United India Insurance Comp. vs Smt. Sheela Tiwari
2022 Latest Caselaw 6808 MP

                                       01

          IN THE HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                            MA. No.92 of 2006
                  [United India Insurance Company Ltd.]
                                    Vs.
                        [Sheela Tiwari and Others]


                                JUDGMENT

[Passed on 6th of May, 2022]

Shri Shriniwas Gajendragadkar, learned counsel for the

appellant/Insurance Company.

Shri Mahesh Haswani, learned counsel for the respondents

No.1 to 3.

Shri S.S. Bansal, learned counsel for the respondent No.5.

This Misc. Appeal has been filed by Insurance Company under

Section 173 of Motor Vehicles Act, 1988 against the award dated

10/11/2005 passed by 5th Additional Motor Accident Claims Tribunal,

Gwalior (M.P.) in Claim Case No.03/2005.

The facts in brief to decide this appeal are that the respondents

No.1 to 3 who are the parents and brother of deceased Shera @

Satosh (hereinafter referred as 'the deceased') preferred a claim

application u/S.166 of Motor Vehicles Act for realizing an amount of

compensation to the tune of Rs.31,10,000/- due to the death of the

deceased. The deceased died in a road accident involving Tractor

bearing registration No. MP-07-HA-6817 and Jeep bearing

registration No. MP-07-H-3866. On the fateful day, both the vehicles

were insured with appellant and respondent No.5 Insurance Company

respectively. As per the respondents No.1 to 3/claimants, on the

fateful day while the deceased was driving the aforesaid Jeep, the

same was dashed by the Tractor bearing registration No.MP-07-HA-

6817 and as a consequence thereof, the deceased died. On the date of

incident, deceased was aged about 24 years and he used to earn

Rs.5,000/-per month by serving as driver and by agriculture.

After appreciating the facts and material available on record,

the learned Claims Tribunal allowed the claim petition directing the

respondents No.6, 7 and the appellant to pay jointly and severally an

amount of Compensation of Rs.2,01,700/- alongwith interest @ 6%

per annum.

Aggrieved by the impugned award passed by learned Claims

Tribunal, present appeal has been filed inter-alia on the ground that

that impugned award passed against the facts and material available

on record and against the settled principles of law, hence, the same

deserves to be set aside. Learned Claims Tribunal erred in absolving

the respondents No.4 and 5 of liability as to pay the amount of

compensation. The learned Claims Tribunal erred in not appreciating

the facts that the alleged incident occurred on account of sole

negligence on the part of deceased, hence, no liability could have

been rested upon appellant and respondents No.6 and 7.

On other hand, learned counsel for the respondents has

supported the findings of the Claims Tribunal in respect to the

liability imposed upon the appellant, however, prayed to enhance the

compensation amount.

This Court has perused the record and gone through the

evidence adduced by the parties. Learned Claims Tribunal has framed

issue Nos. 4 and 5 in respect to the alleged breach of policy as well as

the liability of the appellant/Insurance Company. It is well settled that

if the Insurance Company takes the defense of breach of policy, it is

on the part of the Insurance Company to prove the said defense. In

this case, respondent No.5/National Insurance Company had

produced the insurance policy which reveals that the Jeep bearing

registration No.MP-07-H-3866 was insured from 23.11.2004 to

22.11.2005 with the respondent No.5/National Insurance Company

and this fact is not disputed by claimants. The claimants have filed the

photocopy of Insurance Policy of tractor bearing registration No.MP-

07-HA-6817 stating therein that the offending tractor was insured

with appellant/Insurance Company. In seizure memo (Exh.P/6), this

fact is mentioned that the tractor was insured up to 24/03/2005 which

was not contradicted by the appellant/Insurance Company by

producing any evidence. Therefore, the learned Claims Tribunal has

rightly held that the offending tractor was insured with

appellant/Insurance Company at the time of incident. The appellant

has not examined any witness or filed corroborative evidence to prove

its defense that the offending tractor was not insured with it and that

there was any breach of policy, therefore, the argument of learned

counsel for the appellant does not bear the weight. In the present case,

the driver of the offending tractor did not appear and contradicted the

factum revealed in the claim application as well as in oral

examination of claimants' witnesses, therefore, in the light of the case

of Madhya Pradesh State Road Transport Corporation Vs.

Vaijanti & Ors. [1995 ACJ 560], K.K. Jain Vs. Masroor Anwar

[1990 ACJ 299], the Claims tribunal has rightly held that the accident

was not on account of contributory negligence of the deceased. It is

apparent that, the appellant/Insurance Company has failed to prove its

defense, therefore, there is no ground to set aside the impugned

award.

So far as the arguments of respondents/claimants in respect to

the enhancement of compensation amount is concerned, the

claimants/respondents have not filed any cross-objection, therefore, in

the light of the case of Rajkumar Vs. Mahendra Singh And Ors.

[(1985) ACC 336], the issue of enhancement of amount cannot be

considered in this appeal filed by Insurance Company to set aside the

award.

Consequently, appeal sans merits and is hereby dismissed.

                                                                          (SUNITA YADAV)
vpn                                                                           JUDGE
                         VIPIN
                         KUMAR
                         AGRAHARI
      VALSALA
                         2022.05.09
                         19:18:20
      VASUDEVAN
      2018.10.26
      15:14:29 -07'00'




                         +05'30'