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Madhya Pradesh High Court · body

2022 DIGILAW 723 (MP)

Rajni v. Shankar Baksh Singh Vaishy

2022-05-05

SUNITA YADAV

body2022
JUDGMENT 1. Present appeal is filed assailing the order dtd. 31/1/2011 in Claim Case No.44/2010 passed by Second Additional Motor Accident Claims Tribunal to the Court of First Additional Motor Accident Claims Tribunal, Gwalior. 2. The case of the appellants/claimants are that the deceased Suresh Tiwari was riding as a pillion rider on the motorcycle and when he reached near Atlas Tiraha in front of Mata ka Mandir, Bhind Road, Malanpur, District Bhind, at that very moment, the offending truck bearing No. UP78 AT 8409 driven by respondent/ non-applicant No.1 hit the motorcycle of the deceased. Respondent/ non-applicant No.1 was driving the truck in rash and negligent manner at the time of accident. On account of accident, Suresh Tiwari died. The deceased's wife, son and daughter filed claim application under Sec. 166 of Motor Vehicle Act for the compensation on account of death of Suresh Tiwari. 3. Respondents/ non-applicants No. 2, owner of the offending vehicle, did not appear before the Tribunal and was proceeded exparte. 4. Respondent/ non-applicant No. 1 filed reply denying the facts averred in the claim application in respect to the accident and pleaded that the offending vehicle was insured with respondent/ non-applicant No. 3 - insurance company and, therefore, he is not liable to pay the compensation. 5. Respondent/ non-applicant No. 3 - insurance company filed its reply stating therein that the case of the claimants is false and fabricated. The accident occurred on account of the negligence of the deceased himself. The insurance company also took the ground that the vehicle was being driven against the terms and conditions of the policy and, therefore, the insurance company is not liable to pay the compensation. 6. The Tribunal framed the issues and on the basis of evidence passed the impugned award. 7. Respondent No.3 - Insurance Company has filed crossobjection on the ground that at the time of accident, offending vehicle was being driven against the terms and conditions of the insurance policy without having route permit. An application (I.A. No.4758/2018) for condonation of delay in filing the crossobjection has also been filed by respondent/ non-applicant No. 3 - insurance company on the ground that other connected claim case No. 169/2010, Smt. Prabha & Ors. vs. Shankar & Ors., is pending till date before the Motor Accident Claims Tribunal, Gwalior in which the case record of the offending vehicle was provided by the claimants. vs. Shankar & Ors., is pending till date before the Motor Accident Claims Tribunal, Gwalior in which the case record of the offending vehicle was provided by the claimants. On the basis of that record, respondent No. 3 investigated and verified the said document from RTO, Kanpur on 12/9/2011. The Divisional Officer, Kanpur of the insurance company sent the verification report which was received on 15/9/2011 and then only this fact has came into the knowledge of respondent No.3. The Divisional Office, Gwalior sent all the verified original documents to the dealing advocate on 05/10/2011, which were received by the counsel on 08/10/2011. Thereafter, cross-objection was prepared on 17/11/2011 and was filed on 18/11/2011 before this Court. 8. Learned counsel for the insurance company submitted that the delay in filing the cross-objection is bonafide and the issue has to be decided on merits and not on mere technicalities and, therefore, the delay be condoned and cross-objection be taken on record. 9. Learned counsel for the claimant filed the written reply and argued that the reasons for delay in filing cross-objection are baseless and malafide. She has further argued that the application under Sec. 5 of Limitation Act itself was filed after a lapse of almost 8 years and, therefore, the delay should not be condoned. 10. After considering the rival contentions and having perused the record, this Court is of the considered opinion that in the light of the reasons shown in the cross-objection, the issue raised needs to be decided on merits. 11. The Apex Court in the case of State of Nagaland vs. Lipok Ao and Ors., [ (2005) 3 SCC 752 ] has held that if the cause is sufficient and reasons are bonafide, then delay should be condoned. 12. In the present case, the reasons assigned for delay appears to be bonafide, therefore, application (I.A. No.4758/2018) under Sec. 5 of Limitation Act is allowed and cross-objections are taken on record. 13. Since, cross-objections are taken on record, I.A. No. 4785/2011, application under Order 47 Rule 27 of CPC read with Sec. 151 of CPC, filed by the insurance company is also allowed. 14. I.A. No.771/2019, under Order 41 Rule 27 of CPC, is filed by the appellants/claimants to produce the pay-slip of one Ramdas Solanki as additional evidence. 15. 13. Since, cross-objections are taken on record, I.A. No. 4785/2011, application under Order 47 Rule 27 of CPC read with Sec. 151 of CPC, filed by the insurance company is also allowed. 14. I.A. No.771/2019, under Order 41 Rule 27 of CPC, is filed by the appellants/claimants to produce the pay-slip of one Ramdas Solanki as additional evidence. 15. Learned counsel for the appellants argued that the service tenure of deceased Suresh Tiwari was upto the year 2016 and, therefore, he is entitled to get the benefits of 6th and 7th pay commissions. However, in the appeal, the appellant has not taken the ground that benefit of 7th pay commission should also be given to the appellant/ claimants. 16. The appellants/claimants have not filed any document to show that the said Ramdas Solanki, whose pay slip is produced, is of the same rank or on the same footing with the deceased. No reason was assigned why the pay slips were not produced before the Tribunal at the time of recording of evidence. 17. Consequently, I.A. No. 771/2019 is hereby dismissed. 18. Present appeal is filed for enhancement of compensation amount. The grounds raised by the appellants/claimants are that the Tribunal has wrongly deducted the personal allowances and also wrongly assessed the dependency. The Tribunal has wrongly fixed the age of the deceased as 54 years whereas his age was only 53 years at the time of accident. It is further stated that the Tribunal has wrongly applied splitted multiplier. The benefits of sixth pay commission should also have to be given. 19. Heard rival contentions and perused the available record. 20. On perusal of the record, it is apparent that respondentinsurance company though has taken the defence that the offending truck bearing No.UP78 AT 8009 was being driven against the policy conditions but to prove its defence, it was required for the insurance company to first prove what are the policy conditions. However, respondent-insurance company has not produced any witness to prove that on what conditions, the offending vehicle was insured with it. Since, the conditions of policy are not proved by the insurance company by adducing evidence, therefore, the breach of policy is also not found to be proved. 21. Statement of AW-1 Hari Mohan Sharma was recorded to prove the income of the deceased. Since, the conditions of policy are not proved by the insurance company by adducing evidence, therefore, the breach of policy is also not found to be proved. 21. Statement of AW-1 Hari Mohan Sharma was recorded to prove the income of the deceased. It is apparent that deceased Suresh Tiwari was getting Rs.350.00 on the head of "Nutritional Diet", Rs.60.00 for maintenance of uniform, Rs.18.00 as "Special Police Allowance" and Rs.150.00 as fixed P.A. It is thus clear that the deceased was getting said allowance on his personal capacity, therefore, the Tribunal has rightly decided that the case law of Rajrani & Ors. vs. Oriental Insurance Company & Ors., ( 2009 ACJ 2003 ) is not applicable in the present case. 22. So far as the age of the deceased is concerned, in the light of the document Ex.P-3 in which the date of birth of the deceased is mentioned as 2/4/1956 and the year of accident is 2010, therefore, the Tribunal has rightly fixed the age of the deceased as 54 years. On the basis of the documentary as well as oral evidence of AW-1 Hari Mohan Sharma, monthly income of the deceased was rightly fixed at Rs.17,225.00 per month. 23. It is also found that the Tribunal has wrongly applied the splitted multiplier. 24. In view of the above as well as law laid down in the case of National Insurance Company Ltd. vs. Pranay Sethi and Ors., ( 2017 ACJ 2700 ), Dependency 3/4th, multiplier of 11 and Future Prospect 15% would be applicable in the present case. 25. Consequently, in the light of Pranay Sethi (supra), the compensation amount of Rs.20,31,066.00 is found to be just and proper. 26. As such, the total amount awarded to the claimants is enhanced from Rs.11,83,300.00 to Rs.20,31,066.00. The enhanced amount comes to Rs.8,47,766.00 (Rupees Eight Lakhs Forty Seven Thousand Seven Hundred and Sixty Six only), with interest at the rate as fixed by the tribunal in the award which is ordered accordingly to be payable to the claimants as directed by the Tribunal in the same apportionment. The enhanced amount of compensation Rs.8,47,766.00 shall be payable to the claimants within 12 weeks from the date of production of a certified copy of this order. Rest of the award impugned passed by the Tribunal shall remain intact. 27. The enhanced amount of compensation Rs.8,47,766.00 shall be payable to the claimants within 12 weeks from the date of production of a certified copy of this order. Rest of the award impugned passed by the Tribunal shall remain intact. 27. If the enhanced amount of compensation is in excess to the valuation of appeal, the difference of the Court fee (if not already paid) shall be deposited by the appellants/ claimants within four weeks' from today and proof thereof shall be submitted before the Registry. Thereafter, Registry shall issue the certified copy of the order passed today. 28. Appeal stands allowed to the aforesaid extent and disposed of.