Madhya Pradesh High Court
Cholamandalam Ms General Ins. Co. ... vs Smt. Madhuri Pawar on 31 October, 2023
Author: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 31 st OF OCTOBER, 2023
MISC. APPEAL No. 5896 of 2022
BETWEEN:-
CHOLAMANDALAM MS GENERAL INS. CO. LTD. FIRST
FLOOR CALCUTTA AUTOMOBILES NAGPUR ROAD
JABALPUR M.P. THROUGH MANAGER (LEGAL)
CHOLAMANDALAM MS GENERAL INSURANCE CO.
LTD. 1133/1 PAWAN COMPLEX OPPOSITE HATHITAL
GURUDWARA HATHITAL JABALPUR M.P. (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI T. S. LAMBA - ADVOCATE)
AND
1. ABDUL KARIM KHAN S/O JABBAR KHAN, AGED
ABOUT 55 YEARS, VILLAGE JHIRIYA TEHSIL
MOHKHED DISTRICT CHHINDWARA M.P.
(MADHYA PRADESH)
2. JUBEDA KHAN D/O ABDUL KARIM KHAN, AGED
ABOUT 20 YEARS, R/O VILLAGE JHIRIYA, TAHSIL
MOHKHED, DISTRICT CHHINDWARA (MADHYA
PRADESH)
3. TAHIR KHAN S/O ABDUL KARIM KHAN, AGED
ABOUT 15 YEARS, OCCUPATION: MINOR
THROUGH NEXT FRIEND FATHER ABDUL KARIM
KHAN R/O VILLAGE JHIRIYA, TAHSIL MOHKHED,
DISTRICT CHHINDWARA (MADHYA PRADESH)
4. VINOD WADBUDE S/O MAHADEV WADBUDE R/O
VILLAGE TARA, TAHSIL MOHKHED, DISTRICT
CHHINDWARA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI M.R. VERMA - ADVOCATE)
MISC. APPEAL No. 5895 of 2022
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 02-11-2023
19:57:16
2
BETWEEN:-
CHOLAMANDALAM MS GENERAL INS. CO. LTD. FIRST
FLOOR CALCUTTA AUTOMOBILES NAGPUR ROAD
JABALPUR M.P. THROUGH MANAGER (LEGAL)
CHOLAMANDALAM MS GENERAL INSURANCE CO.
LTD. 1133/1 PAWAN COMPLEX OPPOSITE HATHITAL
GURUDWARA HATHITAL JABALPUR M.P. (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI T.S. LAMBA - ADVOCATE)
AND
1. SMT. MADHURI PAWAR W/O LATE MEKSHYAM
PAWAR @ MEGHRAM PAWAR, AGED ABOUT 24
YEAR S , VILLAGE JHIRIYA TEHSIL MOHKHED
DISTRICT CHHINDWARA M.P. (MADHYA
PRADESH)
2. SMT. KACHRA BAI W/O RAMLAL PAWAR, AGED
ABOUT 65 YEARS, R/O VILLAGE JHIRIYA TAHSIL
MOHKHED DISTRICT CHHINDWARA (MADHYA
PRADESH)
3. RAMLAL PAWAR S/O LATE LALAJI PAWAR, AGED
ABOUT 70 YEARS, R/O VILLAGE JHIRIYA TAHSIL
MOHKHED DISTRICT CHHINDWARA (MADHYA
PRADESH)
4. DIVYANSH PAWAR S/O LATE MEKSHYAM PAWAR
@ MEGHRAM PAWAR, AGED ABOUT 1 YEARS,
OCCUPATION: THROUGH NEXT FRIEND MOTHER
SMT. MADHURI PAWAR R/O VILLAGE JHIRIYA
TAHSIL MOHKHED DISTRICT CHHINDWARA
(MADHYA PRADESH)
5. VINOD WADBUDE S/O MAHADEV WADBUDE R/O
VILLAGE TARA TAHSIL MOHKHED DISTRICT
CHHINDWARA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI M.R. VERMA - ADVOCATE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 02-11-2023
19:57:16
Dictated in Open Court:
These appeals are filed by the insurance company being aggrieved of the
award dated 01.07.2022 passed by Motor Accident Claims Tribunal,
Chhindwara in MACC No.411 of 2018 and MACC No.412 of 2018 on the
ground that deceased and injured were gratuitous passengers in a pickup van
and there being no coverage for the gratuitous passengers, order of pay and
recover is contrary to the law laid down by the Supreme Court in the case of
New India Assurance Co. Ltd. v. Asha Rani, AIR 2003 SC 607.
2. Shri T.S. Lamba, learned counsel for the appellant insurance company
reading FIR (Exhibit P-4) submits that it is clearly mentioned by the author of
the FIR that deceased, injured and the author of the FIR - Akku s/o Abdul were
travelling in a Pickup van bearing registration MP 28 G 4513 along with
Megshyam Pawar and Sahil Musalman. The vehicle was being driven rashly and
negligently as a result, it turned turtle and Sahil s/o Kalim Musalman died due to
crush injuries whereas Meghshyam Pawar sustained injuries and succumbed to
the same.
3. Shri M.R. Verma, learned counsel for the claimants, in his turn, reading
evidence of Akku submits that PW-2 who has said that in fact the injured and
deceased were respectively standing by the side of the road when Vinod had
driven the pickup vehicle in a rash and negligent manner as a result of which
both Sahil and Megshyam sustained injuries coming in the grip of the vehicle
which turned turtle.
4. It is submitted that in terms of the judgment of the Coordinate Bench of
this Court in Satishchandra Upadhyay and Others v. Harnamsingh and
Others, 2020 (3) MPLJ 158, FIR cannot be used to corroborate the
Signature Not Verified
evidence therefore, FIR could not have been used to contradict or corroborate
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 02-11-2023
19:57:16
Akku. On the other hand, Shri T.S. Lamba places reliance on the decisions of
the Supreme Court in the cases of Oriental Insurance Co. Ltd. v. Premlata
Shukla and Others, (2007) 13 SCC 476 and National Insurance Company
Ltd. v. Rattani and Others, (2009) 2 SCC 75 to submit that if party is relying
on FIR in support of their claim, then they cannot be allowed to partly admit the
contents of the FIR and partly deny the same.
5. After hearing learned counsel for the parties and going through the
record, firstly the decision in Satishchandra Upadhyay (supra) as quoted by
Shri M.R. Verma, advocate is out of context. The law laid down in the said
case placing reliance on the decision of the Supreme Court in the case of State
of MP v. Surbhan, AIR 1996 SC 3345 is that FIR cannot be used to
corroborate evidence of a third party but it can be used either to corroborate or
for contradiction of its maker. In the present case, since maker of FIR is Akku
and he himself narrated the fact that Akku along with Sahil and Megshyam were
travelling in a goods vehicle therefore, it was not open to Akku to change his
version and say that his signatures were obtained by police on blank papers.
Thus, the judgment in Satishchandra Upadhyay (supra) has no application in
the facts and circumstances of the present case.
6. Though the Claims Tribunal has relied on the judgment of the Supreme
Court in the case of Shivaraj v. Rajendra and another, (2018) 10 SCC 432
but it is true that the said judgment failed to take into consideration a three-
Judge Bench decision in the case of New India Assurance Co. Ltd. v. Asha
Rani (supra) wherein it is held that if there is no coverage, then there will be no
liability to pay compensation. When this aspect is taken into consideration, then
it is true that when there is no coverage for gratuitous passengers travelling in a
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 02-11-2023
19:57:16
goods carrying vehicle which too had capacity of only two persons i.e. driver
and one more, and three persons were admittedly travelling besides the driver
then a direction to pay and recover, though appears to be humanitarian but
cannot be sustained in the eye of law as there was no coverage for the
gratuitous passengers in the insurance policy.
7. Before parting, it would be necessary to clarify that admittedly there is
no pleading that the passengers were owners of the goods. Had there been a
pleading or dispute whether they were owners of the goods or not, then the fate
of these appeals would have been different. But when admittedly they were
gratuitous passengers and there was no coverage and there is no dispute in
regard to this fact, then finding of pay and recover cannot be sustained even
taking a very humanistic approach. Therefore, while maintaining the award,
finding of pay and recover is set aside.
8. Appeals are allowed in above terms and are disposed of.
VIVEK AGARWAL)
JUDGE
ks
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 02-11-2023
19:57:16
