Madhya Pradesh High Court
Dharmendra Kumar vs Smt.Durga Bai & Ors. on 26 February, 2024
1
In The High Court Of Madhya Pradesh
At Jabalpur
Before
Hon'ble Shri Justice Duppala Venkata Ramana
On The 26th of February, 2024
Misc. Appeal No. 1451 Of 2005
Between:-
Dharmendra Kumar S/o Govind Prasad
Pandey, Aged about 24 Years, R/o Itora,
Police Station- Barhi, District - Katni
(Madhya Pradesh)
.....Appellant
(By Shri Sahil Sonkusale - Advocate)
AND
1. Smt.Durga Bai W/o Late Mahesh
Singh Raghuvanshi Aged about 18
Years
2. Ramraj Singh S/o Balgovind, Aged
about 45 Years.
3. Smt. Panbai W/o Ramraj Singh
Raghuvanshi Village, Aged about 40
Years.
All the above R/o Itaira Barhi,
Vijayraghogarh, District- Katni
(Madhya Pradesh)
4. Mukesh Kumar S/o Vinod Kumar
Tiwari, Aged About 25 Years, R/o
Itoura Barhi, District - Katni
(Madhya Pradesh)
5. The New India Insurance Co.Ltd.
Through Divisional Manager, 290,
Napier Town, Jabalpur (Madhya
Pradesh)
.....Respondents
(By Shri Bhanu Vishwakarma - Advocate)
2
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Reserved On : 12.02.2024
Pronounced On : 26.02.2024
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This appeal coming on for hearing on 12.02.2024, the court
passed the following:
JUDGMENT
This appeal filed by the appellant under Section 173 of the Motor
Vehicle Act, 1988 (for short "the Act") challenging the award dated
07.02.2005 delivered by the Motor Accident Claims Tribunal, Katni in
MACC No.53/2003 where the learned Claims Tribunal directed the
respondent no.3/insurance company to pay the compensation amount of
Rs.1,79,500/- to the claimants and thereafter, the insurance company
shall be entitled to recover the entire amount from the respondent no.1
and 2.
2. For the sake of convenience, the parties are referred to as they
arrayed before the Motor Accident Claims Tribunal (in short "MACT").
3. The brief facts, necessary for adjudication of this case are that on
06.04.2003 at about 5:00 pm, Mahesh Singh along with Arvind Kumar
Pandey were returning after filling sand in Tractor No.MP-21-9242 and
Trolley No.MP-21-9243, the said tractor driven by its driver/respondent
no.1 in rash and negligently and the said tractor overturned, due to
which, Mahesh Singh died on the spot. The matter was reported to the
police alleging that the accident took place, as a result of rash and
negligent driving of the said tractor bearing Tractor No.MP-21-9242
and based on the complaint lodged by Ramraj Singh Raghuvanshi to the
Badera Police Station registered a case in Crime No.21/2003 for
offences under section 279 and 304-A of IPC. After completion of
investigation of the case, a charge-sheet was submitted before the Court
of Judicial Magistrate First Class, Maiher against the accused driver
(first respondent) for having committed an offences punishable u/s 279
and 304A of IPC.
4. The first applicant is the wife, second and third applicants are the
parents of the deceased who filed an application before the Tribunal
claiming compensation a sum of Rs.5,75,000/-, on account of the death
of deceased in the accident.
5. The respondent no.1 and 2 filed their written statement denied the
allegations made in the claim petition and further averred that the first
respondent was having a valid driving license and not violated any of
the conditions of the insurance policy and, therefore, the respondent
no.3/insurance company is liable to pay compensation.
6. The third respondent/insurance company filed written statement
contending, inter-alia, that the offending vehicle tractor-trolley was
used by the first and second respondents other than the agricultural
purpose. It is further averred that the claim made by the claimants is
imaginary and for wrongful gain. The deceased Mahesh Singh was
neither a labour nor the employee of the second respondent, therefore,
the insurance company is not liable to pay any compensation. Further
averred that on the date of the incident i.e. 06.04.2003 there was no
valid driving licnese to drive the tractor trolley by the first respondent,
further averred that the said offending vehicle used for different purpose
other than the agricultural work, therefore, the first and second
respondents violated the terms and conditions of the insurance policy
and, therefore, claimants are not entitled for any compensation, hence, it
is prayed to dismiss the petition.
7. Based on the above pleadings, the learned Tribunal framed the
following issues on 02.08.2021 :-
(i). Whether on the date of the incident, the first
respondent Mukesh Kumar driven Trolley
No.MP-21-9243 attached with Tractor
No.MP21-9242 in rash and negligently and
caused the death of Mahesh Singh Raghuvansh ?
(ii). Whether the claimants are entitled to receive
compensation from the respondents? If yes, then
from whom and how much.
(iii.). Whether the first respondent did not have any
valid license to drive the vehicle ?
(iv). Whether the tractor-trolley was being used for the
purpose other than agricultural purpose is
violation of insurance policy ?
(v). Aid and cost ?
8. In order to establish their claim at the time of inquiry AW-1 to
AW-3 were examined; Exhibits-P/1 to P/6 got marked on behalf of
appellants/claimants. No oral evidence was adduced and no documents
were marked on behalf of the respondent/insurance company.
9. The learned Tribunal after analyzing the entire evidence of AW-1
to AW-3 and Ex.P/1 to P/6 came to a conclusion that the accident
occurred due to rash and negligent driving of the offending
vehicle/tractor bearing No.MP-21-9242 and trolley No.MP-21-9243 by
its driver and passed the impugned award granting compensation of
Rs.1,79,500/- against the third respondent and after payment to the
claimants, the third respondent may recover the compensation amount
from the first and second respondents/driver and owner of the vehicle.
10. On appreciation of evidence, the following compensation was
awarded by the learned Tribunal:
Sr. Head of Compensation Amount of compensation
No. awarded in Rupees
1. Loss of dependency Rs.1,70,000/-
2. Loss of consortium Rs.5000/-
3. Funeral Expenses Rs.2,000/-
4. Loss of estate Rs.2,500/-
Total Rs.1,79,500/-
11. Aggrieved by and dissatisfied with the said award passed by the
learned Tribunal, the appellant/owner of the offending vehicle preferred
the present appeal seeking to modify the award directing the third
respondent /insurance company not to recover the compensation amount
from the first and second respondent/the driver and owner of the vehicle.
12. The learned counsel for the appellant/owner would submit that the
third respondent taken two views that the driver of the offending vehicle
does not have a valid driving license and the vehicle was used for other
than agricultural purposes which are not correct and none of them were
examined by the third respondent/insurance company to substantiate
their defence. Further would submit that the policy issued by the third
respondent to the offending vehicle is inforce by the time of the accident
which is admitted by the third respondent. Further would submit that
there is nothing on record to show that the tractor was being used for
commercial purpose or other than the agricultural purpose i.e. for hire or
reward as contemplated under section 149(2)(a) of the Act and further
would submit that although a plea of breach of conditions of the policy
was raised before the learned Tribunal but no evidence led to prove the
same by the third respondent. In absence of such evidence, it cannot be
presumed that there was a breach of condition of policy. It is further
submitted that it is clear from the record that the insurance company did
not adduce any evidence in support of its contention that the offending
vehicle was used for other than agricultural purposes, this submission
has no legal foundation, therefore, amount of compensation awarded by
learned Tribunal shall be paid by the Insurance Company and shall not
be recovered from the first and second respondents and prays to modify
the award and to delete the direction given to the third respondent to
recover the compensation amount from the first and second
respondents/driver and owner of the vehicle.
13. Learned counsel for the third respondent/insurance company has
submitted that there was a breach of policy in terms as the offending
vehicle used for other than agricultural purposes is a ground for denying
the compensation. Further would submit that the learned Tribunal
committed an error in awarding compensation contrary to the judgments
of Hon'ble Apex Court and further would submit that there was no merit
in the appeal and prays for dismissal.
14. In view of the above rival arguments, the points for determination
in this appeal are as under:-
"Whether there is any merit in the appeal setting
aside the impugned judgment dated 07.02.2005
insofar as the directing the third respondent to recover
the amount awarded from the first and second
respondents/driver and owner of the vehicle ?"
15. Learned counsel for the appellant has placed reliance upon the
judgment passed by the Hon'ble Supreme Court in the case of Lakhmi
Chand Vs. Reliance General Insurance1 , the relevant para no.14 held
as thus:
14. Further, in National Insurance Co. Ltd. v. Swaran
Singh [National Insurance Co. Ltd. v. Swaran Singh, (2004) 3
SCC 297 : 2004 SCC (Cri) 733] a three-Judge Bench of this
Court has held as under: (SCC pp. 325 & 330-31, paras 49, 52
& 69)
"49. Such a breach on the part of the insured must be
established by the insurer to show that not only the insured used
or caused or permitted to be used the vehicle in breach of the Act
but also that the damage he [Ed.: The victim.] suffered flowed
from the breach.
***
52. In Narcinva case [Narcinva V. Kamat v. Alfredo Antonio
Doe Martins, (1985) 2 SCC 574 : 1985 SCC (Cri) 274] a
Division Bench of this Court observed: (SCC p. 578, para 12)
'12. ... The insurance company complains of breach of a term
of contract which would permit it to disown its liability under the
contract of insurance. If a breach of a term of contract permits a
party to the contract to not to perform the contract, the burden is
squarely on that party which complains of breach to prove that
the breach has been committed by the other party to the contract.
The test in such a situation would be who would fail if no
evidence is led.'
***
69. The proposition of law is no longer res integra that the
person who alleges breach must prove the same. The insurance
company is, thus, required to establish the said breach by cogent
evidence. In the event the insurance company fails to prove that
there has been breach of conditions of policy on the part of the
1. (2016) 3 SCC 100
insured, the insurance company cannot be absolved of its
liability."
(emphasis supplied)
16. In the present case, though the respondent has taken plea that the
insured breaches the policy and used the offending vehicle other than
agricultural purpose. The insurance company is, thus, required to
establish the said breach by cogent evidence. Durga Bai (AW-1) stated
that the tractor was filled with sand, the first respondent driven the
offending vehicle and the tractor trolley overturned and fell on the
deceased due to which he died on the spot. No suggestion was put to
AW-1 to AW-3 by the counsel for the insurance company that the
offending vehicle was used for other than agricultural purpose or no
suggestion was put that the said offending vehicle used for hire or
reward. In the absence of the said suggestions, it cannot be said carrying
sand through offending vehicle was used for commercial purposes. On
perusal of the record, it is clear that at the time of accident a trolley was
attached with the tractor was carrying sand for the purpose of
construction of Well, however, merely because it was carrying sand
would not mean that the tractor was being used for commercial purpose
and consequently there was a breach of condition of the policy on the
part of the insured. There was nothing on record to show that the tractor
was used for commercial purpose.
17. Another decision of Hon'ble Supreme Court in National Insurance
Co. Ltd. v. V. Chinnamma2 held that: (SCC p. 702, para 16)
2. (2004) 8 SCC 697
"........... The tractor was meant to be used for
agricultural purposes. The trailer attached to the tractor,
thus, necessarily is required to be used for agricultural
purposes, unless registered otherwise. It may be, as has been
contended by Mrs K. Sharda Devi, that carriage of vegetables
being agricultural produce would lead to an inference that the
tractor was being used for agricultural purposes but the same
by itself would not be construed to mean that the tractor and
trailer can be used for carriage of goods by another person
for his business activities. ..............
18. In the light of the above decision thus, a tractor fitted with a
trolley may or may not answer the definition of "goods carriage"
contained in section 2(14) of the Act. Although a plea of breach of
condition of policy was raised before the learned Tribunal, there was no
evidence led to prove the same. In the absence of such evidence, it
cannot be said that there was a breach of condition of the policy. Thus,
in the facts and circumstances of the case the learned Tribunal was not
justified in transferring the burden of paying the amount of
compensation from the respondent no.3/insurance company to the
appellant herein, therefore, there is no reason to fasten the said liability
of paying the amount of compensation awarded by the learned Tribunal
on the appellant herein.
19. Another plea taken by the insurance company is that the first
respondent/driver of the offending vehicle did not possess a valid
driving license on the date of the accident except taking the said plea,
there was no evidence was led to prove the same by the insurance
company or not even taking any steps to summon the transport authority
along with license particulars of the first respondent whether the license
was issued in favour of first respondent. On the other hand, on perusal of
the record, the first respondent was having a valid driving license issued
by the transport authority on 06.07.1998 vide Driving License
No.M/1969/K/98 valid from 06.07.1998 to 03.05.2016. The copy of
license was very much available in the record, therefore, it can be
presumed that the first respondent/driver having a valid driving license
by the date of accident. In view of foregoing discussions, the learned
Tribunal was not justified in transferring the burden of paying the
amount of compensation from the respondent no.3/insurance company
to the appellant herein.
20. In view of above, I am of the considered opinion that the direction
of the Claims Tribunal to the third respondent/Insurance Company to
pay the amount of compensation awarded to the claimant first and
thereafter, to recover the same from the first and second
respondents/driver and owner, is not sustainable.
21. Resultantly, allow the appeal. Accordingly, the impugned
judgment dated 07.02.2005 is set-aside, insofar as the right to recover
the amount awarded from the first and second respondents/driver and
owner of the tractor-trolley/offending vehicle. If at all, the Insurance
Company recovered the compensation amount from the appellant herein,
it shall be refunded within six weeks without initiating any separate
proceedings by him. No order as to costs.
DUPPALA VENKATA RAMANA, J
rk
In The High Court Of Madhya Pradesh
At Jabalpur
Before
Hon'ble Shri Justice Duppala Venkata Ramana
On The 26th Of February, 2024
Misc. Appeal No. 1451 Of 2005
Between:-
Dharmendra Kumar S/o Govind Prasad
Pandey, Aged about 24 Years, R/o Itora,
Police Station- Barhi, District - Katni
(Madhya Pradesh)
.....Appellant
(By Shri Sahil Sonkusale - Advocate)
AND
1. Smt.Durga Bai W/o Late Mahesh Singh
Raghuvanshi Aged about 18 Years
2. Ramraj Singh S/o Balgovind, Aged about
45 Years.
3. Smt. Panbai W/o Ramraj Singh
Raghuvanshi Village, Aged about 40
Years.
All the above R/o Itaira Barhi,
Vijayraghogarh, District- Katni (Madhya
Pradesh)
4. Mukesh Kumar S/o Vinod Kumar Tiwari,
Aged About 25 Years, R/o Itoura Barhi,
District - Katni (Madhya Pradesh)
5. The New India Insurance Co.Ltd.
Through Divisional Manager, 290, Napier
Town, Jabalpur (Madhya Pradesh)
.....Respondents
(By Shri Bhanu Vishwakarma - Advocate)
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Reserved On : 12.02.2024
Pronounced On : 26 .02.2024
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SUBMITTED FOR APPROVAL :
HON'BLE SHRI JUSTICE DUPPALA VENKATA RAMANA
1. Whether Reporters of Local Newspapers may be allowed
to see the judgment ? Yes/No
2. Whether the copies of judgment may be marked to Law
Reporters/Journals ? Yes/No
3. Whether His Lordship wish to see the fair copy of the
Judgment ? Yes/No
DUPPALA VENKATA RAMANA, J.
rk
