Madhya Pradesh High Court
United India Insurance Company Ltd. vs Hameed Khan on 16 April, 2024
Author: Roopesh Chandra Varshney
Bench: Roopesh Chandra Varshney
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 16th DAY OF APRIL, 2024
MISC. APPEAL No. 1230 OF 2008
BETWEEN:-
UNITED INDIA INSURANCE CO. LTD.
THROUGH SENIOR MANDAL MANAGER,
MANDAL OFFICE-CENTER POINT
COMPLEX, PHOOLBAGH, GWALIOR
.....APPELLANT
(BY SHRI B.N.MALHOTRA - ADVOCATE )
AND
1. HAMEED KHAN S/O MEHERBAAN
KHAN, AGE-42 YEARS,
2. RUKHSANA W/O HAMEED KHAN,
AGE-40 YEARS
(BOTH R/O KASBA LAHAR, DISTRICT
BHIND M.P.)
3. LAXMINARAYAN (DIED) THROUGH
HIS LR - A:- RAMKISHOR S/O
LAXMINARAYAN, AGE-45 YEARS, R/O
GRAM GAND THANA, ROUN, DISTRICT
BHIND (M.P.)
4. PINTU @ MAJEED S/O INAYAT @
GULLU KHAN, R/O WARD NO.4, LAHAR,
DISTRICT BHIND
.....RESPONDENTS
(RESPONDENTS NO. 1 AND 2 BY SHRI R.P.GUPTA - ADVOCATE)
AND
MISC. APPEAL No. 1239 OF 2008
BETWEEN:-
2
1. HAMEED KHAN S/O MEHERBAAN
KHAN, AGE-40 YEARS, OCCUPATION-
DRIVER,
2. RUKHSANA W/O HAMEED KHAN,
AGE-38 YEARS,
(BOTH R/O KASBA LAHAR, DISTRICT
BHIND M.P.)
.....APPELLANTS
(BY SHRI R.P.GUPTA- ADVOCATE )
AND
1. LAXMINARAYAN S/O SHRIVARI
BAHU, AGE-50 YEARS, R/O GRAM
GAND THANA, ROUN, DISTRICT
BHIND (M.P.)
2. PINTU @ MAJEED S/O INAYAT @
GULLU KHAN, AGE-30 YEARS, R/O
WARD NO.4, LAHAR, DISTRICT BHIND
(M.P.)
3. UNITED INDIA INSURANCE
COMPANY LIMITED, MANDAL
OFFICE, GWALIOR THROUGH
DIVISIONAL MANAGER.
.....RESPONDENTS
(RESPONDENT NO. 3 BY SHRI B.N.MALHOTRA - ADVOCATE)
These appeals coming on for orders this day, the court passed the
following:
ORDER
This order shall govern disposal of M.A.No. 1230/2008 and 1239/20081 as both these appeals arise out of common award dated 28/7/2008 passed by Additional Motor Accident Claims Tribunal, Lahar, District Bhind in Claim Case No. 40/2007.
2. M.A.No. 1230/2008 has been filed by Insurance Company; whereas, M.A.No. 1239/2008 has been filed by the claimants seeking enhancement in the compensation amount.
33. By the impugned award Claims Tribunal has awarded a compensation of Rs. 1 Lac alongwith interest at the rate of 6% per annum to the claimants/parents of the deceased Hanif alias Sharukh, who succumbed to the injuries sustained by him in road accident dated 14/7/2007.
4. Briefly stated facts of the case are that on 14/7/2007 when son of claimants namely Hanif alias Sharukh, aged 13 Years, was playing by the side of Doordarshan Kendra, it is alleged that due to rash and negligent driving of tractor driver Pintu alias Mazid, tractor turned turtle over the deceased and he was crashed and died on spot. Therefore, claimants parents of the deceased filed a claim petition before the Claims Tribunal seeking a compensation of Rs. 11,00,000/-; however, by the impugned award, learned Claims Tribunal awarded a compensation of Rs. 1 lac and while exonerating the Insurance Company from the liability of payment of compensation amount, fastened the liability of payment of compensation amount over driver and owner of the offending vehicle; however, Insurance Company was directed to make the payment of compensation amount first to claimants and thereafter recover the same from the owner and driver of offending vehicle under the principle 'pay and recover'. Therefore, Insurance Company is before this Court challenging the finding of Claims Tribunal as regards direction of pay and recover; whereas, claimants are before this Court seeking enhancement in the compensation amount.
5. It is the submission of learned counsel for the Insurance Company that the deceased was sitting on the mudguard of the tractor when the tractor got turtle and therefore, under Regulation 28 of the Rules of Road Regulation, the travelling on the tractor; except the driver is not 4 permissible. Regulation 28 reads as under:-
"Driver of tractors and goods vehicles.- A driver when driving a tractor shall not carry or allow any person to be carried on the tractor...."
Therefore, the risk of passenger travelling on the mudguard, which is not a place for sitting on tractor is not covered and therefore, solely driver and owner of the tractor are responsible for payment of compensation amount and Insurance Company cannot be held liable for payment of compensation amount under the Principle 'pay and recover'. In support of his contentions he relied upon decision of this Court in the matter of National Insurance Company Ltd. Vs. Bakaridan and Ors., 2017(1)TAC24(MP).
6. Whereas, M.A.No. 1239/2008 has been filed by claimants that claimants proved before the Claims Tribunal by evidence that while their son was playing by the side of Doordarshan Kendra, due to rash and negligent driving of tractor driver, tractor turned turtle over the deceased due to which he died and he was not travelling on the tractor by sitting on mudguard, therefore, Claims Tribunal erred in giving finding that deceased was travelling on the mudguard of the tractor. It is further submitted that learned Claims Tribunal erred in awarding compensation of Rs. 1 lac only whereas, in catena of decisions, in case of child death, Claims Tribunal has awarded compensation of Rs. 3 lacs under similar circumstances. It is further submitted that learned Claims Tribunal did not err in directing the Insurance Company to make the payment of compensation amount first to the claimants and thereafter recover the same from the owner and driver of the offending vehicle. In support of his contentions learned counsel for the claimants relied upon decision of Apex Court as well as this Court in the 5 matter of V.Renganathan and Anr. Vs. The Branch Manager, United India Insurance Company Ltd. And Anr., 2023ACJ623, Smt. Suvarnamma and Anr., Vs. United India Insurance Company Ltd. And Anr., 2018ACJ1437(SC) and decisions of this Court Satishchandra Upadhyay and Ors. Vs. Harnamsingh and Ors. (M.A.No. 224/2011 decided on 4/3/2020) and Sukhram and Anr. Vs. Balveer Singh and Ors., (M.A.No. 750/2011 decided on 6/5/2019).
7. None appeared on before of driver and owner of the offending vehicle to contest the case.
8. Heard learned counsel for the parties at length and perused the record.
9. It was contended by the learned counsel for the claimants that at the time of accident, the deceased was playing at a place near the Doordarshan Kendra and the vehicle in question came at high speed and turned turtle. As a consequence, the deceased came under it and died. In this regard, only one witness Basarat Khan, who happened to be the grandfather of the deceased in relation, has been examined as a eye witness. But his testimony is full of contradictions and does not inspire much confidence and his presence on the spot is doubtful. He has not lodged any report with the police station although he was family member of the deceased.
10. As per the police report, which has been lodged just after the accident and the charge-sheet papers the deceased was sitting on the mudguard of the traction in question at the time of accident. It is true that the statements recorded in the Tribunal should be given weightage over police papers and FIR is not a substantive piece of evidence and it can be used for corroboration and contradiction of its maker as has been held by Apex Court in the matter of Oriental Insurance Company Ltd. Vs. 6 Premlata Shukla and Ors., 2007ACJ1928(SC). But, they should be without any infirmity but the veracity and the reliability of such statements can be checked in the context of their previous statements. There is no reason for the police to prepare false papers and change the nature of the accident. No complaint of any sort has been made against the concerned police officer by the claimants or by the witnesses. It is also apposite to mention that the claimants have themselves relied upon the police papers for proving the accident. The Investigating Officer Suresh Sharma (DW/2) has clearly stated in his statement that the deceased was sitting on the mudguard of the tractor. There is no reason for discarding his testimony. The circumstances surrounding the accident also do not support the claimants.
11. Thus, the evidence adduced by the claimants is not worthy of credence. It is evident that the deceased was travelling on the tractor. Hence, the Tribunal has rightly appreciated the facts.
12. As per the Insurance Policy (Ex.D/1), the vehicle in question has been insured only for agricultural purposes. Any person other than the driver is not entitled to travel on the tractor as the sitting capacity is only for one person i.e. driver. Under the policy only the risk of the driver is covered and no other person is covered. Hence, neither the risk of the deceased is covered under the policy nor any premium has been paid to the Company by the owner of the vehicle in this regard. Since, there is no policy regarding the deceased, the Insurance Company is not liable to pay any compensation and deserves complete exoneration.
13. This aspect has been decided by this Court in the matter of National Insurance Company Limited versus Bakaridan & Others 2017 ACJ 2524; wherein, it is held that if death of a passenger travelling on the 7 mudguard of Tractor when Tractor met with accident due to its rash and negligent driving then Insurance Company cannot be fastened with liability as seating capacity of Tractor is only one person i.e.driver and no premium is paid for carrying passengers by the side of driver and thus only the owner will be responsible for the payment of compensation. This aspect has also been discussed by a coordinate Bench of this Court at Indore in Ramakant Mishra versus Pramod Kumar & Others (Miscellenous Appeal No.733 of 2000 decided on 23.6.2022.
14. As such, in such cases, direction for payment of compensation amount by the Company with the right to recover the same from the owner can also not be given as there is no policy or contract in respect of the deceased. Hence. Claims Tribunal erred in giving finding regarding pay and recover against the Insurance Company.
15. As regards prayer of claimants for enhancement of compensation amount, after going through the evidence adduced by the parties and on taking into consideration the material available on record, it appears that the amount awarded by the learned Tribunal is on lower side and deserves enhancement. It is seen from the record that the Tribunal has awarded Rs.1,00,000/- by way of compensation in the case of death of their child , who was 13 years of age at the relevant time. It is argued that in a case of child death at least Rs.3,00,000/- ought to have awarded.
16. It is true that in various cases of child death the compensation has been awarded Rs.3,00,000/-. However, considering the facts and circumstances of the instant case, in which deceased was travelling on the mudguard of the tractor, I am of the considered view that the compensation awarded by the tribunal is meager and inadequate, hence liable to be enhanced by another Rs.1,00,000/- in addition to the amount of 8 Rs.1,00,000/-, already awarded by the Tribunal.
17. In view of the aforesaid, both the appeals filed by Insurance Company as well as Claimants are allowed in part and while holding that Claims Tribunal erred in passing the directing against the Insurance Company for making payment of compensation amount first and thereafter recover the same from owner and driver of the offending vehicle, Insurance Company is completely exonerated from the liability and instead driver and owner of the offending vehicles are directed to make the payment of compensation amount to the claimants within two months from the date of this order and as regards appeal filed by claimants, claimants are held entitled to receive total sum of Rs.1,00,000/- with interest @ 6% per annum from the date of claim petition, in addition to the amount of compensation already awarded by the Tribunal till its realization. In the facts and circumstances of the case parties are directed to bear their own costs. Rest of the conditions as imposed by Claims Tribunal shall remain intact.
18. Impugned award is modified to the extent as indicated hereinabove.
(ROOPESH CHANDRA VARSHNEY) JUDGE jps/-
JAI Digitally signed by JAI PRAKASH SOLANKI
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH GWALIOR, ou=HIGH COURT
OF MADHYA PRADESH BENCH GWALIOR,
PRAKASH
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c865c7633f4cfb9e38ce14fcbb05b9522a,
postalCode=474001, st=Madhya Pradesh,
serialNumber=8D6BC1C9FCE36623D0BD6B8
SOLANKI
072A2D8C01433EBD48AE4F609F108CA8F8D
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Date: 2024.05.14 10:00:32 +05'30'