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Madhya Pradesh High Court · body

2011 DIGILAW 266 (MP)

Santoshbai v. Satish Kumar

2011-02-24

J.K.MAHESHWARI

body2011
JUDGMENT: 1. M.A. No. 1226/10 has been filed by the Insurance Company u/s. 173 of Motor Vehicles Act, 1988 against the award dated 18.2.2008 passed by Additional Member MACT, Indore in Claim Case No. 14/2007, whereby a total sum of Rs. 2,39,000/- along with interest has been awarded to the claimants holding that the owner and Insurance Company are liable jointly and severally for paying the compensation. 2. MA No. 1745/08 has been filed by the claimants seeking enhancement of compensation against the same award as the compensation is inadequate and unrasonable. 3. Before the Claims Tribunal the plea raised by the Insurance Company that the offending vehicle Tempo bearing registration No. UP 75-A 3615 was plying at the relevant point of time in violation of terms and conditions of Insurance Policy, therefore, the company is not liable to pay the compensation as it was running on the road contrary to the terms of permit. It is contended that the finding recorded by the Claims Tribunal regarding involvement of said vehicle is incorrect, in fact the incident has taken place on 18th January, 2007. The injured was admitted to the hospital and after 4 days he succumbed to the injuries. The said vehicle was found involved on the basis of statement of one eye witness Kalu Ram, who deposed before the investigating agency after about one and half month regarding involvement of the vehicle. It is also contended that the deceased was resident of 1/4 Pardeshipura, Indore while owner of the Tempo was resident of 5/9, Pardeshipura, Indore. Claimants, who are presently residing in Bagli Distt., Dewas and the deceased was residing at Indore doing his business and earning a lot, however prayer is made to grant the compensation on account of death of deceased to the claimants. 4. On the other hand Shri Pradeep Gupta and Shri Bhaskar Agrawal learned counsel appearing for the Insurance Company contended that looking to the terms and conditions of permit and the place of incident it is apparent that the place of incident does not fall within the route of permit, therefore, the offending vehicle was plying by the owner in violation of the permit condition, however the Insurance Company cannot be held liable to pay the compensation. It is also contended that looking to the fact that the resident of owner of the vehicle and place of resident of the deceased, it is clear that they were neighbour, thus with the collusion the involvement of Tempo bearing registration No. UP 75-A 3615 has been pleaded in the case. It was not specified immediately to the police authorities regarding involvement of said vehicle in the said accident. In such circumstances the findings recorded by the Tribunal may be set aside and the Insurance Company may be exonerated or absolved from the liability to pay the compensation as assessed by the Tribunal. On the point of enhancement, it is submitted by them that the Tribunal has not committed any error in awarding the compensation to the tune of Rs. 2,39,000/-. The said amount is just and reasonable in a case where the deceased was alleged to be a Tailor, looking to the date of accident, therefore, the appeal filed by the claimants seeking enhancement may be dismissed and the appeal filed by the Insurance Company may be allowed. 5. On the other hand, Shri Hemant Vaishnav, learned counsel appearing on behalf of the claimants contends that the incident occurred on 18th January, 2007 and the report of the said incident was lodged by the police itself. The injured was admitted to the hospital by one Ravi, who is resident of 519 Pardeshipura, Indore. The injured after 4 days died. The family of the deceased was residing at Bagli Distt., Dewas and he was doing tailoring job at Indore and residing at 1/4 Pardeshipura, Indore as apparent from the statement of her wife Santoshbai. He further contended that eye witness Kaluram disclosed the entire narration before the Court and the police authority during the course of investigation, in such circumstances it cannot be inferred that involvement of false vehicle having collusion with the claimants and the owner is there. In fact the said vehicle dashed the deceased Sanjay, who succumbed to the injuries received in the said accident. It is further contended by Shri Vaishnav that as per the statement of Vishnu Rai, RTO, who had come from RTO Office Indore and looking the affairs of grant of permit of Tempo, Auto Rikshaw and other vehicles has specifically stated that he has not come with the record of permit. which was prevalent and exists on the date of accident. which was prevalent and exists on the date of accident. It is further argued by him that Vishnu Rai has deposed that vehicle may come back without having the passengers therein in night to the resident of owner and it is not a violation of terms and conditions of permit. In view of such statement of witness of the respondent, the Tribunal has rightly rejected the plea of plying of the said tempo in violation of the conditions of permit and also violation of terms and conditions of insurance policy. In view of the aforesaid, the finding recorded by the Tribunal is just and proper and not liahle to be interfered with. 6. Shri Hemant Vaishnav, learned counsel appearing on behalf of the claimants pressing his contention in MA No. 1745/08 seeking enhancement, it is contended that the Tribunal assessed the compensation assuming the notional earning of deceased Rs. 15,000/- per annum and on applying the multiplier of 17. the compensation as awarded by the Tribunal is inadequate, which is liable to be enhanced reasonably. 7. After having heard learned counsel for the parties and on perusal of the record, it is true that the accident has taken place on 18th January, 2007. The FIR of the said incident has been lodged by the police against unknown persons and the injured got admitted in the hospital by one Ravi, who is resident 0f 5/9. Pardeshipura. As per papers of the hospital, it is apparent that it is an accidental case and Sanjay succumbed to the injuries after 4 days. The claimants have mentioned their address in the claim petition Bagli Distt., Dewas, but in the statement of wife of deceased it has come that the deceased was working the job of Tailor and residing at 1/4 Pardeshipura. Indore. Kaluram. who is eye witness stated involvement of tempo hearing registration No. UP 75-A 3615 in routine course of police investigation. The said vehicle was seized and later on released by the Court. in such an event there is no iota of doubt available on record that the accident has not taken place from the aforesaid Tempo. Indore. Kaluram. who is eye witness stated involvement of tempo hearing registration No. UP 75-A 3615 in routine course of police investigation. The said vehicle was seized and later on released by the Court. in such an event there is no iota of doubt available on record that the accident has not taken place from the aforesaid Tempo. So far as violation of terms and conditions of the permit and Violation of the conditions of insurance policy is concerned, it is suffice to observe that Vishnu Rai (DW 1), who has come in witness box was not having the record of permit, which, was prevalent on the date of accident as per his statement. More so, it is admitted by him that within the municipal limit up to owner's house the tempo may be plied without having permit for that area. At this stage, it cannot be ignored that owner of the vehicle of the resident of 5/9, Pardeshipura, Indore and the deceased was residing at 1/4, Pardeshipura, Indore and the place of incident is Pardeshlpura Square, however, it is apparent that incident has taken place near the vicinity. where the resident of owner of offending vehicle and he was coming to his home to park the vehicle. 8. In view of the statement of Vishnu Rai (DW 1) as discussed hereinahove. the violation of condition of permit has not been established by the respondent. in such circumstances the finding recorded by the Claims Tribunal appears to be just and nearer to truth, therefore, the MA No. 1226/08 filed by the Insurance Company is hereby dismissed. 9. Now coming to the point of the enhancement, the evidence available on record, it is apparent that the deceased was doing the job of Tailor at Indore, although it is said that he was earning Rs. 6000/- per month, but in any case he was skilled worker at the relevant point of time and his earning in the year 2007 may not be less than to Rs. 100/- per day, which comes to Rs. 3000/- per month and Rs. 36,000/- per annum. Looking to the number of dependents 113 rd towards personal expenses may be deducted as he was residing separately from the family, then the loss of dependency comes to Rs. 24,000/- per annum. Looking to the age i.e. 28 years of deceased, the multiplier of 18 would be applicable. 3000/- per month and Rs. 36,000/- per annum. Looking to the number of dependents 113 rd towards personal expenses may be deducted as he was residing separately from the family, then the loss of dependency comes to Rs. 24,000/- per annum. Looking to the age i.e. 28 years of deceased, the multiplier of 18 would be applicable. On applying the multiplier of 18 the tota110ss of dependency comes to Rs. 4,32.000/-. If Rs. 25,000/- is added in conventional heads, then total compensation comes to Rs. 4,57 ;000/-. The Tribunal has already awarded a sum of Rs. 2,39,000/- and after deducting the same the enhanced amount comes to Rs. 2,18,000/-. 10. Resultantly, MA No. 1226/08 filed by the Insurance Company is hereby dismissed. MA No. 1745/08 filed by the claimants seeking enhancement is allowed and the claimants are held enntitled to receive total sum of Rs. 2.18.000/- in addition to the amount of compensation already awarded by the Tribunal. The enhanced amount shall carry interest @ 7.5% per annum from the date of application till its realization. In the facts and circumstances of the case parties are directed to hear their own costs.