Madhya Pradesh High Court
Branch Manager vs Smt. Sakshi Dubey S on 1 May, 2024
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 1 st OF MAY, 2024
MISC. APPEAL No. 1780 of 2023
BETWEEN:-
BRANCH MANAGER, UNITED INDIA INSURANCE CO.
LTD., ADDRESS - 40 CANTT. SAGAR, DISTRICT SAGAR
(MADHYA PRADESH) THROUGH ASSISTANT MANAGER.
.....APPELLANT
(BY SHRI DINESH KAUSHAL - ADVOCATE)
AND
1. SMT. SAKSHI DUBEY S S/O SHRI HEMANT DUBEY,
AGED ABOUT 19 YEARS R/O SARASWATI BIHAR
COLONY VILLAGE BARDAURA, TEHSIL BINA
DISTRICT SAGAR (MADHYA PRADESH)
2. SURESH DUBEY S/O HALKERAM DUBEY, AGED
ABOUT 50 YEARS, R/O SARASWATI BIHAR
COLONY, VILLAGE BARDAURA, TEHSIL BINA,
DISTRICT SAGAR (MADHYA PRADESH)
3. SMT. ANITA BAI DUBEY W/O SURESH KUMAR
DUBEY, AGED ABOUT 45 YEARS, R/O SARASWATI
BIHAR COLONY, VILLAGE BARDAURA, TEHSIL
BINA, DISTRICT SAGAR (MADHYA PRADESH)
4. KESHVDAS VAISHNAV S/O HARIDAS VAISHNAV
(BAIRAGI), AGED ABOUT 36 YEARS, R/O VILLAGE
SATTADHANA, THANA JAISINAGAR, DISTRICT
SAGAR (OWNER AND DRIVER) (MADHYA
PRADESH)
.....RESPONDENTS
(SHRI RAHUL DIWAKAR - ADVOCATE WITH SHRI SHUBHAM RAI
ADVOCATE FOR RESPONDENTS NO. 1 TO 3)
This appeal coming on for admission this day, th e court passed the
following:
Signature Not Verified
Signed by: NAVEEN KUMAR
SARATHE
Signing time: 5/4/2024
11:39:39 AM
2
ORDER
With the consent of both learned counsel for the parties, heard finally at
motion stage.
2. This appeal has been filed by the appellant-insurance company under
Section 173 (1) of the Motor Vehicles Act, 1988 against the award dated
18.11.2022 passed in MACC No.29/2019 by 2nd Additional M.A.C.T, Bina,
Distt. Sagar for setting aside of impugned award / reduction of compensation
amount
3. Learned counsel for the appellant-insurance company submits that there is
change of vehicle and vehicle No. MP-09HG-5072 has been falsely implicated
in the instant accident. In the FIR (Ex.P/3) and charge-sheet (Ex.P/2) number of
offending vehicle is mentioned as MP-09HG-5070 and not MP-09 HG-5072.
After referring to the cross-examination of Gullu @ Manish Jain (applicant
witness No. 02), it is urged that he is not an eyewitness to the accident and he
has himself admitted the same in his cross-examination that he had reached on
the scene of accident after the accident had already taken place. This fact has
been discussed by the Tribunal in para-15 of the impugned award. It is also
urged that appellant has examined investigator and has also filed documents of
criminal case. Further, driver-cum-owner of offending vehicle has examined
himself and he has denied that any accident has occurred from truck bearing
registration No. MP-09HG-5072. Investigating Officer Lakhan Dabar (non-
applicant witness No. 2) has also admitted that he has filed charge-sheet against
truck No. MP-09HG-5070. Further relying on the judgment of Honble Apex
Court in case of Oriental Insurance Company Ltd. Vs. Premlata Shukla
(2007 ACJ 1298 SC) it is urged that as documents Ex.P/2 and Ex.P/3 have
been filed by respondent-claimant himself. Therefore, he cannot deny from
correctness of the said documents. Hence, from above it is not established that
offending vehicle was involved in the instant accident.
4. Learned counsel for the appellant after referring to contents of FIR (Ex.P-
3) submits that deceased was not keeping safe distance while riding the
motorcycle. Therefore, he dashed the truck from behind. Therefore, he also
contributed to the happening of accident. In this regard he has placed reliance
on the judgment of Apex Court in Raj Rani and Others Vs. Oriental
Insurance Company Ltd. and Others, reported in (2009) 13 SCC 654.
Therefore, it is urged that at least 50% should have been deducted for
contributory negligence. Thus, on the above grounds, it is urged that impugned
award be set aside. Alternatively, it is also prayed that quantum of
compensation be reduced appropriately.
5. Learned counsel for respondent/claimant submits that accident occurred
on 12.10.2019 at 9:55 during night and the FIR has been registered on
13.10.2019 at 12:23 during night. Owner-cum-driver of offending vehicle was
arrested on 13.10.2019 at 1:30 during night. The offending vehicle has been
seized on 13.10.2019 at 1:00 during night. Further, it is also urged that
Registration of offending vehicle is of Indore whereas the offending vehicle has
been recovered in Bina. It is not clear that if accident did not occur from
offending vehicle then why offending vehicle was in Bina on the date of
accident/next day. It is also urged that applicant witness Gullu @ Manish Jain
(applicant witness -2) is an eyewitness and in his police statement (Ex.P-9)
number of offending vehicle is mentioned as truck No. MP-09HG-5072. On
above grounds, it is urged that appeal filed by the appellant be dismissed.
6. I have heard learned counsel for the parties and perused the record of the
case.
7. So far as change in number of vehicle / false involvement of offending
vehicle in the instant case is concerned, it is correct that in charge-sheet
(Ex.P/2) and FIR (Ex.P/3) number of offending vehicle is mentioned as MP-
09HG-5070. In the instant case, accident occurred on 12.10.2019 at 21:55 FIR
(Ex.P/3) has been registered on 13.10.2019 at 00:23 during night. The offending
vehicle has been seized on 13.10.2019 at 13:00 during night vide seizure memo
(Ex.P/5) from driver of offending vehicle Keshav Das. Driver Keshav Das has
been arrested on 13.10.2019 at 1:30 in night vide arrest memo (Ex.P/6). In the
instant case driver/owner of offending vehicle has examined himself as non-
applicant witness No.3 and he has denied from the accident and has deposed
that no accident occurred from the truck bearing registration No. MP-09HG-
5072.
8. Perusal of deposition of above witness Kehav Das reveals that he has
nowhere explained that if no accident occurred from his vehicle, then, why he
was arrested on 13.10.2019 at 1:30 during night and why his vehicle was seized
on 13.10.2019 at 1:00 during night. Further perusal of Keshav Das' deposition
reveals that he has nowhere explained in his deposition that if accident did not
occur from his vehicle on the alleged date, time and place, then, where was he at
the alleged date and time of accident. This fact has also not been explained in
written statement filed by him. It is also evident from the record that deceased
/applicant/ applicant witness Gullu @ Manish and driver/owner of offending
vehicle Keshav Das have no animosity/rivalry between them. Thus, there is
nothing on record to show that above persons have any reason whatsoever to
falsely implicate Keshav Das and his vehicle in the instant accident. It is also
evident that driver/owner of offending vehicle i.e Keshav Das has not
complained anywhere against his arrest/seizure of his vehicle/filing of
chargesheet against him with respect to present accident.
8. Applicant witness Gullu @ Manish has deposed in his examination-in-chief
that he had witnessed the accident and truck driver fled from the scene of
accident after leaving truck on the spot. Though in cross-examination he has
deposed that he did not witness the actual happening of accident and he
reached at the site after two minutes of accident. He has deposed in his cross-
examination also that truck driver had fled from scene of accident after leaving
truck on the spot. From Ex.P-9, police statement recorded under Section 161
of Cr.P.C. of applicant witness Gullu @ Manish reveals that it has been
recorded on 12.10.2019 and therein number of offending vehicle is mentioned
as MP-09HG-5072.
10. From discussion in foregoing paras, in this Court opinion, it appears that
on account of some typographical error number of vehicle has been mentioned
in charge sheet as well as FIR as MP-09HG-5070. If overall evidence available
on record is assessed, then, from above (wrong mention of number in charge
sheet and FIR) does not go to establish that offending vehicle has been wrongly
/ falsely implicated in the accident later on just to claim compensation.
Therefore, in view of the above, principle laid down in Premlata Shukla (supra)
does not apply to the present case.
11. I have also gone through the deposition of non-applicant witnesses Sanjay
Shrivastava and Lakhan Dabar but in view of discussion in the foregoing paras,
deposition of other witnesses does not establish that instant accident occurred
from truck bearing registration No. MP-09HG-5070. Thus, instant accident
occurred from truck bearing registration No. MP-09HG-5072. The findings
recorded by the Tribunal with respect to above cannot be said to be perverse or
contrary to evidence on record. Hence submissions of appellant counsel are
negated and findings recorded by the Tribunal are affirmed.
12. So far contributory negligence on the part of deceased is concerned,
there is nothing on record to show that at the time of accident deceased, while
driving, was not keeping safe distance from vehicle which was going in front of
him. Driver of offending Vehicle Keshav Das has nowhere deposed that
accident occurred on account of negligence on the part of deceased because he
was not keeping safe distance from his vehicle. Keshav Das has also not
deposed that he did not apply brakes suddenly, without giving any indication
for the same. It is also evident that charge-sheet has been filed against Keshav
Das with respect to present accident. Therefore, it cannot be said that deceased
contributed to the happening of accident in any manner whatsoever. Therefore,
no amount can be deducted for the same. Hence, the principle laid down in
Raj Rani (supra) does not apply to the present case.
13. In view of aforesaid analysis, in the opinion of this Court, no grounds are
made out in this case for interference in findings recorded by the Tribunal.
Hence, the appeal filed by the insurance company is dismissed.
(ACHAL KUMAR PALIWAL)
JUDGE
nks
