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2022 DIGILAW 1082 (MP)

New India Assurance Co. Ltd. v. Godhan

2022-09-02

VIVEK AGARWAL

body2022
ORDER 1. This miscellaneous appeals have been filed by the New India Assurance Company Limited and the claimants being aggrieved of award dated 29.11.2017 passed by learned 1st Additional Member, Motor Accident Claims Tribunal, District Dindori in Claim Case No.270/2016. 2. Shri Dinesh Koshal, learned counsel for the Insurance Company submits that it is a case of false implication of the vehicle inasmuch as the accident took place on 23.7.2016. The first information report was lodged against an unknown vehicle and thereafter an insured vehilce was falsely implicated in this case. The Insurance Company examined driver of the offending vehicle, namely, Jaipal Singh, who clearly denies the factum of the accident. The report of the Investigating Officer is proved by the Officer of the Insurance Company and, therefore, there was no material on record to record a finding of involvement of Ertiga Car bearing registration No. MP52-CA-0624. 3. Shri Bhagwan Singh Thakur, learned counsel for the claimants, in his turn, submits that the Claims Tribunal has considered the income of the deceased at Rs.3,000/- per month for an accident, which took place on 23.7.2016 whereas on the date of the accident, even minimum wages for an unskilled labourer were to the tune of Rs.6850/- per month. The Claims Tribunal has not taken into consideration the future prospect and has awarded a meager compensation under other non-pecuniary heads, therefore, the claimants have filed M.A.No.1424/2018 seeking enhancement to the tune of Rs.1,50,000/-. 4. After hearing learned counsel for the parties and going through the record, it is evident that Jaipal Singh was examined as Applicant Witness No.2. He filed an affidavit under Order XVIII Rule 4 of the Code of Civil Procedure, 1908 denying the factum of the accident. In Paragraph No.1 of the affidavit, he states that the accident took place after several hours of his crossing the place of the accident. In cross-examination, this witness admits that he has no enmity with Gulam Abbas, who had taken number of his vehilce as the offending vehicle. This witness denies that he was arrested, which is contrary to the document on record inasmuch as along with the Challan, copy of arrest memo of Jaipal Singh is available showing his surrender before the Court of Additional Chief Judicial Magistrate, District Dindori on 26.9.2016. 5. Thus, it is evident that Gulam Abbas had surrendered before the Criminal Court. This witness denies that he was arrested, which is contrary to the document on record inasmuch as along with the Challan, copy of arrest memo of Jaipal Singh is available showing his surrender before the Court of Additional Chief Judicial Magistrate, District Dindori on 26.9.2016. 5. Thus, it is evident that Gulam Abbas had surrendered before the Criminal Court. There is no other substantive cross-examination on Jaipal Singh (AW.2) so as to deny the factum of the accident. Infact, this witness admits in Paragraph No.1 of his examination-in-chief and admittedly this witness was not produced by the claimants, who had appeared on his own that he had crossed the place of the incident but the accident took place several hours after his crossing. He had not given any time that when did he cross the place of the incident. 6. Thus, there is a tacit admission of his presence at the place of the incident. The Insurance Company did not bother to ask him in his cross examination that what was the time when he had admittedly crossed the place of the incident as is admitted by him in the examination-in-chief. If this question would have been put to this witness then actual fact would have come out by corroborating the time of the accident as is mentioned in the first information report with the statement of the driver Jaipal Singh but the Insurance Company has failed to carry out the effective cross-examination of this witness. 7. Similarly, narrator of the number of the offending vehilce is Gulam Abbas, who was examined by the claimants. In his cross-examination also, the Insurance Company could not extract any contradiction to deny his presence. The Insurance Company proceeded on the line that humanity requires that if any accident takes place then the injured should be taken to the hospital to which, this witness clearly answers that he was not carrying his mobile phone and the deceased being fat, it was not possible to lift her and take her to the hospital. Thus, it is evident that the Insurance Company even could not prove the false planting of this witness to whom discovery of number of the offending vehicle is attributed. 8. Thus, it is evident that the Insurance Company even could not prove the false planting of this witness to whom discovery of number of the offending vehicle is attributed. 8. The Insurance Company examined one B.N.Mishra, Deputy Manager of New India Assurance Company Limited as Non-Applicant Witness No.3, who had only proved the report of the Investigator alongwith the documents collected by the Investigator. This witness admits that Exhibit D/7 is statement of Gulam Abbas Khan S/o. Munna Khan recorded by the Police in which number of the vehilce is mentioned though he himself deposed that the statement was recorded after many days but he could not point out that this witness has been falsely implicated. Neither there is any report of mechanical inspection of the offending vehicle nor the Investigator took any photographs of the offending vehilce and they have not been brought on record to show that the offending vehilce was not involved in the accident and it had not sustained any damage. 9. Thus, it is evident that the Investigator has failed to act bonafidely and in terms of the requirement of his appointment so as to bring true & correct facts on record. It is incumbent upon the Investigator to have produced photographs of the offending vehicle as it was his duty to have visited the owner of the offending vehicle to obtain photographs and should have seen that whether any damage was available on the Car and if it was available then should have sought explanation from the driver and owner but the Investigator did not even bother to record the statement of owner of the offending vehilce. In my opinion, the Insurance Company and the Investigator have failed to discharge their burden to show that the vehilce in question was falsely implicated. 10. Accordingly, M.A.No.1052/2018 filed by the New India Assurance Company Limited deserves to and is dismissed. 11.As far as M.A.No.1424/2018 filed by the claimants is concerned, it is evident that the Claims Tribunal has considered the deceased to be a house wife. The house wife is a skilled job but when salary of an unskilled labourer is taken into consideration that was to the tune of Rs.6850/- per month and after deduction of 1/3rd amount, the annual dependency will come out to Rs.54,800/- . The house wife is a skilled job but when salary of an unskilled labourer is taken into consideration that was to the tune of Rs.6850/- per month and after deduction of 1/3rd amount, the annual dependency will come out to Rs.54,800/- . As the age of the deceased is accepted to be 48 years, 25% is to be added towards future prospect taking annual dependency to be Rs.68,500/-. As per the age of the deceased, the multiplier of 13 will be applicable taking total pecuniary compensation to the tune of Rs.8,90,500/- over and above which the claimants are entitled to a sum of Rs.70,000/- under the head of non-pecuniary compensation taking total compensation to Rs.9,60,500/- against a sum of Rs.3,82,000/-. Thus, there will be enhancement to the tune of Rs.5,78,500/- but since the appeal is valued at Rs.4,30,089/- only and learned counsel for the claimants has deposited the Court Fee today itself i.e.2.9.2022 vide High Court of Madhya Pradesh Online Court Fee Cyber Receipt/Treasury Challan No.051/9999999/0030/09/22/008610 attached alongwith the Covering Memo signed by Shri Bhagwan Singh Thakur, learned counsel for the claimants for Rs.2,80,000/- in addition to the earlier Court Fee on valuation of Rs.1,50,000/-, therefore, the appellants/claimants will be entitled to an enhanced sum of Rs.4,30,089/- (Rupees Four Lacs Thirty Thousand Eighty Nine Only) to be paid by the respondents i.e.owner, driver and Insurance Company of the offending vehicle, jointly & severally alongwith interest @ 6% per annum from the date of filing of the claim petition till the date of actual payment. 12. Accordingly, M.A.No.1424/2018 filed by the claimants stands allowed & disposed of. 13. Let record of the Claims Tribunal be immediately sent back.