Madhya Pradesh High Court
Kammod @ Ramkhilona Thr Lrs Sunita vs Pankaj Bhardwaj on 3 February, 2023
Author: Sunita Yadav
1
M.A. Nos. 753 of 2015 and 980 of 2015
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
MISC. APPEAL No. 743 of 2015
BETWEEN:-
KAMMOD @ RAMKHILONA THR LRS SUNITA W/O
SHRI KAMBOD @ RAMKHILONA, AGED ABOUT 32
YEARS, VILL. DHONPURA PS. LAHAR DISTT. BHIND
(MADHYA PRADESH)
.....APPELLANT
(BY MR. RAM KISHOR SHARMA - ADVOCATE)
AND
PANKAJ BHARDWAJ S/O SHRI RAMROOP
1. BHARDWAJ WARD NO 7 KASWA MIHONA P.S
MIHONA DISTT. BHIND (MADHYA PRADESH)
BHARAT SINGH YADAV S/O SHRI KAPOOR SINGH
2. YADAV OCCUPATION: NA MAU PS NADIGAON
TEHSIL KONCH (UTTAR PRADESH)
DIVISIONAL MANAGER THE NEW INDIA
3. INSURANCE COM. LTD. IN FRONT OF PHOOL BAG
SACHDEVA SADAN LASHKAR (MADHYA PRADESH)
.....RESPONDENTS
(MR. DEEPAK KUMAR GUPTA - ADVOCATE FOR
RESPONDENTS NO. 1 AND 2 - OWNER AND DRIVER AND
MR. SHRINIVAS GAJENDRAGADKAR - ADVOCATE FOR
RESPONDENT NO. 3 - INSURANCE COMPANY
MISC. APPEAL No. 980 of 2015
BETWEEN:-
1. PANKAJ BHARDWAJ S/O SHRI RAMSWAROOP
BHARDWAJ WARD NO. 7, KASBA MIHONA P.S.
ALOK KUMAR
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2
M.A. Nos. 753 of 2015 and 980 of 2015
MIHONA (MADHYA PRADESH)
BHARAT SINGH YADAV S/O KAPOOR SINGH YADAV
2. OCCUPATION: NA MAO THANA NADIGAON TEHSIL
KOUNCH (UTTAR PRADESH)
.....APPELLANTS
(BY MR. DEEPAK KUMAR GUPTA - ADVOCATE)
AND
KAMMOD @ RAMKILONA S/O SHRI DEVLAL, AGED
1. ABOUT 35 YEARS, OCCUPATION: CASTE KORI
GRAM DHONPURA P.S. LAHAR (MADHYA PRADESH)
MANDAL PRABHANDAK THE NEW INDIA
INSURANCE COMPANY LTD. PHOOLBAGH KE
2.
SAMNE SACHDEVA SADAN LASHKAR (MADHYA
PRADESH)
JAHAR SINGH S/O MOHAR SINGH OCCUPATION: NA
3.
WARD NO. 5 MIHONA (MADHYA PRADESH)
.....RESPONDENTS
(MR. RAM KISHOR SHARMA - ADVOCATE FOR
RESPONDENT NO. 1 - CLAIMANT AND MR. SHRINIVAS
GAJENDRAGADKAR - ADVOCATE FOR RESPONDENT
NO. 3 - INSURANCE COMPANY)
Reserved on : 11.01.2023
-------------------------------------------------------------------------------------------
Whether approved for reporting :
JUDGMENT
(Passed on 03.02.2023)
These appeals coming on for hearing this day, the court passed the
following:
JUDGMENT
This judgment shall govern the disposal of both the appeals (M.A.
ALOK KUMAR
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M.A. Nos. 753 of 2015 and 980 of 2015
Nos.743 of 2015 and 980 of 2015). For the sake of convenience, facts
mentioned in M.A. No. 743 of 2015 are taken into consideration.
2. These Misc. Appeals under Section 173(1) of Motor Vehicles Act,
1988 have been filed against the award dated 24.6.2015 passed in Claim
Case No. 15/2013 by Additional Motor Accident Claims Tribunal, Lahar,
District Bhind, whereby learned Claims Tribunal exonerated the insurance
company from its liability to pay the compensation.
3. The facts in brief to decide these appeals are that appellant - claimant
preferred a claim petition under Section 166 of Motor Vehicles Act for
realising an amount of compensation to the tune of Rs.10,00,000/- for the
permanent disability sustained by him in road traffic accident dated
27.6.2012 involving bus bearing registration No. UP92 9202. On the fateful
day, Respondents No. 1 and 2 were the owner and driver of the offending
vehicle respectively and the aforesaid vehicle was insured with the
respondent No. 3 - insurance company. Respondents filed their written
statement and denied all the allegations.
4. Learned Claims Tribunal framed issues and after taking into
consideration the facts and material available on record partly allowed the
claim petition holding appellant - claimant entitled for an amount of
compensation to the tune of Rs.5,46,000/- along with interest at the rate of
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M.A. Nos. 753 of 2015 and 980 of 2015
6% per annum and directed respondents No. 1 and 2 - owner and driver of
the offending vehicle to pay the compensation amount exonerating
respondent No. 3 - insurance company from the liability on the ground that
at the time of accident, vehicle in question did not have valid rout permit.
5. The common arguments advanced by learned counsel for the
appellants in both the appeals are that the learned Claims Tribunal has
wrongly decided that the offending vehicle was being driven in breach of
terms and conditions of the insurance policy. It is further argued that the
insurance company neither produced any evidence nor any competent
authority has been examined in support of invalid rout permit, therefore, the
impugned award passed by learned Claims Tribunal exonerating the
insurance company from liability to pay the compensation is against the
settled principle of law.
6. Learned counsel for the appellant - claimant argued that at the time of
accident, the offending vehicle was being plied for maintenance and for the
same rout permit is not required at all. It is further argued that even if any
breach of terms and conditions of insurance policy are committed then it is
the matter between owner, driver and insurance company for that claimant
being a third party may not be punished.
7. Learned counsel for respondents No. 1 and 2 (appellants in M.A. No.
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M.A. Nos. 753 of 2015 and 980 of 2015
980 of 2015) - owner and driver of the offending vehicle argued that since
the registered owner of the offending vehicle lost entire control over the
offending vehicle after executing the contract with Jahar Singh (respondent
No. 3 in M.A. No. 980 of 2015), therefore, respondent No. 1 - owner is not
liable to pay the compensation. In support of his submission, learned counsel
for respondents No. 1 and 2 relied upon the case law of National Insurance
Co. Ltd. vs. Deepa Devi & Ors., [Civil Appeal No. 5796 of 2007 (Arising
out of SLP (Civil) No. 22778 of 2005) decided on 11.12.2007).
8. On the other hand, learned counsel for respondent No. 3 - insurance
company argued that the finding of learned Claims Tribunal exonerating the
insurance company from the liability to pay the compensation is in
accordance with settled principle of law as at the time of accident, offending
vehicle was not being plied as per its rout permit which is the violation of the
terms and conditions of the insurance policy. Hence, prayed to dismiss both
the appeals.
9. Heard learned counsel for the rival parties and perused the available
record.
10. Admittedly, the permit was granted for the purpose of using the
offending vehicle as a school bus for transportation of students. The bare
perusal of record reveals that claimant's witness No. 4 Ramcharan, who was
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M.A. Nos. 753 of 2015 and 980 of 2015
travelling in the same bus and was examined as an eye-witness, has
categorically stated in his cross-examination that at the time of accident,the
offending bus No. UP92 9202 was being used for transportation of baratis.
In view of the aforesaid, learned claims tribunal has rightly held that the
offending vehicle was being plied in breach of terms and conditions of the
insurance policy.
11. The record also reveals that the accident occurred on 27.6.2012,
however, the permission for maintenance of the offending vehicle was given
on 28.6.2012, therefore, the arguments of learned counsel for respondents
No. 1 and 2 (appellants in M.A. No. 980 of 2015) are not sustainable that
since the offending vehicle was going for maintenance at the time of
accident, therefore, the insurance company is liable to pay the compensation.
12. So far as liability of Jahar Singh is concerned, in the present case,
respondent No. 1 - owner of the offending vehicle has not produced any
evidence to prove that because of the said contract, which was not even
produced before the learned claims tribunal, he lost entire control over the
offending vehicle, therefore, he cannot get any benefit of case law of Deepa
Devi (supra) cited by him.
13. In view of the above discussions, the finding of learned claims tribunal
is found to be in accordance with law that the offending vehicle was being
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M.A. Nos. 753 of 2015 and 980 of 2015
plied in breach of terms and conditions of the insurance policy at the time of
accident.
14. However, in the light of case law of Shivaraj Vs. Rajendra [(2018)
10 SCC 432], Manuara Khatun Vs. Rajesh Kumar Singh [2017 ACJ
1031] & Shamanna and another Vs. Divisional Manager, the Oriental
Insurance Co. Ltd. and others,[(2018) 9 SCC 650], it is directed that the
Insurance Company shall pay the compensation to the appellant - claimant
which may be recovered from respondent No.1 - owner and respondent No.2
- driver.
15. Resultantly, the Award dated 24.6.2015 passed in Claim Case No.
15/2013 by Additional Motor Accident Claims Tribunal, Lahar, District
Bhind is modified to the extent mentioned above.
16. These Misc. Appeals are disposed of accordingly.
(SUNITA YADAV)
JUDGE
AKS
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