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2024 Supreme(Online)(MP) 2005
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 7th March, 2024
MISCALLENOUS APPEAL No1333 of 2023
BETWEEN:-
MUBARAK KHAN S/O SHRI JAKHIR
KHAN OCCUPATION: OWNER OF TRUCK
NO. MP20HB/1786 R/O FUTERA WARD NO.
2 NEAR PEELI ATAAREE DISTRICT
DAMOH (MADHYA PRADESH)
.….APPELLANT
(BY SHRI KASHI RAM PATEL – ADVOCATE)
AND
1. SMT. SUKKO BAI KOL D/O SHRI
VISHRAM KOL, AGED ABOUT 45 YEARS,
R/O CHANDI KI DAFAI VANSHSWAROOP
WARD KATNI TEHSIL AND DISTRICT
KATNI (MADHYA PRADESH)
2. THE NEW INDIA INSURANCE CO. LTD.
THROUGH
DIVISIONAL
MANAGER
DIVISIONAL OFFICE 290 NAPIER TOWN
JABALPUR (INSURANCE COMPANY OF
TRUCK NO. MP20HB/1786) (MADHYA
PRADESH)
3. HARIRAM ATHYA S/O SHRI SHYAMLAL
ATHYA, AGED ABOUT 38 YEARS, R/O
VILLAGE BATIAGARH POLICE STATION
AND TEHSIL BATIAGARH DISTRICT
DAMOH (DRIVER OF TRUCK NO.
MP20HB/1786) (MADHYA PRADESH)
.....RESPONDENTS
(SHRI JAYANT NEEKHRA – ADVOCATE FOR
THE RESPONDENT NO.2 AND SHRI
KRISHNA KUMAR BASSI – ADVOCATE FOR
THE RESPONDENT NO.3)
MISCALLENOUS APPEAL No.5199 of 2022
BETWEEN
SUKHDEV SAHU S/O RAMDAS SAHU, AGED
ABOUT 44 YEARS, NEAR SAHU MOHOLLA
NEAR KANYA HIGH SCHOOL SHAHNAGAR
DISTRICT PANNA (MADHYA PRADESH)
(BY SHRI PRIYANKA TIWAI – ADVOCATE)
AND
1. HARIRAM AATHYA S/O SHYAMLAL
AATHYA, AGED ABOUT 35 YEARS, GRAM
BATIYAGADH
THANA
/
TEHSIL
BATIYAGADH DISTRICT DAMOH (MADHYA
PRADESH)
2. MUBARAK KHAN S/O ZAKIR KHAN R/O
FUTERA WARD NO. 02, NEAR PILI ATAARI,
DAMOH (MADHYA PRADESH)
3. THE NEW INDIA INSURANCE COMPANY
LTD. THROUGH DIVISIONAL MANAGER
DIVISIONAL OFFICE, 290 NAPIER TOWN
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI KASHI RAM PATEL – ADVOCATE FOR
THE RESPONDENT NO.2 AND SHRI ASHISH
KUMAR VAIDYA – ADVOCATE FOR THE
RESPONDENT NO.3)
MISCALLENOUS APPEAL No.5242 of 2022
BETWEEN:-
MUBARAK KHAN S/O SHRI JAKHIR
KHAN OCCUPATION: OWNER OF TRUCK
NO. MP20HB/1786 R/O FUTERA WARD NO.
2 NEAR PEELI ATAAREE DISTRICT
DAMOH (MADHYA PRADESH)
.….APPELLANT
(BY SHRI KASHI RAM PATEL – ADVOCATE)
AND
1. SUKHDEO SAHU S/O RAMDAS SAHU,
AGED ABOUT 47 YEARS, R/O SAHU
MOHALLA NEAR KANYAHAI SCHOOL
SHAHNAGAR DISTT. PANNA. (MADHYA
PRADESH)
2. THE NEW INDIA INSURANCE CO. LTD.
THROUGH
DIVISIONAL
MANAGER
DIVISIONAL OFFICE 290, NAPIER TOWN
JABALPUR (INSURANCE COMPANY OF
TRUCK NO. MP20HB/1786) (MADHYA
PRADESH)
3. HARIRAM ATHYA S/O SHRI SHYAMLAL
ATHYA, AGED ABOUT 38 YEARS, R/O
VILLAGE BATIAGARH POLICE STATION
AND TEHSIL BATIAGARH, DISTRICT
DAMOH ( DRIVER OF TRUCK NO.
MP20HB/1786) (MADHYA PRADESH)
.....RESPONDENTS
(SHRI KRISHNA KUMAR BASSI – ADVOCATE
FOR THE RESPONDENT NO.3)
MISCALLENOUS APPEAL No1334 of 2023
BETWEEN:-
MUBARAK KHAN S/O SHRI JAKHIR
KHAN OCCUPATION: OWNER OF TRUCK
NO MP20HB/1786 R/O FUTERA WARD NO. 2
NEAR PEELI ATAAREE DISTRICT DAMOH
(MADHYA PRADESH)
.….APPELLANT
(BY SHRI KASHI RAM PATEL – ADVOCATE)
AND
1. MADAN KUMR KOL S/O BHAIYA LAL
KOL, AGED ABOUT 55 YEARS, R/O
VANSHSWAROOP WARD KATNI TEHSIL
AND DISTRICT KATNI (MADHYA PRADESH)
2. SURAJ KOL S/O MADAN KUMAR KOL,
AGED
ABOUT
28
YEARS,
R/O
VANSHSWAROOP WARD, KATNI, TEHSIL
AND DISTRICT KATNI (MADHYA PRADESH)
3. AKASH KOL S/O MADNA KUMAR KOL,
AGED
ABOUT
25
YEARS,
R/O
VANSHSWAROOP WARD, KATNI, TEHSIL
AND DISTRICT KATNI (MADHYA PRADESH)
4.
KU. NISHA KOL D/O MADAN KUMAR
KOL, AGED ABOUT 21 YEARS, R/O
VANSHSWAROOP WARD, KATNI, TEHSIL
AND DISTRICT KATNI (MADHYA PRADESH)
5. KAPIL KOL F/O MADAN KUMAR KOL,
AGED ABOUT 17 YEARS, OCCUPATION:
MINOR, THROUGH NATURAL GUARDIAN
FATHER MADAN KUMAR KOL S/O BHAIYA
LAL KOL AGED ABOUT 55 YEARS R/O
VANSHSWAROOP WARD, KATNI, TEHSIL
AND DISTRICT KATNI (MADHYA PRADESH)
6. THE NEW INDIA INSURANCE CO. LTD.
THROUGH
DIVISIONAL
MANAGER
DIVISIONAL OFFICE 290, NAPIER TOWN
JABALPUR (INSURANCE COMPANY OF
TRUCK NO. MP20HB/1786) (MADHYA
PRADESH)
7.HARIRAM ATHYA S/O SHRI SHYAMLAL
ATHYA, AGED ABOUT 38 YEARS, R/O
VILLAGE BATIAGARH POLICE STATION
AND TEHSIL BATIAGARH, DISTRICT
DAMOH (DRIVER OF TRUCK NO.
MP20HB/1786) (MADHYA PRADESH)
.....RESPONDENTS
(SHRI DINESH KAUSHAL – ADVOCATE FOR
THE RESPONDENT NO.6)
-------------------------------------------------------------------------------------------------
This appeal coming on for admission this day, the court passed the
following:
Rajesh Kumar Chand,
ORDER
This order shall govern disposal of MA No.1333/2023 (Mubarak Khan Vs. Sukho Bai & others), relating to MACC No. 897/2019 (Sukho Bai Vs. Hariram and others), MA No. 1334/2023 (Mubarak Khan Vs. Madan Kumar and others), relating to MACC No. 525/2019 (Madan Kumar Vs. Hariram) & MA No. 5242/2022 (Mubarak Khan Vs. Sukhdeo Sahu and others), relating to MA No. 524/2019.
(Sukhdeo Sahu Vs. Hariram and others), which have been filed by owner of offending vehicle for exonerating appellant/owner of offending vehicle Mubarak Khan from liability to pay the compensation and hold that insurance company is liable to pay the compensation & MA No. 5199/2022 (Sukhdeo Sahu Vs. Hariram and others), relating to MACC No. 524/2019 (Sukhdeo Sahu Vs. Madan Kumar and others), seeking enhancement of composition.
2. Present miscellaneous appeals have been filed under Section 173 (1) of motor vehicle act against common award dated 06.08.2022 passed in MACC No. 524/2019, 525/2019 & 897/2019.
3. Learned counsel for appellant/owner of offending vehicle in MA No. 1333/2023, 1334/2023 and 5242/2022 has been permitted by this court to raise new ground in the appeal, i.e. that at the time of accident, driver of offending vehicle was not in a drunken state. Learned counsel for the appellant submits that in the instant case respondent insurance company has not examined any doctor to establish that at the time of accident, driver of offending vehicle was under the influence of liquor. In the instant case, no breath, analyser test has been conducted. Hence, relying upon The divisional manager, national insurance Co Ltd Vs. Smt.Chinnamma and others (M.F.A. No. 971/2013 (MV) decided on first August 2 019), it is urged that, in the instant case, from evidence on record, it is not proved that at the time of accident, driver of offending vehicle was intoxicated. Therefore, tribunal erred in exonerating insurance company from liability to pay the compensation and saddling appellant with liability to pay the compensation. Hence, appeals filed by the appellant be allowed and appellant/owner be exonerated from liability to pay the compensation and insurance company be saddled with liability to pay the compensation.
4. Learned counsel for respondent insurance company submits that charge sheet has been filed under section 184 and 185 of motor vehicles act. In MLC exhibit D3, it is mentioned that driver of offending vehicle was under the influence of liquor. Insurance company has examined Dr Abhishek to prove the factum of driver of offending vehicle being under influence of liquor at the time of accident. It is also evident from record of the case that offending vehicle has hit persons by going on the wrong side of the road. Hence, manner of accident also shows that at the time of accident, driver of offending vehicle was drunken. Therefore, learned tribunal has rightly applied principle of pay and recover. Hence, appeals filed by the owner of offending, vehicle be dismissed. It is also urged that tribunal has rightly determined permanent disability compensation awarded by the Tribunal is just and proper. Hence, appeal filed by claimants be also dismissed.
5. Learned counsel for the claimant Sukhdeo Sahu in MA No. 5199/2022 submits that in the instant accident, appellant/claimant’s left hand has been amputated from shoulder. At the time of accident, appellant was working as mason. Therefore, permanent disability should have been determined as 75% & monthly income should have been determined as Rs.7700/-per month. Amount awarded under other various heads is also on the lower side. Hence, same also requires to be suitably enhanced.
6. I have heard learned counsel for the parties and perused record of the case.
7. So far as MA No. 1333/2023,1334/2023 and 5242/2022 are concerned, sole issue involved in above MAs is that whether at the time of accident, Hariram, driver of offending vehic
