Madhya Pradesh High Court
Shamim Khan vs Kallu @ Karan Singh on 11 November, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 11th OF NOVEMBER, 2022
MISCELLANEOUS APPEAL No. 1576 of 2018
BETWEEN:-
1. SHAMIM KHAN S/O MODH. SALEEM KHAN,
AGED ABOUT 30 YEARS, R/O LALBAHADUR
SHASTRI WARD, KATNI, POLICE STATION
KUTHLA, DISTRICT KATNI (MADHYA PRADESH)
2. PRATIK KANKANE S/O VIJAY KANKANE, AGED
ABOUT 30 YEARS, R/O 527, SHIVAJI NAGARM
LALBAHADUR SHASTRI WARD, POLICE
STATION KUTHLA, DISTRICT KATNI (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI SHARAD GUPTA - ADVOCATE)
AND
1. KALLU @ KARAN SINGH S/O MANCHANDRA
SINGH, AGED ABOUT 50 YEARS.
2. PUNAM D/O KALLU @ KARAHN SINGH, AGED
ABOUT 26 YEARS.
3. ARTI SINGH D/O KALLU @ KARAHN SINGH,
AGED ABOUT 22 YEARS.
4. BABLI SINGH D/O KALLU @ KARAN SINGH,
AGED ABOUT 20 YEARS.
ALL RESIDENTS OF VILLAGE JHUKEHI, POLICE
STATION AMDARA, DISTRICT KATNI (MADHYA
PRADESH)
5. IFFCO TOKIO GENERAL INSURANCE CO LTD
THROUGH BRANCH MANAGER OFFICE 1187 / 88
3R D FLOOR BADSHAH PLAZA WRIGHT TOWN,
JABALPUR (MADHYA PRADESH)
Signature Not Verified
.....RESPONDENTS
SAN
Digitally signed by PUSHPENDRA PATEL (SMT. AMRIT KAUR RUPRAH - ADVOCATE FOR THE
Date: 2022.11.18 18:42:49 IST
RESPONDENT NO.5)
2
MISCELLANEOUS APPEAL No. 1580 of 2018
BETWEEN:-
1. SHAMIM KHAN S/O MODH. SALEEM KHAN,
AGED ABOUT 30 YEARS, R/O LALBAHADUR
SHASTRI WARD, KATNI, POLICE STATION
KUTHLA, DISTRICT KATNI (MADHYA PRADESH)
2. PRATIK KANKANE S/O VIJAY KANKANE, AGED
ABOUT 30 YEARS, R/O 527, SHIVAJI NAGARM
LALBAHADUR SHASTRI WARD, POLICE
STATION KUTHLA, DISTRICT KATNI (MADHYA
PRADESH)
.....APPELLANTS
(BY SHRI SHARAD GUPTA - ADVOCATE)
AND
1. SHYAMLAL KORI S/O LOCHAN DAS KORI,
AGED ABOUT 45 YEARS.
2. LILA BAI W/O LOCHAN DAS KORI, AGED ABOUT
40 YEARS.
3. KU. CHANDA D/O SHYAMLAL KORI, AGED
ABOUT 18 YEARS.
4. SHUBHAM S/O SHYAMLAL KORI, AGED ABOUT
15 YEARS.
5. PRAMOD S/O SHYAMLAL KORI, AGED ABOUT
12 YEARS.
RESPONDENTS NO.4 AND 5 ARE MINOR
THROUGH NATURAL GUARDIAN FATHER
SHYAMLAL KORI S/O LOCHANDAS KORI AGE
45 YEARS.
ALL RESIDENTS OF R/O VILLAGE DEORI
MAJHGAWAN, P.S. KYMORE, DISTRICT KATNI
(MADHYA PRADESH)
6. IFFCO TOKIO GENERAL INSURANCE COMPANY
LTD THR. BRANCH MANAGER BRANCH OFFICE
1187/88 3RD FLOOR, BADSHAH PLAZA, WRIGHT
TOWN, JABALPUR (MADHYA PRADESH)
Signature Not Verified
SAN
Digitally signed by PUSHPENDRA PATEL
.....RESPONDENTS
(SHRI DEVENDRA CHOUHAN - ADVOCATE FOR RESPONDENTS
Date: 2022.11.18 18:42:49 IST
NO.1 TO 5 AND SMT. AMRIT KAUR RUPRAH - ADVOCATE FOR
3
RESPONDENT NO.6)
These miscellaneous appeals coming on for orders this day, th e court
passed the following:
ORDER
Since both these appeals are arising out of common award dated
21.12.2017 passed in MACC Nos.100/2015 and 124/2015, therefore, they are
being heard together and decided by this common order.
2. These appeals are filed by the driver and owner of the offending truck
bearing registration No.MP20-G-1223, being aggrieved of award dated
21.12.2017 passed by the learned Motor Accident Claims Tribunal, Katni in
MACC No.100/2015 (Shyamlal Kori and others Vs. Shamim Khan and
others) and MACC No.124/2015 (Kallu and others Vs. Shamim Khan and
others), respectively.
3. Shri Sharad Gupta, learned counsel for the appellants submits that
learned Claims Tribunal has failed to appreciate that at the time of the accident,
driver of the vehicle was having valid and effective driving licence. It is also
submitted that Tribunal has inappropriately exonerated the Insurance Company
from its liability on the ground that vehicle was running in breach of the policy
conditions. It is also submitted that no investigation report was produced.
4. Further reliance is placed on the judgment of this Court in Iffco Tokio
General Insurance Company Ltd. Vs. Smt. Budhwariya Bai and others,
(2022) 3 M.P.L.J 340 , wherein it is held that if deceased was travelling as
agent of owner of goods, who had paid transportation charges for transport of
wheat, then deceased cannot be termed as 'Gratuitous Passenger' but, will be
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Date: 2022.11.18 18:42:49 IST 5. On the contrary, Shri Devendra Chouhan, learned counsel for the
respondents No.1 to 5 (in M.A. No.1580 of 2018) placing reliance on the
judgment of the Supreme Court in National Insurance Co. Ltd. Vs. Rattani
and Others, 2009 ACJ 925, wherein it is held that members of marriage party
travelling in a truck, allegedly transporting gifts received from bride party,
cannot fall into the above category. In any case on facts, it was admitted that
there were no gift articles in the vehicle concerned and therefore, Hon'ble
Supreme Court held that victims of the accident were travelling in truck as
gratuitous passengers. Thus, it is submitted that appeals deserve to be rejected
and be rejected as such.
6 . After hearing learned counsel for the parties and going through the
record, brief facts leading to the present case are that accident took place on
11.10.2015 when in truck No.MP20-G-1223, a Poclain machine was loaded for
transportation from Katni to Singrauli. During such transportation at village
Banjari near Barsedi station, Police Station Sarai, vehicle was driven rashly and
negligently touching a high tension 11000 volts electric wire, causing death of
representative of the owner of poclain machine and the operator of the poclain
machine, sitting in the truck, due to electrocution.
7. Tribunal has considered this aspect as to violation of the terms and
conditions of the policy while deciding Issue No.3(B) and has noted that as per
insurance policy (Ex.D-1), vehicle was insured with the Iffco Tokia General
Insurance Company Limited. It is submitted that on the date of the accident,
deceased were travelling as gratuitous passengers in the truck and, therefore,
they are not entitled to seek compensation from the insurance company.
8. Provisions contained in Section 147(1)(b) of Motor Vehicles Act, 1988,
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reads as under:-
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Date: 2022.11.18 18:42:49 IST
147(1)(b) insures the person or classes of persons specified in the
policy to the extent specified in sub-section (2).
(i) against any liability which may be incurred by him in
respect of the death of or bodily 27 [injury to any person,
including owner of the goods or his authorised representative
carried in the vehicle] or damage to any property of a third
party caused by or arising out of the use of the vehicle in a
public place;
(ii) against the death of or bodily injury to any passenger of a
public service vehicle caused by or arising out of the use of
the vehicle in a public place.
9. Thus, it is evident that without any extra premium, insurer has insured
and undertaken liability for death of or bodily injury to any person including
owner of the goods or his authorized representative, carried in the motor
vehicle.
10. In the present case, it is admitted that deceased were travelling as
representative of the owner of the goods and being operator of the poclain
machine. This fact is corroborated through the evidence of Santosh Kumar
Patel to whom in cross-examination, suggestion was given that deceased were
sitting over the truck, which has been denied by him saying that they were sitting
inside the cabin. There is no suggestion to this witness that they were not
travelling as representatives of the owner of the goods.
11. Taking this fact into consideration, when facts of the present case are
examined in the light of law laid down by this Court in Iffko Tokyo General
Insurance Company Ltd. Vs. Smt. Budhwariya Bai and others (supra),
then in the light of the judgment of the Supreme Court in Ramesh Kumar Vs.
National Insurance Company Limited and other, AIR 2001 SC 3363 that
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in view of 1994 amendment in sub-clause (i) of Section 147(1)(b) of the New
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Date: 2022.11.18 18:42:49 IST
Act, insurer will be liable to pay the compensation, I am of the opinion that
Tribunal has failed to take into consideration, provisions contained in Section
147(1)(b) of the Motor Vehicles Act, 1988 as reproduced above and has
arbitrarily exonerated the insurance company. Thus, appeals need to be allowed
and are allowed.
12. It is held that owner, driver and insurer of the offending vehicle will be
jointly and severally liable to satisfy the award.
13. In above terms, these miscellaneous appeals are allowed and disposed
of.
14. Let record of the Claims Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
pp
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Digitally signed by PUSHPENDRA PATEL
Date: 2022.11.18 18:42:49 IST
