Madhya Pradesh High Court
Shriram General Insurance ... vs Gayatri Bai on 21 December, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 21 st OF DECEMBER, 2022
MISC. APPEAL No. 1062 of 2014
BETWEEN:-
SHRIRAM GENERAL INSURANCE COMPANY LTD.
JAIPUR, THROUGH BRANCH MANAGER REGIONAL
BRANCH OFFICE PLOT NO 48 ZONE 2, M.P. NAGAR,
BHOPAL (MADHYA PRADESH)
.....CLAIMANT
(BY SHRI RAKESH JAIN - ADVOCATE)
AND
1. GAYATRI BAI WD/O LATE SHRI GOVIND
MALVIYA, AGED ABOUT 30 YEARS, R/O GRAM
GODALWADA TEHSIL BABAI, DISTT.
HOSHANGABAD (MADHYA PRADESH)
2. SATYAM S/O LATE SHRI GOVIND MALVIYA, AGED
ABOUT 12 YEARS, MINOR THROUGH NATURAL
GUARDIAN MOTHER SMT. GAYATRI BAI, WD/O
LATE SHRI GOVIND MALVIYA, R/O GRAM
GODALWADA TEHSIL BABAI, DISTT.
HOSHANGABAD (MADHYA PRADESH)
3. SUBHAM S/O LATE SHRI GOVIND MALVIYA,
AGED ABOUT 9 YEARS, MINOR THROUGH
NATURAL GUARDIAN MOTHER SMT. GAYATRI
BAI, WD/O LATE SHRI GOVIND MALVIYA, R/O
GRAM GODALWADA TEHSIL BABAI, DISTT.
HOSHANGABAD (MADHYA PRADESH)
4. KAPIL S/O LATE SHRI GOVIND MALVIYA, AGED
ABOUT 6 YEARS, MINOR THROUGH NATURAL
GUARDIAN MOTHER SMT. GAYATRI BAI, WD/O
LATE SHRI GOVIND MALVIYA, R/O GRAM
GODALWADA TEHSIL BABAI, DISTT.
Signature Not Verified
SAN
HOSHANGABAD (MADHYA PRADESH)
Digitally signed by TULSA SINGH
Date: 2022.12.23 15:46:59 IST
5. PRAHLAD MALVIYA S/O LATE SHRI TULARAM
MALVIYA, AGED ABOUT 70 YEARS R/O GRAM
2
GODALWADA TEHSIL BABAI, DISTT.
HOSHANGABAD (MADHYA PRADESH)
6. DINESH S/O MOHANLAL JATAV OCCUPATION:
VEHICLE DRIVER, R/O GRAM KUTHARIA, TEHSIL
BABAI DISTT. HOSHANGABAD (MADHYA
PRADESH) (DRIVER OF JEEP NO.MP-05-T-0220)
7. DILIP KUMAR THAKUR S/O SHRI RAMADHAR
SINGH THAKUR, R/O AWAS COLONY BABAI
TEHSIL BABAI, DISTTT. HOSHANGABAD
(MADHYA PRADESH) (OWNER OF THE JEEP
NO.M.P.-05-T-0220)
8. THE NEW INDIA INSURANCE COMP. LTD.,
BRANCH OFFICE NEAR BSNL BUILDING,
NEHRUGANJ TEHSIL ITARSI DISTT.
HOSHANGABAD (MADHYA PRADESH)
9. ANIL KUMAR PATEL S/O SHRI BANWARI LAL
PATEL, AGED ABOUT 29 YEARS, WARD NO. 2,
KODRI MOHALLA MEHARGAON ITARSI DISTT.
HOSHANGABAD, (MADHYA PRADESH)
10. FUGGALAL S/O CHIMANLLAL, R/O GRAM
MEHRAGAON TEHSIL ITARSI DISTT.
HOSHANGABAD (MADHYA PRADESH)
11. SANTOSH S/O CHIMANLAL OCCUPATION: R/O
GRAM MEHRAGAON TEHSIL ITARSI DISTT.
HOSHANGABAD (MADHYA PRADESH)
12. VINOD S/O CHIMANLAL R/O GRAM
MEHRAGAON TEHSIL ITARSI DISTT.
HOSHANGABAD (MADHYA PRADESH)
13. PAPPU S/O CHIMANLAL, R/O GRAM, EJRAGAPM
TEHSIL ITARSI, DISTT. HOSHANGABAD (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SARVESH KUMAR JAYASWAL - ADVOCATE FOR RESPONDENTS
NO.1 TO 5)
This appeal coming on for hearing at motion stage this day, the court
Signature Not Verified
SAN
passed the following:
Digitally signed by TULSA SINGH
Date: 2022.12.23 15:46:59 IST ORDER
This miscellaneous appeal is filed by the insurer of the tractor being
aggrieved of award dated 13th September, 2013 passed by learned Additional
Member to the Court of 1st Additional Motor Accident Claims Tribunal,
Hoshangabad in Claim Case No.30/2012 whereby learned Claims Tribunal in an
accident which took place on 21/04/2012 when deceased was travelling on his
motorcycle from Hoshangabad to Babai at Village Nimsadiya near to lVillage
Bajrang Mandir Jeep No. MP-05-T-0220 being driven by Dinesh S/o Mohanlal
own by Dileep Singh Thakur and insured with New India Insurance Company
Limited came driving in a rash and negligent manner causing dash to the
motorcycle as a result, motorcycle had fallen down when a tractor bearing
registration No.MP-05-G-4965 being driven rashly and negligently caused crush
injuries to occupant of the motorcycle Govind Malviya causing his death.
It is submitted that learned Claims Tribunal has held it to be a case of
contributory negligence whereas it is not a case of contributory negligence but
that of negligence of the the driver of the Jeep, therefore, liability should have
been fastened on the owner, driver of the jeep. Reliance is placed on the
judgment of Hon'ble Supreme Court Court in the case of Andhra Pradesh
State Road Transport Corporation and another Vs. K. Hemlatha and
others, (2008) 6 SCC 767.
Learned counsel for the claimants submits that learned Claims Tribunal
has not awarded just compensation and has not taken into consideration of
future prospects which needs to be added.
Nobody is appearing for the owner, driver or insurer of the tractor
Signature Not Verified
SAN
though they all have been served as per office report.
Digitally signed by TULSA SINGH
Hared on I.A. No.7881/2014, an application seeking condonation of
Date: 2022.12.23 15:46:59 IST
delay in filing the appeal.
It is pointed out that there is delay of 123 days.
As sufficient cause is made out for condonation of delay, the aforesaid
IA is allowed and the delay is condoned.
When law laid down by Hon'ble Supreme Court in the case of K.
Hemlatha and others (supra) wherein it is held that test of contributory
negligence is that of the two, who was driving his vehicle negligently and rashly
and in case both were so doing who was more responsible for the accident and
who of the two had the last opportunity to avoid the accident, held are the
relevant factors.
In the present case, both jeep and tractor are joint tortfeasors. Jeep gave
first impact resulting in motorcycle driver falling down but at the same time
driver of the tractor was required to maintain safe distance so to brake his
tractor in time rather than overrunning the motorcycle driver. FIR is against
both jeep and tractor. Thus, it is evident that both jeep and tractor are
responsible for the accident. In view of such facts even when the law laid
down by Hon'ble Supreme Court in the case of K. Hemlatha and others
(supra) is taken into consideration, then it is evident that even tractor had the
last opportunity to avoid the accident.
Accident actually took place in two parts. Firstly, when due to impact of
the jeep, motorcycle had fallen down. Secondly, when it was overran by the
tractor. Thus, both tractor and jeep driver are jointly and severally responsible
for the cause of death, therefore, the apportionment of the award between two
insurers cannot be said to be arbitrary or illegal calling for interference.
Signature Not Verified
SAN Accordingly, miscellaneous appeal fails and is hereby dismissed.
Digitally signed by TULSA SINGH
Date: 2022.12.23 15:46:59 IST
(VIVEK AGARWAL)
JUDGE
ts
Signature Not Verified
SAN
Digitally signed by TULSA SINGH
Date: 2022.12.23 15:46:59 IST
