no contributory negligence on part of the deceased in the accident. Thereafter deducting 1/3rd amount for personal expenses of the deceased and applying the multiplier of 18 and adding Rs.2000 for funeral expenses and Rs.5000/- for loss of consortium, the claimants have been awarded a total sum of Rs.8,71,000/- by way of compensation.
6. Learned counsel for the claimants has submitted that the amount awarded by the claims tribunal is excessively low. The deceased was aged 24 years and was earning Rs.200/- per day and was also receiving Rs.50/- by way of allowance per day which fact has not been taken into consideration though the same had been duly proved by the claimants by way of their evidence. Since the dependents upon the deceased were six in number, the deduction 5 ought to have been made at 1/4th and not 1/3rd as has been done by the tribunal. The aspect of rise in future income of the deceased has not at all been taken into consideration which ought to have been taken at 40%. No amount has been awarded for filial consortium though the same ought to have been awarded at Rs.40,000/- for each of the dependent. The amount of compensation hence deserves to be enhanced accordingly.
7. Learned counsel for the Insurance Company has submitted that the claims tribunal has erred in holding that the driver of the offending vehicle was possessed of a valid and effective during licence on the date of accident. His licence was only for light motor vehicle and was not for a commercial vehicle whereas he was driving a rickshaw which was a commercial vehicle. It hence ought to have been held that he was not possessed of a valid and effective driving licence for driving the vehicle. The income of the deceased as assessed at Rs.6000/- per month is highly excessive particularly when the same has not been proved by the claimants by way of the evidence adduced by them. The non-applicant No.1, the owner / driver of the offending vehicle has stated that the accident was not due to any negligence on his part but was on account of negligence of the deceased himself. Thus no amount of compensation was liable to be paid by the Insurance Company to the claimants.
8. I have heard the learned counsel for the parties and have perused the 6 record.
9. The non-applicant No.1 was possessed of a driving licence though the same was of a light motor vehicle and was not of a commercial vehicle and he was driving a auto rickshaw which would be a commercial vehicle. However, this aspect of the matter has already been settled by the Supreme Court in the matter of Mukund Dewangan V/s. Oriental Insurance Co. Ltd, 2017 ACJ 2011 and Jagdish Kumar Sood V/s. United India Insurance Co. Ltd & Ors., 2018 ACJ 1018 in which it has been categorically held that a transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 Kgs, would be a light motor vehicle and so also motor car or tractor or a road roller, unladen weight of which does not exceed 7500 Kgs and holder of a driving licence to drive class of light motor vehicle is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 Kgs. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. In the present case also admittedly the rickshaw which the non- applicant No.1 was driving was not above 7500 Kgs. There is no material brought on record by the Insurance Company to show that its weight was more than 7500 Kgs. The contention of the learned counsel for the Insurance Company in this regard hence cannot be accepted.
10. The income of the deceased has been taken by the claims tribunal at 7 Rs.6000/- per month upon consideration of the evidence of both the parties that he was earning Rs.200/- per day. The Insurance Company could not point out that the same was less than Rs.200/- per day and even the claimants could not bring on record any substantive evidence to show that he was also earning Rs.50/- by way of allowance per day. The statement of employer of the deceased which would have been the best evidence in that regard has not been adduced hence it cannot be held that the deceased was earning Rs.50/- per day as allowance. The income of Rs.6000/- per month of the deceased as assessed by the claims tribunal is hence perfectly justified.
11. The non-applicant No.1, the owner / driver of the offending vehicle though has stated that the accident was not due to his negligence but was due to negligence of the deceased, but from the documents which have been brought on record it is evident that a criminal case was also registered against non-applicant No.1 for the accident and upon completion of the investigation, he was implicated in the same. No material has been brought on record to show that non-applicant No.1 was acquitted in the said case. Thus on the basis of document brought on record coupled with the evidence of the claimants the finding recorded by the claims tribunal that the accident was as a result of rash and negligent driving by non-applicant No.1 is perfectly justified. The same is even otherwise a finding of fact and has not been shown to be illegal or perverse in any manner. Thus it is held that the accident was as a result of rash 8 and negligent driving by non-applicant No.1.
12. The deceased was aged 24 years at the time of his death and was earning Rs.6000/- per month. He has left behind six dependants who are his mother, widow and children. Thus as per the dictum of the Supreme Court in SarlaVerma & others V/s. Transport Corporation & Ors., 2009 ACJ 1298 the deduction for his personal expenses has to be taken at 1/4th and not 1/3rd as has been done by the claims tribunal. Further more the prospects of rise in the future income of the deceased which are required to be taken as per the decision in the case of National Insurance Co. Ltd v/s. Pranay Sethi & Others, 2017 ACJ 2700, ought to be taken into consideration at 40% since the deceased was aged 24 years at the time of his death. The amount Rs.7000/- awarded for funeral expenses etc is appropriate. However, no amount has been awarded for filial consortium which as per the decision of the Supreme Court in Magma General Insurance Co. Ltd. V/s. Nanuram & Ors., 2018 ACJ 2782 and National Insurance Co. Ltd V/s. Pranay Sethi & Ors. 2017 ACJ 2700 ought to be awarded at Rs.40,000/- for each of the claimant. Since the claimants are six in numbers, they are entitled for award of a sum of Rs.2,40,000/- on that count.
13. Thus as a result of the aforesaid, the income of the deceased by taking the same to be Rs.6000/- per month and applying 40% future prospects to the same would be Rs.8400/-. After 1/4th deduction it would be Rs.6300/- per 9 month, ie., 75,600/- per annum. Applying the multiplier of 18 the total amount would be 13,60,800/- and upon adding Rs.15,000/- for funeral expenses and Rs.15,000/- for loss of estate and Rs.2,40,000/- for filial compensation, the total amount of compensation payable to the claimants would be Rs.16,30,800/-. Thus the amount of compensation payable to the claimants deserves to be enhanced by Rs.7,59,800/-. It is so enhanced. The same would carry interest at the rate awarded by the claims tribunal from the date of application till date of payment if made within 3 months and at the rate of 9% per annum for the period subsequent to 3 months.
14. As a result of the aforesaid discussion, the appeal preferred by the Insurance Company is hereby dismissed and the appeal preferred by the claimants is partly allowed. The compensation be paid to the claimants upon payment of court fee by them for the amount to which they have been held entitled in excess of the amount initially claimed by them. Both the appeals are, accordingly disposed off.
(PRANAY VERMA) JUDGE SS/-
Digitally signed by SHAILESH MAHADEV SUKHDEVE Date: 2023.08.17 16:28:41 +05'30'