The New India Assurance Company ... vs Smt.Gyano Bai
2023 Latest Caselaw 2408 MP

                             1
 IN    THE     HIGH COURT OF MADHYA PRADESH
                     AT GWALIOR
                          BEFORE
              HON'BLE SHRI JUSTICE ROHIT ARYA
                 ON THE 10 th OF FEBRUARY, 2023
                  MISC. APPEAL No. 291 of 2009

BETWEEN:-
THE NEW INDIA ASSURANCE COMPANY LTD.
THROUGH SENIOR DIVISIONAL MANAGER, DIVISION
OFFICE SACHDEVA SADAN, STATION ROAD GWALIOR
(MADHYA PRADESH)

                                                    .....APPELLANT
(BY SHRI ARVIND KUMAR AGARWAL - ADVOCATE )

AND
1.    SMT.GYANO BAI W/O LATE SHRI KISHORI, AGED
      44 YEARS,

2.    RAMKARAN S/O LATE SHRI KISHORI, AGED 18
      YEARS,

3.    VEERENDRA S/O LATE SHRI KISHORI, AGED 16
      YEARS,

4.    KU. MANISHA D/O LATE SHRI KISHORI, AGED 9
      YEARS,

5.    JEETU S/O LATE SHRI KISHORI, AGED ABOUT 5
      YEARS,
      RESPONDENTS NO.3 TO 5 UNDER GUARDIANSHIP
      OF MOTHER SMT. GYANOBAI

6.    SMT. SHANTI W/O LATE SHRI KHACHHILAL,
      AGED 71 YEARS,
      R/O VILLAGE BHAROLI, POLICE STATION BIJOLI,
      DISTRICT GWALIOR (MADHYA PRADESH)

7.    MOHARBHAN SINGH S/O SHRI HOTAM SINGH,
      AGED 60 YEARS, R/O BANKE KA PURA, POLICE
      STATION GOHAD, DISTRICT BHIND (MADHYA
      PRADESH)
                              2
8.    BALVEER SINGH S/O SHRI AJAY SINGH GURJAR,
      R/O ANI BAHADUR KA PURA, POLICE STATION
      B A N M O R E DISTRICT   MORENA (MADHYA
      PRADESH)

                                                             .....RESPONDENTS
(SHRI R. K. SHARMA - ADVOCATE FOR RESPONDENTS
NO. 1 TO 5)

      T h is appeal coming on for orders this day, t h e cou rt passed the
following:
                                    ORDER

IA No. 165/2023, an application for change of counsel, and IA No..162/2023, an application for urgent hearing, are taken up, considered and hereby allowed.

This Misc. Appeal under Section 173 (1) of the Motor Vehicle Act has been preferred by the appellant/Insurance company challenging the award dated 11/12/2008 passed by Motor Accident Claims Tribunal, Gwalior in Claim Case No.95/2007 on the ground that the claims tribunal was not justified while passing the award directing appellant/ Insurance Company to primarily pay the amount of compensation to the claimants and thereafter recover the same from the owner and driver of the offending vehicle.

2. Facts of the case in short are that on 11/04/2007, an accident took place by the offending tractor bearing registration No.MP30-M-0393, in which the deceased was sitting. He succumbed to the injuries. The claims tribunal after taking into account the evidence and material available on record has passed the impugned award while concluding that the driver of the offending Tractor i.e. respondent No.8 was rashly and negligently driving the vehicle due to which the tractor got turned over. However, tribunal has directed the appellant / Insurance Company to first pay the compensation and thereafter recover the same from the owner and driver of the offending vehicle.

3. The sole ground raised in this appeal is that it is not disputed that at the time of accident, the offending vehicle tractor bearing registration No.MP30- M-0393 owned by respondent No.7 was insured with the appellant/ Insurance company. The claims tribunal though found that the vehicle was not being used for agriculture purpose at the time incident, for which the vehicle was insured, still it was observed that in such situation also, appellant/ Insurance Company shall primarily pay the compensation to the claimants, however, Insurance Company was set at liberty to recover the same from the owner and driver of the vehicle later. On such ground, learned counsel submits that the impugned award is contrary to the provisions of law, facts and material on record, hence, appeal filed by the appellant/ Insurance may kindly be allowed and the amount paid by the appellant/ Insurance Company to the claimants may be refunded. In support of the submissions, learned counsel for the Insurance Company relied on the judgment in Arun Kumar Patel and Another vs. Smt. Terasi Saket and Others [2009 (1) TAC 285 (M.P.)].

4 . Per contra, learned counsel for the respondents/ claimants supports the impugned award. By placing reliance on the judgment of Hon'ble Supreme Court in Shivaraj vs. Rajendra & Another (Civil Appeal Nos. 8278-8279 of 2018, decided on 05.09.2018), learned counsel submits that the law laid down in the said case squarely applies to the instant case.

Heard.

5 . Up o n hearing learned counsel for the parties and perusal of the impugned award, this Court is of the considered view that the claims tribunal has rightly observed that in the light of the judgment in Oriental Insurance Company Limited vs. Brijmohan and others [AIR 2007 (1) 1971], it is the

bounden duty of the Insurance Company first to pay compensation to the claimants, however, Insurance Company shall always be free to recover the same from the owner and driver of the offending vehicle i.e. respondents No.7 & 8 later. Therefore, the reliance placed by learned counsel for the appellant on the judgment in Arun Kumar Patel's case (supra) is distinguishable on facts and is of no assistance to the appellant.

6. In the obtaining facts and circumstances and in the light of the judgment of Hon'ble Supreme Court in Shivaraj (supra), no substantial ground is made out to entertain the present appeal filed on behalf of the Insurance Company, hence, the finding as regards pay and recover shall remain intact.

Ex consequenti, the Misc. Appeal is dismissed.

(ROHIT ARYA) JUDGE yog

YOGESH VERMA 2023.02.15 VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00' 15:38:20 +05'30'