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2020 Supreme(MP) 422
G.S. Ahluwalia, J.
Mithlesh Gurjar (Smt.) v. Santosh Pal
Miscellaneous Appeal No. 950 of 2017 (G); Decided on 10.2.2020*
Shankar Dhingra for appellants; B.K. Agrawal for Insurance Company/respondent.
Headnote:
Motor Vehicles Act, 1988 -- Ss. 166, 168 and 173 -- death case -- deceased aged 22 years -- appeal for enhancement of compensation amount -- Insurance Company was exonerated on ground that offending vehicle was not having valid permit -- claimants cannot be made to suffer because of inter se dispute between insured and insurer -- Insurance Company to satisfy compensation with liberty to recover same from owner -- claimants failed to prove income of deceased -- notional income assessed -- claim of appellants under head of "future prospects" rightly rejected -- award passed by Claims Tribunal affirmed with modification by applying principle of pay and recover. 2018 (III) MPWN 46 (SC) and 2017 ACJ 1031 (SC) followed. 2019 (2) Vidhi Bhasvar 115 relied on. [Paras 9, 12, 14 & 18]
eksVj ;ku vf/kfu;e] 1988 & /kkjk 166] 168 rFkk 173 & e`R;q dk ekeyk & e`rd 22 o"khZ; vk;q dk & Áfrdj dh jde esa o`f} ds fy, vihy & chek daiuh bl vk/kkj ij foeqDr dh xbZ fd mYya?kudkjh ;ku ds ikl fof/kekU; vuqKki= ugha Fkk & chfer rFkk chekdrkZ ds e/; ijLij fookn ds dkj.k nkosnkjksa dks Hkksxus ugha fn;k tk ldrk & chek daiuh Áfrdj bl Lora=rk ds lkFk pqdrk djsxh fd og Lokeh ls olwy dj ldsxh & nkosnkj e`rd dh vk; fl} djus esa vlQy jgs & dkYifud vk; fu/kkZfjr & ^^Hkkoh ÁR;k'kk** ds 'kh"kZ ds v/khu vihykFkhZx.k dk nkok Bhd gh ukeatwj & lank; djks rFkk olwy djks dk fl}kar ykxw djrs gq, nkok vf/kdj.k }kjk ikfjr vf/kfu.kZ; mikarj.k lfgr vfHkiq"VA 2018 ¼3½ eŒÁŒ ohDyh uksV~l 46 ¼mPpre U;k;ky;½ rFkk 2017 , lh ts 1031 ¼,l lh½ vuqlfjrA 2019 ¼2½ fofèk HkkLoj 115 voyafcrA ¼iSjk 9] 12] 14 ,oa 18½
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. 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.
