Madhya Pradesh High Court
Tata Aig General Insurace Co.Ltd. vs Suresh Kumar Kori on 2 January, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 2 nd OF JANUARY, 2023
MISC. APPEAL No. 1958 of 2019
BETWEEN:-
TATA AIG GENERAL INSURACE CO.LTD. THR. BRANCH
OFFICE G-12, 1ST FLOOR SECTOR 16 NOIDA (UTTAR
PRADESH)
.....APPELLANT
(BY SHRI T.S. LAMBA - ADVOCATE)
AND
1. SURESH KUMAR KORI S/O SHRI GANGA PRASAD
KORI, AGED ABOUT 19 YEARS, VILLAGE
GANTIRAKALA POST KUTHILA TAHSIL
THEOTHAR, P.S. SOHAGI DISTT. REWA AT
PRESENT RESIDENT OF NEAR UNIVERSITY
BYPASS WARD NO.17 VILLAGE ITORA SARDAR
PATEL NAGAR P.S. ANANTPUR TEHSIL HUZUR
DISTT. REWA (MADHYA PRADESH)
2. KAUSHALYA DEVI JHAWAR W/O SHRI POONAM
CHANDRA JHAWAR, AGED ABOUT 47 YEARS,
PLOT NO. 293 SHIVNAGAR ROAD NO. 1
MURLIPURA JAIPUR (RAJASTHAN)
3. NANDKISHORE GURJAR S/O SHRI RAMPHUL
GUR JAR DONGRI KHURD PS MALPURA TANK
RAJASTHAN (RAJASTHAN)
4. / ORIENTAL INSURANCE COMPANY LIMITED
BRANCH OFFICE AIRLINE BHAWAN NEHRU
PALACE TANK ROAD JAIPUR REGIONAL OFFICE
HOTEL MAHARAJA NATIONAL HIGHWAY NO. 07
REWA (MADHYA PRADESH)
5. MANPREET SINGH S/O ASCHHRAJ SINGH 40 TP
NAGAR JAIPUR AT PRESENT AG 474 SANJAY
GANDHI TRANSPOSRT NAGAR (DELHI)
6. SUKHLAL KORI S/O ANUSUIYA PRASAD KORI,
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 1/5/2023
11:38:47 AM
2
AGED ABOUT 36 YEARS, GANTIRAKALA POST
KUTHILAL PS SOHAGI TAH. TYONTHAR (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI A.S. PARIHAR - ADVOCATE FOR RESPONDENT NO. 1)
(SHRI AJIT KUMAR AGRAWAL - ADVOCATE FOR RESPONDENT NO. 4)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal is filed by the Insurance Company being aggrieved of award
dated 14/01/2019 passed by the learned III Additional Motor Accident Claims
Tribunal, Rewa in Claim Case No. 294/2013 on the ground that the learned
Tribunal has directed respondent nos. 4, 5 and 6 namely owner, driver and
Insurer of truck no. RJ-14-GB-3355 to be responsible for payment of
compensation overlooking the fact that trailer RJ-14-GC-8626 owned by non-
applicant no. 1, driven by non-applicant no. 2 and insured with Oriental
Insurance Company Limited was moving ahead and as when it applied brakes
suddenly resulting in ramming of truck bearing registration no. RJ-14-GB-3355
where the deceased was sitting as a cleaner in the cabin resulting in grievous
injuries caused to said cleaner Suresh Kori causing permanent disability to the
extent of 70%.
It is submitted that the Hon'ble Supreme Court in Civil Appeal No.
7176/2022 Mamta and others Vs. Bhav Singh @ Mansingh and another
has held in para 8 that when the dumper which was moving ahead had suddenly
stopped in a negligent manner without giving any signal by which the dumper
driven from behind dashed to the offending dumper, then aspect of
contributory negligence could not have been assigned to the vehicle insured
with the appellant inasmuch as in para 9 of the said judgment, it is mentioned
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 1/5/2023
11:38:47 AM
that "It is a settled law that contributory negligence arises when there has been
some act or omission on the claimant's part which has materially contributory to
the damage caused. Negligence ordinarily means the failure by a person to use
reasonable care for the safety of either himself or his property so that he
becomes blameworthy in part as an author of his own wrong."
It is submitted that under such facts and circumstances, no aspect of
contributory negligence can be attributed to the vehicle insured with the
applicant inasmuch as in the evidence, it is mentioned that a trailer no. RJ-14-
GC-8626 was driven in a rash and negligent manner whereas the vehicle insured
with the applicant was moving at a distance about 20-30 feets and the accident
took place due to sudden braking on the part of driver of trailer no. RJ-14-GC-
8626.
Shri Ajit Kumar Agrawal supports the award.
After hearing learned counsel for the parties and going through the record
so also the judgment of the Hon'ble Supreme Court in Mamta (supra), it is
evident that the aspect of contributory negligence on the part of driver of the
vehicle bearing registration no. RJ-14-GB-3355 could not be proved and,
therefore, the Tribunal erred in applying the principles of contributory
negligence despite the fact that reasonable care was taken by the driver of the
vehicle insured with the appellant.
Thus, in the absence of any material produced by the respondents to
substantiate that appellant's vehicle was responsible for the accident, the
impugned award fastening the liability on the appellant needs to be modified and
is accordingly modified.
Admittedly, neither the owner and driver of the trailer bearing no. RJ-14-
GC-8626 was examined nor the driver of the vehicle coming from behind was
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 1/5/2023
11:38:47 AM
responsible to prove the aspect of contributory negligence.
Thus, in the absence of any cogent evidence, the Tribunal erred in
fastening the liability on the appellant. The impugned award is modified to this
extent and it is directed that the owner, driver and insurer of the vehicle no RJ-
14-GC-8626 which had applied brakes suddenly causing accident will be liable
to satisfy the award in the light of the law laid down by the Supreme Court in
Mamta (supra).
In above terms, the appeal is disposed of.
(VIVEK AGARWAL)
JUDGE
vy
Signature Not Verified
Signed by: VAIBHAV
YEOLEKAR
Signing time: 1/5/2023
11:38:47 AM
