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Madhya Pradesh High Court · body

2020 DIGILAW 209 (MP)

Mithlesh Gurjar v. Santosh Pal

2020-02-10

G.S.AHLUWALIA

body2020
ORDER 1. Heard finally. 2. This misc. appeal under section 173 of Motor Vehicles Act has been filed by the claimants against the award dated 28.6.2017 passed by IVth Motor Accident Claims Tribunal, Gwalior in Claim Case No. 600115/2016 for enhancement of compensation amount. 3. Cross Objecton (I.A. No. 951 of 2020) has been filed by Insurance Company on 10.2.2020. 4. The Insurance Company had entered appearance on 3.10.2017 by filing Vakalatnama. Thus, it is clear that the Insurance Company was already served with the notice much prior to 3.10.2017, whereas cross objection has been filed on 10.2.2020. Therefore, it is held that the cross objection filed by the Insurance Company is barred by time and is accordingly dismissed. 5. Since, the question of accident is not in dispute therefore, it is suffice to mention that deceased Narendra Gurjar, aged about 22 years, lost his life in a vehicular accident which took place on 1.5.2015. The Insurance Company has been exonerated on the ground that the offending vehicle was not having permit. 6. Without challenging the findings recorded by the Claims Tribunal that the offending vehicle was being plied without valid permit, it is submitted by the counsel for the appellants, that the Claims Tribunal should have applied the principle of Pay and Recover. 7. Per contra, it is submitted by the counsel for the Insurance Company, that since, the offending vehicle was being driven without valid permit, therefore, the Insurance Company has been rightly exonerated in toto. 8. Heard the learned Counsel for the Parties. 9. The Supreme Court in the case of Shivaraj v. rajendra, reported in 2018(III) MPWN 46 = (2018) 10 SCC 432 has held as under : ''10. The High Court, however, found in favour of Respondent 2 (insurer) that the appellant travelled in the tractor as a passenger which was in breach of the policy condition, for the tractor was insured for agriculture purposes and not for carrying goods. The evidence on record unambiguously pointed out that neither was any trailer insured nor was any trailer attached to the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely, the driver. As a result, the Insurance Company (respondent 2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. Thus, it would follow that the appellant travelled in the tractor as a passenger, even though the tractor could accommodate only one person, namely, the driver. As a result, the Insurance Company (respondent 2) was not liable for the loss or injuries suffered by the appellant or to indemnify the owner of the tractor. That conclusion reached by the High Court, in our opinion, is unexceptionable in the fact situation of the present case. 11. At the same time, however, in the facts of the present case the High Court ought to have directed the insurance company to pay the compensation amount to the appellant claimant with liberty to recover the same from the tractor owner, in view of the consistent view taken in that regard by this Court in National Insurance Co. Ltd. v. Swaran Singh, Mangla Ram v. Oriental Insurance Co. Ltd., Rani v. National Insurance Co. Ltd. and including Manuara Khatun v. Rajesh Kumar Singh. In other words, the High Court should have partly allowed the appeal preferred by respondent 2. The appellant may, therefore, succeed in getting relief of direction to respondent 2 Insurance Company to pay the compensation amount to the appellant with liberty to recover the same from the tractor owner, respondent 1. In the present case also, the injured persons were sitting in the trolley, attached with Tractor No. MP 06 J.A. 4039. The claims Tribunal has come to a conclusion that since, the Tractor was insured for agricultural purposes and no extra premium was paid for the passengers, therefore, the Insurance Company is not liable to pay compensation due to breach of Insurance Policy, however, applied the principle of pay and recover.'' The Supreme Court in the case of Manuara Khatun v. Rajesh Kumar Singh, reported in 2017 ACJ 1031 has held as under : ''16. This question also fell for consideration recently in Manager, National Insurance Company Limited v. Saju P. Paul and anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of section 147 of the Act. This question also fell for consideration recently in Manager, National Insurance Company Limited v. Saju P. Paul and anr., (supra) wherein this Court took note of entire previous case law on the subject mentioned above and examined the question in the context of section 147 of the Act. While allowing the appeal filed by the Insurance Company by reversing the judgment of the High Court, it was held on facts that since the victim was travelling in offending vehicle as "gratuitous passenger" and hence, the Insurance Company cannot be held liable to suffer the liability arising out of accident on the strength of the insurance policy.However, this Court keeping in view the benevolent object of the Act and other relevant factors arising in the case, issued the directions against the Insurance Company to pay the awarded sum to the claimants and then to recover the said sum from the insured in the same proceedings by applying the principle of "pay and recover". 10. Further, the Insurance Policy is a contract between the insured and the insurer and the insurer agrees to indemnify the insured against all the claims arising out of use of vehicle, however, such contract is subject to the conditions that the vehicle shall not be plied or driven contrary to the provisions of law as well as Insurance Policy. Thus, it is clear that the insurer/Insurance Company can get away from its liability of indemnifying the insured by proving that the vehicle was being used contrary to the Insurance Policy. However, the claimants are completely stranger to the contract between the insured and the insurer. Once, the Insurance Company had agreed to indemnify the insured, then it would be a dispute between the insured and the insurer as to whether the vehicle was being used contrary to the conditions of Insurance Policy or not? But the claimants cannot be made to suffer because of inter se dispute between the insured and the insurer. Once, the vehicle is insured, then the Insurance Company must satisfy the award and if it is found by the Claims Tribunal that the vehicle was being used contrary to the conditions of Insurance Policy, then the right to recover the amount has been given to the Insurance Company without filing a separate suit against the insured. Once, the vehicle is insured, then the Insurance Company must satisfy the award and if it is found by the Claims Tribunal that the vehicle was being used contrary to the conditions of Insurance Policy, then the right to recover the amount has been given to the Insurance Company without filing a separate suit against the insured. Thus, it is held that although the Insurance Company is not jointly and severally liable to pay compensation, however, the same would satisfy the compensation with liberty to recover the same from the owner. 11. It is further submitted by the Counsel for the appellants, that the Claims Tribunal has not awarded Future Prospects. 12. Considered the submissions. 13. The Claims Tribunal has held that the claimants have failed to prove that the deceased was having income from sale of milk and agriculture. Therefore, his notional income has been assessed as an agricultural labourer. 14. This Court in the case of Smt. Kiran Devi and others v. Anil Kumar and others, passed in M.A. No. 976 of 2015 decided on 4.5.2019 [Published in 2019(2) Vidhi Bhasvar 115] has held as under : ''Thus, the core question is that what is the meaning of "Self-employed"? A "Self-employed" is a person who is working for himself and is earning money from his own business. There is a difference between an employer and employee. Self-employment is a state of working for oneself rather than working for an employer. A self-employed person is a person, who earns income by contracting with a trade or business directly. A professional is a self employed person. A person who, apart from earning himself, is also providing employment to others, can also be said to be a self-employed person. However, where the deceased is working as a labourer cannot be said to be a self employed person, because he is working for an employer. Employment is an agreement between an employer and an employee that the employee will provide certain sevices on the job to accompalish the employer organization's goal and mission and in exchange for work performed, the employee receives salary. Employment is an agreement between an employer and an employee that the employee will provide certain sevices on the job to accompalish the employer organization's goal and mission and in exchange for work performed, the employee receives salary. The Supreme Court in the case of Sarla Verma (supra) has held that where the deceased had a stable job, the Court can take note of the prospects of the future and it will be unreasonable to estimate the loss of dependency on the actual income of the deceased at the time of death. Thus, in the case of employment, stability of job is the only criteria and where a person is working as a labourer and is not in a stable employment, then it cannot be said that he is also entitled for future prospects. A labourer, can never be treated as a self employed person or a person with stable job. The Supreme Court in the case of Pranay Sethi (supra) has not held that even a person, who is not in a stable job would also be entitled for future prospects. While granting future prospects, the Claims Tribunal are required to see that whether the deceased was a self employed person or was in stable job. This Court in the light of judgment passed in the case of Pranay Sethi (supra) cannot grant "future prospects" to an "unemployed" or a "labourer/employee who is not having a stable job". This Court cannot create third category of persons, which are not covered by the category of employee or self-employed person. This Court while calculating the compensation has to assess the "just compensation" as provided under section 168 of Motor Vehicles Act, and the dependants are not entitled for a windfall. Thus, this Court is of the considered opinion, that since, the deceased was working as a porter and was not having any stable job, and he cannot be termed as self employed, therefore, the appellants are not entitled for compensation under the head of "Future Prospects". Accordingly, the claim of the appellants under the head of "Future Prospects" is hereby rejected.'' 15. Accordingly, the prayer for grant of Future Prospects is hereby rejected. 16. It is submitted by the counsel for the Insurance Company that exorbitant amount has been awarded under the Misc. Heads. Accordingly, the claim of the appellants under the head of "Future Prospects" is hereby rejected.'' 15. Accordingly, the prayer for grant of Future Prospects is hereby rejected. 16. It is submitted by the counsel for the Insurance Company that exorbitant amount has been awarded under the Misc. Heads. As the cross objection filed by the Insurance Company has already been rejected, therefore, this Court while entertaining the appeal filed by the claimants cannot reduce the amount awarded by the Claims Tribunal. 17. This Court in the case of Smt. Kiran Devi (supra) has held as under : ''17.The counsel for the Insurance Company is right in submitting that the principle of Prospective Overruling has no application, however, the question is that, in absence of any appeal by the owner, driver or the Insurance Company, whether this Court can reduce the compensation amount in an appeal filed by the Claimants? 18. The question is no more res integra. 19. This Court in the case of Smt. Gurkho bai and others v. Kuver Singh and others, by order dated 22.1.2019 passed in M.A. No. 759/2016 has held as under : "Accordingly, it is held that in absence of any appeal or cross-objection by the respondents, no order adverse to the interest of appellants can be passed." 20. Accordingly, it is held that the amount awarded under Misc. Head of loss of Consortium and Funeral Expenses can not be reduced and is hereby maintained.'' 18. No other arguments are advanced by the Counsel for the parties. 19. Accordingly, the award dated 28.6.2017 passed by IVth Motor Accident Claims Tribunal, Gwalior in Claim Case No. 600115/2016 is affirmed with aforesaid modification by applying the principle of pay and recover. 20. The appeal fails and is hereby Disposed of.