Javed Khan Alias Ballu vs Mohsin Khan (Dead) Thr. Abdul ...
2023 Latest Caselaw 6769 MP

                                                                       1
                                         IN    THE      HIGH COURT OF MADHYA PRADESH
                                                             AT JABALPUR
                                                                   BEFORE
                                                     HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                                            ON THE 26 th OF APRIL, 2023
                                                            MISC. APPEAL No. 866 of 2020

                                        BETWEEN:-
                                        1.    JAVED KHAN ALIAS BALLU S/O SHRI ABDUL
                                              GAFOOR, AGED ABOUT 24 YEARS, OCCUPATION:
                                              DRIVER MACHALI BAZAAR SEHORE TEHSIL
                                              BAJILA DISTT. SEHORE (MADHYA PRADESH)

                                        2.    MOH. SAHEED S/O SHRI MOH. YAKOOB, AGED
                                              ABOUT 40 YEARS, IN FRONT OF TAYABI
                                              BUILDING  ENGLISHPURA   TEH.  (MADHYA
                                              PRADESH)

                                                                                                .....APPELLANTS
                                        (BY SHRI SUNIL KUMAR MISHRA - ADVOCATE)

                                        AND
                                        1.    MOHSIN KHAN (DEAD) THR. ABDUL KAREEM S/O
                                              GAPPU KHAN, AGED ABOUT 63 YEARS,
                                              SEESGARPURA KABEETPURA ICHAWAR TEHSIL
                                              ICHWAR DISTT. SEHORE (MADHYA PRADESH)

                                        2.    SAHAJAHA W/O ABDUL KAREEM, AGED ABOUT 53
                                              YEARS, SEESGARPURA KABEETPURA ICHAWAR
                                              TEHSIL ICHWAR DISTT. SEHORE (MADHYA
                                              PRADESH)

                                        3.    HDFC GENERAL INSURANCE CO. LTD. 205 D.M
                                              TOWER JAHAGEER BALA CHOURAHA RACE
                                              COURSE ROAD (MADHYA PRADESH)

                                                                                               .....RESPONDENTS
                                        (SHRI SURENDRA PATEL - ADVOCATE FOR THE RESPONDENT NO. 2
                                        AND SHRI ROHIT JAIN - ADVOCATE FOR THE RESPONDENT NO.3)

Signature Not Verified
                                              This appeal coming on for admission this day, th e court passed the
  SAN




Digitally signed by ASHWANI PRAJAPATI
                                        following:
Date: 2023.04.26 19:11:47 IST

                                                                        ORDER

This appeal under Section 173(1) of the Motor Vehicles Act, 1988, is filed by the owner-driver of the offending vehicle, being aggrieved of award dated 05.11.2019, passed by learned III Addl. Motor Accident Claims Tribunal, Sehore, in Claim Case No.22/2018, on two grounds; that learned Tribunal has exonerated the Insurance Company, holding that driver of the offending vehicle Javed Khan @ Bablu was having a driving licence, having validity from 06.02.2009 to 14.01.2028, to drive a light motor vehicle (LMV) and a motorcycle with gear as per Ex.D/5. Accident took place on 06.06.2016 and he was driving a goods carriage vehicle and, therefore, in absence of endorsement, Insurance Company has been exonerated. Second ground is that claimants

could not prove that deceased Mohsin had travelled in the Bollero jeep as a owner of goods and was coming back after selling his goods as no recovery was made from the said Bollero jeep which had met with an accident causing death of Mohsin Khan.

2. It is submitted that there is evidence of PW/1 Shahjaha Bi, mother of the deceased that Mohsin was selling chicks and cocks and had travelled with them to Ladkui and while returning accident had taken place at Nasudiya Jod. This submission is not controverted to any cogent cross-examination.

3. Shri Rohit Jain, learned counsel for the Insurance Company, vehemently, opposes and submits that in absence of any cogent evidence to show that Mohsin was travelling in the transport vehicle as a owner of the goods, the Tribunal has rightly exonerated the Insurance Company. It is also submitted that there is no seizure of the so-called material which was taken by Mohsin for

Signature Not Verified SAN sale.

Digitally signed by ASHWANI PRAJAPATI

4. After hearing learned counsel for the parties and going through the record, Date: 2023.04.26 19:11:47 IST

first aspect of non-endorsement of a transport vehicle on the license is already

covered by the judgment of Hon'ble Supreme Court in case of National Insurance Company Vs. Mukund Devangan [(2017) 14 SCC 663] and, therefore, Tribunal erred in not relying on the judgment of Mukund Devangan (supra). Therefore, on this aspect of non-mentioning of endorsement to drive a transport vehicle, Insurance Company could not have been exonerated and on this ground, appeal deserves to be allowed.

5. Similarly, when evidence which was led in the case is examined, then it is apparent that Shahjahan Bi, mother of the deceased examined herself and deposed that her son had taken birds for sale to Ladkui and he was returning after selling the material. She clearly admitted even in cross-examination conducted by Shri Lamba for respondent No.3, that she had not received any unsold material. Same is the tone and terror of the evidence of Shri Fakhru Qureshi so-called eye witness of the incident. Insurance Company had examined Shri Anand Shrivastava, Assistant Law Manager of HDFC Company. He had though said that driver was not having valid driving licence and the licence was only valid for driving non-transport vehicle, but has not disputed this fact by producing any evidence on record that deceased was not travelling as a owner of the goods in the said Bollero vehicle.

6. In absence of any such material or the evidence of the eye witnesses or of the Investigating Officer to point out that deceased was not travelling as owner

of goods, in the light of the law laid down by the Supreme Court in Shivawwa and another Vs. Branch Manager, National Insurance Company Limited and another [(2018) 5 SCC 762], under Section 147 of the Motor Vehicles Signature Not Verified SAN Act, owner of goods is covered by implication and, therefore, there being Digitally signed by ASHWANI PRAJAPATI Date: 2023.04.26 19:11:47 IST contrary evidence to deny that deceased was not travelling along with the

goods, at the time of the accident, the finding was set aside by the Hon'ble Supreme Court and when ratio of this judgment is applied, then exoneration of the Insurance Company cannot be sustained.

7. Therefore, appeal deserves to be allowed and is allowed. It is directed that owner, driver and insurer will be jointly and severally liable to satisfy the award.

8. In above terms, appeal is disposed of.

9. Record of the Claims Tribunal be sent back.

(VIVEK AGARWAL) JUDGE A.Praj.

Signature Not Verified SAN

Digitally signed by ASHWANI PRAJAPATI Date: 2023.04.26 19:11:47 IST