Madhya Pradesh High Court
National Insurance Co.Ltd. vs Gopal Prasad on 15 June, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 15 th OF JUNE, 2023
MISC. APPEAL No. 712 of 2006
BETWEEN:-
NATIONAL INSURANCE CO.LTD., THROUGH THE
DIVISIONAL MANAGER, 495, KARAMCHAND CHOWK
MARHATAL,JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SMT. AMRIT RUPRAH - ADVOCATE)
AND
1. CHATURBHUJ S/O NATHURAM SHARMA, AGED
ABOUT 65 YEARS, R/O GUNJI, PS.HINDORIYA,
DISTT.DAMOH (MADHYA PRADESH)
2. SURAJ KHAN, DRIVER, THROUGH CHOUDHARY
BUS SERVICE DAMOH (MADHYA PRADESH)
3. VIJAY KUMAR, S/O BABULAL CHOUDHARY
OCCUPATION: OWNER CHOUDHARY BUS
SERVICE DAMOH (MADHYA PRADESH)
4. GULJARTHR. DRIVER, THROUGH BUNDELKHAN
BUS SERVICE CHHATARPUR (MADHYA PRADESH)
5. BUNDELKHAN BUS SERVICE CHHATARPUR
(MADHYA PRADESH)
6. UNITED INDIA INSURANC CO.LTD., 57, GANDHI
ROAD, HATWARA, CHHATARPUR (MADHYA
PRADESH) (INSURER OF BUNDELKHAND BUS
SERVICE)
.....RESPONDENTS
(NONE)
Signature Not Verified
SAN
MISC. APPEAL No. 895 of 2006
Digitally signed by TULSA SINGH
Date: 2023.06.20 19:20:22 IST
2
BETWEEN:-
CHATURBHUJ S/O NATHURAM SHARMA, AGED ABOUT
65 YEARS, R/O VIL-GUNJA,PS. HINDORIYA, DAMOH
(MADHYA PRADESH)
.....APPELLANT
(NONE)
AND
1. SURAJ KHAN OCCUPATION: DRIVER THR-
CHOUDHARY BUS SERVICE DAMOH (MADHYA
PRADESH)
2. VIJAY KUMAR, S/O BABULAL CHOUDHARY
OCCUPATION: BUS OWNER CHOUDHARY BUS
SERVICE DAMOH (MADHYA PRADESH)
3. GULJARILAL OCCUPATION: BUS DRIVER,
BUNDELKHAND BUS SERVICE, CHHATARPUR
(MADHYA PRADESH)
4. NATIONAL INSURANCE CO.LTD. DIV. OFF. 496,
MARHATAL, JABALPUR (MADHYA PRADESH)
5. UNITED INDIA INSURANC CO.LTD. 57, GANDHI
ROAD, HATWARA, CHHATARPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SMT. AMRIT RUPRAH - ADVOCATE FOR RESPONDENT NO.5)
(BY SHRI SHREYAS PANDIT - ADVOCATE FOR RESPONDENT NO.6)
MISC. APPEAL No. 1046 of 2006
BETWEEN:-
NATIONAL INSURANCE CO.LTD., THROUGH THE
DIVISIONAL MANAGER, 495, KARAMCHAND CHOWK
MARHATAL,JABALPUR (MADHYA PRADESH)
.....APPELLANT
Signature Not Verified
(BY SMT. AMRIT RUPRAH - ADVOCATE)
SAN
Digitally signed by TULSA SINGH
AND
Date: 2023.06.20 19:20:22 IST
1. BABBU @ BABU SINGH @ GULZAR NABI S/O
3
NOORBI MUSALMAN, AGED ABOUT 35 YEARS,
OCCUPATION: DRIVER NEAR NOWGAON GALLA
MANDI WARD NO.3 DIST.CHHATARPUR
(MADHYA PRADESH)
2. SWARAJ KHAN, S/O FAROOQ KHAN,
OCCUPATION: DRIVER, R/O NAYA MOHALLA
BADI OMTI, JABALPUR, TH. CHOUDHARY BUS
S ERVICE, BUS STAND, JABALPUR (MADHYA
PRADESH)
3. AMIT CHOUDHARY (DEAD), S/O CHOUDHARY
VIJAY KUMAR OCCUPATION: BUS OWNER BUS
STAND, JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(NONE)
MISC. APPEAL No. 1047 of 2006
BETWEEN:-
NATIONAL INSURANCE CO.LTD., THROUGH THE
DIVISIONAL MANAGER, 495,KARAMCHAND CHOWK
MARHATAL JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SMT. AMRIT RUPRAH - ADVOCATE)
AND
1. GOPAL PRASAD S/O RAJARAM, AGED ABOUT 35
YEARS, R/O 162/163 MIG DINDAYAL COLONY, M.P.
GRIH NIRMAN SAMITY, SAGAR, THR-OWNER
RAJESH SHARMA, R/O 162/163 MIG.DINDAYAL
COLONY M.P.GRIH NIRMAN SAMITY SAGAR
(MADHYA PRADESH)
2. SWARAJ KHAN S/O FAROOQ KHAN OCCUPATION:
DRIVER R/O NAYA MOHALLA, BADI OMTI,
J AB ALPUR , TH. CHOUDHARY BUS SERVICE
(MADHYA PRADESH)
3. VIJAY KUMAR CHOUDHARY, S/O BABULAL
TRANSPORT CO., 12, BUS STAND, CORPORATION
MARKET, JABALPUR (MADHYA PRADESH)
Signature Not Verified
SAN
4. GULJARILAL OCCUPATION: DRIVER THR.
Digitally signed by TULSA SINGH
Date: 2023.06.20 19:20:22 IST BUNDELKHAND BUS SERVICE, CHHATARPUR
(MADHYA PRADESH)
4
5. BUNDELKHAND BUS SERVICE BUS OWNER,
CHHATARPUR (MADHYA PRADESH)
6. UNITED INDIA INSURANC CO.LTD. 57, GANDHI
ROAD, HARWARA, THROUGH DIVISIONAL
MANAGER, RAJKIRAN BUILIND, WRIGHT TOWN,
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI SUNIL KHERDIKAR - ADVOCATE FOR RESPONDENT NO.3)
(BY SHRI SHREYAS PANDIT - ADVOCATE FOR RESPONDENT NO.6)
MISC. APPEAL No. 1707 of 2006
BETWEEN:-
NATIONAL INSURANCE CO.LTD., THROUGH THE
DIVISIONAL MANAGER, MARHATAL,JABALPUR
(MADHYA PRADESH)
.....APPELLANT
(BY SMT. AMRIT RUPRAH - ADVOCATE)
AND
1. SMT.SUMAT RANI, W/O RAM SWAROOP @ SARJU
PRASAD NEMA, R/O HAZARI WARD, HATTA
DISTT.DAMOH (MADHYA PRADESH)
2. SWARAJ KHAN, S/O FASK AHMED OCCUPATION:
DRIVER, NAYA BAZAAR, BADI OMTI, JABALPUR
(MADHYA PRADESH)
3. AMIT KUMAR CHOUDHARY, S/O VIJAY KUMAR
CHOUDHARY (JAIN), CHOUDHARY TRANSPORT
CO., BARA BUS STAND,CORP.MARKET,JABALPUR
(MADHYA PRADESH) OCCUPATION: OWNER OF
VEHICLE NO.MP.-20-e/7039)
4. NARAIN DAS S/O KISHORILAL AGRAWAL
BUNDELKHAND TRANSPORT COMPANY,
CHHATARPUR (MADHYA PRADESH)
OCCUPATION: OWNER OF VEHICLE NO. M.P.-16
a/3022
Signature Not Verified
SAN 5. UNITED INDIA INSURANCE CO.LTD. DAMOH
(MADHYA PRADESH) (INSUSRER OF VEHICLE
Digitally signed by TULSA SINGH
Date: 2023.06.20 19:20:22 IST NOM. MP 16A 3022
5
6. GULJAR NABI @ NABBU S/O JURAN ALI R/O
NOWGAON, DISTT. CHHATARPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI SUNIL KHERDIKAR - ADVOCATE FOR RESPONDENT NO.3)
(BY SHRI SHREYAS PANDIT - ADVOCATE FOR RESPONDENT NO.5)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
ORDER
These appeals have been filed by the National Insurance Company and
one of the appeals is filed by claimant-Chaturbhuj being aggrieved of different
awards passed by learned 4th Additional Motor Accident Claims Tribunal (Fast
Track Court), Damoh on 23/12/2005 in Claim Case No.30/2005, award dated
23/1/2006 in Claim Case No.31/2005, award dated 17/01/2006 passed in Claim
Case No.33/2005 and award dated 28/02/2006 passed in Claim Case
No.05/2005 for the same accident which took place on 22/02/2002 when a bus
owned by Bundelkhand Bus Service bearing No. M.P. 16 A 3022 met with an
accident with another bus belonging to M/s Choudhary Transport bearing
registration No. MP 20E 3039.
2. It is submitted that bus owned by Choudhary Transport bearing
registration No. MP 20E 3039 was insured with National Insurance Company
whereas bus of Bundelkhand Bus Service was insured by the United India
Insurance Company Limited. It is also submitted that injured in these cases
including Chaturbhuj were passengers in bus bearing MP 20E 3039.
3. It is fairly submitted that appellant-national insurance company has
already compromised its matter with passengers who were travelling in
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Bundelkhand Bus Services insured by United India Company Limited.
SAN
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Date: 2023.06.20 19:20:22 IST
4. These appeals have filed merely on the ground that insurance company
had only insured the chassis of the bus and had issued a cover note but had had
not issued any insurance policy for the bus inasmuch as there was an
understanding that as soon as body is built over the chassis, then owner of the
chassis bearing registration No. MP 20E 3039 will pay the premium for the
passengers and then insurance will commence for the passengers. It is also
submitted that since cover note was issued and it did not culminate into
issuance of a policy, therefore, that cover note stood cancelled after 15 days of
its issuance.
5. Reading from the evidence of one Shri V.V. Navlekar S/o late Shri B.R.
Navlekar, AOD of the National Insurance Company, it is pointed out that in fact
there is an admission that insurance was obtained for the chassis on 25/08/2001
which was valid upto 24/08/2002 and insurance for the passengers was to be
obtained after building of the body as is mentioned in Ex.D/1. Thereafter
another communication was made vide Ex.D/2 which had provided premium
for the passengers to the tune of Rs.6,300/- which was deposited and then this
premium was sought to be refunded vide Ex.D/3 on the ground that bus was
insured with body and there was no need for payment of additional premium. It
is submitted that in light of these facts, appellant/insurance company should
have been exonerated.
6. Shri Shreyas Pandit, learned counsel for respondent-United India
Insurance Co. Ltd., submits that they have no say in the matter and it is strictly
between the appellant and the High Court.
7. After hearing learned counsel for the parties and going through the
record, few facts are important namely, it is admitted by Smt. Amrit Rupra,
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learned counsel for the appellant -National Insurance Company, that no notice
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Date: 2023.06.20 19:20:22 IST
of cancellation of the policy was issued against the insured. Another aspect is
that if theoretically argument advanced by Smt. Amrit Ruprah, learned counsel,
is accepted that insurance obtained only for the chassis and not for the bus,
then insurance company was required to discharge its onus that why they
charged premium of Rs.30/- for non-fare paying passenger under IMT 13/14 as
is evident from Ex.D/4. Once premium was charged for non-fare paying
passengers, besides premium for coverage of driver/cleaner/coolie under IMT
17 + 18, then it is evident that insurance company was not insuring chassis
alone else they would not have charged premium for non-fare paying
passengers. There is no explanation on this aspect by Shri Navlekar, Officer of
the Insurance Company. There is no pleading that injured were not travelling as
a gratuitous passengers. Thus, when there was a coverage for non-fare paying
passengers, then in that condition insurance company cannot be allowed to
avoid its contractual liability on hyper technical ground.
8. Smt. Amrit Ruprah, learned counsel for the appellant-National Insurance
Company Ltd., has placed reliance on the judgment of Hon'ble Supreme Court
in the case of Ramashray Singh Vs. New India Assurance Co. Ltd. and
others, 2003 ACJ 1550, but, facts of that case are different. In that case
Ramashray was working as Khalasi. It is held that no premium was charged for
the risk of a Khalasi, as policy, covered risk of driver, conductor and examiner
of tickets and it did not cover the risk of any other employee i.e. Khalasi. It
further held that Khalasi and Conductor are not the same. Thus, on this
premise, appeal filed by Ramashray was dismissed. But, in the present case,
once insurance company showed indulgence of charging premium for non-fare
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paying passengers, then it is evident that it was not insuring the chassis alone
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because there is no provision for any sitting capacity for the non-fare paying
Date: 2023.06.20 19:20:22 IST
passengers on the chassis. It would have charged premium at best for the
driver and the cleaner and not for non-fare paying passengers. Thus, by
implication when bus was comprehensively insured and premium was charged
for non-fare paying passengers, then insurance company is liable to compensate
the claimants and they cannot wriggle out of their responsibility. Law laid down
by Hon'ble Supreme Court in the case of Ramashray Singh (supra) is not
applicable to the facts and circumstances of the present case. No adverse
inference can be drawn on the basis of Ex.D/1, D/2, D/3 in view of
documentary evidence that premium was charged for non-fare paying
passengers.
9. Accordingly, appeals filed by appellant-National Insurance Company fail
and the same are hereby dismissed.
10. As far as appeal of claimant is concerned, Chaturbhuj has filed this
appeal on the ground that he had lost 6/8 teeth in the accident besides causing
blind injuries to both of his hands, chest and nails. He was treated at Jabalpur
by Dr. Shrama where he remained admitted for three years. He was operated
and his six teeth were removed. He had lost three teeth which had broken
during the accident itself, that has caused adverse impact on his eye site and
memory. It had also adversely affected his ability to chew and digest and,
therefore, compensation has been sought.
11. In this case, Govt. doctor, Dr. M.S. Chhabra (AW-2) was examined
who had admitted that claimant-Chaturbhuj was referred to him by Dr. R.K.
Shrivastava and he had examined him on 18/2/2002 when he found that on the
left side of jaw center incisor and in the lower jaw both the center incisor were
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not there. There were wounds at that places which were reported to be paining
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Date: 2023.06.20 19:20:22 IST
even on touch. He had prepared MLC Ex.P/14 and had given his report on the
basis of x-ray report Ex.P/9. Thus, it has come on record that evidence of
dismantling of nine teeth has come on record. Age of claimant-Chaturbhuj was
65 years at the time of accident. He has been awarded a compensation of
Rs.26,000/-. Out of which Rs.15,000/- is awarded under the head of removal
of nine teeth, Rs.6,000/- under the head of expenses for treatment for three days
stay at Jabalpur etc. and Rs.5,000/- under the head of pain and suffering.
12. Looking to the nature of injuries, this Court enhances sum under the
head of pain and suffering from Rs.5,000/- to Rs.25,000/-, thus, there will be
addition of Rs.20,000/- under the head of pain and suffering. Besides this
another sum of Rs.10,000/- is awarded under the head of future treatement,
preparation of new denture etc. under which had no amount has been awarded
by learned Claims Tribunal. Thus, there will be addition of Rs.30,000/- to the
amount of compensation payable in favour of Chaturbhuj which will carry
interest at the same rate as has been awarded by learned Claims Tribunal. Other
terms and conditions of the award shall remain intact.
13. In above terms, appeal filed by Chaturbhuj i.e. M.A. No.895/2006 is
disposed of and the appeals filed by the Insurance company are hereby
dismissed.
(VIVEK AGARWAL)
JUDGE
ts
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Digitally signed by TULSA SINGH
Date: 2023.06.20 19:20:22 IST
