Madhya Pradesh High Court
New India Assurance Company Ltd. vs Pappu @ Suresh Kushwah on 7 December, 2022
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 7TH OF DECEMBER, 2022
MISC. APPEAL NO. 763 of 2009
Between:-
SURESH CHAND JAIN, SON OF SHRI R.D. JAIN,
OCCUPATION- BUSINESS, RESIDENT OF SADAR
BAZAR, NARWAR, DISTRICT SHIVPURI
PRESENT RESIDENT OF S.K. ENTERPRISES, 17
VEEAR SAVARKAR MARKET, AB ROAD,
SHIVPURI THROUGH POWER OF ATTORNEY
NABNEET MAHESHWARI, SON OF SHRI
GIRRAJ MAHESHWARI, OCCUPATION-
BUSINESS, RESIDENT OF MAHAL COLONY,
SHIVPURI (MADHYA PRADESH)
........APPELLANT
(SHRI SUNIL KUMAR JAIN- ADVOCATE FOR
APPELLANT)
AND
1. PAPPU ALIAS SURESH KUSHWAH, SON OF
SONI RAM KUSHWAH, AGE 24 YEARS
2. BASANTI BAI, WIFE OF SHRI GHANSHYAM
KUSHWAH, AGE 38 YEARS
ALL ARE RESIDENTS OF INDIRA COLONY,
SARVODAYA NAGAR, SHIVPURI (MADHYA
PRADESH) ----CLAIMANTS
3. THE NEW INDIA INSURANCE COMPANY
2
LIMITED, THROUGH BRANCH MANAGER,
FIRST FLOOR, HAJI SANNU MARKET,
SHIVPURI (MADHYA PRADESH) (INSURANCE
COMPANY)
........RESPONDENTS
(SHRI NAROTTAM SHARMA- ADVOCATE FOR RESPONDENTS
NO.1 AND 2 CLAIMANTS AND SHRI SN GAJENDRAGADKAR-
ADVOCATE FOR RESPONDENT NO.3- INSURANCE COMPANY)
MISC. APPEAL NO. 796 OF 2009
Between:-
THE NEW INDIA INSURANCE COMPANY
LIMITED, THROUGH ITS SENIOR DIVISIONAL
MANAGER, HAVING DIVISIONAL OFFICE NO.1
AT MLB ROAD, LASHKAR, GWALIOR (MADHYA
PRADESH)
(SHRI SN GAJENDRAGARDKAR- ADVOCATE FOR
THE APPELLANT- INSURANCE COMPANY)
AND
1. PAPPU ALIAS SURESH KUSHWAH, SON OF
SONI RAM KUSHWAH, AGE 24 YEARS,
OCCUPATION- LABOURER
2. BASANTI BAI, WIFE OF SHRI GHANSHYAM
KUSHWAH, AGE 38 YEARS, OCCUPATION-
HOUSEWIFE.
BOTH RESIDENTS OF INDIRA COLONY,
SARVODAYA NAGAR, SHIVPURI (MADHYA
PRADESH) ---- CLAIMANTS
3. SURESH CHAND JAIN, SON OF SHRI R.D. JAIN,
AGED 45 YEARS, OCCUPATION- BUSINESS,
RESIDENT OF SADAR BAZAR, NARWAR,
DISTRICT SHIVPURI, PRESENTLY RESIDENT OF
S.K. ENTERPRISES, 17, VEER SAVARKAR
MARKET, AB ROAD, SHIVPURI (MADHYA
3
PRADESH)
........RESPONDENTS
(SHRI NAROTTAM SHARMA- ADVOCATE FOR
THE RESPONDENT NOS. 1 AND 2- CLAIMANTS
AND SHRI SUNIL KUMAR JAIN- ADVOCATE FOR
RESPONDENT NO.3 )
-------------------------------------------------------------------------------------------
The present Misc. Appeals coming on for hearing this day, the court
passed the following:
ORDER
Since both miscellaneous appeals arise of common Award dated 02-
05-2009 passed by Member, Additional Motor Accident Claims Tribunal,
Shivpuri in Claim Case No.06 of 2009 and the facts and circumstances of
both appeals are same, therefore, they are being heard simultaneously.
(2) Miscellaneous Appeal No.763 of 2009 has been filed by owner of
offending vehicle for quashment of impugned Award and for refund of
deposited amount of Rs.25,000/- whereas Miscellaneous Appeal No.796 of
2009 has been filed by Insurance Company for setting aside the impugned
Award and Insurance Company be exonerated from its liability for payment
of compensation amount.
(3) Facts in short are deceased Ramjilal, aged around 30 years on the
fateful day i.e. on 27-11-2006 was driving the offending jeep bearing
registration No.MP-33-D-0220 and near Sarangpur-Sagar-Javadikheda
Road, District Shajapur met with an accident, as a result of which he
succumbed to the injuries. The brother and sister of deceased, namely, Pappu
alias Suresh Kushwah and Basanti Bai filed a claim petition before the
Claims Tribunal under Section 163 of Motor Vehicles Act for compensation
to the tune of Rs.4,92,000/-. The learned Claims Tribunal after evaluating
oral as well as documentary evidence produced before it, awarded
compensation to the tune of Rs.2,97,000/- in favour of the claimants along
with interest @ 7% per annum and held the owner of the offending jeep
responsible to pay the aforesaid compensation amount. Being beneficiary
legislation, the Claims Tribunal also directed that the Insurance Company
shall be at liberty to first recover the aforesaid amount from the owner of
offending vehicle and pay the same to the claimants.
(4) Learned counsel appearing for the Insurance Company submits that
the learned Claims Tribunal erred in not appreciating the fact that the
offending jeep was insured as a private vehicle and the same was being plied
as a commercial vehicle and on account of breach of terms and conditions of
policy, the Insurance Company is not liable to pay any amount as
compensation. Besides this, the driver of offending vehicle was not having
effective and valid licence. At the time of accident, the deceased possessed
a driving licence of light motor vehicle while insured jeep was being plied
as a commercial vehicle, therefore, the Insurance Company ought not to
have been saddled with liability to pay compensation amount and it cannot
be held liable to indemnify insured and is accordingly absolved therefrom.
In support of contention, the counsel for the Insurance Company has relied
on the judgment of Smt.Ratna Parashar & Ors. vs. Smt. Kusumlata and
Anr. 2008 (3) TAC 180 (MP).
(5) On the other hand, the counsel appearing for the owner denied the
contentions of the Insurance Company and admitted that the deceased was
driving the jeep and was getting Rs.3,000/- per month and the said offending
vehicle was insured by the Insurance Company. The learned Claims Tribunal
erred in assessing the award to the tune of Rs.2,97,000/- as compensation to
be paid by the Insurance Company recoverable from the owner of offending
vehicle. There is no evidence produced by the Insurance Company in regard
to breach of terms and conditions of policy as well as the vehicle in question
was either being driven for commercial purpose or on hire/rent purpose. The
Insurance Company has failed to prove that the vehicle on hire/rent was
used for commercial purpose but not personal use. Even if, the vehicle was
under an agreement of hypothecation or hire/rent purchase and the person
who is in control and possession of vehicle must be construed as owner, then
the registered owner of vehicle should not be held liable if the vehicle is not
in his possession and control. In support of contention, he has relied on the
judgment of Supreme Court in the case of HDFC Bank Limited vs.
Reshma and Others 2015 (4) MPLJ 251.
(6) Heard the learned counsel for the parties and perused the record of
the Claims Tribunal.
(7) On behalf Insurance Company, Suresh aliss Pappu and Ashok Kumar
Yadav were examined as AW1 & AW2 before the Claims Tribunal. Ashok
Kumar Yadav in his evidence deposed that on the alleged date of accident at
around 08:00 in the morning he was working in the Popular Services
International which is an NGO and on the said date, he had gone from
Sarangpur to Chauma for publicity of Family Planning Programme. He
along with Shivajirao, Mamata Singh, Hansa, Savita and one lady were
sitting in the offending vehicle i.e bearing registration No.MP 33D-0220
which was being driven by deceased Ramjilal and when the said vehicle
reached near Javadikheda, in front of the jeep a truck was coming in high
speed and in order to save the life, the deceased Ramjilal turned the jeep
and due to imbalance the jeep became turtled in the field as a result of which
deceased Ramjilal fell on the beneath of jeep and died on the spot and other
persons who were sitting in the jeep also sustained injuries. Thereafter, the
police was informed. During cross-examination by the Insurance Company,
this witness admitted that the persons sitting in the jeep were going for
publicity of Family Planning Programme but he does not know who was the
owner of the offending vehicle. This witness further admitted that the
offending vehicle was not in the ownership of their Organization and it was
a private vehicle and the same was plying on hire/rent. During cross-
examination by the owner of vehicle, this witness admitted that he is not
having any knowledge as to whether the aforesaid jeep was taken on
hire/rent or not. The Insurance Company in support of its case, has examined
Panendra Chakravarti as Witness No.1
(8) From the evidence of aforesaid witness, it is clear that the offending
vehicle was plying by Popular Services International which is an NGO for
the purpose of publicity of Family Planning Programme for which the
witness Ashok Kumar Yadav along with other persons were sitting in the
said vehicle. The aforesaid offending vehicle was not in the ownership of
NGO and it was a private vehicle which was taken on rent/ hire.
(9) On behalf of owner of the vehicle, Nabneet Maheshwari (Power of
Attorney Holder) examined himself before the Claims Tribunal who stated
that two days back i.e. 27-11-2006, he had sent the jeep bearing registration
No. MP33D-0220 to Indore being driven by deceased Ramjilal who was
having valid driving licence. This witness further deposed that he had not
sent the vehicle on hire/rent and the said vehicle was first party insurer with
the Insurance Company. He came to know that on the way, the vehicle met
with an accident in which Ramjilal died and the persons sitting in the jeep
also sustained injuries. During cross-examination by Insurance Company,
this witness admitted that the offending vehicle was insured for private
purpose.The other persons were also sitting in the jeep after giving
permission from the driver and he cannot say as to whether the driver had
taken fare or not from them.
(10) Looking to the evidence of eye-witness, namely, Ashok Kumar Yadav
who was sitting in the jeep and the statement of Power Attorney Holder of
offending jeep, namely, Nabneet Maheshwari, who is not the owner of the
vehicle, this Court came to a conclusion that the offending vehicle was
insured with the Insurance Company for private purpose but at the time of
accident, the said vehicle was engaged with the Popular Services
International which is an NGO and the officers/employees of said NGO
were going in the said vehicle for publicity of Family Planning Programme.
The aforesaid offending vehicle was not in the ownership of NGO and it was
taken on rent/hire. Furthermore, this Court came to a conclusion that owner
of the offending vehicle has breached the terms and conditions of policy.
(11) Under these circumstances, the learned Claims Tribunal has rightly
held the owner of the vehicle responsible to pay the compensation amount to
the claimants. Looking to beneficiary legislation, the learned Claims
Tribunal has rightly directed that the Insurance Company to first recover the
aforesaid compensation amount from the owner of offending vehicle and
pay the same to the claimants with interest at the rate of 6% in place of 7%
as awarded by the Claims Tribunal from the date of filing of claim petition
till its realization.
(12) Accordingly, the appeal filed by the Insurance Company is allowed
and the appeal filed by the owner is hereby dismissed.
(13) Let a copy of this order be placed in the file of Miscellaneous
Appeal No.796 of 2009.
(DEEPAK KUMAR AGARWAL)
JUDGE
MKB
Digitally signed by MAHENDRA BARIK
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT
MAHENDRA BARIK
OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh,
2.5.4.20=8c6d4d6122d7ee987e457a3bec5922cacbc050c998981397a35d9758a2b550
74, pseudonym=61167CBF346371FDA4919D07819090142FCCA056,
serialNumber=AB90F893988F10D718DA01F8065D87F25DDC9B6C8C3FF0E5E280DD3
6D476F6BA, cn=MAHENDRA BARIK
Date: 2022.12.12 17:22:42 +05'30'
