Madhya Pradesh High Court
The New India Assurance Co.Ltd. vs Lata on 11 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 11 th OF DECEMBER, 2023
MISC. APPEAL No. 647 of 2016
BETWEEN:-
THE NEW INDIA ASSURANCE CO.LTD. THR. ITS DEPUTY
MANAGER B.K. MENON S/O P.R. MENON A/A 56 THE
NEW INDIA ASSURANCE CO.LTD. BRANCH OFFICE
NEAR SHANKAR NAGAR CROSS DHARAMPETH
NAGPUR M.H. THR. R/O T.P. HUB NAPIER TOWN
JABALPUR (MADHYA PRADESH)
....APPELLANT
(BY SHRI SOM MISHRA - ADVOCATE)
AND
1. LATA W/O LATE RAJESH @ RAJESH SINGH
KHAN D AGAD E R/O SILLEVADA NAGPUR AT
PRESENT C/O SHRI NATTHU S/O SHAMBHA R/O
ASTHA TEH. MULTAI DISTT. BETUL (MADHYA
PRADESH)
2. RISHIDA D/O RAJESH @ RAJESH SINGH R/O
SILLEVADA NAGPUR AT PRESENT C/O SHRI
NATTHU S/O SHAMBHA R/O ASTHA TEH. MULTAI
DISTT. BETUL (MADHYA PRADESH)
3. ANIL S/O PYARELAL GUNERIYA G.E.ROAD,
TATIBANDH RAIPUR THROUGH NEW CHOTRA
COMPANY NAGPUR (MAHARASHTRA)
4. GANESH @ GANPATRO @ GANESH SINGH S/O
SHYAMRAO KHANDAGADE CILLEVADA , TEHSIL
SAVNER, DISTT. NAGPUR (MAHARASHTRA)
5. SMT. SHANTA BAI W/O GANTESH GANPATRAO @
GANESH SINGH SILLEVADA, R/O SILLEVADA,
TAHS. SAVNER, DISTT. NAGPUR (MAHARASHTRA)
.....RESPONDENTS
(BY SHRI PUSHPENDRA DUBEY - ADVOCATE FOR RESPONDENT NO.1
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 13-12-2023
19:30:58
2
AND 2)
MISC. APPEAL No. 10 of 2016
BETWEEN:-
1. LATA W/O RAJESH @ RAJESH SINGH
KHANDAGDE, AGED ABOUT 52 YEARS,
OCCUPATION: CASTE KUNBI SILLEBADA NAGPUR
AT PRESENT R/P THROUGH FATHER SAMBHA R/O
ASTHA TEH- MULTAI BETUL (MADHYA PRADESH)
2. RISHIKA D/O RAJESH @ RAJESH SINGH
KHANDAGDE, AGED ABOUT 55 YEARS,
OCCUPATION: KUNBI SILLEBADA NAGPUR AT
PRESENT R/P THROUGH FATHER SAMBHA R/O
ASTHA TEH- MULTAI BETUL (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI PUSHPENDRA DUBEY - ADVOCATE)
AND
1. ANIL S/O PYARELAL GUNERIYA G.E. ROAD
GHOTRA COMPANY NAGPUR (MAHARASHTRA)
2. THE NEW INDIA INSURANCE COMPANY LIMITED
BRACH OFFICE NEAR SHANKAR NAGAR
CHOWRAHA DHARAMPETH NAGAPUR
(MAHARASHTRA)
3. GANESH @ GANPATRAO @ GANESH SINGH S/O
SHYAM RAO KHANDAGDE OCCUPATION: KUNBI
SILLEBADA, TEH. SAVNER DISTT. NAGPUR
(MAHARASHTRA)
4. SMT. SHANTA BAI W/O GANESH @ GANPATRAO
@ GANESH SINGH OCCUPATION: KUNBI
SILLEBADA, TEH. SAVNER DISTT.NAGPUR
(MAHARASHTRA)
.....RESPONDENTS
(BY SHRI GULAB SOHANE - ADVOCATE FOR RESPONDENT NO.2)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
These appeals are filed by the insurance company and claimants
respectively being aggrieved of award dated 27/11/2015 passed by learned
Additional Motor Accident Claims Tribunal, Multai, Distt. Betul in MCC
No.58/2015. Case of insurance company is that to award compensation
recording a finding of negligence is a sine qua non and since that finding has
not been recorded, insurance company should have been exonerated.
2. It is submitted by Shri Som Mishra, learned counsel, that driver himself
was driving the vehicle. Learned Claims Tribunal has recorded a finding that
there was no negligence on the part of the driver, therefore, law laid down by
Hon'ble Supreme Court in the case of Oriental Insurance Co.Ltd. Vs.
Meena Variyal and others, (2007) 5 SCC 428 will be applicable. Reliance
is also placed on the judgment of Hon'ble Supreme Court in the case of
Oriental Insurance Com. Ltd. Vs. Premlata Shukla and others, 2007 AIR
SCW 3591 = 2006 (2) ACJ 1081 to buttress the claim that in absence of any
negligence, impugned award could not have been passed against the insurance
company especially when deceased himself was driving the offending vehicle.
3. It is admitted by Shri Som Mishra, learned counsel, that vehicle in
question bearing registration No.CG-04-JA-8147 was comprehensively insured.
Thus, once it is admitted that the vehicle was comprehensively insured, then the
law laid down in the case of Meena Varial and others (supra) will be of no
assistance because the ratio of that judgement is that any person in Section
147(1)(b) of the Motor Vehicles Act does not intend to cover persons other
than third party in case of a third party insurance. In the present case, policy
was admittedly comprehensive policy, therefore, facts of that case are being
different from that of Meena Varial and others (supra), will not have any
application. It has come on record that in that case Regional Manager of the
company was driving offending vehicle and he was not treated to be a third
party.
4. It is the settled principle of law that a driver of the offending vehicle who
borrows the vehicle of the company or the owner moves into the shoes of the
owner/borrower and cannot be treated as a third party whereas in the present
case insurance company has not led any evidence to show that deceased was
not an employee but the owner of vehicle or borrower of the vehicle to have
moved into the shoes of owner/borrower so to apply ratio of judgment in the
case of Meena Varial and others (supra).
5. Similarly, law laid down in the case of Premlata Shukla and others
(supra) is on the ground that once a part of the document is admitted, then
other part of the same cannot be rebutted and whole document is to be read as
such. It is also held that proof of rashness and negligent on the part of the
driver of sine qua non for maintaining application under Section 166 of the
Motor Vehicles Act. In the present matter facts of the case and as has been
discussed by learned Claims Tribunal are that there was a sudden mechanical
failure in the vehicle driven by the deceased. He tried to apply break. There
was dragged marks to the distance of 26 steps. It has come on record that
insurance company did not produce any report or evidence to dispute
mechanical failure of the vehicle and in view of such facts, when there was a
mechanical failure, then ratio of law laid down in the case of Premlata Shukla
and others (supra) will have no application.
6. The Tribunal has already considered income of the deceased for an
accident which took place on 14/11/2010 at Rs.5,000/- per month. It has come
on record that deceased-Rajesh Singh was driver of a truck, therefore, he had
to be construed as a skilled labourer. Since learned Claims Tribunal has
already considered income of the deceased at Rs.5,000/- per month and after
adding 40% towards future prospects and then after making 1/4 deduction, has
awarded compensation. Therefore, when these aspects are examined, then
there is no scope for enhancement of any amount in favour of the claimants.
7. Accordingly, both the miscellaneous appeals filed by the insurance
company as well as the claimants respectively fail and are hereby dismissed.
8. Record of the Claims Tribunal be sent back immediately.
(VIVEK AGARWAL)
JUDGE
ts
