National Insurance Company Limited vs Santosh Jyotishi And Others

Amar Nath (Kesharwani), J

This Miscellaneous Appeal under Section 173(1) of the Motor Vehicles Act 1988 has been filed by the appellant/Insurance Company being aggrieved with the award dated 02.02.2022 passed by learned Fourth Motor Accident Claims Tribunal, District Mandla (M.P.) in Motor Accident Claim Case No.573/2018, whereby, the learned Tribunal has awarded a sum of Rs.39,85,292/- (Thirty Nine Lakhs Eighty Five Thousand Two Hundred Ninety Two) with interest @ 9% from the date of filing of petition till the date of payment.

Brief facts of the case are that on 30.10.2016 at about 06.00 P.M. deceased Rishabh being a pillion rider, was riding with respondent No.3 on the motorcycle, when they reached near Danitola tiraha, respondent No.3 while driving motorcycle turned the motorcycle rashly and negligently, due to which the motorcycle slipped and the deceased got injury on his head and was taken to Bichhiya Hospital and after that District Hospital, Mandla, from where he was referred to various hospitals for treatment, but ultimately on 08.05.2017 he died. The claimants filed a claim petition before the Tribunal claiming compensation on account of death of Rishabh, who died in motor vehicle accident.

Respondent No.3 & 4/non-applicant Nos. 1 & 2 (driver and owner of the offending vehicle) by filing written statement denied the averments mentioned in the claim petition. It was alleged that no such incident has been caused by non-applicant No.1 by driving the vehicle rashly and negligently. Although, if any such incident is found proved, then non-applicant No.3-Insurance Company is liable to pay the compensation as on the alleged date of incident, the vehicle in question was insured with the non-applicant No.3-Insurance Company.

Non-applicant No.3/insurance company in its written statement denied the averments mentioned in the claim petition and pleaded that the date of incident was 30/10/2016, whereas FIR was lodged on 14.02.2017 with a delay of about 3 months 15. There are contradictions in the documentary evidence. It was alleged that on the date of incident non-applicant No.1 was not having valid and effective license to drive the alleged vehicle and the same was being driven in violation of terms and conditions of the insurance policy, hence, insurance company has no liability to pay any compensation and prayed for dismissal of the petition against the insurance company.

Learned Claims Tribunal framed the issues and recorded the evidence and after considering the evidence placed on record and considering the arguments advanced by the learned counsel for the parties, learned Claims Tribunal awarded a sum of Rs.39,85,292/- (Thirty Nine Lakhs Eighty Five Thousand Two Hundred Ninety Two) holding the appellant/insurance company and respondent Nos.3 & 4 liable to pay the compensation jointly and severally. Being aggrieved by the impugned award, appellant/Insurance Company has preferred the present miscellaneous appeal.

Learned counsel for the appellant/insurance company submitted that the alleged vehicle was not insured comprehensively and the deceased was a pillion rider, hence, the risk of the pillion rider of two wheeler is not covered in such insurance policy, therefore, the Insurance Company is not liable for any compensation. In support of his contention, learned counsel placed reliance on the judgment of the Apex Court in the cases of United India Insurance Co.Ltd. vs. Tilak Singh, (2006) 4 SCC 404 and General Manager United Insurance Co.Ltd. vs. M.Laxmi, (2009) 17 SCC 301. Learned counsel for the appellant further submitted that the present case is a false one set up by the claimants. He submitted that though the witnesses have stated that they had seen the respondent No.3 driving the vehicle, but there is no eye-witness to the incident/accident. In this regard learned counsel for the appellant drew attention of this Court towards para 10, 11 and 13 of the impugned award. It is further submitted that the incident is said to have occurred on 30.10.2016 and the deceased died on 08.05.2017. There is an unexplained delay of 3½ months in lodging the FIR which makes the incident doubtful. It is also submitted that the tribunal has awarded a sum of Rs.20,42,292/- (Twenty Lakhs Forty Two Thousand Two Hundred Ninety Two) in the head of medical expenses, without any verification and calculation only on the basis of Ex.P-12, which seems to have been prepared on behalf of the claimants as mentioned in para 25 of the impugned award. The tribunal ignoring all these aspects has committed an error in passing an award in favour of the claimants. In support of his contention, learned counsel has placed reliance on the judgment of the Apex Court in the case of Anil & others vs. New India Assurance Company ltd. & others (2018) 2 SCC 482. It is also submitted that the award passed by the tribunal is on higher side. Hence, it is prayed that the appeal be allowed and the appellant-Insurance company be completely exonerated from the liability which has been saddled on it by the impugned award.

I have considered the arguments advanced by the learned counsel for the appellant, perused the record and gone through the judgments cited.

Finally, I shall consider the contentions of the learned counsel for the appellant-Insurance Company that the deceased was a pillion rider and alleged vehicle was not insured comprehensively, hence risk of pillion rider on a two wheeler is not covered.

It reveals from the record that in support of his pleadings, appellant insurance company has not adduced any evidence in that regard, whereas issue No.4 was framed by the tribunal on the pleading of insurance company and burden of proof was on the insurance company to prove that aspect, but insurance company has failed to prove that the alleged vehicle was plying in breach of insurance policy.

Now I shall consider the delay in lodging the FIR and quantum of compensation as awarded by the learned Tribunal vide impugned judgment.

As per claim petition and certified copy of FIR (Ex.P-1), the date of incident is 30/06/2016 and as per certified copy of Dehati marg intimation (Ex.P-7), injured Rishabh Jyotishi expired on 08/05/2017 at 05:15 PM. The FIR (Ex.P-1) was lodged on 14/02/2017 by Santosh Kumar Jyotishi claimant No.1/respondent No.1 (Father of deceased), hence it is clear that the FIR was lodged with a delay of about three and half months from the date of incident. Though, certified copy of M.L.C. (Ex.P-2), dated 30/10/2016 was filed, but there is some overwriting on the date.

As per certified copy of autopsy report (Ex.P-9) cause of death of deceased is mentioned as “sudden cardio respiratory attack due to septic shock”, but there is no mention of cause of death due to the injuries sustained in a motor vehicle accident. Claimants have not examined any doctor to prove the cause of death of deceased and the nature of injuries caused to the injured/deceased Rishabh in vehicle accident.

As per claim petition and statement of Smt. Rashmi Jyotishi (AW-1) mother of deceased, injured/deceased Rishabh was treated at various hospitals, but claimants have filed only discharge summary of Metro Hospital (Ex.P-4). As per Ex.P-4 deceased was admitted on 11/01/2017 and discharged on 04/03/2017. No other discharge summary/discharge card of other hospitals where deceased was admitted and treated from the date of incident i.e. 30/10/2016 has been filed.

Learned tribunal has awarded a sum of Rs.20,42,292/- (Twenty Lakhs Forty Two Thousand Two Hundred Ninety Two) towards medical expenses only on the basis of Ex.P-12 in which amounts were mentioned from Sr. No.1 to 155, but that amount relates to which medical document is not mentioned, hence in the considered opinion of this Court learned tribunal erred in awarding the amount towards medical expenses. Though, various receipts and cash memos were filed on behalf of claimants, but learned tribunal has not perused and verified the cash memos, advance receipts etc. to calculate the amount towards medical expenses.

Learned tribunal in Para-28 of the impugned award has assessed the monthly income of deceased as Rs.11,000/- (Eleven thousand) on the pretext that the deceased was a student of Jabalpur Engineering College, but no document with regard to education was exhibited in the statement of claimants witnesses. Only on the basis of photocopy of mark-sheet and identity card of Jabalpur Engineering College, which is enclosed in the record of learned tribunal, the learned tribunal has assessed the income of deceased as Rs.11,000/- (Eleven thousand) per month, which is also not proper.

Learned tribunal added 50% of the assessed income as loss of future prospects which is also not in consonance with the principle laid down by Hon'ble Apex Court in the case of National Insurance Co. Ltd. Vs. Pranay Sethi, (2017) 16 SCC 680. As per Para-59.3 of Pranay Sethi's case, an addition of 50% of actual salary is applicable only in the condition where the deceased had permanent job and was below age of 40 years, whereas in the case in hand deceased was not in permanent job, but he was studying in Jabalpur Engineering College as reveals from the photocopy of mark-sheet and identity card enclosed in the case. Hence in this respect also learned tribunal committed error in computing the amount towards loss of future prospect.

Hence, as discussed above, the impugned award could not be affirmed by this Court. As a result, the impugned award dated 02/02/2022 passed by Fourth Motor Accident Claims Tribunal, Mandla, District Mandla (M.P.) in Claim Case No.573/2018 is hereby set-aside and the matter is remanded back to the concerned tribunal to decide it afresh on all the issues in accordance with law after giving opportunity to the claimants to examine the doctors to prove the cause of death and any other additional evidence, which the claimants wants to adduce in support of their claim. Opportunity to adduce evidence be also extended to the appellant-insurance company. Since the respondent Nos. 3 & 4 also filed written statement before the learned tribunal, hence if they wants they may also given opportunity to adduce evidence in support of their pleadings.

It is made clear that the observations made in this order shall not prejudice the Tribunal, while deciding the case afresh on merit.

Amount, if any, paid by the appellant-Insurance Company to the claimant in compliance of impugned award, it may recovered.

Appellant/Insurance company is directed to serve the copy of this order within 15 days from the receipt of certified copy of this order via registered post to the respondents. Parties are directed to appear before the concerned tribunal on 20th May, 2024.

In above terms, the appeal stands disposed of.

Let the record be sent back to the concerned Tribunal alongwith copy of this order for information and necessary compliance.