Madhya Pradesh High Court
United India Insurance Company ... vs Dinesh Sen on 28 October, 2022
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 28th OF OCTOBER, 2022
MISC. APPEAL No. 6651 of 2019
BETWEEN:-
UNITED INDIA INSURANCE COMPANY
LTD.KHARGAON THROUGH BRANCH
MANAGER BRANCH OFFICE CHHATARPUR
NEAR TIKARIA AGENCY JHANSI ROAD
CHHATARPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI V.K. TRIVEDI, ADVOCATE)
AND
1. DINESH SEN S/O ASHARAM SEN, AGED ABOUT
25 YEARS, GRAM GATHEWARA POLICE
STATION CIVIL LINES CHHATARPUR (MADHYA
PRADESH)
2. IRFAN KHAN S/O SATTAR KHAN, AGED ABOUT
28 YEARS, KASRAWAD SAHABAD MOHALLA
WARD NO. 9 THANA KASRAWAD (MADHYA
PRADESH)
3. SAYEED ASHFAK ALI S/O SAYEED SABIR ALI
(DEAD) THROUGH LRS AFSANA SAYEED W/O
LATE ASHFAK ALI, AGED ABOUT 28 YEARS,
INDORE ROAD KASRAWAD (MADHYA
PRADESH)
4. ARMAN ALI S/O LATE SAYEED ASHFAK ALI,
AGED ABOUT 5 YEARS, OCCUPATION: MINOR
THROUGH GUARDIAN MOTHER SMT.AFSANA
ALI INDORE ROAD KASRAWAD (MADHYA
PRADESH)
5. HASAN ALI S/O LATE SAYEED ASHFAK ALI,
AGED ABOUT 3 YEARS, OCCUPATION: MINOR
THROUGH GUARDIAN MOTHER SMT.AFSANA
Signature Not Verified
SAN ALI INDORE ROAD KASRAWAD (MADHYA
PRADESH)
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.11.03 11:07:27 IST
.....RESPONDENTS
2
(SHRI KHALIL AHMED CHOUDHARY, ADVOCATE FOR
RESPONDENT NO. 1)
MISC. APPEAL No. 6652 of 2019
BETWEEN:-
UNITED INDIA INSURANCE COMPANY LTD.
KHARGAON THROUGH BRANCH MANAGER
BRANCH OFFICE CHHATARPUR NEAR TIKARIA
AGENCY JHANSI ROAD CHHATARPUR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI V.K. TRIVEDI, ADVOCATE)
AND
1. ASSU @ ASHARAM SEN S/O MEHELAL SEN,
AGED ABOUT 34 YEARS, BHAGWANT PURA P.S.
ORCHHA ROAD (MADHYA PRADESH)
2. IRFAN KHAN S/O SATTAR KHAN, AGED ABOUT
28 YEARS, KASRAWAD SAHABAD MOHALLA
WARD NO. 9 THANA KASRAWAD
DISTT.KHARGONE (MADHYA PRADESH)
3. SAYEED ASHFAK ALI S/O SAYEED SABIR ALI
(DEAD)THROUGH LRS AFSANA SAYEED W/O
LATE ASHFAK ALI, AGED ABOUT 28 YEARS,
INDORE ROAD KASRAWAD (MADHYA
PRADESH)
4. ARMAN ALI S/O LATE SAYEED ASHFAK ALI,
AGED ABOUT 5 YEARS, OCCUPATION: MINOR
THROUGH GUARDIAN MOTHER SMT.AFSANA
ALI INDORE ROAD KASRAWAD (MADHYA
PRADESH)
5. HASAN ALI S/O LATE SAYEED ASHFAK ALI,
AGED ABOUT 3 YEARS, OCCUPATION: MINOR
THROUGH GUARDIAN MOTHER SMT.AFSANA
ALI INDORE ROAD KASRAWAD (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI KHALIL AHMED CHOUDHARY, ADVOCATE FOR
Signature Not Verified
SAN
RESPONDENT NO. 1)
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.11.03 11:07:27 IST MISC. APPEAL No. 6654 of 2019
3
BETWEEN:-
UNITED INDIA INSURANCE COMPANY LTD.
KHARGAON THR.BRANCH MANAGER AND
THR. ITS INCHARGE T.P. HUB UNITED INDIA
INSURANCE COMPANY LTD. BRANCH OFFICE
CHHATARPUR NEAR TIKARIA AGENCY JHANSI
ROAD CHHATARPUR TEHSIL AND DISTT.
CHHATARPUR, THR. INCHARGE R/O RAJKIRAN
BHAWAN WRIGHT TOWN JABALPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI V.K. TRIVEDI, ADVOCATE)
AND
1. SMT. RACHANA W/O LATE UMESH SEN, AGED
ABOUT 23 YEARS, GRAM GATHEWARA P.S.
CIVIL LINES CHHATARPUR TEHSIL AND DISTT.
CHHATARPUR (MADHYA PRADESH)
2. KU.LOVELY SEN D/O LATE UMESH SEN, AGED
ABOUT 4 YEARS, OCCUPATION: THROUGH
GUARDIAN SMT.RACHNA SEN GRAM
GATHEWARA POLICE STATION CIVIL LINES
CHHATARPUR (MADHYA PRADESH)
3. SHIVAM S/O LATE UMESH SEN, AGED ABOUT 2
YEAR S , OCCUPATION: THROUGH GUARDIAN
SMT.RACHNA SEN GRAM GATHEWARA POLICE
STATION CIVIL LINES CHHATARPUR (MADHYA
PRADESH)
4. KU.BUBBLY SEN D/O LATE UMESH SEN, AGED
ABOUT 3 YEARS, OCCUPATION: THROUGH
GUARDIAN SMT.RACHNA SEN GRAM
GATHEWARA POLICE STATION CIVIL LINES
CHHATARPUR (MADHYA PRADESH)
5. ASHARAM SEN S/O AJUDHYA SEN, AGED
ABOUT 50 YEARS, GRAM GATHEWARA POLICE
STATION CIVIL LINES CHHATARPUR (MADHYA
PRADESH)
6. SMT.MAMTA SEN W/O ASHARAM SEN, AGED
ABOUT 40 YEARS, GRAM GATHEWARA POLICE
Signature Not Verified
STATION CIVIL LINES CHHATARPUR (MADHYA
SAN
PRADESH)
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.11.03 11:07:27 IST
7. IRFAN KHAN S/O SATTAR KHAN, AGED ABOUT
28 YEARS, KASRAWAD SAHABAD MOHALLA
4
WARD NO. 9 THANA KASRAWAD (MADHYA
PRADESH)
8. SAYEED ASHFAK ALI S/O SAYEED SABIR ALI
THROUGH LRS AFSANA SAYEED W/O LATE
ASHFAK ALI, AGED ABOUT 28 YEARS, INDORE
ROAD KASRAWAD (MADHYA PRADESH)
9. ARMAN ALI S/O LATE SAYEED ASHFAK ALI,
AGED ABOUT 5 YEARS, OCCUPATION: MINOR
THROUGH GUARDIAN MOTHER SMT.AFSANA
ALI INDORE ROAD KASRAWAD (MADHYA
PRADESH)
10. HASAN ALI S/O LATE SAYEED ALI, AGED ABOUT
3 YEARS, OCCUPATION: MINOR THROUGH
GUARDIAN MOTHER SMT.AFSANA ALI INDORE
ROAD KASRAWAD (MADHYA PRADESH)
.....RESPONDENTS
(SHRI KHALIL AHMED CHOUDHARY, ADVOCATE FOR
RESPONDENT NOS. 1, 5 AND 6)
These appeals coming on for hearing this day, th e court passed the
following:
ORDER
These appeals have been filed by the Insurance company being aggrieved
of award dated 19/06/2019 passed by the learned VI Additional Motor Accident
Claims Tribunal, Chhatarpur in MACC Nos. 101/2015, 144/2016 and 145/2016
whereby plea of the Insurance company in regard to lack of fitness has not been
accepted and the liability is fastened on the Insurance company jointly and
severally along with the owner and driver of the offending vehicle.
Learned counsel for the appellant submits that the Insurance company
had examined Shri Jaideep Goswamy Administrative Officer United India
Insurance Company, Chhatarpur to prove that the Bolero vehicle bearing
Signature Not Verified
registration no. M.P.-10T-0645 was insured from 8/11/2014 to 7/11/2015 and
SAN
Digitally signed by VAIBHAV YEOLEKAR
name of the insured is Syed Ashfaq Ali. He further deposed that the vehicle in
Date: 2022.11.03 11:07:27 IST
question is a commercial vehicle which met with an accident on 27/12/2014 on
Panna Chattarpur road. He further deposed in the examination-in-chief in the
affidavit that the vehicle on the date of the accident was driven without fitness.
Thus, it is submitted that factum of non-availability of fitness was proved
by Shri Jaideep Goswamy and, therefore, there was no reason for the learned
Tribunal to disbelieve this evidence and hold jointly and severally the Insurance
company liable to pay the compensation.
Learned counsel for the claimants on the other hand submit that in the
cross-examination, Shri Jaideep Goswamy had admitted that there is no mention
of any term in the policy that in the absence of fitness, it will be violation of the
contract of Insurance. It is also submitted that neither any person from the
concerned office of R.T.O. was examined to prove the lack of fitness nor any
other competent person was examined. Thus, the Insurance company failed to
discharge its burden.
Reliance is placed on the judgment of the co-ordinate Bench of this High
Court in Oriental Insurance Company Ltd. Vs. Manoj and others reported
in 2014 ACJ 2389 wherein the Hon'ble co-ordinate Bench has held that the
Insurance company when disputes its liability on the ground that there was
violation of the terms and conditions of the policy as the offending vehicle was
plied without fitness certificate, then the Insurance company is required to
specify the terms of the policy showing the necessity of fitness certificate and
also prove the violation of the conditions stipulated under Section 149 of the
Motor Vehicle Act.
It is held that non-establishment of such violation of either terms and
Signature Not Verified
SAN
conditions of the policy of any statutory provision will not entitle the Insurance
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.11.03 11:07:27 IST
company to seek exemption from liability.
After hearing learned counsel for the parties and going through the record
and taking into consideration the law laid down by the coordinate Bench in the
case of Manoj (supra) so also the evidence of Shri Jaideep Goswamy
Administrative Officer of the Insurance Company, it is evident that the
Insurance company failed to discharge its burden by showing violation of
specific terms and conditions of the policy.
Thus, the impugned award when tested in the light of the law laid down
by a coordinate bench in the case of Manoj (supra) cannot be faulted with.
Accordingly, the appeals fail and are dismissed.
L.C.R. be sent back.
(VIVEK AGARWAL)
JUDGE
vy
Signature Not Verified
SAN
Digitally signed by VAIBHAV YEOLEKAR
Date: 2022.11.03 11:07:27 IST
