Madhya Pradesh High Court
Rakesh Mittal vs Ghanshyam Rawat on 8 December, 2023
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
MISCELLANEOUS APPEAL No. 163 OF 2012
BETWEEN:-
SAURABH BANSAL S/O SHRI BACHAN LAL
BANSAL, AGE-27 YEARS, R/O NEW BLOCK,
NEAR BALNIKETAN SCHOOL DISTRICT
SHIVPURI (M.P.)
.....APPELLANT
(BY SHRI SUNIL JAIN - ADVOCATE)
AND
1 GHANSHYAM RAWAT S/O SHRI MAHARAJ
SINGH RAWAT OCCUPATION - DRIVER R/O
VILLAGE BARODI DISTRICT SHIVPURI
(M.P.)
2
KEDARI LAL GUPTA S/O RAMBHAROSI
LAL GUPTA AGE- 40 YEARS, OCCUPATION-
OWNER R/O APPROACH ROAD KOLARAS,
DISTRICT SHIVPURI (M.P.)
3 THE NEW INDIA INSURANCE CO. LTD.
BRANCH SHIVPURI (M.P.)
.....RESPONDENTS
(NONE FOR RESPONDENTS NO.1 AND 2)
(SHRI A.K.AGRAWAL - ADVOCATE FOR RESPONDENT NO.3)
AND
MISCELLANEOUS APPEAL No. 162 OF 2012
BETWEEN:-
RAKESH MITTAL S/O SHRI CHIRONGI LAL
MITTAL, AGE 36 YEARS, R/O KILA ROAD,
POHRI TEHSIL POHRI, DISTRICT SHIVPURI
(M.P.)
.....APPELLANT
(BY SHRI SUNIL JAIN - ADVOCATE)
AND
1 GHANSHYAM RAWAT S/O SHRI MAHARAJ
SINGH RAWAT OCCUPATION - DRIVER R/O
VILLAGE BARODI DISTRICT SHIVPURI
(M.P.)
2
KEDARI LAL GUPTA S/O RAMBHAROSI
LAL GUPTA AGE- 40 YEARS, OCCUPATION-
OWNER R/O APPROACH ROAD KOLARAS,
DISTRICT SHIVPURI (M.P.)
3 THE NEW INDIA INSURANCE CO. LTD.
BRANCH SHIVPURI (M.P.)
.....RESPONDENTS
(NONE FOR RESPONDENTS NO.1 AND 2)
(SHRI A.K.AGRAWAL - ADVOCATE FOR RESPONDENT NO.3)
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Reserved on : 05/12/2023
Delivered on : 08/12/2023
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These appeals having been heard and reserved for order coming on for
pronouncement this day, this Court passed the following order:-
ORDER
1. This common order shall govern disposal of M.A.No.162/2012
(Rakesh Mittal Vs.Ghanshyam Rawat and Ors) and M.A.No.163/2012
(Saurabh Bansal Vs. Ghanshyam Rawat and Ors), as both the appeals are
filed by the appellants/claimants under Section 173(1) of Motor Vehicles Act,
1988 against the common award dated 04.11.2011 under Section 166 of the
Motor Vehicles Act passed by the learned II nd MACT, Shivpuri in claim case
Nos.64/11 and 63/11.
2. It is alleged that on 07.11.2010 at Kulwara Crossing near Kolaras, District
Shivpuri the offending vehicle No.MP 33 G 0605 (Eicher Truck) owned by
respondent No.2, driven by respondent No.1 and insured with respondent No.3
when injured Saurabh Bansal and Rakesh Mittal were going on motorcycle
No.MP33 M 4160 and Eicher Truck (Metador) driver while driving the vehicle
rashly and negligently, hit the motorcycle due to which Saurabh as well as
Rakesh were injured.
3. It is a common ground in both the appeals that case has been dismissed
wrongly. Learned Claims Tribunal did not take the police investigation in
consideration, therefore, appeals have been filed seeking setting aside of the
order of learned Claims Tribunal and by allowing the claim petition, prayer is
made for granting compensation.
4. Non-applicant No.1 and 2 denied the factum of accident and submitted
that they had documents of vehicle and their vehicle was insured with the non-
applicant insurance company but they chose to remain absent on the date when
applicant witness was examined and therefore, they were proceeded ex parte by
learned Claims Tribunal. The question before this Court is that whether both the
appeals/ claims can be allowed.
5. Having heard learned counsel for the parties and perused the record.
6. During the course of argument after perusing the record on specific query
whether Eicher company officially makes any vehicle which is named as "Eicher
Metador" both learned counsel for the rival parties failed to submit that there is
in fact any such vehicle, therefore, the learned trial Court in considered view of
this Court has without giving a specific finding that in fact there is a vehicle
manufactured by Eicher which is called Eicher Metador has unnecessary held
that dehati nalisi report was regarding Eicher Metador but police has prosecuted
driver of the vehicle Eicher Truck in fact the insurance company had called
Ranbir Singh (witness) who investigated this case, on 18.10.2011 in Tribunal for
evidence but the insurance company failed to ask any specific question about the
controversy of "Whether the offending vehicle was Eicher Metador or Eicher
Truck", interestlingly on the date when witness Ranbir Singh was examined by
insurance company non-applicant No.1 and 2 were present as reflected from the
deposition sheet, although in order sheet they are shown to be ex parte therefore,
whether this is a typographical error or something else but claimants cannot be
penalised for it.
7. Though both the parties are filed written synopsis the learned counsel for
the appellant has relied on the judgment of Hon'ble Supreme Court in Janabai
and Ors. Vs ICICI Lambord Insurance Company Ltd.
MANU/SC/0985/2022 in which in para 9 Hon'ble Apex Court has held that "it
has also come on record that the owner has not made any complaint in respect of
false implication of his vehicle or the driver" and Hon'ble Supreme Court
allowed the appeal of the claimants and directed the compensation to be paid.
8. In the case under appeal before this Court also nothing is on record as to
whether owner or driver of Eicher Truck has complained about false implication
of vehicle.
9. Learned counsel for insurance company has relied on judgment of this
Court in Oriental Insurance Company Vs Mahila Kalavati MACT 2015 (1)
MP 207 in which an FIR was lodged against unknown vehicle, natural witnesses
were concealed, evidence of eye witness found doubtful, statement of IO was
not recorded and truck was seized after six months then in the facts and
circumstances of the case, the Coordinate Bench of this Court has held that it
was not proved that accident was caused by the offending vehicle but in facts
and circumstances of that case does not match with the circumstances of this
case before this Court for the reasons mentioned above, therefore, this citation is
on no help to the insurance company.
10. After perusing the record and hearing both the parties, this Court is of
considered view that finding of the trial Court on issue No.1 is incorrect and
therefore, it is held that on 17.11.2010 at about 1:30 PM near Kulwara while
claimants Rakesh and Saurabh were going on motorcycle No. MP 33 M 4160,
non- applicant No.1-Ghanshyam Rawat drove rash and negligent Eicher Truck
No.MP 33 G 0605 and caused the accident and injured the claimants.
11. Findings on issue No.2 is not against the claimants regarding finding on
issue No.3 as per Para 30, the trial Court has held that on the basis of oral and
evidence from para 21 to 29, Rakesh and Saurabh are entitled for the following
amounts :-
Rakesh :
Medical expenses - Rs.51,000/-
Loss of business - Rs.48,000/-
Pain and suffering - Rs.30,000/-
Attender and travelling expenses - Rs.10,000/-
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Total Rs.1,39,000/-
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Saurabh :
Medical expenses - Rs.23,000/-
Loss of business - Rs.12,000/-
Pain and suffering - Rs.20,000/-
Special died and travelling expenses - Rs.5,000/-
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Total Rs.60,000/-
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12. Compensation as above is just and proper therefore, both the claimants are
entitled to the compensation as mentioned above in para 11 payable from the
insurance company as there is no breach of insurance policy as per the finding of
issue No.5.
13. Resultantly, both the appeals are allowed to the extent indicated above and
the amount shall be paid along with an interest of 6 %.
14. Accordingly, appeals are disposed of.
(AVANINDRA KUMAR SINGH)
JUDGE
Adnan
ADNAN HUSAIN
ANSARI
2023.12.12
12:49:38 +05'30'
