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Madhya Pradesh High Court · body

2017 DIGILAW 848 (MP)

Saroj v. Raghuveer Singh

2017-07-20

VIVEK AGARWAL

body2017
ORDER 1. This miscellaneous appeal has been filed by the appellant being aggrieved by the award dated 28.9.2000 passed by the Court of Additional Motor Accident Claims Tribunal, Sabalgarh, District Morena, in Claim Case No.24/97, whereby the Claims Tribunal has awarded a sum of Rs.50,000/- recording a finding that the deceased Jaisingh died because of his own negligence and therefore, the claimants are entitled only to a sum of Rs.50,000/- under the provisions of section 140 of the Motor Vehicle Act. 2. It is submitted by learned counsel for the appellants that this award suffers from legal infirmity inasmuch as there was no material on record to show negligence of the deceased driver Jaisingh. It is submitted that since there is no negligence on the part of the driver and Insurance Company has failed to discharge this burden of negligence of deceased driver- Jaisingh, therefore, the claimants are entitled to the claim amount considering the notional income of the deceased to be even Rs.1,500/- per month, then the award should have been made in favour of the claimants. Learned counsel for the appellants has placed reliance on the judgment of Division Bench of this Court in the case of Chhaya Mishra v. Oriental Insurance Company and Another as reported in, [ (2001)1 MPLJ 564 ]. Placing reliance on this judgment, it is submitted that in the case of Chhaya Mishra (supra), the Claims Tribunal had dismissed the claim of married sister of the deceased driver on the ground that deceased driver was negligently driving the vehicle. Thus, conclusion of negligent driving was arrived at by the Claims Tribunal on the statement of a surviving member in the accident, who had stated that all of a sudden the vehicle got strayed and struck against road side tree. 3. In that case, the Insurance Company had simply filed a written statement, but had not made any effort to lead evidence and there was no suggestion to the surviving member regarding the negligence, therefore, the High Court held that under the facts and circumstances, it could not be held that the accident took place due to rash and negligent driving of the deceased driver and it could be said that the accident took place because of mechanical defect in the vehicle and therefore, awarded a lump sum compensation of Rs.1,00,000/-. 4. 4. On the other hand, learned counsel for the respondent/ Insurance Company has placed reliance on the judgment of the Supreme Court in the case of Tamil Nadu State Transport Corporation v. Natarajan and others as reported in, [(2003) ACJ 1002], wherein the ratio of the judgment is that :- “If driver of the offending vehicle was himself negligent for causing accident, then employer cannot be held to be vicariously liable for the negligence of the claimant himself.” 5. He has also placed reliance on the judgment of the Supreme Court in the case of Oriental Insurance Co. Ltd. v. Premlata Shukla and others as reported in, [(2007) ACJ 1928], wherein it has been held that- “Rashness and negligence of the driver of offending vehicle is sine qua non for maintaining claim application. If it is found that driver was not driving rashly and negligently, then the claim is not maintainable against the Insurance Company.” 6. Placing reliance on such judgments, learned counsel for the Insurance Company prays for dismissal of the appeal. 7. Arguments heard. 8. Record perused. 9. It is seen that Insurance Company had filed a written statement denying the claim averments and had alleged that death of the deceased driver- Jaisingh had taken place because of his own mistake and negligence, but none of the witnesses examined by the claimants were given suggestion that Jaisingh died because of his own negligence. There is no suggestion to (PW1) Saroj Bai, wife of Jaisingh, (PW2) Ramraj and (PW3) Uday Singh. Similarly, the Insurance Company had not taken any pains to lead evidence of any of the persons to substantiate it's allegations of rash and negligent driving in the hands of Jaisingh, therefore, in the opinion of this Court, case of the appellants is squarely covered by the judgment rendered by this Court in the case of Chhaya Mishra (supra), and the judgments rendered in the case of Oriental Insurance Co. Ltd. v. Premlata Shukla and Others so also in the case of Tamil Nadu State Transport Corporation v. Natarajan and others, are of no avail to the Insurance Company to prove negligence of the deceased driver Jaisingh during the accident. The Insurance Company has not led any evidence to prove that the deceased driver was not having a valid driving license; the onus which was to be discharged by Insurance Company. The Insurance Company has not led any evidence to prove that the deceased driver was not having a valid driving license; the onus which was to be discharged by Insurance Company. Since the Insurance Company has failed to discharge the burden, therefore, the claimants are entitled to claim amount which has been arbitrarily denied by learned Claims Tribunal. 10. Taking the notional income of the deceased to be Rs.1,500/- per month as the accident had taken place on 4.6.1997, annual income will come out to Rs.18,000/- Since there are four dependents, therefore, it can be presumed that the deceased was spending 1/4th of the income on his own upkeep, therefore, notional income for the purpose of computation of compensation will come out to Rs.13,500/-. Age of the deceased at the time of accident was 32 years as is mentioned in the post-mortem report (Ex.-P/3), therefore, multiplier of 17 will be applicable, thus, the total compensation will come-out to Rs.2,29,500/-. Besides this, appellant No.1 is entitled for a sum of Rs.10,000/- towards loss of estate and another sum of Rs.10,000/- towards loss of love and affection. Similarly, claimants No.2, 3 and 4 are also entitled to Rs.10,000/- each for loss of love and affection. Besides this, a sum of Rs.10,000/- for performance of last rites. Thus, the total compensation will come out to Rs.2,89,500/- along with interest @ 6% from the date of filing of the claim i.e.27.9.1997. Out of this total amount, Rs.50,000/- as awarded by the Claims Tribunal shall be adjusted by the respondents. The respondents are liable to pay the compensation jointly and severely.