Madhya Pradesh High Court
Smt. Ramsnehi @ Munni vs M/S R.A. Associates Thr on 3 January, 2023
Author: Sunita Yadav
Bench: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 3rd OF JANUARY, 2023
MISC. APPEAL No. 1218 of 2016
BETWEEN:-
SMT. RAMSNEHI @ MUNNI W/O LATE SHRI
VIDHYARAM SHARMA, AGED ABOUT 62 YEARS,
1.
SHIVHARE COLONY TYAGI NAGAR MURAR
GWALIOR (MADHYA PRADESH)
MUKESH SHARMA S/O LATE VIDHYARAM
SHARMA, AGED ABOUT 36 YEARS, SHIVHARE
2.
COLONY TYAGI NAGAR MURAR GWALIOR
(MADHYA PRADESH)
DINESH SHARMA S/O LATE VIDHYARAM SHARMA,
AGED ABOUT 31 YEARS, SHIVHARE COLONY
3.
TYAGI NAGAR MURAR GWALIOR (MADHYA
PRADESH)
TEJ PRAKASH SHARMA S/O LATE VIDHYARAM
SHARMA, AGED ABOUT 19 YEARS, SHIVHARE
4.
COLONY TYAGI NAGAR MURAR GWALIOR
(MADHYA PRADESH)
SMT.UMA SHARMA W/O LATE VIDHYARAM
5. SHARMA, AGED ABOUT 37 YEARS, SILUPURA
BHIND (MADHYA PRADESH)
SMT.NISHA SHARMA W/O LATE VIDHYARAM
6. SHARMA, AGED ABOUT 29 YEARS, SILUPURA
BHIND (MADHYA PRADESH)
SMT.MANISH W/O LATE VIDHYARAM SHARMA,
7. AGED ABOUT 25 YEARS, RANIPURA HAZIRA
(MADHYA PRADESH)
.....APPELLANTS
(BY MS. MEENA SINGHAL - ADVOCATE)
AND
M/S R.A. ASSOCIATES THR PROPRIETOR SMT.
RENU KUSHWAH D.H. 94 DEENDAYAL NAGAR
1.
BHIND ROAD THANA MAHARAJPUR DIST.
GWALIOR (MADHYA PRADESH)
ALOK KUMAR
2023.01.06
10:19:07
+05'30'
11.0.23
2
RAGHUVEER SINGH BAGHEL S/O B.S. BAGHEL
2. GRAM KITORA THANA MAHARAJPURA (MADHYA
PRADESH)
BRANCH MANAGER BAJAJ ALLIANZ GENERAL
3. INSURANCE COMPANY LTD. G.E.PLAZA AIRPORT
ROAD ARWARD (MAHARASHTRA)
.....RESPONDENTS
(MR. NARESH SINGH TOMAR - ADVOCATE FOR
RESPONDENT NO. 3)
-------------------------------------------------------------------------------------------
This appeal coming on for hearing this day, the court passed the
following:
ORDER
This Misc. Appeal under Section 173(1) of Motor Vehicles Act, 1988 has been filed against the award dated 04.10.2016 passed by Fourth Additional Motor Accident Claims Tribunal, Gwalior (M.P.) in Claim Case No.800045/2016, whereby the claim application of the appellants / claimants for grant of compensation on account of death of Vidyaram in a motor accident involving dumper bearing registration no. MP07 GA 2004 was dismissed.
2. It is not disputed by the parties that respondent No. 1 was the owner and respondent No. 2 was the driver of the dumper bearing registration no. MP07 GA 2004 and the said vehicle was insured with respondent No. 3 / insurance company at the time of accident.
3. The facts in brief to decide this appeal are that the appellants / claimants filed the claim application before the learned Claims Tribunal 3 stating therein that on 25.12.2013, deceased Vidyaram, who was the husband of appellant No. 1 and father of respondents No. 2 to 8, was driving his motorcycle. On his way to home, near Kirol village, the deceased parked his motorcycle on the side of the road to answer the nature's call, at that very moment, respondent No. 2 / driver of the offending vehicle by driving the vehicle rashly and negligently hit the deceased Vidyaram, who received grievous injuries and died on the spot. A criminal case was registered by Police Station - Gijoura, District Gwalior and after investigation, charge- sheet was filed against respondent No. 2.
4. The appellants / claimants claimed Rs.36,27,000/- as compensation in various heads on account of death of deceased Vidyaram claiming that Vidyaram was aged about 67 years and was a retired Khalasi in North Central Railway, Gwalior. Vidyaram was getting Rs.5850/- per month as pension. After retirement, the deceased was working as gunman in Hawk Vision Security Services and was earning Rs.10,000/- per month as salary. It has been further claimed that the deceased was also earning Rs.10,000/- per month by renting his tractor-trolley to other agriculturists.
5. Respondent No. 1 / owner of the offending vehicle remained abscent before the learned Tribunal and, therefore, proceeded ex-parte.
6. Respondent No. 2 / driver filed his written statement and thereafter, remained abscent and was also proceeded ex-parte. In his written statement ALOK KUMAR 2023.01.06 10:19:22 +05'30' 11.0.23 4 respondent No. 2 admitted the factum of accident as well as the fact that he was driving the offending vehicle at the time of accident, however, denined his liability for compensation submitting that he had a valid and effective driving licence and the vehicle in question was insured with respondent No. 3 / insurance company at the time of accident, therefore, only respondent No. 3 is liable to pay the compensation.
7. Respondent No.3 / insurance company filed its written statement and took the defence that present claim application is filed planting the offending vehicle with the connievance of respondents No. 1 and 2. The vehicle in question was not involved in the accident. The vehicle was being driven without having valid driving license and permit, therefore, the insurance company is not liable for payment of compensation.
8. Learned Claims Tribunal after framing the issues and hearing both the parties dismissed the claim application against which present appeal has been preferred.
9. Learned counsel for the appellants argued that the impugned order is against the evidence available on record as well as against the settled principle of law. Learned Claims Tribunal has totally ignored the fact that appellants have duly discharged their burden of proving the fact that it was respondent No. 2 / driver, who was driving the offending vehicle dumper bearing Registratin No. MP07 GA 2004 and accident occurred on account of ALOK KUMAR 2023.01.06 10:19:35 +05'30' 11.0.23 5 rash and negligent driving of respondent No. 2. Involvement of offending vehicle was proved beyond reasonable doubts, however, learned Tribunal has totally ignored the evidence and dismissed the claim application, therefore, the appeal be allowed and appellants / claimants be awarded compensation. Further argument is that learned Claims Tribunal has wrongly estimated the income of the deceased and ignored the fact that deceased was also getting some income from renting his tractor-trolley for agricultural purpose to other persons. Learned Claims Tribunal has also wrongly calculated the dependency. It has also not awarded any amount in the heads of loss of estate and love and affection.
10. On the other hand, learned counsel for respondent No.3 / insurance company supported the impugned award and prayed to dismiss the appeal.
11. Heard learned counsel for the rival parties and perused the available record.
12. The appellants / claimants have examined Ramsnehi - wife of the deceased, Mahendra Sharma, Rajendra Sharma, Kamlesh Shukla and Brijendra Singh Chauhan in support of their claim.
13. Respondent No. 3 / insurance company examined Rambaran Singh Baghel in its support.
14. Learned Tribunal has dismised the claim application mainly on the ALOK KUMAR 2023.01.06 10:19:47 +05'30' 11.0.23 6 ground that the vehicle number has not been mentioned in the FIR and the evidence of eye-witnesses Rajendra Sharma and Mahendra Sharma are not cogent and reliable.
15. On perusal of record, it appears that Mahendra Sharma (AW-2) and Rajendra Sharma (AW-3) have supported the case of the claimants and stated that it was the driver of dumper bearing Registration No. MP07 GA 2004, who drove the dumper in a rash and negligent manner and hit the deceased who died on account of injuries received in this accident. Their statements remained unchallenged in their detailed cross-examination conducted by respondent No. 3. Respondent No. 2 / driver has in his written statement admitted the factum of acident by the offending vehicle while driving the said vehicle. The claimanants have filed the documents of charge sheet filed against the driver of the dumper on account of this accident holding him liable for the accident. All the above documents support the case of the claimanants. Respondent No. 1 / owner of the offending vehicle also certified the fact that the accident had happened by the aforesaid dumper by giving the cerificate (pramanikaran) Exhibit P-7. The insurance company has not examined the driver or the owner of the dumper to prove its defence that the offending vehicle was not involved in the accident.
16. In the present case though the insurance company has taken the grounds that the claimants and owner colluded and the offending vehicle was ALOK KUMAR 2023.01.06 10:20:00 +05'30' 11.0.23 7 later on planted, however, the insurance company could not prove its defence by any cogent evidence. The burden was on the insurance company to prove its defence. Since the insurance company has not discharged the onus of proof, therefore, unless proved by the insurance company that the vehiucle was planted, a presumption cannot be drawn.
17. By citing the case laws of New India Assurance Co. vs. Sekar, [2010 ACJ 2390], Smt. Sunhari Devi vs. Munazir, [2013 (1) TAC 638 (Allahabad)], Oriental Insurance Co. Ltd. vs. Kalawati and Ors., [2014 ACJ 2772], learned counsel for respondent No. 3 / insurance company argued that the evidence of the witnesses examined by the claimants are not reliable in respect to the involvement of the vehicle dumper in questioin in this accident, therefore, merely on the ground of admission of the driver, the factum of accident by the said dumper cannot be relied upon. However, in the present case, as discussed above, the factum of involvement of offending dumper bearing registration No. MP07 GA 2004 is found to be proved by the cogent evidence produced by the claimants, therefore, the abovementioned argument of learned counsel for the insurance company is not acceptable.
18. The Motor Vehicles Act is a beneficial legislation in which strict proof from the side of the claimants is not required to be established. They are required to adduce the best evidence which they can. In the present case, ALOK KUMAR 2023.01.06 10:20:15 +05'30' 11.0.23 8 looking to the facts and circumstances of the case, the claimants have produced best evidence, oral and documentary, which they can. In rebuttal, the insurance company has not addued any evidence as discussed above, therefore, merely on the ground that the registration number of the offending vehicle was not mentioned in the FIR, it cannot be said that the accident has not occurred by the vehicle in question.
19. Consequently, the finding of learned Claims Tribunal in regard to dismissal of the claim application is perverse and, therefore, the impugned award is hereby set aside.
20. So far as income of the deceased is concerned, in view of the evidence on record the learned Tribunal has rightly fixed the income of the deceased to be Rs.15,858/- per month, so also, learned Tribunal has rightly observed that there is no loss of income on account of death of deceased in respect to renting the tractor-Trolley owned by the deceased as it is still in possession of the claimants and they can still use it for renting.
21. So far as dependency is cocerned, learned Claims Tribunal has rightly observed that only appellant No. 1 - wife of the deceased and appellant No. 5 - son of the deceased (minor at the time of accident) were dependent on the deceased.
22. In view of the above as well as law laid down in the case of National Insurance Company Ltd. vs. Pranay Sethi and Ors., (2017 ACJ 2700), ALOK KUMAR 2023.01.06 10:20:30 +05'30' 11.0.23 9 Dependency 2/3rd and multiplier of 05 would be applicable in the present case.
23. Consequently, in the light of Pranay Sethi (supra), the appellants / claimants are held entitled to receive the compensation amount of Rs.7,04,320/- (Rupees Seven Lakh Four Thousand Three Hundred and Twenty only) payable by the insurance company. The compensation amount shall carry interest at the rate 6% per annum from the date of filing of the claim application till its realization.
24. If the 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.
25. Appeal stands allowed to the aforesaid extent and disposed of.
(SUNITA YADAV) JUDGE AKS ALOK KUMAR 2023.01.06 10:20:46 +05'30' 11.0.23