Madhya Pradesh High Court
Shri Ram Gen. Ins. Col Ltd. Corporate ... vs Kanta on 10 January, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 10th OF JANUARY, 2024
MISC. APPEAL No. 1593 of 2016
BETWEEN:-
1. KANTA W/O GUNWANTRAO UIKEY, AGED
ABOUT 30 YEARS, R/O RAMJIDHANA POST
JHALLAR TEH. BHENSDEHI DISTT. BETUL
(MADHYA PRADESH)
2. LOKESH S/O GUNWANTRAO UIKEY, AGED
ABOUT 12 YEARS, OCCUPATION: MINORS
THROUGH GUARDIAN MOTHER KANTA,
R/O RAMJIDHANA POST JHALLAAR TEH.
BHENSDEHI, DISTT. BETUL (MADHYA
PRADESH)
3. GUNWANTRAO S/O POLJI UIKEY, AGED
ABOUT 39 YEARS, R/O RAMJIDHANA POST
JHALLAAR TEH. BHENSDEHI, DISTT.
BETUL (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI PRAMOD KUMAR THAKRE - ADVOCATE)
AND
1. RAJESH KUMAR S/O BRIJLAL SAHU, AGED
ABOUT 38 YEARS, R/O KOLGAON POST
KOLGAON TEHSIL AND DISTRICT BETUL
(MADHYA PRADESH)
2. SHRIRAM GENERAL INSURANCE CO. LTD.
CORPORATE OFFICE E-8 EPIP RALCO
INDUSTRIAL AREA SITAPUR, JAIPUR
(RAJASTHAN)
.....RESPONDENTS
Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 1/27/2024
12:31:55 PM
2
(BY SHRI T.S. LAMBA - ADVOCATE FOR THE RESPONDENT NO.3/INSURANCE
COMPANY)
MISC. APPEAL No. 1594 of 2016
BETWEEN:-
LOKESH (MINOR) S/O GUNWANTRAO UIKEY,
AGED ABOUT 12 YEARS, OCCUPATION:
THROUGH HIS FATHER GUNWANTRAO
UIKEY S/O POLJI UIKEY, AGED ABOUT 39
YRS., R/O RAMJIDHANA, POST JHALLAR
TEH. BHENSDEHI, DISTT. BETUL (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI PRAMOD KUMAR THAKRE - ADVOCATE)
AND
1. RAJESH KUMAR S/O BRIJLAL SAHU,
AGED ABOUT 38 YEARS, R/O
KOLGAON, POST KOLGAON, TEHSIL
AND DISTRICT BETUL (MADHYA
PRADESH)
2. SHRIRAM GENERAL INSURANCE CO.
LTD. CORPORATE OFFICE E-8 EPIP
RALCO INDUSTRIAL AREA, SITAPUR,
JAIPUR (RAJASTHAN)
.....RESPONDENTS
(BY SHRI T.S. LAMBA- ADVOCATE FOR THE RESPONDENT NO.2/INSURANCE
COMPANY )
MISC. APPEAL No. 1955 of 2016
BETWEEN:-
SHRI RAM GEN. INS. COL LTD. CORPORATE
OFFICE THROUGH E-8, EPIP RIICO
INDUSTRIAL AREA, SITAPURA, JAIPUR,
RAJASTHAN (RAJASTHAN)
Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 1/27/2024
12:31:55 PM
3
.....APPELLANT
(BY SHRI T.S. LAMBA - ADVOCATE )
AND
1. KANTA W/O SHRI GUNWANTRAO
UIKE, AGED ABOUT 30 YEARS, R/O
JHALLAR, BHAINSDEH, DISTT. BETUL
(MADHYA PRADESH)
2. LOKESH S/O GUWANTRAO UIKEY,
AGED ABOUT 12 YEARS, OCCUPATION:
MINOR, R/O RAMJIDHANA POST
JAHLLAR TEH. BHAINSDEHI DISTT.
BETUL (MADHYA PRADESH)
3. GUNWANTRAO S/O POLJI UIKEY,
AGED ABOUT 39 YEARS, R/O
RAMJIDHANA POST JAHLLAR TEH.
BHAINSDEHI DISTT. BETUL (MADHYA
PRADESH)
4. RAJESH KUMR S/O BRAJLAL SAHU,
AGED ABOUT 38 YEARS, R/O
KOLGAON, POST KOLGAON TAH. AND
DISTT. BETUL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRAMOD KUMAR THAKRE - ADVOATE FOR THE RESPONDENTS NO.1,2
AND 3 )
MISC. APPEAL No. 1956 of 2016
BETWEEN:-
SHRIRAM GEN.INS.CO.LTD. CORPORATE
THR. OFFICE E-8 EPIP RIICO INDUSTRIAL
AREA SITAPURA JAIPUR RAJASTHAN
(RAJASTHAN)
.....APPELLANT
(BY SHRI T.S. LAMBA - ADVOCATE)
AND
Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 1/27/2024
12:31:55 PM
4
1. LOKESH S/O TGUWANTRAO UIKE,
AGED ABOUT 12 YEARS, OCCUPATION:
MINOR THR. FATHER GUNWANTRAO
UIKE S/O POLJI UIKEY A/A 39 YEARS,
RAMJIDHANA POST JAHLLAR TEH.
BHAINSDEHI DISTT. BETUL (MADHYA
PRADESH)
2. RAJESH KUMAR S/O BRAJLAL SAHU,
AGED ABOUT 38 YEARS, R/O
KOLGAON POST KOLGAON TAH. AND
DISTT. BETUL (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI PRAMOD KUMAR THAKRE - ADVOCATE)
This appeal coming on for orders this day, the court passed the
following:
JUDGEMENT
By this common judgmentM.A.No.1593/2016, 1594/2016, 1955/2016, 1956/2016 are being disposed of simultaneously as they are arising out of the same accident occurred on 2/7/2014 in village Bothia, Jhallar road, Tahsil Bhainsdehi, Betul.
2. These are miscellaneous appeals respectively filed by the claimants and the Insurance Company under Section 173 of the Motor Vehicles Act, 1988 being aggrieved of award dated 30/4/2016 passed by learned Additional Motor Accident Claims Tribunal, Betul in MACC No.85/2014 and 86/2014.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 5
3. The brief facts of the case are that claim application was filed by the claimants stating that deceased Alkesh and injured Lokesh were playing along with their friends at village Bothiya, Jhallar Road near Ramjidhana Tiraha when a dumber bearing registration no.MP-48-H- 0360 (hereinafter referred to as "offending vehicle") being driven rashly and negligently by non-applicant no.1/driver and turned it turtle upon both of them causing death of Alkesh and injuries to Lokesh. Both the kids Alkesh and Lokesh are son of Gunwantrao Uike. Claimants claimed compensation jointly and severally against driver, owner and insurer of offending vehicle.
4. In M.A.No.1593/2016 the claimants' ground are that the learned claims tribunal has not appreciated the proper income and the future prospect of the deceased and learned tribunal has erred in law by not applying proper multiplier for the age group of deceased. It has also not awarded proper compensation for love and affection, loss of estate, funeral expenses and future guidance for life. On these counts, enhancement of Rs.1 Lakh is prayed for.
5. In M.A. No.1594/2016 the claimants' ground are that learned claims tribunal has not appreciated the proper income of injured and has wrongly Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 6 appreciated the percentage of disability, the appellant has received permanent disability, but the learned claims tribunal has wrongly reduced the percentage of permanent disablement. It has also failed to appreciate the future prospect of the appellant and to award proper compensation for medical treatment, the tribunal has wrongly ignored some medical bills even though the appellant has duly proved his expenses. It has also failed to award the proper compensation for transportation, special diet and future treatment and pain and suffering. The interest awarded is on lower side. On these counts, enhancement of Rs.1 Lakh is prayed for.
6. M.A. No.1955/2016 and M.A. No. 1956/2016 have been filed by the appellant/Insurance Company on the grounds that the learned claims tribunal committed an apparent error of law as well as of facts by saddling liability upon the appellant. The findings arrived at for making insurance company liable is totally perverse, illegal and bad and therefore, deserves to be set aside. FIR of the accident was lodged without any delay on the same day of accident i.e. on 2/7/2016 by Shri Ramesh Uike and relied upon and exhibited by the appellants as Ex.P/1 and 2 before the tribunal. In the FIR, it is clearly mentioned that Alkesh and Lokesh at the time of accident were sitting in the goods carrying vehicle dumper as a passenger thereby a breach of policy condition Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 7 committed therefore claimants are not entitled for compensation. It is urged to set aside the impugned award and to exonerate the insurance company from the liability. It is requested on behalf of insurance company that the award is to be set aside and exonerated the insurance company from any liability and compensation be realised on the appellants.
7. It is submitted by learned counsel for the appellants in MA No.1593/2016 and 1594/2016 that the learned claims tribunal has not appreciated the proper income of the deceased and injured and the future prospects have not been awarded in favour of the deceased and injured. More so, proper multiplier has not been applied. Compensation on other heads are on lower side. The permanent disability percentage has been reduced by the learned Claims tribunal without any proper reason. Medical expenses have not been awarded by the tribunal as per the bills submitted and proved by the appellants.
8. Learned counsel for the insurance company/appellant in MA No.1955/2016 and 1956/2016 submitted that in the FIR of accident it is clearly mentioned that the deceased and injured were sitting in the dumper which was goods carrying vehicle and the deceased and injured Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 8 were not allowed to sit in that vehicle and insurance company is not liable for the injury caused to any passenger of goods carrying vehicle and this law has been settled by Hon'ble Supreme Court in the case of Oriental Insurance Company Limited vs. Premlata Shukla and others reported in (2007) 13 SCC 479 and followed by this High Court. A concocted story was framed after lodging the FIR which is not believable.
9. Having heard the learned counsel for the parties and perused the record.
10. It reveals that first information report marg intimation (Exhibit P/1) which was lodged by Ramesh, son of Sumant Uike which contained the fact that as per the information received on telephone by S.Y. Khan, T.I. Jhallar he has reached to the place of occurrence and found that a dumper was turned turtle. At the instance of Ramesh, it is noted down that in Ex.P/1 that dumper bearing registration no.MP48H/0360 was being driven rashly and negligently by his driver and got it turned turtle wherein Alkesh, aged about 10 years, succumbed to death. This exhibit P/1 was lodged on 2/7/2014 at 14:10 hours, whereas the accident has taken place on 13:15 hours. Thereafter, FIR (Ex.P/2) has been lodged on 2/7/2014 at 16:30 hours which is also lodged at the instance of Ramesh, wherein it is Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 9 stated that his sons namely Alkesh, aged about 10 years and Lokesh, aged about 12 years were sitting in dumper on conductor seat and the dumper was driven by his driver rashly and negligently thereby got it turned turtle and injured has sustained injuries. On the same day, however Ramesh has recorded his statement to police which is Exhibit P/8 and it contained the fact which can be apposite to reproduced as under :
" vkt fnukad 2-7-2014 dks MEij dza ,e-ih-48,p-0360 dks eq:e Hkjdj jkethBkrk MSe ls esjs ?kj ij tk jgh Fkh MEij ds pkyd us MEij dks rst o ykijokgh ls pykdj jkethBkuk frjkgk ij djhc 1-15 cts fnu dks jksM ds fdukjs xM~<s ij iyVk fn;k ftl ls ekSdk ij [ksy jgs yM+ds vyds'k 10 lky dk ekSdk ij [kRe gks x;k vkSj ykSds'k cSrwy 'kke dks ys x;s gSa eSaus ekSdk ij iqfyl dks fjiksVZ fy[kkbZ Fkh A fjiksVZ fy[kkrs le; eSaus ykSds'k ,oe~ vyds'k dks daMsDVj lhV esa cSBuk fy[kk fn;k FkkA tks fd oss MEij esa ugha FksA jksM fdukjs [ksyus esa MEij iyV tkus ls mls pksV vkbZ vkSj vyds'k [kRe gks x;k gSA dk;Zokgh dh tkosA"
11. Therefore, the first information Exhibit P/1 does not contain the fact that the injured and deceased were sitting in the offending vehicle. Though, this fact has been contained in exhibit P/2 lodged thereafter, but that has been corrected on the same day vide exhibit P/8. Furthermore, it is pertinent to be mentioned here that eye witness Gunwant Rao (P.W.1) has been examined on behalf of the appellants, who in his statement categorically stated that he saw the accident and he was present at the time of incident. His sons Alkesh and Lokesh were playing nearby the Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 10 road when the offending vehicle turned turtle upon them which was being driven by its driver rashly and negligently. This witness in his cross examination denied the suggestions given by the insurance company that he has not seen the accident and he is not the eye witness of the incident and his both sons were sitting in the vehicle at the time of accident. This witness in para 18 denied the suggestion given by the insurance company that Ramesh was present at the time of accident, therefore, if Ramesh was not present at the time of accident, then the fact mentioned in exhibit P/2 at the instance of Ramesh may be erroneous and which has later on rectified by Ramesh through exhibit P/8.
12. The respondent/insurance company has examined Sushil Kumar Uike, the Law Officer of the insurance company but his statements are based on exhibit P/2 only. He has not seen the accident and he admits that the investigation is carried out after lodging the FIR, and on the basis of investigation, challan was filed before the Court. After carrying out the investigation, Police Jhallar has filed challan before the concerned Court under Sections 279, 337, 338 and 304 A of IPC against respondent Shyamlal Pawar. The challan contained the fact that after the investigation, it was found that the driver of the offending vehicle has rashly and negligently driven the vehicle and turned it turtle on the Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 11 deceased and injured playing nearby the road, therefore the statement of Sushil Kumar is not found to be reliable vis-à-vis the statement of witness Gunwant Rao (A.W.1).
13. The insurance company raised its contention on the basis of citation of National Insurance Company Limited vs. Rattani and others reported in (2009)2SCC75 and Oriental Insurance Company Limited (Supra).
14. In the case of National Insurance Company Limited vs. Rattani (Supra) the manner of accident was changed by witnesses while deposing before the tribunal and that was quite different from the versions recorded in the FIR as well as claim petition. The relevant paras 8,12 and 13 of the judgment are reproduced as under:
"8. We are not oblivious of the fact that ordinarily an allegation made in the first information would not be admissible in evidence per se but as the allegation made in the first information report had been made a part of the claim petition, there is no doubt whatsoever that the Tribunal and consequently the appellate courts would be entitled to look into the same. However, in their depositions, the claimants raised a new plea, namely that the deceased and the other injured persons were travelling in the said truck as representatives of the owner of the goods.Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 12
12.Even if the submission of Mr. Subramonium Prasad that in the truck the goods offered by way of gift by the bride party were being transported is correct, the deceased and others could not have become the representatives of the owner of the goods. Even otherwise in view of the averments made in the claim petition and the first information report the said contention cannot be accepted.
13. Furthermore in their depositions the witnesses examined on behalf of the claimants themselves stated that about 30 - 40 persons were travelling in the tempo truck. All 30 - 40 persons by no stretch of imagination could have been the representatives of the owners of goods, meaning thereby, the articles of gift."
15. In the case of Oriental Insurance Company Limited vs. Premlata (supra), the accident was taken place between tempo trax and truck and FIR was lodged against the driver of the truck but since the driver of the said truck could not be traced out, therefore, the case was closed. Thereafter, the claim petition was filed against the driver, owner and insurance company of the tempo trax and the FIR was made the basis of the claim petition. The relevant para no. 13 and 14 of the judgment are reproduced as under :
"13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 13 permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them.
14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise."
16. In the case of National Insurance Company Limited vs. Rattani (Supra), it is held by the Apex Court that ordinarily allegations made in FIR not admissible in evidence per se but as the allegation made in FIR had been made a part of the claim petition, Tribunal and the appellate Courts entitled to look into the same. Furthermore, an admission made in the pleadings is admissible in evidence proprio vigore. The facts in the case of National Insurance Company Limited vs. Rattani (Supra) and this case is quite distinguishable. The law laid down in the aforesaid judgments is distinguishable inasmuch as the facts and circumstances are all together different from what existed in this case.
17. The learned tribunal on considering the evidence on record has rightly observed that the factum of accident, as stated by the appellants in Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 14 their claim petitions, supported by the police investigation and by the statements of eye witnesses is found proved. It is not found proved at the some time that the deceased and injured were travelling in the goods carrying vehicle at the time of accident and therefore, there was breach of conditions of insurance policy. It is rightly held that the insurance company is liable to pay the compensation. Therefore, the miscellaneous appeals filed by the insurance company i.e. M.A. No.1955/2016 and M.A.No.156/2016 are hereby dismissed.
18. So far as the appeal filed by the deceased is concerned in the case of Reliance General Insurance Company Limited vs. Daryab Singh reported in 2023(1)ACCD 289 (M.P.) and Kishan Gopal vs. Lala reported in (2014)1SCC244, Hon'ble the Supreme Court has in case of the deceased of 6 and 10 years child assumed their income Rs.30,000/- p.a. and has applied the multiplier of 15. In this case also, while assuming the income of deceased Lokesh Rs.30,000/- p.a. and after assessment of dependency and applying multiplier of 15, the amount of compensation rightly assessed as Rs.2.70 Lakh by the learned tribunal. The learned tribunal awarded Rs.25,000/- to each claimant for physical and mental pain, love and affection while each claimant is entitled to the consortium @ 44,000/- as mandated by Hon'ble Supreme Court in case of Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 15 National Insurance Company Ltd. vs. Pranay Sethi (2017) 16 SCC
680. It is further held that the claimants are also entitled for an additional amount on the head of estate loss and funeral expenses as Rs.30,000/-. Thus, the claimants are entitled to get total compensation which comes to Rs.4.32 Lakh instead of Rs. 3,55,000/- as awarded by learned Tribunal. Hence, the enhancement of Rs.77,000/- is appropriate to be enhanced in favour of claimants for the death of Alkesh.
19. So far as the amount in favour of injured Lokesh is concerned, under the various heads, learned tribunal has awarded Rs.88,834/- as compensation. But looking to the nature of injury as well as the expenses during the treatment on attendant and transportation, additional amount is appropriate to be awarded to appellant Lokesh. Enhancement of Rs.1 lakh is justified in favour of appellant Lokesh having regard to the evidence on record.
20. In the light of foregoing discussion, the appeals filed by the insurance company i.e. M.A. No.1955/2016 and M.A.No.1956/2016 are hereby dismissed being sans merits and the appeals filed by the injured and legal representatives of Alkesh i.e. M.A.No.1594/2016 and M.A. No.1593/2016 are partly allowed in above terms.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM 16
21. Let the record of the Claims Tribunal be sent back for information and necessary compliance.
22. A copy of this judgment be also kept in the record of M.A. No. M.A.No.1593/2016, 1594/2016, 1955/2016 and 1956/2016.
(RAJENDRA KUMAR VANI) JUDGE m/-
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 1/27/2024 12:31:55 PM