Madhya Pradesh High Court
Diamond Stone Crusher vs Anamika on 5 December, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 5 th OF DECEMBER, 2023
MISC. APPEAL No. 975 of 2017
BETWEEN:-
DIAMOND STONE CRUSHER THR. PRO. SHRIKANT
DIXIT S/O LATE BHASKAR DIXIT A/A 45 TIKURIYA
MOHALLA PANNA TEH. AND DISTT. PANNA (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ABHISHEK ARJARIA - ADVOCATE)
AND
1. ANAMIKA W/O LATE PUSHPENDRA SINGH, AGED
ABOUT 25 YEARS, VILLAGE KALYANPUR P.S.
GOURIHAR, DISTT. CHHATARPUR AT PRESENT
VILLAGE KALYANPUR POST JANAKPUR TEH. AND
DISTT. PANNA (MADHYA PRADESH)
2. MAYADEVI @ KANTO W/O BRAJSINGH YADAV,
AGED ABOUT 8 YEARS, VILLAGE KALYANPUR P.S.
GOURIHAR, DISTT. CHHATARPUR (MADHYA
PRADESH)
3. BRAJSINGH YADAV S/O RAGHUNATH SINGH
YADAV, AGED ABOUT 56 YEARS, VILLAGE
KALYANPUR P.S. GOURIHAR, DISTT.
CHHATARPUR (MADHYA PRADESH)
4. CHAINU ADIWASI S/O SAGRA ADIWASI, AGED
ABOUT 1 YEARS, N.MD.C MAJHGAWAN PANNA,
AT PRESENT R/O VILL. MOHANDRA, P.S.
SIMARIYA, (MADHYA PRADESH)
5. BRANCH MANAGER CHOLA MANDLAM
GENERAL INSURANCE CO.LTD. BRANCH OFFICE
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(RESPONDENT NOS.1 TO 3 BY SHRI SURYA KUMAR PATEL - ADVOCATE)
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 05-12-
2023 18:30:44
2
(RESPONDENT NO.5 BY SHRI T.S.LAMBA - ADVOCATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal is filed by the owner of the offending vehicle being aggrieved
of award dated 6.4.2017 passed by learned Member, Motor Accident Claims
Tribunal, Panna whereby learned Claims Tribunal has though fastened liability
on the owner and driver of the offending vehicle to pay compensation in favour
of the claimants but has exonerated the insurance company on the ground that
the deceased was an unauthorised passenger in the goods carrying vehicle and,
therefore, he is not covered under the terms and conditions of the insurance
policy.
Learned counsel for the appellant places reliance on Lakhmi Chand
versus Reliance General Insurance (2016) 3 SCC 100 and submits that
unless breach is fundamental, that is not sufficient to deny compensation
inasmuch as violation of the provisions as contained in Section 149 of the
Motor Vehicles Act, 1988 should be a fundamental breach. He also places
reliance on the provisions as contained in Section 149(2)(a) of the Motor
Vehicles Act, 1988 and reading various clauses submits that since the case of
the insurance company will not fall within the exception mentioned in Clause (a)
of Sub-Section (2) of Section 149 of the Motor Vehicles Act, 1988 then the
insurance company was not entitled to repudiate the claim.
Learned counsel for the appellant submits that it was the duty of the
insurance company to prove its case.
The aforesaid submission made by learned counsel for the appellant has
no foundation because the insured is required to prove that his employee had
not breached the terms and conditions of the insurance policy and was covered
under the coverage for which the insurance policy was taken.
Learned counsel for the Insurance Company places reliance on the
judgment of Ramashray Singh versus New India Assurance Company
Limited & Others (2003) 10 SCC 664 to contend that the expression ''any
person'' and ''any passenger'' in Clauses (i) & (ii) of Section 147(1)(b) of the
Motor Vehicles Act, 1988 covers only a driver, a conductor or examiner of the
tickets and no other employee such as cleaner (khalasi) is covered.
I have heard learned counsel for the parties and gone through the record.
It is true that the insurance policy Exhibit D/5 is a comprehensive
insurance policy and that policy has been issued and it covers the risk of 1
cleaner, 3 collies and 1 paid driver. However, fact of the matter is that in the
evidence of one of the employee of the present appellant, namely, Pramod
Singh, it has come on record that the deceased was working as a Munim and
when he was travelling in the truck, he was acting as a cleaner for which he was
paid extra salary. Thus, it is evident that though Pramod Singh has been
examined by the claimants but he being an employee of the present appellant,
his evidence cannot be discarded lightly.
Chainu Singh (DW.1), who was driver of the offending vehicle admits in
Paragraph No.7 of this deposition that he had no knowledge about the fact that
Pushpendra Singh was working as a cleaner (khalasi). In view of such fact
that he has clearly admitted that he had not knowledge about the status of
Pushpendra Singh as cleaner then it is evident that the cleaner is deployed to
work in coordination with the truck driver and if the truck driver has denied
factum of the deceased being employee as a cleaner then his evidence cannot be
discarded lightly.
The owner of truck Shrikant Dixit has though mentioned in Paragraph
No.3 of his examination-in-chief that the deceased was working as a cleaner and
he was being paid Rs.6,000/- per month salary but he has not produced books
of accounts like ledger and cash book to show that what status of Pramod
Singh is shown in the ledger.
Though learned counsel for the appellant submits that the appellant's firm
is a proprietor firm but it is true that even the proprietor firms are required to
maintain books of accounts.
Thus, in absence of the case of the appellant that no books of accounts
were maintained, the evidence of Chainu Singh when read with Pramod Singh
makes it clear that the deceased was termed as cleaner so to claim benefit of
coverage under the insurance policy without adducing any evidence to this
effect and, therefore, when tested, the impugned award cannot be faulted with
especially the judgment rendered in Lakhmi Chand versus Reliance General
Insurance (supra) has no application to the facts and circumstances of the
present case inasmuch as in Lakhmi Chand versus Reliance General
Insurance (supra), the facts were different. The vehicle in question, which had
met with an accident, was carrying more passengers than permitted capacity in
goods carrying vehicle by the insured and that was termed to be not to be a
fundamental breach of the insurance policy.
However, in the present case, the goods carrying vehicle was carrying a
person for whom there was no coverage. He was not a third party to be treated
to be comprehensively insured and, therefore, the judgment rendered in
Lakhmi Chand versus Reliance General Insurance (supra) will not be of
any assistance to learned counsel for the appellant.
Accordingly, this appeal fails and is dismissed.
Let record of the Claims Tribunal be sent back.
(VIVEK AGARWAL)
JUDGE
amit
