Kamla Devi vs Sanju Kalar & Ors.
2023 Latest Caselaw 12882 MP

                                                     1
                          IN      THE   HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                  BEFORE
                                    HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                          ON THE 9 th OF AUGUST, 2023
                                          MISC. APPEAL No. 3295 of 2004

                         BETWEEN:-
                         KAMLA DEVI , W/O KANHAIYA, AGED ABOUT 46 YEARS,
                         R/O QUARTER NO.627, RANI DURGAWATI WARD,
                         SHOBHAPUR, POST PATHAKHEDA, TAHSIL AND
                         DISTRICT BETUL (MADHYA PRADESH)

                                                                             .....APPELLANT
                         (NONE)

                         AND
                         1.    SANJU KALAR, S/O BAL MUKUND, AGED 23
                               YEARS, R/O BEHIND PRIMARY SCHOOL,
                               BAGDONA, POST PATHAKHEDA, P.S. SARNI,
                               TAHSIL   AND  DISTRICT BETUL (MADHYA
                               PRADESH)

                         2.    RAMNATH SINGH S/O SANGRAM SINGH YADAV
                               QUARTER NO.175, SHOBHAPUR COLONY, POST
                               PATHAKHEDA, TEHSIL BETUL DISTRICT BETUL
                               (MADHYA PRADESH)

                         3.    NATIONAL INSURANCE CO. LTD. MANAGER
                               BHADBHADA ROAD, NEW MARKET, BRANCH
                               NO.1, BHOPAL (MADHYA PRADESH)

                                                                           .....RESPONDENTS
                         (SHRI RAKESH JAIN - ADVOCATE FOR THE RESPONDENT NO.3)

                                          MISC. APPEAL No. 1430 of 2005

                         BETWEEN:-
                         NATIONAL INSURANCE COMPANY LIMITED, THROUGH
                         DIVISIONAL MANAGER, 30, BHADBHADA ROAD, NEW
                         MARKET DIVISION OFFICE NO.1, BHOPAL (MADHYA
                         PRADESH)

Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 8/9/2023
7:52:35 PM
                                                        2
                                                                               .....APPELLANT
                         (BY SHRI RAKESH JAIN - ADVOCATE)

                         AND
                         1.    KANAHIYA SON OF SUKHDEO, AGED 50 YEARS,
                               RESIDENT   OF    QUARTER    NO.627, RANI
                               DURGAWATI WARD, SHOBHAPUR, POST PATHA
                               KHEDA, TAHSIL AND DISTRICT BETUL (MADHYA
                               PRADESH)

                         2.    SANJU KALAR S/O BALMUKUND, AGED ABOUT 23
                               YEARS, OPPOSITE PRIMARY SCHOOL, BAGDONA,
                               P.S. SARNI, DISTRICT BETUL (MADHYA PRADESH)

                         3.    RAMNATH SINGH S/O SANGRAM SINGH YADAV
                               QUARTER NO. 175, SHOBHAPUR COLONY, POST
                               PATHA KHEDA TEH. AND DIST. BETUL (MADHYA
                               PRADESH)

                                                                             .....RESPONDENTS
                         (NONE)

                                           MISC. APPEAL No. 1436 of 2005

                         BETWEEN:-
                         NATIONAL INSURANCE COMPANY LIMITED, THROUGH
                         DIVISIONAL MANAGER, 30, BHADBHADA ROAD, NEW
                         MARKET DIVISION OFFICE NO.1, BHOPAL (MADHYA
                         PRADESH)

                                                                               .....APPELLANT
                         (BY RAKESH JAIN - ADVOCATE)

                         AND
                         1.    KAMLA DEVI WIFE OF KANHAIYA, AGED 48
                               YEARS, RESIDENT OF QUARTER NO.627, RANI
                               DURGAWATI WARD, SHOBHAPUR, POST PATHA
                               KHEDA, TAHSIL AND DISTRICT BETUL (MADHYA
                               PRADESH)

                         2.    SANJU KALAR S/O BALMUKUND, AGED ABOUT 23
                               YEARS, OPPOSITE PRIMARY SCHOOL, BAGDONA,
                               P.S. SARNI, BETUL (MADHYA PRADESH)

                                                                             .....RESPONDENTS
                         (BY SHRI )
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 8/9/2023
7:52:35 PM
                                                            3
                               Th is appeal coming on for hearing this day, t h e court passed the
                         following:
                                                            ORDER

These appeals are filed by the claimant Kamla Devi and National Insurance Company Limited, against the award dated 28.09.2004, passed by learned I Addl. Motor Accident Claims Tribunal, Betul (M.P.), in Claim Case No.2/2004 and Claim Case No.3/2004.

Kamla Devi has filed appeal on the ground that she has sustained three fractures besides head injury as has been admitted by the Tribunal while discussing the fact in para 11 of the award, but has not awarded any amount under the head of fracture and other heads like physio therapy and future prospects. Meager award has been passed.

On the other hand, Insurance Company has filed appeals being aggrieved of the award on the ground that Kamla Devi herself admitted in para 9 of her cross-examination that the vehicle in question was taken on hire and she was not knowing the driver or owner of the offending vehicle.

Reading this cross-examination, as 12 persons were sitting in the Sumo Jeep, which was taken on rent, it is submitted by Shri Jain that the vehicle in question was insured for personal purpose and was being used for commercial purpose. Therefore, there is violation of the terms and conditions of the policy for which orders of at least pay and recover should be made and Insurance

Company should have been exonerated.

After hearing learned counsel for the parties and going through the record, it is evident that Tribunal has not awarded any amount under the head of fractures. There are three fractures as mentioned in para 11 of the award. Therefore, a sum of Rs.40,000/- (Rupees Forty Thousand) will be sufficient Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 8/9/2023 7:52:35 PM

under the head of fractures. Another sum of Rs.10,000/- (Rupees Ten Thousand) under the head of physio therapy and future prospects is enhanced.

Thus, there will be enhancement to the tune of Rs.50,000/- (Rupees Fifty Thousand), in favour of the claimant Kamla Devi. This additional amount will earn interest @ 6% per annum from the date of filing of the Claim Petition till the date of actual payment.

As far as appeals filed by the Insurance Company are concerned, since there is breach of the policy which could be proved by the Insurance Company, in terms of the judgment of Supreme Court in Pappu and others Vs. Vinod Kumar Lamba and another [(2018) 3 SCC 208], it is directed that Insurance Company shall satisfy the award and will be free to recover it from the owner- driver of the offending vehicle.

In above terms, appeals are disposed of.

Record of Claims Tribunal be sent back.

(VIVEK AGARWAL) JUDGE A.Praj.

Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 8/9/2023 7:52:35 PM