Madhya Pradesh High Court
The New India Assurance Co. Ltd. vs Anwar Khan on 2 March, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 2nd OF MARCH, 2022
FIRST APPEAL No. 15 of 1998
Between:-
THE NEW INDIA ASSURANCE CO. LTD.,
BRANCH OFFICE AT DAMOH, THROUGH
ITS DIVISIONAL MANAGER, THE NEW INDIA
ASSURANCE CO.lTD., DIVISIONAL
OFFICE (LEGAL CELL), 290-C, NAPIER
TOWN, JABALPUR (MADHYA PRADESH)
.....APPELLANT
(NONE FOR THE APPELLANT )
AND
ANWAR KHAN, S/O SHRI AHMED KHAN,
MUSLIM, AGED ABOUT 50 YEARS, SELF AND
DIANAMO REPAIR SHOP AT PRIVATE BUS STAND,
CIVIL WARD NO.2, DAMOH (MADHYA PRADESH)
.....RESPONDENT
(NONE FOR THE RESPONDENT)
This appeal has come up for final hearing on this day, the court passed
the following:
JUDGMENT
This first appeal is pending since 1998. Nobody is appearing either for the
appellant nor for the respondents, therefore, it is taken up.
Record perused.
2. This is first appeal under Section 96 of the Code of Civil Procedure,
1908 filed by the Insurance Company being aggrieved by the judgment and decree
dated 27th September, 1997 passed in Civil Suit No.4B/1997 by learned 2nd
Additional District Judge, Damoh whereby learned 2nd Additional District Judge
allowed the civil suit filed by the plaintiff-Anwar Khan against present appellant
seeking reimbursement of damages of Rs.51,421/- sustained by his Light Motor
Vehicle (Omni bus) manufactured by Mahendra and Mahendra Commander Jeep
Model 1993 which was insured with present appellant for the duration from
25/01/1993 to 24/01/1994 and which had met with an accident on 18/07/1993 when
Signature
SAN Not
Verified jeep was taken to Rajkot (Gujrat) where the said vehicle had met with an accident.
Digitally signed by
TULSA SINGH 3. Present appellant had filed a written statement denying all the
Date: 2022.03.08
17:06:43 IST
averments and mentioned that incident took place on 18/07/1993 whereas report
was lodged on 20/07/1997. It raised a preliminary objection about territorial
jurisdiction saying that since accident had not taken place within the territorial
jurisdiction of competent Court at Damoh, therefore, Court had no jurisdiction to
hear and decide the suit. Similarly issue of violation of policy was raised and it
was mentioned that driver was not having valid driving license to drive the vehicle,
therefore, on these grounds suit was opposed.
4. Learned 3rd Additional District Judge, Damoh had framed following
issues namely :
(i) Whether plaintiff is entitled to recover a sum of
Rs.51,421/- from the defendant/Insurance Company on
account of accident ?
(ii) Where there is a violation of terms and
conditions of the policy as vehicle was not driven by driver
holding a valid driving license and the vehicle in question was
used as a passenger vehicle whereas it is registered and
insured as a private vehicle, therefore, plaintiff is not entitled
to receive any compensation ?
(iii) Whether this Court has jurisdiction to hear and
decide the suit ?
(iv) Relief and cost ?
5. This case was transferred to the Court of 2nd Additional District
Judge, Damoh and was tried as Civil Suit No.4B/1997.
6. Issue Nos. 1, 2 & 3 dealt together. Appreciating the evident of
Anwar Khan (PW-1), trial Court observed that vehicle was not given on hire,
therefore, it was not used as a passenger car/taxi but was used for personal
purposes. Shikhar Chandra Jain (PW-2) corroborated the statement of Anwar
Khan and had admitted that when he was returning from Rajkot, then accident had
taken place with a Metadore. Sanjay Kumar Singh (DW-2), Branch Manager, New
India Assurance Company, Damoh admitted that a surveyor was appointed and he
had assessed the loss.
7. Ajay Kumar Vishwakarma (DW-1) admitted that estimated amount of
repair was Rs.47,606 and he had recommended the amount of Rs.36,403/-. Sanjay
Kumar Singh (DW-2) admitted that he had not caused any enquiry as to whether
vehicle in question, at the time of accident, was used as a passenger vehicle/taxi or
not. He admitted that he did not produce investigation report in the matter.
Sanjay Kumar Singh (DW-2) further admitted that driver of the jeep Sheikh
Kaleem, S/o Sheikh Rafeeq was having driving license No.S.3204/88, Sagar which
was valid to drive a private LMV. It was not having any endorsement to drive a
taxi.
8. Taking this piece of evidence, learned trial Court held that plaintiff is
entitled to claim the amount of damages and since vehicle in question was not used
as a taxi, therefore, it cannot be held that vehicle, at the time of accident, was not
driven by a person not holding valid driving license and, accordingly, on the basis
of bills produced on record, decreed the suit.
9. After going through the evidence and also the fact that defendant
could not discharge the onus to prove that jeep in question was driven as a taxi for
hire or reward, failed to substantiate the issue of violation of the terms and
conditions of the policy so also the issue of vehicle being driven by a person not
competent to drive a taxi for want of endorsement on the driving license to the said
effect.
10. In fact, Hon'ble Supreme Court in the case of Mukund Dewangan
Vs. Oriental Insurance Co. Ltd., (2016) 4 SCC 298 has held that if a driver
holds a license to drive a Light Motor Vehicle, he is authorised to drive any
transport vehicle belonging to that weight class without any separate
endorsement.
11. In view of such legal pronouncement of Hon'ble Supreme Court
and the evidence which has been adduced by Insurance company, this Court does
not find any illegality in the impugned judgment calling for reversal of the findings
as all the issues framed have been properly dealt with and have been answered on
due appreciation of evidence adduced by rival parties.
12. Accordingly, this appeal fails and is hereby dismissed.
13. Let decree be drawn accordingly.
14. Let record of the trial Court be sent back immediately.
(VIVEK AGARWAL)
JUDGE
ts
