Madhya Pradesh High Court

The New India Assurance Company ... vs Ku. Soniya Soni on 13 December, 2022

Author: Vivek Agarwal

                                                               1
                                   IN    THE     HIGH COURT OF MADHYA PRADESH
                                                      AT JABALPUR
                                                            BEFORE
                                              HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                  ON THE 13 th OF DECEMBER, 2022
                                                    MISC. APPEAL No. 3230 of 2010

                                  BETWEEN:-
                                  THE NEW INDIA ASSURANCE COMPANY LIMITED TH.
                                  D IVIS ION AL OFFICER, DIVISIONAL OFFICE NO.1,
                                  PARYAVAS BHAWAN, ARERA HILLS, BHOPAL (MP),
                                  THROUGH DIVISIONAL MANAGER, DIVISIONAL
                                  OFFICE, 290 NAPIER TOWN JABALPUR (MADHYA
                                  PRADESH)

                                                                                       .....APPELLANTS
                                  (BY SHRI UMA SHANKAR TIWARI - ADVOCATE)

                                  AND
                                  1.    SMT. MITHLESH SONI W/O LATE SHRI RAJESH @
                                        RAJU SONI, AGED ABOUT 32 YEARS, A/9 PUNJABI
                                        BAGH RAISEN ROAD BHOPAL (MADHYA
                                        PRADESH)

                                  2.    BHAGCHAND     S/O  RAMLAL   OCCUPATION:
                                        DRIVER,   VILL.BARANA,  TEH.KISHANGARH,
                                        DISTT.AJMER

                                  3.    ASHOK B.AGRAWAL OCCUPATION: OWNER,
                                        THRO. M/S GAURAV ROAD LINES, APNA NAGAR,
                                        GANDHIGRAM, GUJARAT

                                                                                      .....RESPONDENTS

(BY SHRI KAPIL PATWARDHAN - ADVOCATE FOR RESPONDENT NO.1)

MISC. APPEAL No. 3358 of 2010

BETWEEN:-

THE NEW INDIA ASSURANCE CO.LTD. TH. DIVISIONAL Signature Not Verified SAN OFFICER, DIVISIONAL OFFICE NO.1, PARYAVAS B HAWAN , ARERA HILLS, BHOPAL (MP), THROUGH Digitally signed by TULSA SINGH Date: 2022.12.13 17:51:04 IST DIVISIONAL MANAGER, DIVISIONAL OFFICE, 290 NAPIER TOWN JABALPUR (MADHYA PRADESH)

.....APPELLANT (BY SHRI UMA SHANKAR TIWARI - ADVOCATE)

AND

1. SMT. MITHLESH SONI W/O LATE RAJESH @ RAJU SONI, AGED ABOUT 32 YEARS, A/9, PUNJABI BAGH, RAISEN ROAD, BHOPAL (MADHYA PRADESH)

2. RAM SONI S/O LATE ASHOK VERMA, AGED ABOUT 26 YEARS, A/9, PUNJABI BAGH, RAISEN ROAD, DISTT.BHOPAL (MADHYA PRADESH)

3. SHYAM SONI S/O LATE ASHOK VERMA, AGED ABOUT 24 YEARS, A/9, PUNJABI BAGH, RAISEN ROAD, DISTT.BHOPAL (MADHYA PRADESH)

4. ARJUN SONI S/O LATE ASHOK VERMA, AGED ABOUT 22 YEARS, A/9, PUNJABI BAGH, RAISEN ROAD, DISTT.BHOPAL (MADHYA PRADESH)

5. BHAGCHAND S/O RAMLAL VILL.BARANA, TEH.KISHANGARH, DISTT.AJMER

6. ASHOK B.AGRAWAL THRO. M/S GAURAV ROAD LINES, APNA NAGAR, GANDHIGRAM, GUJARAT

.....RESPONDENTS (BY SHRI KAPIL PATWARDHAN - ADVOCATE FOR RESPONDENTS NO.1 TO 4/CLAIMANTS)

MISC. APPEAL No. 3361 of 2010

BETWEEN:-

THE NEW INDIA ASSURANCE CO.LTD. TH. DIVISIONAL OFFICER, DIVISIONAL OFFICE NO.1, PARYAVAS B HAWAN , ARERA HILLS, BHOPAL (MP), THROUGH DIVISIONAL MANAGER, DIVISIONAL OFFICE, 290 NAPIER TOWN JABALPUR (MADHYA PRADESH)

.....PETITIONER (BY SHRI UMA SHANKAR TIWARI - ADVOCATE) Signature Not Verified SAN AND Digitally signed by TULSA SINGH Date: 2022.12.13 17:51:04 IST 1. SMT. MITHLESH SONI W/O LATE RAJESH @ RAJU SONI, AGED ABOUT 32 YEARS, A/9, PUNJABI

BAGH, RAISEN ROAD, BHOPAL (MADHYA PRADESH)

2. BHAGCHAND S/O RAMLAL OCCUPATION:

DRIVER, VILL.BARANA, TEH.KISHANGARH, DISTT.AJMER

3. ASHOK B.AGRAWAL OCCUPATION: OWNER, THRO.M/S GAURAV ROAD LINES, APNA NAGAR, GANDHIGRAM, GUJARAT

.....RESPONDENTS (BY SHRI KAPIL PATWARDHAN - ADVOCATE FOR RESPONDENT NO.1)

MISC. APPEAL No. 3409 of 2010

BETWEEN:-

THE NEW INDIA INSURANCE COMPANY LIMITED TH. DIVISIONAL OFFICER, DIVISIONAL OFFICE NO.1, PARYAVAS BHAWAN, ARERA HILLS, BHOPAL (MP), THROUGH DIVISIONAL MANAGER, DIVISIONAL OFFI CE, 290 NAPIER TOWN JABALPUR (MADHYA PRADESH)

.....APPELLANT (BY SHRI UMA SHANKAR TIWARI - ADVOCATE)

AND

1. RAM SONI S/O LATE ASHOK VERMA, AGED ABOUT 26 YEARS, A/9 PUNJABI BAGH RAISEN ROAD BHOPAL (MADHYA PRADESH)

2. SHYAM SONI S/O LATE ASHOK VERMA, AGED ABOUT 24 YEARS, A/9, PUNJABI BAGH, RAISEN ROAD, DISTT.BHOPAL (MADHYA PRADESH)

3. ARJUN SONI S/O LATE ASHOK VERMA, AGED ABOUT 22 YEARS, A/9, PUNJABI BAGH, RAISEN ROAD, DISTT.BHOPAL (MADHYA PRADESH)

4. BHAGCHAND S/O RAMLAL VILL.BARANA, TEH.KISHANGARH, DISTT.AJMER

Signature Not Verified 5. ASHOK B.AGARWAL THRO. M/S GAURAV ROAD LINES, APNA NAGAR, GANDHIGRAM, GUJARAT SAN

Digitally signed by TULSA SINGH Date: 2022.12.13 17:51:04 IST .....RESPONDENTS

(BY SHRI KAPIL PATWARDHAN - ADVOCATE FOR RESPONDENTS NO. 1 TO 3)

MISC. APPEAL No. 3410 of 2010

BETWEEN:-

THE NEW INDIA INSURANCE CO. LTD. TH. DIVISIONAL OFFICER, DIVISIONAL OFFICE NO.1, PARYAVAS B HAWAN , ARERA HILLS, BHOPAL (MP), THROUGH DIVISIONAL MANAGER, DIVISIONAL OFFICE, 290 NAPIER TOWN JABALPUR (MADHYA PRADESH)

.....APPELLANT (BY SHRI UMA SHANKAR TIWARI -ADVOCATE)

AND

1. SMT. MITHLESH SONI W/O LATE RAJESH @ RAJU SONI, AGED ABOUT 32 YEARS, R/O A/9, PUNJABI BAGH RAISEN BHOPAL (MADHYA PRADESH)

2. BHAGCHAND S/O RAMLAL OCCUPATION:

DRIVER, VILL.BARANA, TEH.KISHANGARH, DISTT.AJMER

3. ASHOK B.AGARWAL OCCUPATION: OWNER, THRO. M/S GAURAV ROAD LINES, APNA NAGAR, GANDHIGRAM, GUJARAT

.....RESPONDENTS (BY SHRI KAPIL PATWARDHAN - ADVOCATE FOR RESPONDENT NO.1)

MISC. APPEAL No. 3411 of 2010

BETWEEN:-

.....APPELLANT (BY SHRI UMA SHANKAR TIWARI - ADVOCATE) Signature Not Verified SAN

AND Digitally signed by TULSA SINGH Date: 2022.12.13 17:51:04 IST

1. RAM SONI S/O LATE ASHOK VERMA, AGED

ABOUT 26 YEARS, A/9, PUNJABI BAGH RAISEN ROAD (MADHYA PRADESH)

2. SHYAM SONI S/O LATE ASHOK VERMA, AGED ABOUT 24 YEARS, A/9, PUNJABI BAGH, RAISEN ROAD, DISTT.BHOPAL (MADHYA PRADESH)

3. ARJUN SONI S/O LATE ASHOK VERMA, AGED ABOUT 22 YEARS, A/9, PUNJABI BAGH, RAISEN ROAD, DISTT.BHOPAL (MADHYA PRADESH)

4. BHAGCHAND S/O RAMLAL VILL.BARANA, TEH.KISHANGARH, DISTT.AJMER

5. ASHOK B.AGARWAL THRO. M/S GAURAV ROAD LINES, APNA NAGAR, GANDHIGRAM, GUJARAT

.....RESPONDENTS (BY SHRI KAPIL PATWARDHAN - ADVOCATE FOR RESPONDENTS NO.1 TO 4)

MISC. APPEAL No. 3412 of 2010

BETWEEN:-

THE NEW INDIA ASSURANCE COMPANY LTD TH. DIVISIONAL OFFICER, DIVISIONAL OFFICE NO.1, PARYAVAS BHAWAN, ARERA HILLS, BHOPAL (MP), THROUGH DIVISIONAL MANAGER, DIVISIONAL OFFI CE, 290 NAPIER TOWN JABALPUR (MADHYA PRADESH)

.....APPELLANT (BY SHRI UMA SHANKAR TIWARI - ADVOCATE)

AND

1. KU. SONIYA SONI D/O LATE PRADEEP KUMAR SONI, R/O A/9, PUNJABI BAGH RAISEN ROAD, BHOPAL (MADHYA PRADESH)

2. ROHIT SONI S/O LATE PRADEEP KUMAR SONI, AGED ABOUT 12 YEARS, OCCUPATION: MINOR THRO. NEXT FRIEND SISTER KU.SONIYA SONI, D / O LATE SHRI PRADEEP KUMAR SONI, AGED Signature Not Verified ABOUT 19 YEARS, R/O A/9, PUNJABI BAGH, SAN RAISEN ROAD, DISTT.BHOPAL (MADHYA PRADESH) Digitally signed by TULSA SINGH Date: 2022.12.13 17:51:04 IST

3. BHAGCHAND S/O RAMLAL OCCUPATION:

DRIVER, VILL.BARANA, TEH.KISHANGARH, DISTT.AJMER (

4. ASHOK B.AGARWAL THRO. M/S GAURAV ROAD LINES, APNA NAGAR, GANDHIGRAM, GUJARAT

.....RESPONDENTS (BY SHRI KAPIL PATWARDHAN - ADVOCATE FOR RESPONDENTS NO.1 AND 2)

MISC. APPEAL No. 3413 of 2010

BETWEEN:-

.....APPELLANT (BY SHRI UMA SHANKAR TIWARI - ADVOCATE)

AND

1. KU. SONIYA SONI D/O LATE PRADEEP KUMAR SONI, AGED ABOUT 19 YEARS, A/9 PUNJABI BAGH RAISEN ROAD BHOPAL (MADHYA PRADESH)

2. ROHIT SONI S/O LATE PRADEEP KUMAR SONI, AGED ABOUT 12 YEARS, OCCUPATION: MINOR THRO. NEXT FRIEND SISTER KU.SONIYA SONI, D/O LATE SHRI PRADEEP KUMAR SONI, AGED ABOUT 19 YEARS, R/O A/9, PUNJABI BAGH, RAISEN ROAD, DISTT.BHOPAL (MADHYA PRADESH)

3. BHAGCHAND S/O RAMLAL VILL.BARANA, TEH.KISHANGARH, DISTT.AJMER

4. ASHOK B.AGARWAL THRO. M/S GAURAV ROAD LINES, APNA NAGAR, GANDHIGRAM, GUJARAT

.....RESPONDENTS Signature Not Verified SAN (BY SHRI KAPIL PATWARDHAN - ADVOCATE FOR RESPONDENTS NO.1 AND 2) Digitally signed by TULSA SINGH

These miscellaneous appeals coming on for admission and orders on Date: 2022.12.13 17:51:04 IST

various applications this day, the court passed the following:

ORDER T hes e miscellaneous appears are filed by the appellant-New India Assurance Company Limited being aggrieved of award dated 30/04/2010 passed by learned 1st Additional Motor Accident Claims Tribunal, Bhopal in M C C Nos.853/2009, 854/2009, 855/2009, 860/2009, 861/2009, 862/2009, 863/2009 and 864/2009 on the ground that as per FIR, accident took place when Trala insured by the appellant bearing registration No.GJ-12-Z-001 had hit a Tavera vehicle in which claimants' relatives were travelling in a Tavera car on 08/02/2009 from Guna to Gwalior resulting in death of nine persons.

I t is submitted that it is a case of contributory negligence, therefore, learned Claims Tribunal should have appropriated the compensation between the insurer/owner/driver of the Tavera vehicle along with the owner/driver/insurer of the Trala.

When Shri Uma Shankar Tiwari, learned counsel for the appellant is asked to show from record as to what evidence was led by them in the matter to prove the aspect of contributory negligence, Shri Tiwari, fairly admits that there is no evidence except for the FIR to point out that it is a case of contributory negligence.

It is submitted in the FIR that the passengers in Tavera were travelling from Guna to Gwalior and on Agra-Bombay road near village Biloniya, Trata coming from the side of the Gwalior had hit Tavera vehicle which had fallen down in a Nala causing injuries to the occupants of the Tavera. Thus, accident having been taken place head-on should be inferred to be a case of contributory Signature Not Verified SAN negligence.

Shri Kapil Patwardhan, learned counsel for the claimants, submits that Digitally signed by TULSA SINGH Date: 2022.12.13 17:51:04 IST

aspects of contributory negligence is to be proved by the parties which is raising a plea of contributory negligence. He places reliance on the judgment of this Court in The Oriental Insurance Company Vs. Khet Singh Lodhi decided on 7th December, 2022 wherein this Court placing reliance on the judgment of Hon'ble Supreme Court in the case of Manglaram Vs. Oriental Insurance Company Limited and others (2018) 5 SCC 656 has held that High Court should not lightly interfere in the findings of the facts recorded by learned Claims Tribunal.

Admittedly, no evidence was adduced by the Insurance Company or owner, driver of the Trala to arrive at a conclusion that it is a case of contributory negligence. Thus, when facts of the present case are examined in light of the law laid down by Hon'ble Supreme Court in the case of Manglaram (supra) and by this Couert in the case of Khet Singh Lodhi (supra), this Court is of the opinion that insurance company having failed to discharge its burden in regard to contributory negligence of the Tavera, is not entitled to seek re-appropriation of amount of compensation.

Thus, all these appeals fail and are hereby dismissed.

(VIVEK AGARWAL) JUDGE ts

Signature Not Verified SAN

Digitally signed by TULSA SINGH Date: 2022.12.13 17:51:04 IST