Madhya Pradesh High Court
Dayashankar Dwivedi vs Shivkali Sonkar on 11 April, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 11 th OF APRIL, 2023
MISC. APPEAL No. 1772 of 2015
BETWEEN:-
1. DAYASHANKAR DWIVEDI S/O SHRI RAM MILAN
DWIVEDI, AGED ABOUT 30 YEARS, OCCUPATION:
DRIVER VILL KHABRA POLICE STATION SALEHA,
DISTRICT PANNA (MADHYA PRADESH)
2. RAVISHANKAR BILOHA, SON OF R.N. BAILOHA,
RESIDENT OF VILLAGE KHABRA MURWARI, POLICE
STATION GUNNARU, DISTRICT PANNA (MADHYA
PRADESH).
.....APPELLANTS
(BY SHRI VIBUDHENDRA MISHRA - ADVOCATE)
AND
1. SHIVKALI SONKAR W/O LATE RAMESHWAR
SONKAR, AGED ABOUT 33 YEARS, HANAN NAGAR
NAI BASTI PS KOLGAWAN (UTTAR PRADESH)
2. SANGEETA SONKAR D/O LATE RAMESHWAR
SONKAR, AGED ABOUT 17 YEARS, OCCUPATION:
MINOR THROUGH NATURAL GUARDIAN
MOTHER SMT SHIV KALI HANUMAN NAGAR, NAI
BASTI, P.S. KOLGAWAN, DISTRICT SATNA (UTTAR
PRADESH)
3. PUNAM SONKAR D/O LATE RAMESHWAR
SONKAR, AGED ABOUT 15 YEARS, OCCUPATION:
MINOR THROUGH NATURAL GUARDIAN
MOTHER SMT SHIV KALI HANUMAN NAGAR, NAI
BASTI, P.S. KOLGAWAN, DISTRICT SATNA (UTTAR
PRADESH)
4. NEETU SONKAR D/O LATE RAMESHWAR
Signature Not Verified
SAN
SONKAR, AGED ABOUT 13 YEARS, OCCUPATION:
MINORS THROUGH NATURAL GUARDIAN
Digitally signed by ASHWANI PRAJAPATI
MOTHER SMT SHIV KALI HANUMAN NAGAR, NAI
Date: 2023.04.12 18:46:40 IST
BASTI, P.S. KOLGAWAN, DISTRICT SATNA (UTTAR
PRADESH)
2
5. ANJANI SONKAR D/O LATE RAMESHWAR
SONKAR, AGED ABOUT 11 YEARS, OCCUPATION:
MINORS THROUGH NATURAL GUARDIAN
MOTHER SMT SHIV KALI HANUMAN NAGAR, NAI
BASTI, P.S. KOLGAWAN, DISTRICT SATNA (UTTAR
PRADESH)
6. MAHRI SONKAR W/O CHANNA ALIAS
RAMCCHARAN SONKAR, AGED ABOUT 57 YEARS,
HANUMAN NAGAR, NAI BASTI, P.S. KOLGAWAN,
DISTRICT SATNA (UTTAR PRADESH)
7. CHANNA ALIAS RAMCCHARAN SONKAR S/O
SHEETAL SONKAR, AGED ABOUT 59 YEARS,
HANUMAN NAGAR, NAI BASTI, P.S. KOLGAWAN,
DISTRICT SATNA (UTTAR PRADESH)
8. DIVISIONAL MANAGER UNIVERSAL SOMPO
GENERAL INSURANCE CO. LTD. DIVI. OFFICE.
BHOPAL (MADHYA PRADESH)
9. PRAKASH SONKAR S/O MAIYADEEN @ MAINI
SONKAR, AGED ABOUT 38 YEARS, TARHATI
KALINJAR TEHSIL NARAYNI BANDA UP PRESENT
ADD. NAI BASTI P.S. KLGAWAN (UTTAR
PRADESH)
.....RESPONDENTS
(SHRI PARESH PAREEK - ADVOCATE FOR THE RESPONDENTS NO.1 TO
7 AND SHRI T.S. LAMBA - ADVOCATE FOR THE RESPONDENT NO.8 )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal is filed by the appellants-owner & driver of the offending
vehicle under Section 173(1) of the Motor Vehicles Act, 1988, being aggrieved
of the award dated 20.03.2015, passed by learned III Addl. Motor Accident
Claims Tribunal, Satna (M.P.), in MACC No.245/2011 and MACC
No.244/2011, on the ground that owner of the offending vehicle bearing
Signature Not Verified
SAN
registration No. MP-35-MA/2724, namely, Shri Ravi Shankar Biloha, has been
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.04.12 18:46:40 IST
falsely fastened with the liability to pay the compensation exonerating the
respondent No.3-insurance Company i.e. Universal Sompo General Insurance
Co. Ltd. Bhopal, overlooking the fact that cover note and the policy which were
issued by the respondents were brought on record by the owner as Ex.D/4 and
Ex.D/5, respectively along with the record of Claim Case No.245/2011.
2. It is submitted that respondent-insurance Company had never undertaken
police proceedings to register a criminal case despite the fact that their officer,
namely, Shri Rishi Shukla, had admitted this fact that despite coming to their
notice that the policy and the cover note were fake, they had not undertaken any
criminal action against the delinquent.
3. Placing reliance on the judgment of Delhi High Court in Ifco Tokio
General Insurance Co. Ltd. Vs. Ram Naresh (2015 SCC Online Delhi
9768), it is submitted that in absence of criminal proceedings, benefit of doubt
should go in favour of the appellant and appellant be exonerated from satisfying
the award and liability be fastened on the insurance Company as the vehicle in
question was duly insured with the insurance Company.
4. Shri T.S. Lamba, learned counsel for the insurance Company, in his turn,
submits that present appellant-owner was examined before the Court of law.
His evidence is available on record. In Ex.D/4, it is mentioned that policy was
issued from Indore office. Name of the IMD is mentioned as D.S. Thakral.
Sub IMD as Amit Thakral. Cover Note Number is mentioned as 0000851084.
Date of issuance is mentioned as 24.04.2011. In the policy, name of the
intermediary is mentioned as Allahabad Bank.
5. It is also submitted that in cross-examination when owner of the vehicle
Signature Not Verified
was asked to inform that from where he had obtained the policy, he said that he
SAN
Digitally signed by ASHWANI PRAJAPATI
obtained the policy from an agent, who was sitting in the office of Oriental
Date: 2023.04.12 18:46:40 IST
Insurance Company i.e. close to LIC office. This fact is admitted by him under
line No.3 and 4 of his cross-examination in the hands of the counsel for
respondent No.3 in para 6. He did not give name of the agent. This witness
further admitted that Ex.D/5 was also given to him by the same agent. Ex.D/5
was provided to him after fifteen days of providing Ex.D/4. He also admitted
that cover note and policy were given to him in an envelope. He furthe admitted
in para 7 that the place where agent was sitting contains a board of Oriental
Insurance. He further admits that since the agent was sitting in the Oriental
Insurance, therefore, he had presumed that he is agent of Oriental Insurance
Company.
6. Thus, reading this evidence, it is submitted that Oriental Insurance
Company agent has been mentioned, but no name is mentioned of the agent.
The cover note which is the subject matter of the controversy bearing
No.0000851084, is not pertaining to the policy Ex.D/5 as is evident from the
evidence of Shri Rishi Shukla, Officer of the insurance Company, who was
examined before the learned Tribunal. This witness has admitted that under
said cover note policy No.2312/51776444/00/000, was issued in favour of
Arvind Kumar, registering vehicle No. BR-31-K/3480, having period of
insurance from 24.10.2011 to 23.10.2012.
7. A perusal of the policy issued in favour of Arvind Kumar, is available as
Ex.D/3. This policy clearly bears cover note No.USGIA 0000851084. Thus, it
is evident that a fake cover note and a fake policy was issued in favour of the
appellant-owner and appellant's remedy is against the person from whom said
cover note and policy was obtained by him from the office of Oriental
Signature Not Verified
SAN Insurance Company and not against the present Insurance Company. Since
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.04.12 18:46:40 IST
respondent Insurance Company has been able to demonstrate beyond
reasonable doubt that said policy was not issued in favour of the present
appellant-owner, therefore, merely their failure to not to take action against the
delinquent accused by filing an appropriate criminal proceedings, will not
change the nature of the policy and the cover note. For that lapse, respondent-
Insurance Company will be still entitled to initiate criminal proceedings, so to
bring out the truth and equal liberty will be reserved in favour of the appellant
also that if he so desires, he may undertake appropriate criminal proceedings
against the so-called agent from whom he had obtained cover note and the
policy, who was sitting in the office of Oriental Insurance company. However,
on merits, since appellants have failed to make out any case to show
indulgence, appeal fails and is dismissed. Stay granted in favour of appellants
shall stand vacated.
8. Record of the Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
A.Praj.
Signature Not Verified
SAN
Digitally signed by ASHWANI PRAJAPATI
Date: 2023.04.12 18:46:40 IST
