Madhya Pradesh High Court
Smt. Reena @ Seema vs Mukesh Singh on 22 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:15196
1 MA-1466-2018
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 22nd OF JULY, 2025
MISC. APPEAL No. 1466 of 2018
SMT. REENA @ SEEMA AND OTHERS
Versus
MUKESH SINGH AND OTHERS
Appearance:
Shri Raj Kumar Singh Kushwaha - Advocate for the appellants.
Shri Kuldeep Singh and Shri Mudit Goshwami - Advocates for
respondent No.4.
None for other respondents though served.
ORDER
This miscellaneous appeal has been preferred by the
appellants/claimants for enhancement of the amount of compensation by Rs.
8,00,000/- against the award dated 13th December, 2017 passed by MACT,
Bhind, in Claim Case No.1500070/2016, whereby learned MACT has
awarded compensation of Rs.4,07,000/- alongwith interest @ 7% per annum
to the claimants on account of death of deceased Anurudh in road accident.
2.The necessary facts for disposal of this appeal are that on 16.03.2016
at 11.40 am deceased Anurudh Singh was going to Gormi Road on
motorcycle bearing registration No.MP30/M.G. 4448, which is owned by
respondent Mansingh, to leave his daughter there enabling her to board the
bus. As soon as he reached in front of field of Janak Singh on Ajnaudha
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Road, motorcycle bearing registration No.MP30 M.G. 1799 being driven
rashly and negligently came from the side of Mehagaon and dashed the
motorcycle of Anurudh, due to which Anurudh died on the spot and his
daughter Shalini sustained injuries on different parts of her body.
3.It is submitted by learned counsel for the appellants that learned
Tribunal has erred in exonerating the Insurance Company for paying the
compensation amount to the claimants, who are the third party, with
recovery rights from the driver and owner of the offending vehicle. Since
there is no licence with the driver of the offending vehicle Pan Singh,
therefore, in the light of judgment of Hon’ble Apex Court in the case of
National Insurance Co. Ltd. Vs. Swaran Singh & Ors., (2004) 3 SCC 297
which has been followed in the case of Pappu and others v. Vinod Kumar
Lamba and another, 2018 ACJ 690 , the Insurance Company ought to have
been directed to pay the compensation to the claimants with recovery rights.
It is also submitted that learned Tribunal has erred in assuming that it is a
case of contributory negligence. Since the claimants have got proved the
factum of accident by the evidence of Dharmendra Singh (AW-2) who has
categorically stated that motorcycle, which was being driven by the deceased
Anurudh, was hit by other motorcycle being driven by its driver Pansingh
rashly and negligently, and therefore, the accident took place in which
Anurudh has died. There is no evidence in rebuttal on record. Therefore, the
factum of negligence of the driver of offending vehicle is established and
that should have been found proved by learned Tribunal, but keeping in view
the fact that both the riders of motorcycles have died in the accident, learned
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Tribunal has erred in assuming that it is a case of contributory negligence.
4.It is also submitted by learned counsel for the appellants that learned
Tribunal has erred in assuming the income of the deceased as Rs.5,000/- per
month. On the date of accident, the minimum wage of an unskilled labourer
was Rs.6,575/- per month as per the notification issued by the Labour
Department and according to which the amount of compensation was to be
assessed. The learned Tribunal has not granted 40% future prospect as at the
time of accident the deceased was 33 years of age. Multiplier of 16 is
appropriate. It is further submitted that except claimant No.1,who is wife of
the deceased, no compensation has been awarded to other claimants, who are
daughter, son and father of the deceased, under the head of loss of
consortium, whereas they are also entitled to compensation under this head.
On the aforesaid ground, learned counsel prays for enhancement of the
amount of compensation and making liable insurance company for paying
the compensation amount with recovery rights. In support of his submission,
learned counsel for the appellants has placed reliance on the judgment of
Hon’ble Apex Court in the case of Syed Sadiq etc. vs. Divisional Manager,
United India Ins. Co., AIR 2014 SC 1052 and judgment of Rajasthan High
Court in the case of Asha & Ors. vs. Naresh Kumar & Ors. decided on
03.02.2022 in S.B. Civil Miscellaneous Appeal No.2616/2012.
5.Per contra, learned counsel for the Insurance Company has opposed
the prayer on the ground that it is a clear case of contributory negligence. It is
a head-on collision between both the motorcycles and a counter FIR has been
lodged by driver of the offending vehicle. Both the riders of motorcycles
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have died in the accident. As per police charge-sheet both the drivers were
equally rash and negligent in the accident. Keeping in view the spot map and
other documents and material on record, the learned Tribunal has rightly
concluded that it is a case of contributory negligence. It is also submitted that
at the time of accident Pan Singh had no driving licence and that has been
proved by adducing evidence on behalf of the insurance company. Therefore,
there is complete absence of driving licence with the driver of the offending
vehicle. The insurance company has rightly been exonerated by the learned
Tribunal. He placed reliance on the following decisions :-
(i) National Insurance Co. Ltd. Vs. Swaran Singh & others, (2004) 3
SCC 297
(ii) T.O. Anthony vs. Karvarnam and others, 2008 ACJ 1165
(iii) United India Insurance Co. Ltd. vs. Sujata Arora and others,
2013(3) T.A.C. 29 (S.C.)
(iv) Pappu and others v. Vinod Kumar Lamba and another, 2018 ACJ
690
(v) Smt. Kastoori Bai and others vs. Jawahar Singh & Ors., decided on
21.03.2018 in M.A.No.782/2012.
(vi) Karansingh vs. Omprakash and others, I.L.R. (2006) M.P., 538
(vii) The Oriental Insurance Co. Ltd. Vs. Parmanand & Ors. decided
on 23.09.2014 in S.B. Civil Misc. Appeal No.1041/1997 (Rajasthan High
Court)
6.He further submitted that insurance company cannot be held liable
for paying the compensation with recovery rights and there is no ground for
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enhancement. Learned counsel prays for dismissal of the appeal.
7.Heard learned counsel for the parties and perused the record.
8 . In the case of T.O.Anthony (Supra) there was a head-on collision
between a Corporation bus and private bus coming from opposite directions
and driver of Corporation bus sustained injuries and injured stated that he
was driving bus at moderate speed on the correct side of his road and private
bus came to the wrong side and dashed against his bus. Distance of accident
spot from northern and southern edges of tar road as per mahazar showed
that Corporation bus was on the correct side of its road and private bus came
partly to the wrong side. In such circumstances, Hon’ble Apex Court has held
that there is negligency of drivers of private bus and Corporation bus in the
ratio of 75:25.
9 . In the case of Sujata Arora (supra) offending van was not being
driven by a person holding a valid licence. It is held by the Hon’ble Apex
Court that the insurance company is not liable to indemnify owner and
liability to pay compensation has been fixed on owner and driver of
offending van.
1 0 . In the case of Pappu (supra) despite a clear stand taken by
insurance company in its written statement, owner of offending vehicle had
neither pleaded nor adduced evidence to the effect that person whose driving
licence was produced was driving the vehicle at the time of accident. It is
held by the Hon’ble Apex Court that the vehicle duly insured would not per
se make the insurance company liable, however, insurance company was
directed to pay compensation amount and recover the same from owner of
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the vehicle.
11. In case of Syed Sadiq (supra) claimants/appellants was pushing
punctured motor cycle on left side of road, suddenly tractor coming in rash
and negligent manner from opposite direction hit motorcycle and appellants.
No evidence was produced to prove negligence on part of claimants. It is
held by the Hon’ble Apex Court that Claimants cannot be said to have
contributed to accident.
12. In case of Asha (supra) while appreciating the evidence on record
it has been found that there is no photographs of the site plan nor the author
who had prepared the site plan Ex.-2 appeared before the Court, therefore, it
has been held by the Rajasthan High Court that Tribunal has committed error
in appreciation of evidence and in fact it is not a case of contributory
negligence.
13. Keeping in view the law laid down in aforesaid cases, it is to be
ascertained as to whether it is a case of head-on collision and of contributory
negligence or not. The learned Tribunal has found that it is a case of
contributory negligence on the ground that both the motorcycles were
collided from the front side and it is a case of head-on collision. The police
has registered a criminal case against both the drivers (deceased), therefore,
it is a clear cut case of contributory negligence of both the riders of
motorcycles.
14. Here in this case Dharmendra (AW-2) is the eye-witness of the
accident. He in his chief examination has stated that Anurudh was going with
his child on motorcycle bearing registration No.MP30 MG 4448 to leave her
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at bus stand. A motorcycle bearing registration No.MP30 MG 1799 being
driven rashly and negligently by its driver Pan Singh dashed the motorcycle
of Anurudh, therefore, Anurudh has died on the spot. He has been cross-
examined on the factum of accident. He admitted in his cross-examination
that in the accident both the riders of motorcycles have died and motorcycle
being ridden by Anurudh has also been seized by the police. He has denied
the suggestion that Anurudh was also negligent in driving the motorcycle,
but it is reflected from the statement of this witness that there was a head-on
collision between both the vehicles. The factum of accident itself shows that
accident was from the front side of the vehicles and it was so forceful that
both the riders of the vehicle have sustained grievous and fatal injuries and
succumbed. It also shows that both the motorcycles were being ridden with
excessive speed, otherwise both the riders of motorcycles could not have
sustained grievous and fatal injuries and succumbed. Though no eye-witness
of the accident has been examined on behalf of the non-applicants, but since
the testimony of Dharmendra (AW-2) itself shows the factum of head-on
collision which is also reflected from the police documents and contains the
fact that a criminal case has been registered against both the riders of
motorcycles, it is clear cut case of equal contributory negligence of both the
riders of motorcycles. The law laid down in Syed Sadiq and Asha (supra) are
not helpful to the appellants/claimants inasmuch as the factual matrix in this
are distinguishable.
15.As far as liability of payment is concerned, though learned Tribunal
has exonerated the insurance company from the liability of payment, but
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having considered the law laid down in the cases of Swaran Singh and Syed
Sadiq (supra) though it is proved that there is breach of policy condition
inasmuch as the driver of offending vehicle Pan Singh was not having valid
and effective driving licence, but the liability under the insurance policy of
insurance company towards third party claimants cannot be denied. The
summary of findings as given in the case of Swaran Singh (supra) is as under
:-
“Summary of findings
107. The summary of our findings to the various issues as raised
in these petitions is as follows:
(i) Chapter XI of the Motor Vehicles Act, 1988 providing
compulsory insurance of vehicles against third-party risks is a
social welfare legislation to extend relief by compensation to
victims of accidents caused by use of motor vehicles. The
provisions of compulsory insurance coverage of all vehicles are
with this paramount object and the provisions of the Act have to
be so interpreted as to effectuate the said object.
(ii) An insurer is entitled to raise a defence in a claim petition filed
under Section 163-A or Section 166 of the Motor Vehicles Act,
1988, inter alia, in terms of Section 149(2)(a)(ii) of the said Act.
(iii) The breach of policy condition e.g. disqualification of the
driver or invalid driving licence of the driver, as contained in sub-
section (2)(a)(ii) of Section 149, has to be proved to have been
committed by the insured for avoiding liability by the insurer.
Mere absence, fake or invalid driving licence or disqualification of
the driver for driving at the relevant time, are not in themselves
defences available to the insurer against either the insured or the
third parties. To avoid its liability towards the insured, the insurer
has to prove that the insured was guilty of negligence and failed to
exercise reasonable care in the matter of fulfilling the condition of
the policy regarding use of vehicles by a duly licensed driver or
one who was not disqualified to drive at the relevant time.
(iv) Insurance companies, however, with a view to avoid their
liability must not only establish the available defence(s) raised in
the said proceedings but must also establish “breach” on the part
of the owner of the vehicle; the burden of proof wherefor would
be on them.
(v) The court cannot lay down any criteria as to how the said
burden would be discharged, inasmuch as the same would depend
upon the facts and circumstances of each case.
(vi) Even where the insurer is able to prove breach on the part of
the insured concerning the policy condition regarding holding of a
valid licence by the driver or his qualification to drive during the
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relevant period, the insurer would not be allowed to avoid its
liability towards the insured unless the said breach or breaches on
the condition of driving licence is/are so fundamental as are found
to have contributed to the cause of the accident. The Tribunals in
interpreting the policy conditions would apply “the rule of main
purpose” and the concept of “fundamental breach” to allow
defences available to the insurer under Section 149(2) of the Act.
(vii) The question, as to whether the owner has taken reasonable
care to find out as to whether the driving licence produced by the
driver (a fake one or otherwise), does not fulfil the requirements of
law or not will have to be determined in each case.
(viii) If a vehicle at the time of accident was driven by a person
having a learner’s licence, the insurance companies would be liable
to satisfy the decree.
(ix) The Claims Tribunal constituted under Section 165 read with
Section 168 is empowered to adjudicate all claims in respect of the
accidents involving death or of bodily injury or damage to
property of third party arising in use of motor vehicle. The said
power of the Tribunal is not restricted to decide the claims inter se
between claimant or claimants on one side and insured, insurer and
driver on the other. In the course of adjudicating the claim for
compensation and to decide the availability of defence or defences
to the insurer, the Tribunal has necessarily the power and
jurisdiction to decide disputes inter se between the insurer and the
insured. The decision rendered on the claims and disputes inter se
between the insurer and insured in the course of adjudication of
claim for compensation by the claimants and the award made
thereon is enforceable and executable in the same manner as
provided in Section 174 of the Act for enforcement and execution
of the award in favour of the claimants.
(x) Where on adjudication of the claim under the Act the Tribunal
arrives at a conclusion that the insurer has satisfactorily proved its
defence in accordance with the provisions of Section 149(2) read
with sub-section (7), as interpreted by this Court above, the
Tribunal can direct that the insurer is liable to be reimbursed by
the insured for the compensation and other amounts which it has
been compelled to pay to the third party under the award of the
Tribunal. Such determination of claim by the Tribunal will be
enforceable and the money found due to the insurer from the
insured will be recoverable on a certificate issued by the Tribunal
to the Collector in the same manner under Section 174 of the Act
as arrears of land revenue. The certificate will be issued for the
recovery as arrears of land revenue only if, as required by sub-
section (3) of Section 168 of the Act the insured fails to deposit
the amount awarded in favour of the insurer within thirty days
from the date of announcement of the award by the Tribunal.
(xi) The provisions contained in sub-section (4) with the proviso
thereunder and sub-section (5) which are intended to cover
specified contingencies mentioned therein to enable the insurer to
recover the amount paid under the contract of insurance on behalf
of the insured can be taken recourse to by the Tribunal and be
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extended to claims and defences of the insurer against the insured
by relegating them to the remedy before regular court in cases
where on given facts and circumstances adjudication of their
claims inter se might delay the adjudication of the claims of the
victims.”
16. In the light of the law laid down by the Hon’ble Apex Court in the
case of Swaran Singh and Syed Sadiq (supra) the insurance company though
having proved their defence of breach of policy condition, is liable to pay the
compensation amount first to the claimants and then to recover it from the
owner of the offending vehicle.
17.As far as enhancement of compensation is concerned, the learned
Tribunal has assumed the income of the deceased as Rs.5,000/- per month,
whereas on the date of accident, the minimum wage of an unskilled labourer
was Rs.6,575/- per month as per the notification issued by the Labour
Department which ought to have been assumed by the learned Tribunal as
the income of the deceased. The deceased was 33 years of age at the time of
accident, therefore, multiplier of 16 has been correctly applied by learned
Tribunal and the claimants are entitled to compensation towards future
prospect @ 40% in the light of the decision of the Hon’ble Apex Court in the
case of National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680. The
claimants are widow, son and daughter of the deceased as well as father of
the deceased, therefore, they are entitled to loss of consortium at the rate of
40,000/- per head. However, the rate of interest as 6% per annum appears to
be appropriate instead of 7% per annum on the amount of enhancement from
the date of application.
18.In the light of the aforesaid discussion, the calculation of
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compensation is as follows:-
Amount of
compensation
Sr. Head awarded by Amount of Compensation assessed by this Court
Claims
Tribunal
Income of
1 Rs. 5,000/- Rs.6,575/-
deceased
2 Dependency 3/4 3/4
3 Future Prospects – 40%
4. Multiplier 16 16
(6575×12=78,900)x3/4=Rs.59,175+40%=82845×16=
5. Loss of income 7,20,000/-
Rs.13,25,520/-
Loss of
6. 40,000/= 40,000×4= 1,60,000/-
consortium
7. Funeral Expenses 15,000/- 15,000/-
8. Loss of Estate 15,000/- 15,000/-
9. Future loss 24,000/- –
10 Total 8,14,000/- 15,15,520/-
After 50%
deduction
11 towards 4,07,000/- 7,57,760/-
contributory
negligence
Additional
12. Rs.3,50,760/-
enhancement
19. The insurance company shall first pay the amount of compensation
to the claimants and then recover it from the owner of the offending
vehicle. The enhanced amount shall carry interest @ 6% per annum. Other
terms and conditions of the impugned award shall remain intact.
20.With the aforesaid, this Misc. Appeal is disposed of.
(RAJENDRA KUMAR VANI)
JUDGE
ms/-
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SOODAN PRASAD
Signing time: 7/24/2025
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