Madhya Pradesh High Court
Smt.Kamar Bai(Komal) vs Smt.Vimla Chirad & Ors. on 17 March, 2023
Author: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
MISC. APPEAL No. 868 of 2004
BETWEEN:-
SMT. KAMAR BAI (KOMAL) @ W/O
RAMCHARAN RAWAT, AGED ABOUT 45
YEARS, R/O VILLAGE BAMODA,
DISTRICT SHIVPURI (MADHYA PRADESH)
........APPELLANT
(BY SHRI AKSHAT JAIN - ADVOCATE )
AND
1. SMT. VIMLA CHIRAD W/O HARI CHIRAD,
OCCUPATION HOUSEWIFE, R/O VILLAGE
NIVODA, P.S. KOLARAS, DISTRICT
SHIVPURI (MADHYA PRADESH).
2. DURGESH CHIRAD S/O LATE HARI
CHIRAD, AGED ABOUT 6 YEARS MINOR,
THROUGH NATURAL GURADIAN SMT.
VIMLA CHIRAD W/O HARI CHIRAD,
OCCUPATION HOUSEWIFE, R/O VILLAGE
NIVODA, P.S. KOLARAS, DISTRICT
SHIVPURI (MADHYA PRESESH).
3. UNITED INDIA INSURANCE CO. LTD.
THROUGH BRANCH MANAGER,
OPPOSITE FOOLBAG, DISTRICT
GWALIOR (MADHYA PRADESH).
4. JAY SINGH S/O RAM CHARAN, R/O
VILLAGE BAMODA, DISTRICT SHIVPURI
(MADHYA PRADESH).
5. GIRWAR SINGH S/O RAM CHARAN
RAWAT R/O VILLAGE BAMODA,
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 17-Mar-23
6:24:47 PM
2
DISTRICT SHIVPURI (MADHYA
PRADESH).
6. DATA RAM S/O MOHAN LAL RAWAT, R/O
VILLAGE BAMODA, DISTRICT SHIVPURI
(MADHYA PRADESH).
........RESPONDENTS
(SHRI AJAY SINGH RATHORE- ADVOCATE
FOR THE RESPONDENT NO.1 & MS.
VANDANA KEKRE- ADVOCATE FOR THE
RESPONDENT/INSURANCE COMPANY)
Reserved on : 02.03.2023
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Whether approved for reporting :
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JUDGMENT
(Passed on 17.03.2023)
Present miscellaneous appeal has been filed against the award dated
04.09.2004 passed by 2nd Additional Motor Accident Claims Tribunal,
Shivpuri (M.P.) in Claim Case No.180/2003.
The facts in brief to decide this appeal are that the respondents no.1
& 2 as well as Ajuddi Bai filed a claim application under Section 166 of
Motor Vehicles Act on 18/08/2003 alleging that the husband of claimant
no.-1 and father of rest of the claimant Hari Chirad sustained injuries on
account of rash and negligent driving of Tractor bearing registration
No.MP-08-A-8748 and Trolley No. MP-08-D-0128 by the respondent
no.4/non-applicant no.1 Jay Singh. The deceased was taken on the said
Tractor to erect an electric pole by respondents no.4 to 6/non-applicants
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 17-Mar-23
6:24:47 PM
no.1 to 3 on 29-01-2002. The Tractor was owned by appellant/non-
applicant no.4. It was alleged by the claimants that the vehicle mentioned
herein above was owned by appellant and was insured with the respondent
no.3/non-applicant no.5 at the relevant date. The claimants alleged in their
claim petition that while pulling the pole, the driver drove the tractor in a
rash and negligent manner on account of which, the electric pole fell down
on the ground causing serious injuries to Hari Chirad who was standing
near the electric pole.
It was alleged that the appellant and respondents no.4 to 6 threw the
body of Hari Chirad near village Padora. The village Chokidar Khachhu
S/o Monahara Parihar lodged a report bearing Crime No.25/02 for the
offence punishable u/Ss.304-A, 201/34 of IPC and case is under trial
before learned JMFC, Kolaras. It was alleged that the Hari Chirad was a
labour and earning Rs.2500/- per month.
The appellant and respondents no.4 to 6 filed their written statement
denying the incident as a false incident, not a vehicle incident. The
respondent no.3 has submitted its written statement on 20/04/2004
denying the allegations made in the claim petition and it was submitted
that the claim has been filed by the claimants in collusion with appellant
and respondents no.4 to 6. It is also submitted that no accident has taken
place.
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 17-Mar-23
6:24:47 PM
The learned Claims Tribunal framed the issues and recorded the
evidence adduced by the parties. After hearing the arguments, the learned
Claims Tribunal allowed the claim application filed by the claimants and
awarded the compensation to the tune of Rs.1,87,000/- along with interest
@ 5% per annum to be given by appellant along with the respondents
no.4 to 6.
Aggrieved by the compensation awarded by the learned Claims
Tribunal, the appellant has preferred this appeal.
Learned counsel for the appellant argued that the learned Claims
Tribunal erred in awarding the compensation to the tune of Rs.1,87,000/-
to be given by the appellant and the respondents no.4 to 6 and not to be
paid by the respondent no.3/Insurance Company. It is further argued that
the award passed by learned Claims Tribunal is without any basis and is
against the principles establish by law. The respondents no.1 to 2 did not
prove the incident. According to the FIR, no vehicular accident was there
and no eyewitness was produced before the learned Claims Tribunal in
spite of that, it was considered as a vehicular accident. The Tribunal has
wrongly allowed the application and exempted the respondent
no.3/Insurance Company from its liability. The further argument is that the
said vehicle was insured before respondent no.3/Insurance Company from
07/02/2002 to 06/02/2003, therefore, the respondent no.3 has to bear all
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 17-Mar-23
6:24:47 PM
the liability occurred in the vehicular accident. It is further argued that the
evidence available on record duly proved that the deceased was working
as a labour in an agricultural field and erection of pole was for irrigation
purpose. Therefore, the learned Claims Tribunal has wrongly exonerated
the Insurance Company. Hence, the appeal be allowed and the award
passed by learned Claims Tribunal be set aside.
On the other hand, learned counsel for the respondent no.1 as well
as respondent no.3/Insurance Company supported the impugned award
and prayed for rejection of this appeal.
Heard the learned counsel for the rival parties and perused the
record.
On perusal of record reveals that the claimant no.1 - Smt. Vimla
Chirad got herself examined as claimant witness no.1 and she has
supported the facts narrated in her claim petition and also proved relevant
papers filed with the charge-sheet related to this accident which are copies
of charge-sheet Exh.P/1, FIR Exh.P/2, Spot Map Exh.P/3, Post Mortem
Report Exh. P/4, Seizure Memo Exh. P/5, Supurduginama Exh. P/6 to P/8,
Seizure Exh.P/9 so also, copy of Insurance Policy Exh.D/1, Driving
License and registration of the offending vehicle.
Claimant No.1 - Smt. Vimla Chirad in her cross-examination stated
that her husband was a labour and used to work with Jai Singh. She has
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 17-Mar-23
6:24:47 PM
further stated at para-7 of her statement that her husband was working
with Jai Singh as Bataidaar and used to sell grains in Krishi Mandi.
In the present case, Insurance Company as well as the
appellant/owner of the offending vehicle have not examined any witness to
rebut the facts in respect to the death of Hari Chirad in a motor accident.
Therefore, in the light of oral and documentary evidence, the learned
Tribunal has rightly held that the death of Hari Chirad was a vehicular
/motor accident on account of rash and negligent driving of the offending
vehicle.
The learned counsel for the appellant argued that the Tribunal has
wrongly exonerated the Insurance Company from the liability to pay
compensation holding that there was breach of policy condition as the
offending Tractor was insured for agricultural purpose, however, at the
time of accident, it was being driven for non-agriculture purpose i.e.
erection of an electric pole. As per the argument of learned counsel of
appellant, the spot map Exh.P/3 reveals that the electric pole was being
raised in the field of Ram Charan Rawat and the same was being erected to
supply the electricity for water pumps etc. for irrigation which comes
within the purview of agricultural operation. In support of this
submissions counsel for the appellant has relied upon the decision of this
Court in the case of Poonam Singh Vs. Kamla and Ors. [(1995) 2 ACC
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 17-Mar-23
6:24:47 PM
72]. However, the above argument of the learned counsel for the appellant
is not acceptable because there is no pleading in the written statement filed
by the appellant/owner of the vehicle that the electric pole was being
erected for the purpose of supply of electricity to water pumps etc.. The
appellant even did not bother to get herself examine before the learned
Claims Tribunal to defend her case. She has not produced any evidence to
prove that the electric pole was being erected for the purpose of supply of
electricity to water pumps etc. Consequently, it is not proved that at the
time of accident, the electric pole was being erected to supply the
electricity for water pumps etc. for irrigation.
In the light of above discussion, the learned Tribunal has rightly
exonerated the Insurance Company from its liability to pay compensation.
It is well settled that the Insurance Policy is a contract between the
insured and the insurer and the insurer agrees to indemnify the insured
against all the claims arising out of use of vehicle, however, such contract
is subject to the conditions that the vehicle shall not be plied or driven
contrary to the provisions of law as well as Insurance Policy. Thus, it is
clear that the insurer/Insurance Company can get away from its liability of
indemnifying the insured by proving that the vehicle was being used
contrary to the Insurance Policy. However, the claimants are completely
stranger to the contract between the insured and the insurer. Once, the
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 17-Mar-23
6:24:47 PM
Insurance Company had agreed to indemnify the insured, then it would
be a dispute between the insured and the insurer as to whether the
vehicle was being used contrary to the conditions of Insurance Policy or
not? But the claimants cannot be made to suffer because of inter se
dispute between the insured and the insurer. Once, the vehicle is
insured, then the Insurance Company must satisfy the award and if it is
found by the Claims Tribunal that the vehicle was being used contrary
to the conditions of Insurance Policy, then the right to recover the
amount has been given to the Insurance Company without filing a
separate suit against the insured. Therefore, keeping in view the
benevolent object of the Motor Vehicle Act, in the light of the case of
National Insurance Company Ltd. Vs. Swarn Singh reported in
2004 ACJ (1) Supreme Court, affirming the findings given by the
Tribunal, it is hereby directed that the insurance company shall pay the
compensation amount within a period of three months from today to the
claimants with liberty to recover the same from the owner and the driver
of the offending vehicle, failing which, the award amount shall carry
interest @ 12 % per annum from today till realization of the award. Rest
of the conditions imposed by the learned Claims Tribunal shall remain
intact.
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 17-Mar-23
6:24:47 PM
With aforesaid modification, the impugned award 04/09/2004
passed by 2nd Additional Motor Accident Claims Tribunal, Shivpuri
(M.P.) in Claim Case No.180/2003 is hereby affirmed.
(SUNITA YADAV )
vpn JUDGE
Signature Not Verified
Signed by: VIPIN KUMAR
AGRAHARI
Signing time: 17-Mar-23
6:24:47 PM
