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Madhya Pradesh High Court · body

2022 DIGILAW 1121 (MP)

National Insurance Company Ltd. v. Heeralal

2022-09-12

DEEPAK KUMAR AGARWAL

body2022
JUDGMENT 1. Being aggrieved by the award dated 29.10.2004 passed by the Additional Motor Accident Claims Tribunal, Gwalior in Claim Case No. 6/2004, Insurance Company has preferred this appeal and claimants have also filed their cross-objections (IA No.6908/2005). 2. In brief, facts of the case are that on 5.12.2002 at 7.30PM son of the claimants Narendra Kumar was coming from Malanpur to Gwalior by Hero Puch bearing Registration No. MP07 C 4341 which was in the ownership of respondent No.3 and insured with appellant-insurance company. As soon as he reached Gwalior- Bhind road, one unknown vehicle dashed him, as a result of which he got injured. He was admitted in JA hospital Gwalior in emergency ward. On the information, claimants reached at the hospital, but there was no improvement in the condition of Narendra, therefore, he was admitted in Nursing Home of Dr. A K Dubey and thereafter he was referred to Gangaram Hospital, Delhi and then Ram Manohar Lohiya Hospital. During treatment, he died. Report of the accident was lodged at Police Station, Maharjpura by father of the deceased on 14.12.2002 explaining the delay in lodging the FIR that due to treatment of deceased Narendra and his death, he could not lodge the report promptly. On his report, Crime No. 212 of 2002 U/ss 279,337 and 304-A of IPC was registered at Police Station Mahrajpura against driver of an unknown vehicle. Dead-body Panchnama was prepared. Thereafter postmortem was conducted. During investigation, offending vehicle could not be traced, hence police station Mahrajpura submitted a final report under Section 173 of Cr.P.C. (Khatma). At the time of accident, deceased was 28 years of age and he was unmarried. Deceased was working in the office of respondent No.4- Kataria Carrying Corporation as a clerk and used to get Rs.2,500/- per month, out of which he used to maintain himself and his parents. After his death, his parents became hand to mouth, hence, they filed an application U/s 163-A seeking compensation. Deceased was working in the office of respondent No.4- Kataria Carrying Corporation as a clerk and used to get Rs.2,500/- per month, out of which he used to maintain himself and his parents. After his death, his parents became hand to mouth, hence, they filed an application U/s 163-A seeking compensation. Respondent No.3- owner of the aforesaid Hero Puch appeared and filed his written statement to the effect that he has sold the aforesaid vehicle which was driven by the deceased on 28.6.2002 to one Siddharth Jain, partner of Kataria Carrying Corporation, and Siddharth Jain on the letterhead of Kataria Carrying Corporation has given a letter to him to this effect and assured that he will get the registration of the aforesaid vehicle transferred in the name of aforesaid company. Thereafter claimants amended their application and impleaded Kataria Carrying Corporation as a party through its partner Siddharth Jain. On appearance respondent No.4 submitted his written statement and admitted that deceased was working as a clerk in their company, but denied that they purchased the aforesaid Hero Puch. Issues were framed and evidence was led by the parties. After assessing the evidence, 3. learned Claims Tribunal vide impugned award dated 29.10.2004 partly allowed the application of the claimants and passed the award to the tune of Rs.96,000/- along with interest from the date of application i.e. 1.4.2003 with interest at the rate of 7% against the respondents and insurance company jointly and severally. Hence, this appeal by the Insurance Company. 4. Learned counsel for the appellant-Insurance Company submitted that deceased Narendra was not a third party. He was driving the aforesaid vehicle which was in the ownership of Devesh Sharma- respondent No.3. Respondent No.4- Kataria Carrying Corporation has denied that they have purchased the aforesaid vehicle and at the time of accident deceased Narendra had gone to Malanpur in relation to the work of aforesaid company and was returning. In these situations, for the death of deceased Narendra, liability cannot be fastened on Insurance Company. In support of his submission, learned counsel has relied on decisions of the Supreme Court in the cases of Ramashray Singh Vs. New India Assurance Co. Ltd & Others, II(2003) ACC 706(SC); National Insurance Company Ltd. Vs. Balakrishanan & Anr., IV(2012) ACC 700 (SC); Ramkhiladi and Another Vs. United India Insurance Co. In support of his submission, learned counsel has relied on decisions of the Supreme Court in the cases of Ramashray Singh Vs. New India Assurance Co. Ltd & Others, II(2003) ACC 706(SC); National Insurance Company Ltd. Vs. Balakrishanan & Anr., IV(2012) ACC 700 (SC); Ramkhiladi and Another Vs. United India Insurance Co. Ltd. and Another, 2020 ACJ 627 and Full Bench decision of this Court in Bhav Singh Vs. Savirani and Others, 2008 (1) MPLJ 72 . 5. Learned counsel for the respondents-claimants submitted that claimants have adduced evidence to this effect that deceased Narendra was driving the aforesaid vehicle which was in the ownership of Kataria Carrying Corporation. 6. It has already been sold to Kataria Carrying Corporation and at the time of accident deceased had gone to Malanpur with the work of aforesaid company. In these situations, deceased comes in the category of third party. Beside this, learned counsel has also submitted that learned Claims Tribunal has wrongly applied multiplier on the basis of age of claimants, whereas it should be on the basis of age of the deceased which is 28 years, hence, in place of multiplier of 8 multiplier of 18 will be applicable. It is further submitted that learned Claims Tribunal wrongly deducted 50% of the income of the deceased towards personal expenses. 7. Learned counsel for respondent No.4- Kataria Carrying Corporation submitted that deceased was in their employment, but aforesaid vehicle has not been purchased by them, nor on the date of accident deceased had gone on the direction of the company, hence, liability cannot be fastened on respondent No.4. 8. Heard learned counsel for the parties and perused the record. It is an admitted fact that deceased Narendra was employed as a clerk in Kataria Carrying Corporation and he was getting Rs.1,500/- per month. Due to the accident on 5.12.2002 he got injured and later on died. Now, it is to be examined that whether deceased comes under the category of third party or not. 9. From the side of claimants, evidence of Heeralal has been adduced. He has stated that on the fateful evening on 5.12.2002 at 7.30PM his son deceased Narendra was coming from Malanpur to Gwalior where he met with an accident with an unknown vehicle. Siddharth has informed him that his son Narendra is admitted in hospital. 9. From the side of claimants, evidence of Heeralal has been adduced. He has stated that on the fateful evening on 5.12.2002 at 7.30PM his son deceased Narendra was coming from Malanpur to Gwalior where he met with an accident with an unknown vehicle. Siddharth has informed him that his son Narendra is admitted in hospital. He reached there and thereafter deceased was transferred to Chirayu Hospital and then he was taken to Ram Manohar Hospital where he died. At the time of accident, he had gone with the work of aforesaid company by the company's vehicle MP07 C 4341. Documents of criminal case are Ex.P-1 to Ex.P-5 and documents of treatment are Ex.P-6 to Ex.P-19. During cross-examination, he has admitted that deceased was not driving the aforesaid moped as a driver. He does not know as to who is the registered owner of the aforesaid moped. He does not know as to whether aforesaid vehicle was registered in the name of Devesh Sharma or not. 10. In rebuttal of the aforesaid evidence, respondent No.3 Devesh Sharma adduced his evidence that he had sold the aforesaid Hero Puch MP07 C 4341 on 28.6.2002 to respondent No.4-Kataria Carrying Corporation for which Siddharth Jain, partner of the said firm, wrote a certificate. During cross- examination, he denied that at the time of accident he was the registered owner of the aforesaid vehicle and stated that he has sold the aforesaid vehicle in Rs.7,000-8,000/-. In support of his contention, he has only produced a certificate (Ex.D-1) alleged to be given by Shri Sidharth Jain, Partner of the Kataria Carrying Corporation, on 28.6.2002. But respondent No.4- Kataria Carrying Corporation has adduced evidence of Shafiq Mohammad, who is the Manager of the aforesaid company, who has denied that aforesaid company has purchased the said vehicle and at the time of accident, said vehicle was in their possession and on their direction, deceased Narendra had gone to Malanpur for company's work and was returning from there. 11. During cross-examination, he has stated that deceased Narendra used to work by sitting in the office. Outside work was performed by him. Aforesaid certificate (Ex.D/1) has not been issued by the partner of the company Shri Sidharth Jain. 12. 11. During cross-examination, he has stated that deceased Narendra used to work by sitting in the office. Outside work was performed by him. Aforesaid certificate (Ex.D/1) has not been issued by the partner of the company Shri Sidharth Jain. 12. Registered owner of the aforesaid vehicle Devesh Sharma is claiming that he has sold the aforesaid vehicle only on the basis of certificate issued as Ex.D/1 which was denied by the Manager of the aforesaid Company. As per the Motor Vehicles Act when sell and purchase of the motor vehicle takes place, it is the duty of the seller to issue a sell letter along with a prescribed proforma of registration department and give it to the purchaser of the vehicle who in turn for transferring his name in the registration certificate applies before the concerned registration authority. In the present case, it has not been done. In these situations, claimants as well as respondent No.3-Devesh Sharma, registered owner of the vehicle, could not prove that aforesaid Hero Puch MP07 C 4341 was sold to Kataria Carrying Corporation and the same was in their possession at the time of accident. 13. Looking to the evidence came on record and the decision of the Apex Court in the case of Ramkhiladi (supra), it is held that deceased was driving the aforesaid vehicle on behalf of the registered owner- Devesh Sharma due to which he steps into the shoes of owner of the aforesaid vehicle. In these situations, as per Section 147 of the Motor Vehicles Act, he does not come in the purview of third party for which liability of paying compensation can be fastened on Insurance Company. 14. As regards I.A.No.6908/2005, cross-objections of the claimants in regard to quantum of compensation, learned Claims Tribunal erred in applying the multiplier of 8 on the basis of age of parents of the deceased. As per the second schedule of Motor Vehicles Act, multiplier of 18 will be applicable and 1/3rd of the income should be deducted towards his personal expenses. The Claims Tribunal assessed the monthly income of the deceased as Rs.1500/- per month. Thus, his annual income would be Rs.18,000/-. Out of the said amount, if 1/3rd of the amount is deducted towards personal expenses of the deceased, then dependency of the claimants would be Rs.12,000/-. If multiplier of 18 is applied in this amount, then total amount comes to Rs.2,16,000/-. Thus, his annual income would be Rs.18,000/-. Out of the said amount, if 1/3rd of the amount is deducted towards personal expenses of the deceased, then dependency of the claimants would be Rs.12,000/-. If multiplier of 18 is applied in this amount, then total amount comes to Rs.2,16,000/-. As per the schedule of Motors Vehicle Act, claimants would be entitled to a sum of Rs.4,500/- under other heads. Claimants would be further entitled to a sum of Rs.10,000/- as awarded by the Claims Tribunal towards medical expenses. Thus, claimants are entitled to total compensation of Rs.2,30,500/- payable by respondent No.3- Devesh Sharma- registered owner of the vehicle. The Insurance Company shall be at liberty to recover the amount of compensation already paid to the claimants from respondent No.3. Rest of the terms and conditions of the award shall remain as it is. 15. With the aforesaid, this Misc. Appeal & cross-objections of claimants stand disposed of.