Madhya Pradesh High Court

The Oriental Insurance Company ... vs Smt Sushma Kourav on 1 March, 2023

Author: Vivek Agarwal

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 1 st OF MARCH, 2023
MISC. APPEAL No. 823 of 2020

BETWEEN:-
THE ORIENTAL INSURANCE COMPANY LIMITED THR
BRANCH MANAGER AND DEPUTY MANAGER
ORIENTAL INSURANCE COMPANY LIMITED D O 1
BLOCK NO 6 7 8 DATT RESIDENCE OPPOSITE RAILWAY
STADIUM NORTH CIVIL LINES DIST JABALPUR //
ORIENTAL INSURANCE COMPANY LIMITED TP HUB
1561 NAPIER TOWN DR BARAT ROAD JABALPUR
(MADHYA PRADESH)

.....APPELLANT
(BY SHRI VINEET KUMAR PANDEY - ADVOCATE)

AND
1. SMT SUSHMA KOURAV W/O LATE SOVRAN
KOURAV, AGED ABOUT 38 YEARS, VILLAGE
GONGAWALI POST MAHESUR TAHSIL AND P.S.
KARELI DIST NARSINGHPUR (MADHYA
PRADESH)

2. SHUBHAM KOURAV S/O LATE SOVRAN KOURAV,
AGED ABOUT 17 YEARS, OCCUPATION: MINOR
THR.NATURAL GUARDIAN MOTHER SMT.
SUSHMA KOURAV AGED 38 YRS. W/O LATE
SOVRAN KOURAV VILLAGE GONGAWALI POST
MAHESUR TAHSIL AND P.S. KARELI DIST
NARSINGHPUR (MADHYA PRADESH)

3. SACHIN KOURAV S/O LATE SOVRAN KOURAV,
AGED ABOUT 13 YEARS, OCCUPATION: MINOR
THR.NATURAL GUARDIAN MOTHER SMT.
SUSHMA KOURAV AGED 38 YRS. W/O LATE
SOVRAN KOURAV VILLAGE GONGAWALI POST
MAHESUR TAHSIL AND P.S. KARELI DIST
NARSINGHPUR (MADHYA PRADESH)

4. KU SHIVANI PATEL D/O LATE SOVRAN KOURAV,
AGED ABOUT 15 YEARS, OCCUPATION: MINOR
THR.NATURAL GUARDIAN MOTHER SMT.
Signature Not Verified
Signed by: AMIT JAIN
Signing time:
3/1/2023 8:14:05 PM
2
SUSHMA KOURAV AGED 38 YRS. W/O LATE
SOVRAN KOURAV VILLAGE GONGAWALI POST
MAHESUR TAHSIL AND P.S. KARELI DIST
NARSINGHPUR (MADHYA PRADESH)

5. SMT. BAJII W/O LATE NARAYAN KOURAV, AGED
ABOUT 70 YEARS, VILLAGE GONGAWALI POST
MAHESUR TAHSIL AND P.S. KARELI DIST
NARSINGHPUR (MADHYA PRADESH)

6. UDAY BEN S/O LATE RAMDAYAL BEN, AGED
ABOUT 35 YEARS, HOUSE NO. 789 AMANPUR
KULIYANA MOHALLA NARSINGH WARD MADAN
MAHAL (MADHYA PRADESH)

7. CHANDAN SINGH MEHRA S/O MITTHULAL
MEHRA, AGED ABOUT 22 YEARS, VILLAGE UDIYA
TAH. AND PS UDAIPURA (MADHYA PRADESH)

.....RESPONDENTS
(RESPONDENT NOS.6&7 BY SHRI UDAI KUMAR - ADVOCATE)

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 25.11.2019 passed by learned 9th Additional Member, Motor Accident Claims Tribunal, Jabalpur in Motor Accident Claim Case No.1452/2017 on the ground that present is a case of false implication of the offending vehicle insured with Oriental Insurance Company Limited (Appellant Herein).

Learned counsel for the Insurance Company submits that the accident allegedly took place on 2.3.2017 and the FIR Exhibit P/2 is dated 31.3.2017. On 20.3.2017, one Shubham Kourav had made an application to the Superintendent of Police, Narsinghpur as contained in Annexure P/4 mentioning therein that after two days of the accident, one Mukesh Patel R/o.Village Narsara and Ravi Chouksey R/o.Kalyanpur had informed him that they were returning from a marriage when at Johariya, an unknown motorcycle had while crossing the road Signature Not Verified Signed by: AMIT JAIN Signing time:

3/1/2023 8:14:05 PM

hit the motorcycle from behind. They had followed the offending vehicle till Kareli Basti but as the road was not in a good condition, he ran away. According to Shubham Kourav, the informants had given number of the motorcycle as MP20-MW-6537, which was black in colour but because of 13th Day Gangajali Programme, he could not give intimation in time. There is material contradiction in the evidence of Mukesh Patel, who has been examined on behalf of the claimants.

Learned counsel for the Insurance Company submits that the claimants have not examined Shubham Kourav, who had given intimation to the Superintendent of Police in regard to number of the offending vehicle. In the affidavit of Mukesh Patel, there is no mention of the fact that they had ever given intimation in regard to details of the offending vehicle to Shubham Kourav or to anybody else. In Paragraph No.6 of his cross-examination, this wittiness admits that after the incident, he had not given intimation to anybody. He had not taken the injured to the hospital. He had not given intimation to the Police also. He did not depose in his cross-examination that he had ever approached Shubham Kourav to give number of the offending vehicle to Shri Shubham Kourav. He admits that though he had noted the number of the offending vehicle but he had not brought the said number to the Court. In Paragraph No.7, there is some ambiguity as to the details of description but fact of the

matter is that Mukesh Patel, who is resident of Village Dongargaon, Tahsil Gadarwara, District Narsinghpur, has nowhere mentioned either in his examination-in-chief or his cross-examination that he had given any intimation to Shubham Kourav or to anybody else on the basis of which Shubham Kourav had written communication Annexure P/4 to the Superintendent of Police, Narsinghpur.

Signature Not Verified Signed by: AMIT JAIN Signing time:

3/1/2023 8:14:05 PM

Learned counsel for the Insurance Company submits that it is evident that it is a case of false implication. The sole eye-witness has not been able to prove the factum of the accident although he deposed that no accident took place with his vehilce and it was a new car and thereafter he admitted that while going to the place of marriage, the place of incident was not on their way but they had to come from a different road on which the place of incident had fallen, is again a doubtful circumstance.

Learned counsel for respondent Nos.6&7 supports the impugned award and places reliance on the Division Bench Judgment of this Hon'ble High Court in Nanhu Singh versus Jaheer & Others 2006 ACJ 803 wherein it is held that the version as per FIR should not be given preference over the testimony of witness recorded before the Tribunal.

After hearing learned counsel for the parties and going through the record, it is evident that the ratio of judgment in Nanhu Singh versus Jaheer & Others (supra) is that the ocular evidence will have preference over the FIR and there is no dispute or quarrel with the said proposition but while deciding a claim case, the credibility of the ocular evidence is to be tested.

The author of FIR & Informant Shubham Kourav was not examined before the Claims Tribunal. In his application to the Superintendent of Police, Narsinghpur as contained in Annexure P/4, he has categorically mentioned that after two days of the incident, it will be presumed to be 4.3.2017, intimation was received from Shubham Kourav and Ravi Chouksey in regard to the number of the offending vehicle. The justification for not disclosing the said number to the Police Authority immediately is that because of shock and 13th days Gangajali Programme, the prompt intimation could not be given to the Court. However,

Signature Not Verified Signed by: AMIT JAIN Signing time:

3/1/2023 8:14:05 PM

the fact of the matter is that the death occurred on 2.3.2017 and 13th Day Gangajali Programme would have been over maximum by 15.3.202017 then he was required to explain that why he did not approach the Superintendent of Police, Narsinghpur upto 20.3.2017.

There is contradiction in the evidence of Mukesh Patel. He had never said that he ever gave intimation to the relatives of the deceased in regard to number of the motorcycle while infact in Paragraph No.4 of his cross-examination, he clearly deposed that he does not know the family of Sovran or Sovran. When the family of the deceased was not known to him and he had not stayed back to help the deceased meaning thereby that the identity of deceased was not known to him then there was no occasion for him to have approached Shubham Kourav to give number of the offending vehicle mentioned by Shubham Kourav in his communication with the Superintendent of Police, Narsinghpur as contained in Annexure P/4.

Thus, even on the basis of the evidence led by Mukesh Patel, the missing link of communication to Shubham Kourav, who had in turn informed the Superintendent of Police, Narsinghpur, is not complete, therefore it is evident that it is a case of false implication of a motorcycle insured with appellant/Oriental Insurance Company Limited.

Accordingly, This Miscellaneous Appeal is allowed. The impugned award dated 25.11.2019 passed by learned 9th Additional Member, Motor Ac c id ent Claims Tribunal, Jabalpur in Motor Accident Claim Case No.1452/2017 is set aide. It is held that it is a case of false implication of the motorcycle at the instance of the claimants.

Let record of the Claims Tribunal be sent back.

Signature Not Verified Signed by: AMIT JAIN Signing time:

3/1/2023 8:14:05 PM

(VIVEK AGARWAL) JUDGE amit

Signature Not Verified Signed by: AMIT JAIN Signing time:

3/1/2023 8:14:05 PM