Magma Hdi General Insurance ... vs Babulal Gupta
2022 Latest Caselaw 16579 MP

                                                                1
                                   IN    THE     HIGH COURT OF MADHYA PRADESH
                                                      AT JABALPUR
                                                            BEFORE
                                              HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                  ON THE 14 th OF DECEMBER, 2022
                                                    MISC. APPEAL No. 3152 of 2021

                                  BETWEEN:-
                                  MAGMA HDI GENERAL INSURANCE COMP.LTD.,
                                  BHAWANI PLAZA II FLOOR, H NO.1230IV, BRIDGE
                                  NAPIR TOWN JABALPUR (MADHYA PRADESH)
                                  (INSURANCE COMPANY) THROUGH ITS MANAGER

                                                                                       .....APPELLANT
                                  (BY SHRI ROHIT JAIN - ADVOCATE)

                                  AND
                                  1.    BABULAL GUPTA S/O LATE BADRI PRASAD
                                        GUPTA, AGED ABOUT 45 YEARS, OCCUPATION:
                                        LABOUR,     R/O VILLAGE RAJGARH KOTHAR
                                        HINAUTI, PS AMILLIYA DISTT. SIDHI AT PRESENT
                                        R/O SAGRA PS SAGRA DISTT. REWA (MADHYA
                                        PRADESH)

                                  2.    RAMKALI GUPTA W/O BABULAL GUPTA, AGED
                                        ABOUT 44 YEARS, OCCUPATION: LABOUR R/O
                                        VILLAGE RAJGARH KOTHAR HINAUTI, PS
                                        AMILLIYA DISTT. SIDHI AT PRESENT R/O SAGRA
                                        PS SAGRA DISTT. REWA (MADHYA PRADESH)

                                  3.    KU. AMRITA GUPTA D/O BABULAL GUPTA, AGED
                                        ABOUT 17 YEARS,      MINOR THR. NATURAL
                                        GUARDIAN    FATHER     BABULAL GUPTA R/O
                                        VILLAGE RAJGARH KOTHAR HINAUTI, PS
                                        AMILLIYA DISTT. SIDHI AT PRESENT R/O SAGRA
                                        PS SAGRA DISTT. REWA (MADHYA PRADESH)

                                  4.    BABULAL YADAV S/O RAJENDRA PRASAD YADAV
                                        OCCUPATION:     DRIVER    R/O    VILLAGE
                                        KHAMHARIYA KALAN, POST KARTHUA DISTT
                                        SINGRAULI (MADHYA PRADESH)
Signature Not Verified
  SAN

                                  5.    GULAB PRASAD GUPATA S/O THAKUR PRASAD
Digitally signed by TULSA SINGH
Date: 2022.12.14 19:15:41 IST
                                        GUPTA OCCUPATION: BUSINESS, R/O VILLAGE
                                        SAHJI, POLICE STATION AMILIYA, TEHSIL
                                                                 2
                                        SIHAWAL, DISTT. SIDHI (MADHYA PRADESH)

                                                                                                 .....RESPONDENTS
                                  (BY SHRI ALOK TIWARI - ADVOCATE FOR RESPONDENTS NO.1 TO 3)
                                  (BY SHRI PAVAN KUMAR SAXENA - ADVOCATE FOR RESPONDENS NO.4
                                  AND 5)

                                        T h is appeal coming on for orders this day, t h e cou rt passed the
                                  following:
                                                                       ORDER

This miscellaneous appeal is filed by the insurance company being aggrieved of award dated 23rd October, 2021 passed by learned Motor Accident Claims Tribunal, Rewa in Claim Case No.280/2018 whereby learned Claims Tribunal has allowed the claim filed by the claimants on account of

death of deceased-Manoj Kumar Gupta aged 28 years who was a bachelor.

Two grounds have been put forth by Shri Rohit Jain, learned counsel for the appellant. Reading from the FSL report Ex.D/4, it is submitted that it is specifically mentioned that the deceased was under the influence of alcohol. Thus, aspect of contributory negligence is made out. It is further submitted that even in the MLC there is a mention of strong smell of alcohol. Thus, taking this fact into consideration that deceased Manoj Kumar Gupta was under the influence of alcohol at the time of accident, learned Claims Tribunal erred in not recording a finding of contributory negligence.

Reading the evidence of Pawan Kumar Saini, Officer of Magma H.D.I. General Insurance Company Ltd., it is pointed out that another ground is that at the first instance vehicle number was not given and FIR was lodged after a day of the incident i.e. incident took place on 10/2/2018 whereas FIR was lodged on

Signature Not Verified SAN 11/2/2018, therefore, it appears to be a case of false implication.

Digitally signed by TULSA SINGH Shri Alok Tiwari, learned counsel for the respondents/claimants, in his Date: 2022.12.14 19:15:41 IST

turn, places reliance on the judgment of Coordinate Bench of this Court in the case of The National Insurance Company Ltd. Vs. Smt. Saroj Shukla and others (M.A. No.5189/2008) decided on 01/10/2019 wherein, in para-8, this aspect of contributory negligence is discussed and it is held that since that aspect was not proved either by examining the respondent driver of the offending vehicle or any independent witness, therefore, that being not proved, no liability can be fastened on account of allegation of contributory negligence.

Reliance is also placed on the judgment of Hon'ble Supreme Court in Civil Appeal No.9094/2013 (arising out of SLP (C) No.13239 of 2009) (Dulcina Fernandes & others Vs. Joaquim Xavier Cruz and another) wherein in para-5 and 8 discussing the aspect of contributory negligence, it is held that for want of best evidence, nothing can be attributed on the basis of surmises and conjecture.

After hearing learned counsel for the parties and going through the record, it is evident that deceased was sitting by the side of road. He was not driving any vehicle. It is not the case of insurance company that he was sitting on the road or on passage meant for movement of the vehicle. On the contrary, it has come on record in the evidence that Dumper bearing registration No.M.P.-53-HA-2346 after emptying the gitty started the Dumper with a jerk and had hit the deceased who was sitting by the side of the road. There is no

contradiction to this evidence, therefore, the evidence given by the eye witnesses to this effect being not controverted and contradicted, no aspect of contributory negligence can be attributed merely on the ground that some percentage of alcohol was discovered in the blood analysis of the sample of Signature Not Verified SAN

deceased.

Digitally signed by TULSA SINGH Date: 2022.12.14 19:15:41 IST

Similarly, insurance company did not examine the driver of the offending

vehicle to prove the aspect of contributory negligence or false implication. In view of such facts, both the grounds raised by learned counsel for insurance company having been not proved adequately and properly the burden of which was on the insurance company.

Accordingly, this miscellaneous appeal fails and is hereby dismissed.

(VIVEK AGARWAL) JUDGE ts

Signature Not Verified SAN

Digitally signed by TULSA SINGH Date: 2022.12.14 19:15:41 IST