Madhya Pradesh High Court
Gubandi vs Khilan on 26 February, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
IN THE HIGH COURT OF MADHYA PRADESH
AT J A B A L P U R
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 26th OF FEBRUARY, 2024
MISC. APPEAL No. 2551 of 2021
BETWEEN:-
1. GUBANDI S/O LATORI AHIRWAR, AGED ABOUT 35
YEARS, OCCUPATION: LABOUR
2. KAMTA S/O GUBANDI, AGED ABOUT 12 YEARS,
OCCUPATION: STUDENT
3. KU.YOGITA D/O GUBANDI, AGED ABOUT 9 YEARS,
OCCUPATION: STUDENT, RESPONDENTS NO. 2 AND 3
ARE MINOR THROUGH NATURAL GUARDIAN SUIT
FRIEND GUBANDI R/O SAGAR, DISTRICT SAGAR
(MADHYA PRADESH)
.....APPELLANTS
(BY MS. SHOBHNA SHARMA - ADVOCATE )
AND
1. KHILAN S/O DARBARI AHIRWAR, AGED ABOUT 35
YEARS, R/O VANGAON, P.S. HATA DIST. DAMOH MP
(MADHYA PRADESH)
2. THE NEW INDIA INSURANCE CO.LTD.BRANCH
OFFICE DAMOH, DISTRICT DAMOH (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI ANISH CHOUKSEY - ADVOCATE FOR RESPONDENT NO.2)
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Reserved on : 22.01.2024
Pronounced on : 26 .02.2024
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This appeal having been heard and reserved for judgment, coming on for
pronouncement this day, the Court passed the following:
Signature Not Verified
Signed by: VIKRAM SINGH
Signing time: 2/27/2024
4:14:15 PM
2
ORDER
This appeal under Section 173 (1) of the Motor Vehicle Act, 1988
has been filed by the appellants/ claimants against the award dated
24.09.2021 passed in M.A.C.C. No. 74/2016 (Gubandi and others Vs.
Khilan and another) whereby the learned First Additional Motor Accident
Claims Tribunal, Rehli, District Sagar has dismissed the claim petition
against the respondents.
2. As per the story of the claimants, deceased Kirti was going on the
motorcycle of her brother Khilan. Due to rash and negligent driving of
motorcycle by Khilan, Kirti fell down and her death occurred.
3. Before the Tribunal, the defence of the non-applicant No.1 Khilan
i.e. brother of the deceased was that she was going on his motorcycle but
her leg slipped from motorcycle and she fell down and if any liability
comes, it is on Insurance Company. The Insurance Company has denied
the liability and prayed for dismissal of the appeal.
4. The claimants husband and children of the deceased also submitted
that on account of rash and negligent driving by Khilan (real brother of
deceased), she died.
5. Learned Tribunal dismissed the claim petition against which this
appeal has been filed on the ground that the Tribunal failed to appreciate
the pleadings and evidence. It failed to appreciate that challan was filed,
therefore, prays for setting aside the dismissal of claim petition.
6. After hearing learned counsel for the parties and perusing the record,
it is seen that as per paragraphs Nos. 16 to 18, the Tribunal has correctly
appreciated the facts and law.
7. At the outset, it is a settled view that accident cases under Motor
Vehicle Act, 1989 relating to compensation are to be decided not on strict
appreciation of evidence but to be decided looking to the probability in the
case but it was also submitted by the learned counsel for the appellant that
it is social welfare legislation but in the considered view of this Court that
does not mean that when a case is not proved even then out of the public
money available with the Insurance Company by way of premium from
their policy holders, compensation has to be awarded.
8. In claim petition, the story of the claimant is different from what he
has stated in the claim Tribunal . In claim Tribunal he never mentioned in
the pleadings that he was also riding on the motorcycle along with his
brother-in-law Khilan, wife Kirti and his two children. Thus, total five
persons on a motorcycle in any case is not allowed and is illegal but in the
Tribunal, just to be an eye-witness he submits that he was also going on
motorcycle. This fact is not reflected in the FIR Ex.P/1 also. Further no
medical report has been filed about the injuries to husband and children
who were also going on the motorcycle.
9. Lodging of FIR in this case is delayed by 7 months and no proper
explanation is there regarding delay. If the deceased died while riding the
motorcycle by her real brother and her husband and children were also
sitting on the motorcycle then no cause is reflected in the FIR Ex. P/1
about this delay. Hence, it is proved that claimants have not come with
clean hands before the Claims Tribunal and there is variance in pleadings
in the claim petition and evidence in the Tribunal and claimants have tried
to make out a new case during recording of evidence as to who was riding
the motorcycle or not, therefore, dismissal is well justified. Accordingly,
the appeal is dismissed at motion stage itself.
Let copy of this order be sent to the concerned Court along with the
record.
(AVANINDRA KUMAR SINGH)
JUDGE
VSG
