Madhya Pradesh High Court
The Oriental Insurance Co. Ltd. vs Kesar Singh on 10 October, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 10 th OF OCTOBER, 2023
MISC. APPEAL No. 2268 of 2016
BETWEEN:-
THE ORIENTAL INSURANCE CO. LTD. THROUGH
DIVISIONAL MANAGER T.P. HUB OPP. JUBIOLEE GATE,
INDRAPURI, RAISEN ROAD, BHOPAL (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI RAHUL SINGH CHOUDHARY-ADVOCATE)
AND
1. KESAR SINGH S/O SADHURAM, AGED ABOUT 32
YEARS, OCCUPATION: GRA GRAM RAMNAGR ,
NASRULLAGANJ, SEHORE (MADHYA PRADESH)
2. THAVLI @ BATHLI BAI W/O KESAR SINGH, AGED
ABOUT 30 YEARS, GRAM SEVANIYA THANA
NASRULLAGANJ (MADHYA PRADESH)
3. RAKEHS S/O MOR SINGH GRAM RAMNAGAR,
NASRULLAGANJ SEHORE (MADHYA PRADESH)
4. SETULAL S/O RESHAMLAL 64-CHITAVAD,
BHAWARKUAN, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NITIN GUPTA-ADVOCATE)
MISC. APPEAL No. 2264 of 2016
BETWEEN:-
THE ORIENTAL INSURANCE CO. LTD. THROUGH
DIVISIONAL MANAGER T.P. HUB OPP. JUBILEE GATE,
INDRAPURI, RAISEN ROAD, BHOPAL (MADHYA
PRADESH)
Signature Not Verified
Signed by: KUNDAN
SHARMA
Signing time: 10/12/2023
10:21:46 AM
2
.....APPELLANT
(BY SHRI RAHUL SINGH CHOUDHARY-ADVOCATE )
AND
1. KESAR SINGH S/O SADHURAM, AGED ABOUT 32
YE A R S , GRAM RAMNAGAR, NASRULLAGANJ
SEHORE (MADHYA PRADESH)
2. THAVLI @ BATHLI BAI W/O KESHAR SINGH,
AGED ABOUT 30 YEARS, GRAM SEVANIYA THANA
NASRULLAGANJ (MADHYA PRADESH)
3. RAKESH S/O MOR SINGH GRAM RAMNAGAR,
NASRULLAGANJ SEHORE (MADHYA PRADESH)
4. SETULAL S/O RESHAMLAL 64-CHITAVAD,
BHAWARKUAN, INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NITIN GUPTA-ADVOCATE )
MISC. APPEAL No. 2267 of 2016
BETWEEN:-
THE ORIENTAL INSURANCE CO. LTD. THROUGH
DIVISIONAL MANAGER T.P. HUB, OPPOSITE JUBILEE
GATE, INDRAPURI RAISEN ROAD (MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAHUL SINGH CHOUDHARY-ADVOCATE )
AND
1. BHANGI BARELA S/O SADHURAM BARELA, AGED
ABOUT 30 YEARS, GRAM SEVANIYA THANA
NASRULLAGANJ (MADHYA PRADESH)
2. SIDDHI BAI W/O BHANGI BARELA, AGED ABOUT
28 YEARS, GRAM SEVANIYA THANA
NASRULLAGANJ (MADHYA PRADESH)
3. RAKESH S/O MR. SINGH GRAM RAM NAGAR TEH.
NASRULLAGANJ (MADHYA PRADESH)
4. SETULAL S/O RESHAMLAL 64 CHITAVAD
BHAWARKUAN INDORE (CHHATTISGARH)
Signature Not Verified
Signed by: KUNDAN
SHARMA
Signing time: 10/12/2023
10:21:46 AM
3
.....RESPONDENTS
(BY SHRI NTIIN GUPTA-ADVOCATE)
MISC. APPEAL No. 2269 of 2016
BETWEEN:-
THE ORIENTAL INSURANCE CO. LTD. THROUGH
DIVISIONAL MANAGER T.P. HUB OPPOSITE JUBILEE
GATE INDRAPURI RAISEN ROAD (MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAHUL SINGH CHOUDHARY-ADVOCATE)
AND
1. SMT. DUNA BAI W/O SADHURAM, AGED ABOUT 60
Y E A R S , GRAM SEVANIYA THANA
NASRULLAGANJ (MADHYA PRADESH)
2. RAKESH S/O MOR SINGH GRAM RAMNAGAR,
TEHSIL NASRULLGANJ (MADHYA PRADESH)
3. SETULAL S/O RESHAMLAL 64-CHITAVAD
BHAWARKUAN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI NITIN GUPTA-ADVOCATE )
These appeals coming on for admission this day, the court passed the
following:
ORDER
These appeals are filed by the Insurance Company and in some of them
counter-claim is filed by the respondents being aggrieved of award dated
11.05.2016 passed by learned Motor Accident Claims Tribunal, Narsullaganj,
District Sehore in MCC No.39/2013, 40/2013, 41/2013 and 42/2013 on the
ground that accident took place on 13.05.2013 when JCB machine bearing
Registration No.CG 13/A-7072 being driven rashly and negligently caused death
of Mukesh Singh, Kumari Baya, Ku. Sulki and injuries resulting in permanent
disablement to Smt. Dunabai.
Signature Not Verified
Signed by: KUNDAN
SHARMA
Signing time: 10/12/2023
10:21:46 AM
It is submitted that learned Claims Tribunal has fastened liability on the
Insurance Company to satisfy the award, overlooking a fact that there was
breach of policy and the driver of the offending vehicle namely Rakesh, son of
Mor Singh was not having a valid driving license. It is submitted that owner had
appeared before learned Tribunal and yet he did not produce any valid driving
license to show that driver was authorized to drive the said vehicle. There was
also lack of fitness at the time of the accident. Thus, it is submitted that vehicle
being driven without fitness and proper driving license, Insurance company
should have been exonerated.
Reliance is placed on the judgment of Co-ordinate Bench in New India
Insurance Company Ltd. Vs. Rajju Bai (2019) ACJ 2909: 2019 (1) MPLJ
405, wherein it is held that negative evidence cannot be produced and only
positive evidence is required to be produced. Similarly, reliance is placed on the
judgment of Supreme Court in United India Insurance Company Ltd. Vs.
Sujata Arora (2013) (3) ACC 918 wherein in the light of judgment in
National Insurance Company Ltd. Vs. Laxmi Narayan Dhut (2007) (4)
SCALE 36 and Jawahar Singh Vs. Bala Jain and others 2011 (5) SCALE
494, wherein it is held that if offending vehicle was driven by driver, who was
either holding no license or a fake license, then it amounts to violation of terms
and conditions of policy.
Shri Nitin Gupta learned counsel for the claimants, who has filed the
counter-claim submits that three of the deceased namely, Mukesh Singh was 10
years old, Ku. Baya was 9 years old and Sulki was 7 years old, therefore, in
terms of the decision of this Court, compensation needs to be enhanced
accordingly.
Signature Not Verified
After hearing learned counsel for the parties and going through the
Signed by: KUNDAN
SHARMA
Signing time: 10/12/2023
10:21:46 AM
judgments of Hon'ble Supreme Court in United India Insurance Company
Ltd. Vs. Sujata Arora, Laxmi Narain Dhut, Jawahar Singh (supra) and
that of Coordinate Bench in Rajju Bai and decision of this Court at Gwalior
Bench in Smt. Kastoori Bai Vs. Jawahar Singh (2018) 2 MPWN 167
wherein placing reliance on the judgment of this High Court in Droadibai Vs.
Shri Ratitam MACD 2009 (2) (MP) 523, it is held that once the driver of the
offending vehicle did not have any driving license indisputably, when the
accident took place, therefore, Insurance company cannot be held liable to pay
compensation.
Therefore, in the light of the judgment rendered by Supreme Court in
Pappu and others Vs. Vinod Kumar Lamba and Another (2018) 1 T.A.C.
360 (S.C.), it is directed that Insurance Company shall pay the compensation
and will be entitled to recover it from the owner/driver of the offending vehicle.
As far as quantum in regard to the counter-claim is concerned, now it is
settled that compensation of Rs.4,75,000/- (Four Lakh Seventy Five Thousands
Five Hundred) is payable in case of death of a minor, aged between 8 to 12
years and Rs. 04.50 lacs in case of death of 7 years old child. Therefore, in
case of Mukesh Singh and Ku. Baya a sum of Rs. 4,75,000/-(Four Lakh
Seventy Five Thousand Five Hundred) will be payable in place of Rs.
2,37,500/-(Two Lakh Thirty Seven Thousand Five Hundred). Thus, there will
be addition to the tune of Rs. 2,37,500/-(Two Lakh Thirty Seven Thousand
Five Hundred) in regard to claims filed for death of Mukesh Singh and Ku.
Baya i.e. in Claim Case No.39/2013 and 40/2013 whereas in Claim Case
No.41/2013 for death of Ku. Sulki, compensation will be enhanced by Rs.
2,13,500/-(Two Lakh Thirteen Thousand Five Hundred). This enhanced amount
Signature Not Verified
Signed by: KUNDAN
SHARMA
Signing time: 10/12/2023
10:21:46 AM
will also earn interest at the rate of 6% per annum from the date of filing of the
claim till the date of actual payment.
This enhanced amount along with accrued interest shall remain invested in
the Monthly Income Scheme of the Indian Post Office or a Nationalized Bank
for a period of ten years. The claimants will be entitled to withdraw and utilize
its monthly interest for their well being and maintenance, but the principal
amount will not be allowed to be withdrawn for a period of ten years.
In above terms, these appeals are disposed of.
(VIVEK AGARWAL)
JUDGE
kundan
Signature Not Verified
Signed by: KUNDAN
SHARMA
Signing time: 10/12/2023
10:21:46 AM
