Smt.Ajeeta Devi vs Dinesh Singh
2022 Latest Caselaw 6777 MP

                                           01

           IN THE HIGH COURT OF MADHYA PRADESH
                                   AT GWALIOR
                                     BEFORE
              HON'BLE SMT. JUSTICE SUNITA YADAV
                     MISC. APPEAL No. 456 of 2009


     Between:-
1.   SMT. AJEETA DEVI W/O LAKHAN
     SINGH, AGED ABOUT 28 YEARS,
     OCCUPATION:          R/O WARD        NO.14
     BHEEKAMPURA                         LAHAR
     DISTT.BHIND (MADHYA PRADESH)
2.   ASHISH      KUMAR      S/O    S/O    LATE
     LAKHAN SINGH , AGED ABOUT 6
     YEARS,       OCCUPATION:            UNDER
     GUARDIAN MOTHER AJITA DEVI
     R/O WARD NO.14, BHEEKAMPURA
     ROAD,       LAHAR,     DISTT.       BHIND
     (MADHYA PRADESH)
3.   PIYUSH      KUMAR       S/O     LAKHAN
     SINGH, AGED ABOUT 3 YEARS,
     OCCUPATION: UNDER GUARDIAN
     MOTHER SMT. AJITA DEVI R/O
     WARD NO.14, BHIKAMPURA ROAD,
     LAHAR, DISTT. BHIND (MADHYA
     PRADESH)
4.   KU. PRIYA D/O LATE SHRI LAKHAN
     SINGH , AGED ABOUT 3 YEARS,
     OCCUPATION: UNDER GUARDIAN
     MOTHER       SMT.AJITA        DEVI     R/O
     WARD        NO.14,     BHEEKAMPURA
     ROAD,       LAHAR,     DISTT.       BHIND
     (MADHYA PRADESH)
                                                    .....APPELLANTS
     (BY SHRI, R.P. GUPTA, ADVOCATE )


     AND
1.   DINESH SINGH S/O KASHIPRASAD ,
     AGED        ABOUT        35         YEARS,
                                               02

     OCCUPATION: R/O SUNDARPURA P.
     R/O     VILLAGE         AKONA         THANA
     GOHAD              DISTT.BHIND(OWNER
     DRIVER OF VEHICLE) (MADHYA
     PRADESH)
2.   THE NEW INDIA INSURANCE CO.
     LTD. GWALIOR, THR: DIVISIONAL
     MANAGER (MADHYA PRADESH)
                                                                         .....RESPONDENTS
     (BY    SHRI      KULDEEP         SINGH,       ADVOCATE           FOR
     RESPONDENTS)
     -------------------------------------------------------------------------------
        This appeal coming on for hearing this day, the court passed the
        following:
                                 JUDGMENT

(Passed on 6th of May, 2022)

This Misc. Appeal under Section 173(1) of Motor Vehicles Act,

1988 has been filed against the award dated 28/8/2008 and

24/01/2009 passed by Additional, Motor Accident Claims Tribunal,

Lahar District Bhind (M.P.) and 6th Motor Accident Claims Tribunal

(Fast Track), Lahar, District Bhind, (M.P.) in Claim Case No.71/2007

and 07/2008 by which Claims Tribunal awarded compensation to the

tune of Rs.5,26,000/- in favour of the claimants.

The necessary facts for disposal of the present appeal in short

are that on 17/07/2007, the deceased namely, Lakhan Singh, was

sitting as a pillion rider on the motor-cycle bearing registration No.

MP-30-MB-3596, belonging to respondent no.01 herein. He was

coming from Sevda to Lahar. As they reached, near the Chorai turn on

Bhind Bhander Road, on account of rash and negligence driving of

the respondent no.01, another motor-cycle bearing Registration No.

MP-30-B-0562 coming rushing from the opposite direction, the

vehicles collided with each other resulting into sustaining the

grievous injuries which culminated into the death of the deceased and

in this connection the offences registered which carries crime

Registration No.107/2007 at Police Station Lahar District Bhind

against respondent No.1. The dependents/legal representatives of the

deceased filed claim petition before the learned Claims Tribunal

claiming compensation from the opponents No.1 and 2 herein i.e.

owner and Insurance Company.

The respondent No.1/owner of the vehicle submitted its reply

before the Tribunal and denied the contents of the claim petition and

pleaded that claim application is filed on false footings and no

accident was caused with his vehicle.

The respondent No.2-Insurance Company has filed cross

objection alleging that at the time of accident, the driver was not

having valid driving license and, therefore, Insurance Company is not

liable to pay any compensation. It is further submitted that since no

specific issue was framed by the Claims Tribunal on breach of policy

conditions, the Insurance Company did not get opportunity to prove

its defense despite having pleaded the defense in its reply.

After perusal of records, it is apparent that the respondent/non-

applicant no.2- New India Insurance Company Ltd. filed its reply

before the tribunal in which it has categorically taken the defense that

at the time of accident, the offending vehicle was being driven against

the terms and conditions of the Insurance Policy and the driver was

not having valid driving license, therefore, Insurance Company is not

liable to pay compensation. Despite the above pleadings, the tribunal

has not framed any issue in respect to the defense taken by the

Insurance Company and this aspect has not been considered by the

claims tribunal.

The relevant extract of provisions of Order XLI Rule 25 of

CPC is reproduced below for ready reference and convenience;

"25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from.- Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;

and such Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor [within such time as may be fixed by the Appellate Court or extended by it from time to time]."

In the light of the pleadings of Insurance Company, the

following issues are framed to dispose of the matter in accordance

with law;

1. Whether at the time of accident, driver/non-applicant No.1 was driving the offending vehicle bearing registration No.MP- 30-MB-9596 without having any valid driving license?

2. Whether the Insurance Company is liable to pay compensation on account of

accident ?

In view of above, this Court thinks it apposite to remand the

matter back to the Claims Tribunal to frame issues with regard to the

liability of the insurance company and breach of policy. The Tribunal

is directed to take additional evidence, if required, after giving

opportunity of hearing to both parties. The Tribunal shall return the

evidence to this Court together with its findings thereon and the

reasons, therefore, within a period of three (3) months from the date

of order. Such evidence and finding shall be the part of record in this

case and either party may present a memorandum of objections to any

findings.

As a consequence thereof, the award dated 28/08/2008 and

24/01/2009 are hereby set aside and the matter is remanded back to

the concerned tribunal with abovesaid directions.

(SUNITA YADAV) JUDGE vpn VIPIN KUMAR AGRAHARI 2022.05.09 VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00' 19:14:03 +05'30'