The New India Assurance Co.Ltd. vs Stm. Asha Bai
2023 Latest Caselaw 14056 MP

                                                           1
                            IN    THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                              ON THE 28 th OF AUGUST, 2023
                                              MISC. APPEAL No. 1628 of 2016

                           BETWEEN:-
                           THE NEW INDIA ASSURANCE CO.LTD. THR.
                           DIVISIONAL MANAGER THR. DIVISIONAL MANAGER,
                           NEW INDIA ASSURANCE COMPANY LTD., DIVISIONAL
                           OFFICE, 290 NAPIER TOWN, JABALPUR, MADHYA
                           PRADESH.

                                                                                     .....PETITIONER
                           (BY SHRI DINESH KAUSHAL - ADVOCATE)

                           AND
                           1.    SMT. ASHA BAI W/O SARVAN PUROHIT, AGED
                                 ABOUT 55 YEARS, 22 VILL. GIRHANI, POST
                                 BHARCHHA, TEH. KHURAI, DISTT. SAGAR,
                                 MADHYA PRADESH.

                           2.    SARVAN S/O GAURISHANKAR PUROHIT, AGED
                                 ABOUT 60 YEARS, 22 VILL. GIRHANI. POST
                                 BHARCHA, TEH. KHURAI. DISTT. SAGAR,
                                 MADHYA PRADESH.

                           3.    SHIVSHANKAR S/O SARVAN PUROHIT, AGED
                                 ABOUT 23 YEARS, 22 VILL. GIRHANI. POST
                                 BHARCHA, TEH. KHURAI, DISTT. SAGAR,
                                 MADHYA PRADESH.

                           4.    MANOJ KUMAR S/O SALIKRAM DIXIT VILLAGE
                                 TAJPURA. POST BHARCHA. PS KHIMLASA, TEH.
                                 KHURAI, DISTT. SAGAR, MADHYA PRADESH.

                                                                                  .....RESPONDENTS
                           (BY SMT. SEEMA PANDEY - ADVOCATE )

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

Signature Not Verified Signed by: KRISHNA SINGH Signing time: 8/31/2023 11:46:07 AM

This appeal is filed being aggrieved of the award dated 30.01.2016, passed by learned Second Additional Motor Accident Claims Tribunal, Khurai, District Sagar in Claim Case No.59/2014 on the ground that its a case of false implication. In the document Exh.P-5 prepared at a private hospital in BS, there is a mention of the fact that as per the patient and his attendant, it was a case of fall from roof at his home. Thus, placing reliance on the said document, it is submitted that a case of fall from roof has been turned into an accident in an arbitrary and illegal manner. Therefore, the impugned award deserves to be set aside and is set aside.

It is submitted that no permit was produced by the owner driver and

there is a certificate Exh.P-6 issued by the concerned R.T.O. that there was no permit existing at the time of the accident i.e, 09.12.2012 for the Vehicle No.MP-15.T-2410, and since the Certificate issued by the RTO, Sagar, is on record, there is breach of policy and therefore, Insurance Company should be exonerated for at best, there should be an award of pay and recovery.

Mrs. Seema Pandey, learned counsel for the claimants supports the award.

After hearing learned counsel for the parties and going through the record, it is evident that Exh.P-4 is the document first in time as was prepared at a Government Hospital. This document clearly makes mention of history of fall in injury. There is no mention of the fact of fall from the roof. Condition of the patient was shown as unconscious. This fact is also mentioned in the Exh.P-5. Condition of the patient was shown as unconscious. Then it is not relevant that how an unconscious patient can reveal that he had fallen from the roof of his house. There is no mention of the name of the Attendant. Thus, the writing on Annexure P-5 "as per Pt, and his attendant, alleged history of Pt. was fall from Signature Not Verified Signed by: KRISHNA SINGH Signing time: 8/31/2023 11:46:07 AM

roof at his home at about 5 p.m. on 09.12.2012 followed by complaint of unconsciousness" is not corroborated in as much as when patient was unconscious then he could not have given his history and there is basic flaw in the history recorded by Dr. G.R. Adloc at LBS Hospital.

Insurance Company examined its Investigator before the learned Tribunal that Investigator namely Shri Surendra Guupta did not say anything about his investigation in regard to the nature of the accident as to whether it was fall from the roof or fall from the Vehicle. Therefore, Insurance Company inspite of have sufficient opportunity to lead evidence and prove that it was a case of fall from roof as mentioned in Exh.P-5 could not substantiate the same and therefore, impugned award cannot be interfered with merely on the asking of the Insurance Company which has failed to discharge its burden. There is no evidence to the contrary on record.

However, as far as second aspect of exoneration that Vehicle in question was not having permit is concerned, that has some merit. As is evident from Exh. P-6 that the Vehicle was not having permit to ply on the date of the accident in the light of the judgment of Supreme Court in Pappu and Others Vs. Vinod Kumar Lamba (2018) 3 SCC 208, it is directed that Insurance Company will pay the compensation and shall be entitled to recover it from the owner driver of the offending vehicle.

In the above terms, appeal is allowed in part and disposed of. Record of Claims Tribunal be sent back.

(VIVEK AGARWAL) JUDGE veni Signature Not Verified Signed by: KRISHNA SINGH Signing time: 8/31/2023 11:46:07 AM

Signature Not Verified Signed by: KRISHNA SINGH Signing time: 8/31/2023 11:46:07 AM