Iffco Tokyo General Insurance Co. ... vs Smt. Phhowati @ Fulmati Bai
2023 Latest Caselaw 12636 MP

                                                        1
                            IN    THE     HIGH COURT OF MADHYA PRADESH
                                                AT INDORE
                                                     BEFORE
                                           HON'BLE SHRI JUSTICE HIRDESH
                                              ON THE 7 th OF AUGUST, 2023
                                             MISC. APPEAL No. 1386 of 2014

                           BETWEEN:-
                           IFFCO TOKYO GENERAL INSURANCE CO. LTD.
                           THROUGH MANAGER 7 RACE COURSE ROAD INDORE
                           (MADHYA PRADESH)

                                                                               .....APPELLANT
                           (SHRI SUDARSHAN PANDIT, LEARNED COUNSEL FOR THE APPELLANT)

                           AND
                           1.    SMT. PHOOLWATI@ FULMATI BAI W/O LATE
                                 HEMRAJ BARKHADE, AGED ABOUT 40 YEARS,
                                 OCCUPATION: HOUSEWIFE 801 NAI POLICE
                                 COLONY,MANDSAUR (MADHYA PRADESH)

                           2.    KU GARIMA (MINOR THR. SMT. PHOOLWATI@
                                 FULMATI BAI) D/O LATE HEMRAAJ BARKHADE,
                                 AGED ABOUT 12 YEARS, OCCUPATION: STUDENT
                                 801, NAI POLICE COLONY,MANDSAUR (MADHYA
                                 PRADESH)

                           3.    KU NISHA(MINOR THR. SMT. PHOOLWATI
                                 @FULMATI BAI) D/O LATE HEMRAAJ BARKHADE,
                                 AGED ABOUT 9 YEARS, OCCUPATION: STUDENT
                                 801 NAI POLICE COLONY,MANDSAUR (MADHYA
                                 PRADESH)

                           4.    ROHIT (MINOR THR. SMT. PHOOLWATI @
                                 FULMATI BAI) S/O LATE HEMRAAJ BARKHADE,
                                 AGED ABOUT 7 YEARS, OCCUPATION: STUDENT
                                 801 NAI POLICE COLONY,MANDSA (MADHYA
                                 PRADESH)

                           5.    PRASHANT (MINOR THR. SMT. PHOOLWATI@
                                 FULMATI BAI) S/O LATE HEMRAAJ BARKHADE,
                                 AGED ABOUT 3 YEARS, OCCUPATION: NIL 801 NAI
                                 POLICE    COLONY,MANDSAUR         (MADHYA
                                 PRADESH)

Signature Not Verified
Signed by: REENA JOSEPH
Signing time: 10-08-2023
10:16:14
                                                          2
                           6.     PRITI (MINOR THR. SMT PHOOLWATI@ FULMATI
                                  BAI) D/O LATE HEMRAJ BARKHADE, AGED
                                  ABOUT 3 YEARS, OCCUPATION: NIL 801 NAI
                                  POLICE COLONY,MANDSA (MADHYA PRADESH)

                           7.     RAEES S/O LATIF DHATIYA MUSALMAN, AGED
                                  ABOUT 19 YEARS, OCCUPATION: LABOURER
                                  MULTANPURA, TEH- MANDSAUR (MADHYA
                                  PRADESH)

                           8.     MUJAFFAR S/O RASHID MUSLIM OCCUPATION:
                                  OWNER OF VEHLCE MULTANPURA, TEH-
                                  MANDSAUR (MADHYA PRADESH)

                           9.     FUNDIBAI W/O GUBARAJSINGH BARKHADE
                                  OCCUPATION: HOUSE WIFE VILL- KORBI, TEH-
                                  NIWAS,DISTT- MANDLA (MADHYA PRADESH)

                                                                                                          .....RESPONDENTS
                           (SHRI SAMEER VERMA, LEARNED COUNSEL FOR THE RESPONDENT
                           NO.1)
                           ---------------------------------------------------------------------------------------------------
                                  This appeal coming on for orders this day, the court passed the
                           following:
                                                                         ORDER

This appeal has been filed by the appellant/Insurance Company under Section 173(1) of the Motor Vehicles Act, 1988 being aggrieved by the award dated 26.03.2014 passed by Motor Accident Claims Tribunal, Mandsaur in Claim Case No.58/2011 for exonerating the appellant from the liability.

2. In this case date of accident, insurance is not in dispute. As per the award of the Tribunal compensation of Rs.25,24,808/- with interest on the death of Hemraj in the motor accident has been awarded.

3. Learned counsel for the appellant contended that the Tribunal erred in appreciating the fact that the police imposed section 3/181 of the Motor Vehicles Act for non-production of the driving license before the police. No clarification has been given by the driver Raees/respondent no.7 that why the

Signature Not Verified driving license was not produced at the time of investigation. It is clear that Signed by: REENA JOSEPH Signing time: 10-08-2023 10:16:14

driving license was not existing on the date of accident. He further submitted that the Tribunal wrongly relied upon the driving license Ex.D-1 and D-2 which was issued after the date of accident. The driving license produced was a conversion of old driving license but the old driving license was not produced before the Tribunal by the RTO as well as by the driver of the offending vehicle because the same was prepared without any basis and document. He further submits that RTO during examination in chief had denied about having any old driving license on the basis of which driving license so produced was renewed after date of loss. It is also submitted that driver of the offending vehicle/respondent no.7 was not possessing driving license at the time of the accident and the same was prepared falsely to avoid liability and the staff of the RTO was also involved in the conspiracy in common intention in preparing the forged license. Hence, the appellant prays for setting aside the award and exonerate the appellant from the liability.

4. On the other hand, learned counsel for the respondents submits that the award of the Tribunal is just and proper and prays for dismissal of the appeal of the Insurance Company.

5. After hearing the learned counsel for the parties and on perusal of the record it is found that the only point involved in this appeal is whether the driving license of respondent no.7 is fake nor not.

6. Learned counsel for the appellant submits that the age of respondent no.7 is 19 as written in the charge sheet filed by the police and in Ex.D-1 and D- 2 which was issued on 31.03.2005 which means that on the date of issuance of Ex.D-1 and D-2, the driver/respondent no.7 was minor.

7. On perusal of the record of the Tribunal it is found that respondent Signature Not Verified Signed by: REENA JOSEPH Signing time: 10-08-2023 10:16:14

no.7 was examined as a witness and he stated his age as 29 years on the date he gave his evidence before the Tribunal i.e. on 26.09.2013 and the accident occurred on 30.01.2011. It means that on the date of accident, he was 26 years old.

8. Section 101 and 102 of the Indian Evidence Act reads as under:-

"Section 101 in The Indian Evidence Act, 1872

101. Burden of proof.--Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

Section 102 in The Indian Evidence Act, 1872

102. On whom burden of proof lies.--The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side."

9. In view of the aforesaid provisions of Indian Evidence Act, the onus lies upon the Insurance Company to prove that on the date of issuance of the driving license, respondent no.7 was minor, but witness examined on behalf of the Insurance Company Rishab Jain stated in his cross examination that Ex.D-2 is fake because date of birth of respondent no.7 has been mentioned wrongly in Ex.D-2, but he accepted that he had filed the document in relation of date of birth of respondent no.7 before the Tribunal. The Insurance Company has not examined the police officer, who wrote the age of respondent no.7 in the charge sheet, the Investigating Officer who investigated the criminal case registered against the respondent no.7. They were the best witnesses in this regard, therefore, adverse inference has been drawn against the Insurance Company. Signature Not Verified Signed by: REENA JOSEPH Signing time: 10-08-2023 10:16:14

The witness Sher Singh, AG-II, RTO, Jhabua was examined by the Insurance Company and he categorically stated in the examination in chief as under:-

8- ;g ckr lgh gS fd pkyd dk yk;lsal cukrs le; vad lwph vkSj LFkkbZ fuokl ds laca/k es nLrkost ysrs gS tks vkosnu ds lkFk is'k gksrs gSA ;g dguk xyr gksxk fd esjs }kjk pkyd jbZl ds yk;lsal lacaf/kr bUnzkt bl jftLVj ls QkM k x;k gSA ;g dguk Hkh xyr gksxk fd vkj- 1411@05 dk yk;lsal pkyd jbZl dks tkjh ugh fd;k x;kA ;g dguk Hkh xyr gksxk fd pkyd jbZl dks LekVZ dkMZ QthZ tkjh fd;k x;k gSA pkyd jbZl dks izn'kZ Mh@2 dk LekVZ dkMZ tkjh djus dh fnukad 16-03-12 gSA ;g ckr lgh gS fd Mh@1 esa b';w fnukad 15-

03-12 dk dksbZ mYys[k ugh gSA ;g lgh gS fd Mh@1 ds fjdkMZ esa b';w djus dh fnukad 21-03-12 mYysf[kr gSA ;g dguk Hkh xyr gksxk fd Mh@1 dk fjdkMZ dwV jfpr gSA ih- lh- ls lacaf/kr fjdkMZ yk;lsal 'kk[kk esa j[kk tkrk gSA pkyd jbZl ds vkj-&1411 ls lacaf/kr esjs dk;kZy; esa gksxhA og QbZy eSa vkt lkFk ysdj ugh vk;k gwaA ;g dguk xyr gS fd Mh@1 dk fMVsy vkSj Mh@2 dk yk;lsal gekjs dk;kZy; ls vlR; tkjh fd;k gSA

10. Perusing the aforesaid evidence, in para 8 the witness has categorically denied the suggestion given by the Insurance Company. He is the witness of Insurance Company and he has not supported the evidence of Insurance Company and he was not declared hostile therefore, there is no reason to disbelieve this witness. So perusing the evidence of Sher Singh, AG- II, RTO, Ex.D-2 was issued properly from RTO Office, Jhabua and the Insurance Company was unable to examine the Investigating Officer, on the point, as to on what basis he wrote the age of respondent no.7 in charge sheet as 19 years. Raees in his Oath statement stated that he is 26 years old at the time of accident.

11. In view of the aforesaid discussion, it is clear that Insurance Company is unable to prove that respondent no.7 was minor at the time of issuance of Ex.D-1 and D-2 in 2005 and also was unable to prove that the Signature Not Verified Signed by: REENA JOSEPH Signing time: 10-08-2023 10:16:14

driving license of respondent no.7 was fake and forged, therefore, the finding of the Tribunal on this point is perfectly legal.

12. Resultantly, in the opinion of this Court, no case for interference in the impugned award is made out. Hence, this appeal is dismissed.

(HIRDESH) JUDGE RJ

Signature Not Verified Signed by: REENA JOSEPH Signing time: 10-08-2023 10:16:14