Madhya Pradesh High Court

Smt. Sukhwanti vs Amarjeet Singh on 6 October, 2023

Author: Vivek Agarwal

1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 6 th OF OCTOBER, 2023
MISC. APPEAL No. 2221 of 2015

BETWEEN:-
1. SMT. SUKHWANTI W/O LATE SHRI VIJAY SEN,
AGED ABOUT 25 YEARS, OCCUPATION: HOUSE WIFE,
R/O VILLAGE RAMPUR NAUDIHAWA POST OFFICE
MATWAR P.S. HALIYA TEH- LALGANJ (UTTAR
PRADESH)

2. SHIVAM, S/O LATE SHRI VIJAY SEN, AGED ABOUT
9 YEARS, MINOR THROUGH THEIR NATURAL
GUARDIAN MOTHER (APPELLANT NO.1), R/O VILLAGE
RAMPUR NAUDIHAWA POST OFFICE MATWAR P.S.
HALIYA TEH- LALGANJ (UTTAR PRADESH)

3. SURAJ SEN, S/O LATE SHRI VIJAY SEN, AGED
ABOUT 7 YEARS, MINOR THROUGH THEIR NATURAL
GUARDIAN MOTHER (APPELLANT NO.1), R/O VILLAGE
RAMPUR NAUDIHAWA POST OFFICE MATWAR P.S.
HALIYA TEH- LALGANJ (UTTAR PRADESH)

4. NEERAJ SEN, S/O LATE SHRI VIJAY SEN, AGED
ABOUT 5 YEARS, MINOR THROUGH THEIR NATURAL
GUARDIAN MOTHER (APPELLANT NO.1), R/O VILLAGE
RAMPUR NAUDIHAWA POST OFFICE MATWAR P.S.
HALIYA TEH- LALGANJ (UTTAR PRADESH)

5. DHEERAJ SEN, S/O LATE SHRI VIJAY SEN, AGED
ABOUT 2 YEARS, MINOR THROUGH THEIR NATURAL
GUARDIAN MOTHER (APPELLANT NO.1), R/O VILLAGE
RAMPUR NAUDIHAWA POST OFFICE MATWAR P.S.
HALIYA TEH- LALGANJ (UTTAR PRADESH)

6. DASAI SEN, S/O SHRI DAULAT SEN, AGED ABOUT
70 YEARS, R/O VILLAGE RAMPUR NAUDIHAWA POST
OFFICE MATWAR P.S. HALIYA TEH- LALGANJ (UTTAR
PRADESH)

.....APPELLANTS
(BY SHRI ASHOK SINGH - ADVOCATE )

AND
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 10-10-2023
19:06:25
2
1. AMARJEET SINGH S/O SHRI DEVENDRA SINGH,
AGED ABOUT 30 YEARS, OCCUPATION: DRIVER,
R/O VILLAGE NAUDHIYA TEH- GOPAD BANAS P.S.
KOTWALI SIDHI, DISTT. SIDHI (MADHYA
PRADESH) (DRIVER)

2. AJAY SINGH S/O SHRI RAMESHWAR SINGH, R/O
VILLAGE NAUDHIYA, TEH. GOPAD BANAS, P.S.
KOTWALI SIDHI, DISTT. SIDHI (MADHYA
PRADESH) (OWNER, M.P.-53-GA/2397)

3. THE I.C.I.C.I. LOMBARD GENERAL INSURANCE
CO. LTD., BRANCH OFFICE, LOMBARD HOUSE,
414, VEER SAWARKAR ROAD, NEAR SIDDHI,
VINAYAK TEMPLE, PRABHADEVI, MUMBAI,
(MAHARASHTRA) (INSURANCE COMPANY)

.....RESPONDENTS
(RESPONDENT No. 1 BY SHRI RAKESH DWIVEDI - ADVOCATE )
(RESPONDENT No.3 BY SHRI T.S. LAMBA - ADVOCATE)

This appeal coming on for admission this day, th e court passed the
following:
ORDER

This Misc. Appeal is filed being aggrieved of award dated 01.09.2015 passed by Motor Accident Claims Tribunal, Sidhi in Claim Case No. 87/2014 whereby learned Claims Tribunal has denied the claim after making calculation of compensation to the tune of Rs.10,03,800/- on the ground that claimants could not prove that the accident took place with the offending vehicle bearing Registration No. MP-53GA-2397. It has also recorded a finding that it could not be proved that the vehicle was being driven in violation of the terms and conditions of the Insurance Policy.

2. Learned counsel for the claimants submits that FIR was lodged for an accident which took place on 28.05.2013 on 13.06.2013 by one Shyamlal Sen, Ward Boy where the deceased was admitted in the Hospital. It is submitted that, it has come on record that the driver of the black color Bolero vehicle

Signature Not Verified Signed by: AMITABH RANJAN Signing time: 10-10-2023 19:06:25

belonging to Umesh Singh Chauhan being driven in a rash and negligent manner caused accident.

3. It is submitted that the vehicle which was seized is the one against which case was registered. Marg intimation was recorded on 31.05.2013 by Shyamlal Sen. It is also submitted that the property in question i.e. vehicle bearing Registration No. MP-53GA-2397 was seized on 13.06.2013, driver of the vehicle Amarjeet Singh Chauhan @ Rinku Singh Chauhan was arrested on 23.06.2013, he was released on bail on the same day and thereafter, in the technical mechanical report it was found that accident took place because of negligent driving. In the statements, it has come on record that the accident had taken place with the said vehicle bearing Registration No. MP53GA-2397. No protest was filed by the owner/driver and therefore, the owner/driver and insurer should not have been exonerated.

4. Shri T.S. Lamba, learned counsel for respondent No.3 submits that he would like to place reliance on judgments of Supreme Court in the case of New India Assurance Co. Ltd. Vs. Asharani & Ors. AIR 2003 (SC) 607, National Insurance Co. Ltd. Vs. Rattani & ors. (2009)2 SCC 75 and New India Assurance Co. Ltd. Vs. Vedwati & Ors. (2007)9 486 . It is submitted that it has come in the statements of the widow Smt. Sukhwanti that the deceased Vijay Sen was traveling on 28.05.2013 from his home town Rampur

Nodiwa to Sidhi to participate in a marriage program. It is thus pointed out that when the accident took place deceased was a gratuitous passenger for whom there is no coverage in the Insurance Policy, therefore, Insurance Company should have been exonerated from its liability to pay compensation.

5. Shri Rakesh Dwivedi, learned counsel for respondents No.1 & 2 i.e. driver and owner of the offending vehicle, in his turn supports the impugned Signature Not Verified Signed by: AMITABH RANJAN Signing time: 10-10-2023 19:06:25

award.

6. After hearing learned counsel for the parties and going through the record, Shri Rakesh Dwivedi is not in a position to answer that if they were falsely implicated then why a complaint was not lodged with the Superintendent of Police or before any other competent authority.

7. Merely mentioning a fact that accident took place from the vehicle of Umesh Singh is not a sufficient circumstance to deny the claim petition. FIR is not an encyclopedia. Vehicle has been properly seized from the owner/driver. There is a mechanical/technical report pointing out that the said vehicle had met with an accident therefore, exoneration of the owner, driver and insurer on hyper technical grounds that the vehicle in question was not involved in the accident is not called for.

8. Looking to the statement given by Amarjeet Singh S/o Devendra Singh and Ajay Singh S/o Rameshwar Singh that they could not appear before the Court after receipt of summons because they had taken their vehicle to Uttar Pradesh and returned on 26.02.2014 and thus, prayed for setting-aside the ex- parte proceeding, which was accepted by the learned Claims Tribunal vide order dated 16.09.2014 and time was given to them to file the written statement but no written statement was filed despite opportunity being granted on 16.10.2014 and 18.11.2014, when they were again proceeded ex-parte on 21.01.2015 is the circumstance which should have been taken into consideration by the learned Claims Tribunal that respondent No.1 & 2 was not disputing the factum of accident nor they filed any defence or evidence in defence. Thus, by implication after appearing, not filing the written statement, was acceptance of the contentions raised in the claim petition, order of exoneration cannot be given

Signature Not Verified Signed by: AMITABH RANJAN Signing time: 10-10-2023 19:06:25

a seal of approval. Therefore, the order of exoneration is hereby set-aside.

9. As far as quantum of compensation is concerned, learned Claims Tribunal has calculated it but has not added future prospects which should have been added @ 40% looking to the age of the deceased which has come on record as 30 years. Thus, on calculated pecuniary compensation of Rs.8,03,800/- when 40% is added, it comes out to Rs.3,21,520/- and therefore, total pecuniary compensation in place of Rs.8,03,800/- will come out to Rs.11,25,320/- and total compensation will comes out to Rs.13,25,320/- which will be payable in faovour of the claimants.

10. Now the next question is that once the Tribunal has held that there was no violation of the terms and condition of policy while deciding the Issue No.3 and the Insurance Company has not lead any evidence in this behalf then the judgments rendered in the case of New India Assurance Co. Ltd. Vs. Asharani & Ors. (Supra), National Insurance Co. Ltd. Vs. Rattani & ors. (supra) and New India Assurance Co. Ltd. Vs. Vedwati & Ors. (supra) will be of assistance to the Insurance Company or not ?

11. It is true that insurance company did not lead any independent evidence to prove violation of the terms and conditions of the insurance policy, but, fact of the matter is that claimant herself has admitted the fact that her husband was travelling as a gratuitous passenger for which there was no coverage in the insurance policy. Therefore, it is directed that this claim amount will be payable by the owner, driver of the offending vehicle in joint and several manner along with interest @ 6% per annum from the date of filing of claim petition till the date of actual payment.

12. In above terms, this miscellaneous appeal is allowed and disposed of.

Signature Not Verified Signed by: AMITABH RANJAN Signing time: 10-10-2023 19:06:25

(VIVEK AGARWAL) JUDGE Amitabh

Signature Not Verified Signed by: AMITABH RANJAN Signing time: 10-10-2023 19:06:25