Branch Manager vs Priya
2023 Latest Caselaw 6446 MP

                                                                  1
                                      IN    THE     HIGH COURT OF MADHYA PRADESH
                                                         AT JABALPUR
                                                               BEFORE
                                                 HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                        ON THE 21 st OF APRIL, 2023
                                                       MISC. APPEAL No. 421 of 2022

                                     BETWEEN:-
                                     BRANCH MANAGER NATIONAL INSURANCE CO.LTD.
                                     BUSINESS CENTRE, ASHOK GARDEN, BLOCK C-10,
                                     NEAR CAPITAL PETROL PUMP RAISEN ROAD BHOPAL
                                     (MADHYA PRADESH)

                                                                                         .....PETITIONER
                                     (BY SMT. AMRIT KAUR RUPRAH - ADVOCATE )

                                     AND
                                     1.    PRIYA W/O DILIP YADAV DECEASED, AGED
                                           ABOUT 25 YEARS, OCCUPATION: NIL H.NO. N-67,
                                           WARD NO.8, VILLAGE NADRA, TEH.HADIYA,
                                           P.S.TIMARNI (MADHYA PRADESH)

                                     2.    NEHAL D/O DILIP YADAV, AGED ABOUT 5 YEARS,
                                           OCCUPATION: MINOR THROUTH MOTHER PRIYA
                                           YADAV HOUSE NO. N67 WARD NO. 8 VILLAGE
                                           NADRA TEHSIL HADIYA THANA TIMRANI
                                           (MADHYA PRADESH)

                                     3.    MAMTA W/O HARI OM YADAV, AGED ABOUT 50
                                           YEAR S, OCCUPATION: GAULI HOUSE NO. N-67
                                           WARD NO. 8 VILLAGE NADRA TEHSIL HADIYA
                                           THANA TIMRANI (MADHYA PRADESH)

                                     4.    HARI OM YADAV S/O AKKAL SINGH YADAV,
                                           AGED ABOUT 54 YEARS, OCCUPATION: GAULI
                                           HOUSE NO. N-67 WARD NO. 8 VILLAGE NADRA
                                           TEHSIL HADIYA THANA TIMRANI (MADHYA
                                           PRADESH)

                                     5.    NEERAJ S/O HARI OM YADAV, AGED ABOUT 28
                                           YEAR S, OCCUPATION: GAULI HOUSE NO. N-67
Signature Not Verified
  SAN                                      WARD NO. 8 VILLAGE NADRA TEHSIL HADIYA
                                           THANA TIMRANI (MADHYA PRADESH)
Digitally signed by AMITABH RANJAN
Date: 2023.04.25 12:55:04 IST

                                     6.    KAILASH BHALAVI S/O DASRU SINGH, AGED
                                                                   2
                                           ABOUT 38 YEARS, OCCUPATION: GOND DHANA
                                           CHIKLI P.S SHAHPUR (MADHYA PRADESH)

                                     7.    JAIN CONTRUCTION PROPRIETOR MUNNALAL @
                                           SAKUNLAL HOUSE NO. 283 MANGALMAYA NIWAS
                                           COLONY KULADI ROAD (MADHYA PRADESH)

                                                                                                    .....RESPONDENTS
                                     (RESPONDENT No. 1 BY SHRI ARPAN SHRIVASTAVA - ADVOCATE )
                                     (RESPONDENTS No. 3 TO 5 BY MS. JAYALAKSHI IYER - ADVOCATE)

                                           This appeal coming on for admission this day, th e court passed the
                                     following:
                                                                          ORDER

This appeal is filed by the Insurance Company being aggrieved of impugned award dated 22.10.2021 passed by learned Motor Accident Claims

Tribunal, Betul in MACC No. 155/2020 on the ground that accident took place on 13.02.2020. FIR was lodged on the same day against an unknown vehicle and later on, on 12.05.2020 said dumpher which is insured with the appellant Insurance Company was falsely implicated. It is submitted that, it is a case of false implication and therefore, impugned award be set-aside. It is also submitted that even on merits, award is on the higher side in as much as wife of the deceased Dilip Yadav has been given compassionate appointment and that aspect too has not been taken into consideration by the learned Tribunal. It is also submitted that an application under Order 16 Rule 21 CPC was filed before the learned Claims Tribunal seeking summoning of co-passenger in the car, in which the deceased was travelling but that application was not entertain causing prejudice to the appellant.

Ms. Jayalakshmi Iyer, learned counsel for respondents No. 3 to 5 and Signature Not Verified SAN Shri Arpan Shrivastava, learned counsel for respondent No. 1 & 2 supports the

Digitally signed by AMITABH RANJAN Date: 2023.04.25 12:55:04 IST award and submits that there is no illegality in the said award.

After hearing learned counsel for the parties and going through the records, claimants examined one Shri Sunil @ Babloo Shukla son of Rakesh Shukla who claimed that he had seen the accident while returning from the house of his co-brother from Harda and he had noted the number of the offending vehicle. Beauty of the cross-examination which was conducted on behalf of the Insurance Company is that they made the witness to admit all those things which appears to be against the Insurance Company and the owner of the Dumpher. He could extract the color of the offending car, color of the dumpher, direction of the incident and also the fact that actually it was dumpher which was at fault and not the car which was coming from the opposite side. Thus, leaving no scope for the Insurance Company or the owner to prove otherwise that it was a case of contributory negligence and not of a composite negligence. This witness has also said that Nattu Dhaba is situated at a distance of 1/2 k.m. and at the time of the accident, Nattu Dhabe Wala had also reached at the place of the indent. Thus, onus was on the Insurance Company to have called this Nattu Dhabe Wala in the witness box to deny the story of the claimants but no such attempt was made. In fact, Insurance Company did not bother even to examine its Investigating Officer who had been investigated the matter to prove the factum of false implication. It also did not exhibit the investigation report through proper and cogent reason.

Thus, by taking all these facts into consideration, there is an eyewitness account and Hon'ble the Supreme Court in the case of Anita Sharma and others Vs. New India Assurance Company Ltd. and another decided on

Signature Not Verified SAN 08.12.2020 has recently held that in MACT Case standard of proof is such of

Digitally signed by AMITABH RANJAN preponderance of probabilities rather than beyond the reasonable doubt. Date: 2023.04.25 12:55:04 IST

Hon'ble Supreme Court has held that one needs to be mindful that the approach

and the role of the Courts while examining evidence in accident claim cases ought not to be to find all with non-examination of some best witnesses as may happen in a Criminal Trial but instead should be only to analyze the material placed on record by the parties to ascertain that whether the claimant's version is more likely than not proved. A some what similar situation was dealt with by Hon'ble Supreme Court in Dulcina Fernandes & Ors. Vs. Joaquim Xavier & another (2013)10 SCC 646.

Taking cue from the judgment of Hon'ble Supreme Court in the case of Anita Sharma (supra) and Dulcina Fernandes (supra), I am of the opinion that on the touch stone of preponderance of probabilities, accident could not be disputed so also the involvement of offending vehicle insured with the appellant.

Thus, the appeal is devoid of merits deserves to be dismissed and the same is accordingly dismissed.

Record of the Tribunal be sent back if not required in any other case.

(VIVEK AGARWAL) JUDGE Amitabh

Signature Not Verified SAN

Digitally signed by AMITABH RANJAN Date: 2023.04.25 12:55:04 IST