Iffco Tokio General Insurance ... vs Dilip Pal
2023 Latest Caselaw 17832 MP

                                                      1
                          IN    THE     HIGH COURT OF MADHYA PRADESH
                                             AT JABALPUR
                                                   BEFORE
                                     HON'BLE SHRI JUSTICE VIVEK AGARWAL
                                          ON THE 26 th OF OCTOBER, 2023
                                           MISC. APPEAL No. 3524 of 2022

                         BETWEEN:-
                         IFFCO TOKIO GENERAL INSURANCE COMPANY LTD.
                         THROUGH ITS MANAGER BRANCH OFFICE MALVIYA
                         COMPLEX SHASHTHI MATA MANDIR PARASIYA ROAD
                         CHHINDWARA (MADHYA PRADESH)

                                                                             .....APPELLANT
                         (BY SHRI RAKESH JAIN - ADVOCATE)

                         AND
                         1.    DILIP PAL S/O SHRI GIRDHAR PAL, AGED ABOUT
                               24 YEARS, VILLAGE CHORMARI, P.S. AND TEHSIL
                               RAMPUR, BAGHELAN, DISTRICT SATNA NOW R/O
                               KABEER WARD DUNDASEONI P.S. DUNDASEONI
                               TEHSIKL AND DISTT. SEONI (MADHYA PRADESH)

                         2.    PINKY PAL D/O SHRI GIRDHAR PAL, AGED ABOUT
                               21 YEARS, R/O VILLAGE CHORMARI P.S. AND
                               TAHSIL RAMPUR BAGHELAN DISTRICT SATNA
                               M.P. NOW R/O KABEER WARD DUNDASEONI P.S.
                               DUNDASEONI TEHSIL AND DISTRICT SEONI M.P.
                               (MADHYA PRADESH)

                         3.    ARVIND PAL S/O SHRI GIRDHAR PAL, AGED
                               ABOUT 18 YEARS, R/O VILLAGE CHORMARI P.S.
                               AND TAHSIL RAMPUR BAGHELAN DISTRICT
                               SATNA M.P. NOW R/O KABEER WARD
                               DUNDASEONI P.S. DUNDASEONI TEHSIL AND
                               DISTRICT SEONI M.P. (MADHYA PRADESH)

                         4.    GIRDHAR S/O SHRI SAKALCHAND PAL, AGED
                               ABOUT 52 YEARS, R/O VILLAGE CHICHGAON P.S.
                               AND TEHSIL CHOURAI DISTRICT CHHINDWARA
                               M.P. (MADHYA PRADESH)

                         5.    SANDEEP PAL S/O RAJKUMAR PAL R/O VILLAGE
                               CHICHGAON POST MACHAGORA P.S. AND TEHSIL
                               CHOURAI    DISTRICT   CHHINDWARA     M.P.
Signature Not Verified
Signed by: AMIT JAIN
Signing time: 27-10-
2023 18:50:41
                                                              2
                               (MADHYA PRADESH)

                                                                                        .....RESPONDENTS

                               T h is appeal coming on for orders this day, t h e cou rt passed the
                         following:
                                                              ORDER

This appeal is filed by the Insurance Company being aggrieved of award dated 23.4.2022 passed by learned Member, First Additional Motor Accident Claims Tribunal, Seoni in M.A.C.C No.06/2021.

Learned counsel for the appellant submits that in the FIR lodged immediately after the accident, there is a mention of the fact that Deceased Binda Bai had fallen down on account of low blood pressure, as a result of

which, she felt dizziness and had fallen from the Motorcycle on which she was travelling as a Pillion Rider. Reading from the evidence of one of the Claimants, namely, Dilip Pal, it is pointed out that in cross-examination, he admits a fact that he is not an eye-witness to the accident. He, however, admits that in the FIR Exhibit P/1 and Merg Diary Exhibit P/2, his father, who was arrayed as Non-Applicant No.1 in the Claim Case as Driver of the Motorcycle, had clearly mentioned that Binda Bai on account of low blood pressure used to have feeling of dizziness and on account of low blood pressure, she may have fallen form the Motorcycle. When the aforesaid aspect is taken into consideration then there being no coverage for such accidental fall from the Motorcycle on account of low blood pressure and, therefore, the claim could not have been allowed by the Claims Tribunal.

Reliance is placed on the judgment of the Apex Court in Surender Kumar Arora & Another versus Manoj Bisla & Others (2012) 4 SCC 552 wherein it is held that it is the responsibility of the claimants to established Signature Not Verified Signed by: AMIT JAIN Signing time: 27-10-

2023 18:50:41

that Respondent No.1 drove the vehicle in a rash and negligent manner, which resulted in fatal accident but in the present case, no such defence is taken that the Motorcycle was being driven in a rash and negligent manner.

I have heard learned counsel for the appellant and gone through the record.

Nobody is appearing for the respondents despite service of notice. Taking into consideration the evidence of Claimant Dilip Pal, who is not an eye-witness to the accident and the contents of the FIR as recorded by Girdhar with whom the deceased was travelling and who happens to be the best witness, who had seen the incident, when it is mentioned that the deceased had fallen down from the Motorcycle on account of low blood pressure and dizziness and the aspect of rash and negligent driving, which is a sine qua non, for allowing a claim petition under Section 166 of the Motor Vehicles Act, 1988 being not available, the impugned award dated 23.4.2022 passed by learned Member, First Additional Motor Accident Claims Tribunal, Seoni in M.A.C.C No.06/2021 cannot be sustained in the eyes of law.

Accordingly, this appeal is allowed setting aside the impugned award dated 23.4.2022 passed by learned Member, First Additional Motor Accident Claims Tribunal, Seoni in M.A.C.C No.06/2021.

Let record of the Claims Tribunal be sent back.

(VIVEK AGARWAL) JUDGE amit

Signature Not Verified Signed by: AMIT JAIN Signing time: 27-10-

2023 18:50:41