The New India Assurance Company ... vs Smt. Mamta Bai Rajak
2023 Latest Caselaw 4990 MP

                             1             M.A. No.2730/2021


IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
               ON THE 28th OF MARCH, 2023
               MISC. APPEAL No. 2730 of 2021
BETWEEN:-

THE NEW INDIA ASSURANCE COMPANY
LIMITED THROUGH ITS DICVISIONAL
MANAGER, DIVISION OFFICE ( 450500), 290,
NAPIER TOWN, JABLPUR-482 001 (MADHYA
PRADESH)


                                            .....PETITIONER
(NONE)

AND

1.   SMT. MAMTA BAI RAJAK W/O LATE
     MOHAN RAJAK, AGED ABOUT 48 YEARS,
     R/O  VILLAGE    ISHURWARA,    P.S.
     NARIYAWALI, DISTT. SAGAR (MADHYA
     PRADESH)



2.   VINOD KUMAR RAJAK S/O LATE
     MOHAN RAJAK, AGED ABOUT 24 YEARS,
     R/O  VILLAGE    ISHURWARA,    P.S.
     NARIYAWALI, DISTT. SAGAR (MADHYA
     PRADESH)



3.   RAMKUMAR RAJAK S/O LATE MOHAN
     RAJAK, AGED ABOUT 22 YEARS, R/O
     VILLAGE      ISHURWARA,       P.S.
     NARIYAWALI, DISTT. SAGAR (MADHYA
     PRADESH)



4.   MOHAN SINGH YADAV S/O SHRI DEVI
     SINGH, AGED ABOUT 57 YEARS,
     OCCUPATION: DRIVING, R/O VILLAGE
                                     2                   M.A. No.2730/2021


     ATATILA,   PS   BANDARI,  SAGAR,
     DISTRICT SAGAR (MADHYA PRADESH)



5.   SHRI DHARMENDRA YADAV S/O SHRI
     GABOOL SINGH, AGED ABOUT 33
     YEARS, R/O ITWARI TORI, NEAR
     GANESH MANDIR, CHANDRASHEKHAR
     WARD,    PS  MOTINAGAR,   SAGAR,
     DISTRICT SAGAR (MADHYA PRADESH)


                                                        .....RESPONDENTS
(NONE)
      This appeal coming on for admission this day, the court passed the

following:

                                  JUDGMENT

On a call given by the State Bar Council of M.P. the lawyers are abstaining from work in spite of letter dated 22.3.2023, issued by the Bar Council of India thereby requesting the State Bar Council of M.P. to follow the various dictums passed by the Supreme Court from time to time in respect of strike.

2. The Division Bench of this Court by order dated 24.03.2023 passed In Reference (Suo Moto) Vs. Chairman, State Bar Council of M.P. & others (W.P. No.7295/2023) has issued following directions:

(i) All the advocates throughout the State of Madhya Pradesh are hereby directed to attend to their court work forthwith. They shall represent their clients in the respective cases before the respective courts forthwith;

(ii) If any lawyer deliberately avoids to attend the court, it shall be presumed that there is disobedience of this order and he will be faced with serious consequences including initiation of proceedings for contempt of court under the Contempt of Courts Act;

(iii) If any lawyer prevents any other lawyer from attending the court work, the same would be considered as disobedience of these directions and he will be faced with serious consequences including initiation of proceedings under the Contempt of Courts Act;

(iv) Each of the judicial officers are directed to submit a report as to which lawyer has deliberately abstained from attending the court;

(v) The judicial officers shall also mention the names of advocates who have prevented other advocates from entering the court premises or from conducting their cases in the court;

(vi) Such advocates shall be dealt with seriously which may even include proceedings under the Contempt of Courts Act as well as being debarred from practice.

3. In spite of that Lawyers are abstaining from court work.

4. Under these circumstances, this Court has no other option but to issue notice to counsels for the appellant as well as counsels for the respondents to show cause as to why contempt proceedings be not initiated against them for violating the order dated 24.03.2023 passed by

Division Bench of this Court in the case of Chairman, State Bar Council of M.P and Others (supra).

5. Office is directed to register separate proceedings for the same.

6. This miscellaneous appeal under Section 173 of the Motor Vehicle Act, 1988 has been filed against the award dated 16.08.2021 passed by 4th Member, Motor Accident Claims Tribunal, Sagar in MACC No.77/2018.

7. Since the factum of accident is not in dispute, therefore, it is suffice to mention here that on 01.07.2017 at about 10:00 AM, the deceased Mohan Rajak and his wife/Claimant No. 1 was going on a Loading Auto along with his household articles. The driver of the offending truck bearing registration No. MP 15 G 2684 dashed the Loading Auto by driving in rash and negligent manner. The deceased as well as respondent No. 1 were shifted to the hospital. The respondent No. 1 was discharged whereas, the deceased died. In the memo of appeal it has been claimed that the deceased was at the advanced stage of Brain Celesis due to advancement of cancer disease defined as Metastasis, therefore, he was referred to the higher medical facilities. Since he was already at an advanced stage of cancer, therefore, he expired on 26.07.2017 i.e. after 25 days of accident.

8. It is the case of the appellant that since the deceased did not suffer any grievous injury and he died because of ailment which he was suffering, therefore, the respondents are not entitled for compensation amount. Further, the driver of the offending vehicle was not having driving licence to drive commercial vehicle.

9. The Claims Tribunal has rejected the contention of the appellant with regard to the driving licence of the driver of the offending vehicle because the appellant did not lead any evidence at all. No evidence has

been produced by the appellant to show that the driver of the vehicle was not having the valid driving licence. The driver of the offending vehicle/non applicant No. 1 had also filed a photocopy of the driving licence, therefore, Insurance Company could have got it verified from the concerning office of the Regional Transport Office but even that was not done.

10. So far as, the ailment of deceased is concerned, the Claims Tribunal has held that there is nothing on record to show that the deceased had died because of Brain Cancer. The police after concluding the investigation, had also filed a criminal case against the driver of the offending vehicle for the offence under Section 304A of the IPC.

11. In the accident, Mohan Rajak had suffered head injuries. The witnesses have specifically stated that postmortem of the deceased was not got done by the concerning police station. However, the appellant has filed a copy of the charge-sheet filed against the driver of the vehicle for the offence under Sections 279, 337, 304A of the IPC (Ex.P/1).

12. The fact that a charge-sheet for offence under Section 304A of the IPC clearly indicates that the investigating agency was of the view that the deceased died because of injuries sustained in the accident. Even assuming that the deceased was suffering from Brain Metastasis but it is clear from the discharge card issued by Bundel Khand Medical College on 04.07.2017 that patient was having head injury and, therefore, he was referred to Higher Centre for further management and needful. Even in the final diagnosis, head injury with right side Hemorrhage was found. Therefore, it is clear that the head injury sustained by the deceased in an accident had deteriorated his condition. Thus, it cannot be said that the injury sustained by the deceased in the accident did not contribute to his death. Further non filing of postmortem report is not sufficient to

disbelieve the claimants and the claim case can be decided on the basis of evidence available on record.

13. Accordingly, this Court is of the considered opinion that the Claims Tribunal did not commit any mistate by allowing the claim petition.

14. Ex-consequenti, the award dated 16.08.2021 passed by 4th Member, Motor Accident Claims Tribunal, Sagar in MACC No.77/2018 is hereby affirmed.

15. The appeal fails and is hereby dismissed.

(G.S. AHLUWALIA) JUDGE ashish ASHISH KUMAR LILHARE 2023.04.01 17:05:56 +05'30'