Madhya Pradesh High Court
The New India Assurance Co. Ltd vs Jitendra Patel on 30 November, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 30 th OF NOVEMBER, 2023
MISC. APPEAL No. 1517 of 2022
BETWEEN:-
THE NEW INDIA ASSURANCE CO. LTD DIVISIONAL MANAGER
DIVISIONAL OFFICE (INSURANCE COMPANY OF VEHICLE
BEARINGH REGISTERATION NO. MH 05 R 0835 BEHIND PUNJAB
BOOT HOUSE NEW MARKET BHOPAL M.P. (MADHYA PRADESH)
.....APPELLANT
(BY SHRI DINESH KAUSHAL - ADVOCATE)
AND
1. JITENDRA PATEL S/O SHRI DEVI SINGH PATEL, AGED
ABOUT 28 YEARS, 142 SANYUKT VIHAR ADHARSHILA
AWADHPURI BARKHEDA BHOPAL M.P. (MADHYA
PRADESH)
2. SURAJ SIRASWAR S/O SHRI RAMJI SIRASWAR
OCCUPATION: (DRIVER OF VEHICLE BEARING
REGISTRATION NO MH 05 R 0835) R/O C-84/1608, JAI BABA
DHAM, NEAR NETAJI SCHOOL, ULHAS NAGAR,
MAHARASHTRA (MAHARASHTRA)
3. JAI BABA SEVA MANDAL TRUST, S/O NOT MENTION
OCCUPATION: OWNER OF VEHICLE BEARING
REGISTRATION NO MH 05 R 0835) R/O C-84/1608, JAI BABA
DHAM, NEAR NETAJI SCHOOL, ULHAS NAGAR,
MAHARASHTRA (MAHARASHTRA)
.....RESPONDENTS
(BY SHRI SANJAY MALVI - ADVOCATE FOR RESPONDENT NO.1)
(BY SHRI KRISHNA ROHADA - ADVOCATE FOR RESPONDENTS NO.2 AND 3)
This appeal coming on for admission this day, the court passed the following:
ORDER
This appeal is filed by the Insurance Company being aggrieved of award dated
10.12.2021 passed by 25th Motor Accident Claims Tribunal, Bhopal in Claim Case
No.1919/2016.
It is submitted that since there is an admission of violation of fitness order should
have been that of pay and recover.
Shri Krishna Rohada, learned counsel appearing for respondents No.2 and
3/owner and driver submits that the offending vehicle bearing registration No.MH 05 R
0835 was used for Ambulance.
Reliance is placed on the judgment of Co-ordinate Bench of this High Court in
Oriental Insurance Company Limited Vs. Manoj and Others, 2014 ACJ 2389,
wherein it is held that the Insurance Company when disputes its liability on the ground
that there was violation of the terms and conditions of the policy as the offending vehicle
was plied without fitness certificate, then the Insurance Company is required to specify
the terms of the policy showing the necessity of fitness certificate and also prove the
violation of the conditions stipulated under Section 439 of the Motor Vehicle Act.
Reliance is also placed on a decision of this Court in the National Insurance
Company Limited Vs. Smt. Sunita Markam decided on 11.07.2022 in M.A. No.1881
of 2021.
Shri Krishna Rohada also submits that in the present case Insurance Company had
not led any evidence.
Insurance Company had led evidence of one Shri Syed Inam-ul-haq, Assistant of
New India Assurance Company Limited, Paryavas Bhavan, Bhopal. He deposed that
fitness was found between 26.09.2016 to 25.09.2017 but on the date of the accident i.e.
19.08.2016 fitness was not found to be available.
In cross-examination this witness for the insurance company admitted that the
terms and conditions are mentioned in the policy but no separate mention is there in
regard to fitness in the policy. He admitted that fitness is available for a period of fifteen
years as per the date of registration of the vehicle. It has come on record, that vehicle
ambulance which was from Force Motors was of the Model 2013 bearing Chasis
No.25131 and Engine No.04090, as per Ex.D-2 proved by DW-1.
Thus, when DW-1 has himself admitted that fitness is for a period of fifteen years
from the date of registration of the vehicle, then it cannot be said that there was violation
of any terms and conditions of the fitness unless they were specifically proved by the
concerned insurance company by adducing evidence of the concerned official from the
RTO which was authorized to issue fitness in the matter.
In case of National Insurance Company Ltd. Vs. Smt. Sunita Markam
(supra), this court had an occasion to which deal with section 66 of the Motor Vehicle
Act, 1988 which deals with control of transport vehicles it provides for necessity for
permits. Sub-section (3) of Section 66 in Clause (c), makes an exception to the necessity
of having permit inasmuch as any transport vehicle used solely for Police, Fire Brigade or
Ambulance purposes is exempted.
On that touchstone law laid down by Constitution Bench of Kerala High Court in
case of Pareed Pillai Vs. Oriental Insurance Co. Ltd., 2018 SCC OnLine Ker
3543 has been distinguished, therefore, in the light of the law laid down by Coordinate
Bench in Oriental Insurance Company Limited vs. Manoj and Other, 2014 ACJ
2389, I do not find any ground to show indulgence in the matter for the reason that
insurance company failed to prove the aspect of breach of fitness by adducing cogent
evidence in this behalf.
Appeal fails and is hereby dismissed.
(VIVEK AGARWAL)
JUDGE
Tabish
