Madhya Pradesh High Court
National Insurance Company Limited vs Dwarka Prasad Sharma on 6 May, 2024
Author: Avanindra Kumar Singh
Bench: Avanindra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 6 th OF MAY, 2024
MISC. APPEAL No. 4663 of 2011
BETWEEN:-
NATIONAL INSURANCE COMPANY LIMITED BRANCH
MANAGER, SARAFA BAZAR, FIFTH LINE, ITARSI TEH.
ITARSI DISTT. HOSHANGABAD THROUGH DIVISIONAL
MANAGER, MARHATAL, JABALPUR (MADHYA
PRADESH)
....APPELLANT
(BY SHRI N.S.RUPRAH - ADVOCATE)
AND
1. DWARKA PRASAD SHARMA S/O DAMODAR
PRASAD SHARMA, AGED ABOUT 58 YEARS, R/O
PATEL MOHALLA BAGRA ROAD, BABAI, DISTT.
HOSHANGABAD (MADHYA PRADESH)
2. SMT. GEETA BAI W/O DWARKA PRASAD
SHRAMA, AGED ABOUT 52 YEARS, R/O PATEL
MOHALLA BAGRA ROAD, BABAI, TAHSIL BABAI
DISTT. HOSHANGABAD (MADHYA PRADESH)
3. KIRTI SHARMA D/O DWARKA PRASAD SHRAMA,
AGED ABOUT 27 YEARS, R/O PATEL MOHALLA
BAGRA ROAD, BABAI, TAHSIL BABAI DISTT.
HOSHANGABAD (MADHYA PRADESH)
4. SATISH YADAV S/O SHANKAR LAL YADAV, AGED
ABOUT 35 YEARS, R/O NEAR DURGA MANDIR,
RAM NAGAR, RASULIA, HOSHANGABAD
(MADHYA PRADESH)
5. MICHAEL JOHNSON S/O SHRI DAVED JOHNSON
R/O NEAR DURGA MANDIR, RAM NAGAR,
RASULIA, HOSHANGABAD (MADHYA PRADESH)
.....RESPONDENTS
(SHRI PRIYANK KHANDELWAL - ADVOCATE FOR RESPONDENT NOS.1-3)
Signature Not Verified
Signed by: VAISHALI
TRIPATHI
Signing time: 5/8/2024
6:39:01 PM
2
(NONE FOR RESPONDENT NOS. 4 & 5, THOUGH SERVED)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This Miscellaneous Appeal has been field by Insurance Company
against the award dated 18.08.2011 in Claim Case No.2/2011, where Dwarka
Prasad and others had filed claim petition on account of death of Mohit Sharma
in a motor accident which took place on 25.07.2009 at District Hoshangabad,
whereby non-applicant- Satish Yadav while driving his four wheeler Maruti
Gypsy bearing registration No. PB-12-F-2059 rashly and negligently and hit the
motor cycle bearing registration no. MP-05-MB-2947 causing the death of
Mohit Sharma. The stand of appellant Insurance Company is that at the time of
driving the gypsy, Satish Yadav was having a learner driving licence and did not
have any other person in vehicle, who was sitting beside him, therefore,
Insurance Company seeks exoneration as well as reduction also.
2. Learned counsel appearing on behalf of Insurance company submitted
that the learned 3rd Additional MACT in Para-32 of its impugned award has
erroneously and wrongly interpreted the law regarding learner licence. Learned
tribunal held in Para-32 that only at the time of taking instructions for driving the
vehicle, any person holding a valid driving licence is required to sit along with
the driver but in Motor Vehicle Rule, 1994, in Rule 3 it is mentioned that at the
time of driving on public road any person holding a valid licence is required.
3. Learned counsel for respondents does not oppose the appeal on the
above legal situation.
4. Learned counsel for appellant/Insurance company also referred to
Para-31 of the impugned award in which the officer of RTO was examined by
the Insurance Company and he verified the fact that non-applicant No.1 Satish
Yadav was having a learner driving licence and also held that it is a mandatory
condition that at the time of driving a vehicle by the learner licence holder, a
person should accompany him, who has a valid driving licence of that category
of vehicle and the sign of "L" should also be pasted on front and rear
windshield of the vehicle and he also verified the certificate Exhibit-D/1.
5. Learned counsel for respondents submits that before the Tribunal
respondent nos.4 and 5 i.e. Satish Yadav and Michel Johnson were proceeded
ex-parte. It is further submitted that Pankaj Dubey had given his evidence as an
eye witness to the accident. In cross-examination of Pankaj Dubey it was not
asked whether any person was sitting with the driver/non-applicant No.1 Satish
Yadav or not, but on perusal of record, it is found that it is neither the case of
Police nor the case of claimants that whether at the time of accident any person
beside the driver was sitting in the Gypsy or not. No evidence of any short is on
record on this point.
6. Therefore, in the considered opinion of this Court Insurance company
was required to ask only those questions on cross-examination on which
evidence has been given by the other party.
7. Learned counsel for the appellant/Insurance company relies upon the
judgment of Hon'ble Supreme Court in the case of Pappu and others vs.
Vinod Kumar Lamba and another 2018 3 SCC 208, wherein Hon'ble
Supreme Court in para 12 has held that:-
12........The onus would shift on the insurance
company only after the owner of the offending vehicle
pleads and proves the basic facts within his
knowledge that the driver of the offending vehicle was
authorised by him to drive the vehicle and was having
a valid driving licence at the relevant time.
8. He further relied on the para 13-14 of the judgment of Pappu and
others (supra) in which it is again held that "owner did not enter the witness
box or examine any witness in support of this plea and owner of the offending
vehicle did not produce any evidence except a driving licence of one Joginder
Singh, without any specific stand taken in the pleadings or in the evidence that
the same Joginder Singh was, in fact, authorised to drive the vehicle in question
at the relevant time."
9. Therefore, after hearing learned counsel for both the parties and
perusing the record, this view cannot be taken that infact someone was sitting at
the time of accident along with learner licence holder i.e. Satish Yadav,
therefore, appeal on this ground can be allowed and accordingly reversing the
award passed by learned Tribunal on this issue it is held that infact at the time of
accident there was breach of insurance policy, as the vehicle was being driven
by a person who did not have a valid licence to drive the vehicle without
authorised person sitting with him.
10. The other prayer made in this appeal is regarding the amount of
compensation, but looking to the amount awarded by the learned Tribunal i.e.
Rs.5,83,600/- on account of death of Mohit Sharma does not seem excessive
so that any interference can be made. Therefore, the appeal filed by insurance
company is partly allowed and amount of compensation is maintained, but let
the Insurance company pay the amount and recover the amount from owner
and driver of the offending vehicle.
11. Accordingly, this appeal is disposed of.
(AVANINDRA KUMAR SINGH)
JUDGE
VPA
