Madhya Pradesh High Court
The New India Assurance Company Ltd. vs Sunita Singh Gehwar on 8 May, 2024
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 8 th OF MAY, 2024
MISC. APPEAL No. 695 of 2023
BETWEEN:-
THE NEW INDIA ASSURANCE COMPANY LTD.
THROUGH MANAGER LEGAL HUB NEW INDIA
ASSURANCE COMOPANY 290 NAPIER TOWN JABALPUR
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI JAYANT NEEKHRA - ADVOCATE FOR APPELLANT)
AND
1. SUNITA SINGH GEHWAR W/O ATE RAJENDRA
SINGH GEHWAR @ RAJENDRA KUMAR SINGH,
AGED ABOUT 48 YEARS, OCCUPATION: HOUSE
WIFE R/O VILLAGE HANUMANGARH POLICE
SATION CHURHAT DISTRICT SIDHI (MADHYA
PRADESH)
2. ABHA SINGH GEHERWAR W/O LATE NRAPENDRA
SINGH GEHERWAR, AGED ABOUT 30 YEARS,
OCCUPATION: HOUSEWIFE R/O VILLAGE
HANUMANGARH PS CHURHAT DISTRICT SIDHI
(MADHYA PRADESH)
3. ARUNENDRA SINGH GEHERWAR S/O LATE
NRAPENDRA SINGH GEHERWAR, AGED ABOUT 6
YEARS, OCCUPATION: STUDY, MINOR THROUGH
NATURAL GUARDIAN MOTHER ABHA SINGH
GEHERWAR W/O LATE NRAPENDRA SINGH
GEHERWAR AGE 30 YEARS R/O VILLAGE
HANUMANGARH PS CHURHAT DISTRICT SIDHI
PRESENT ADDRESS VILLAGE PADENIYA KHURD
PS KOTWALI SIDHI DISTRICT SIDHI (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI LAL RAJ BAHORAN SINGH CHOUHAN - ADVOCATE FOR
RESPONDENTS)
Signature Not Verified
Signed by: DHEERAJ
PRATAP SINGH
Signing time: 10-05-2024
18:14:34
2
MISC. APPEAL No. 696 of 2023
BETWEEN:-
THE NEW INDIA ASSURANCE COMAPNY LTD THROUGH
MANAGER LEGAL HUB NEW INDIA ASSURANCE
COMAPNY 290NAPIER TOWN JABALPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI JAYANT NEEKHRA - ADVOCATE FOR APPELLANT)
AND
1. CHANDRA SEKHAR SINGH S/O LATE DHYAN
SINGH GEHWAR, AGED ABOUT 70 YEARS,
OCCUPATION: AGRICULTURE R/O VILLAGE
HANUMANGARH POLICE SATATION CHURHAT
DISTRICT SIDHI PRESENT ADDRESS VILLAGE
PANDERIYA KHURD POLICE STATION KOTWALI
SIDHI DISTRICT SIDHI (MADHYA PRADESH)
2. PHOOLWATI SINGH W/O CHANDRA SEKHAR
SINGH, AGED ABOUT 70 YEARS, OCCUPATION:
HOUSEWIFE R/O VILLAGE HANUMANGARH
POLICE SATATION CHURHAT DISTRICT SIDHI
PRESENT ADDRESS VILLAGE PANDERIYA KHURD
POLICE STATION KOTWALI SIDHI DISTRICT
SIDHI (MADHYA PRADESH)
3. SUNITA SINGH GEHERWAR W/O LATE RAJENDRA
SINGH GEHERWAR @ RAJENDRA KUMAR SINGH,
AGED ABOUT 48 YEARS, OCCUPATION:
HOUSEWIFE R/O VILLAGE HANUMANGARH
POLICE SATATION CHURHAT DISTRICT SIDHI
PRESENT ADDRESS VILLAGE PANDERIYA KHURD
POLICE STATION KOTWALI SIDHI DISTRICT
SIDHI (MADHYA PRADESH)
4. MRAGENDRA SINGH GEHERWAR S/O LATE
RAJENDRA SINGH GEHERWAR, AGED ABOUT 26
Y E A R S , OCCUPATION: AGRICULTURE R/O
VILLAGE HANUMANGARH POLICE SATATION
CHURHAT DISTRICT SIDHI PRESENT ADDRESS
VILLAGE PANDERIYA KHURD POLICE STATION
KOTWALI SIDHI DISTRICT SIDHI (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI LAL RAJ BAHORAN SINGH CHOUHAN - ADVOCATE FOR
Signature Not Verified
RESPONDENTS)
Signed by: DHEERAJ
PRATAP SINGH
Signing time: 10-05-2024
18:14:34
3
This appeal coming on for admission this day, th e court passed the
following:
ORDER
These appeals have been preferred by the Insurance Company being
aggrieved with the common award passed by the Fourth Additional Member
Motor Accident Claim Tribunal, Sidhi in MACC Nos.223/2018 and 228/2018
dated 04.11.2022 by which the legal representatives of the deceased were
awarded the compensation of Rs.51,37,320/- with the interest @6% per annum
and Rs.46,51,480/- with the interest @6% per annum.
2. The facts giving rise to the claims in nutshell are that on 08.09.2018 the
deceased Rajendra Singh with his son deceased Nrapendra Singh, his wife
Sunita Singh and father-in-law Gajraj Singh were going on the Shahdol Rewa
road in Bolero Car bearing registration No.MP-53-TA-1042 and when they
reached near Semra, the Car dashed with the divider of the culvert and in that
the owner/driver Rajendra Singh and his son Nrapendra Singh died on the spot
and wife Sunita Singh and father-in-law Gajraj Singh sustained the injuries. The
LRs of the Rajendra Singh and Nrapendra Singh has filed the claim petition
impleading the Insurance Company as a party.
3. Claimant Sunita Singh mother, Abha Singh wife and Arundra Singh
son has filed the claim petition under Section 166 of the MV Act on the ground
that the deceased was serving as Sub Engineer under M.P. Government in
Sarva Siksha Abhiyan and he was earning Rs.29,500/- salary per month stating
that when the deceased was travelling in Bolero vehicle MP-53-TA-1042 the
unknown vehicle that was driven rashly and negligently and to avoid the
accident the driver of the Bolero turned the side and high beam of the front light
of the vehicle, the Bolero got uncontrolled and collide with the divider of the
culvert as a result vehicle fallen in ditch as a result the deceased died.
4. The claimants the wife, son and parents have filed the petition stating
that deceased was a senior teacher and he was getting monthly salary
Rs.47,863/- and was of 51 years old. The claimants were dependent upon the
deceased, hence, claimed Rs.39,49,924/- compensation amount against the
Insurance Company.
5. Insurance Company in both the petition has filed separate reply but
stated that the deceased Rajendra Singh himself was driving the vehicle of his
owner ship and the claim has been filed by his LRs and that is not maintainable
under Section 166 of the MV Act. Vehicle was driven in the violation of the
terms and conditions of the policy and the deceased as owner and driver of the
vehicle are of the same family and owner has died, hence, the claimant are not
entitled for the compensation.
6. Claim Tribunal has framed the issued and after discussion has allowed
the application, hence, these appeals have been filed.
7. Learned counsel appearing on behalf of Insurance Company has
argued that in this case the Insurance Policy was a comprehensive package
policy and as per the direction of IRDA, GR36 in the case of private car the
capital sum insured may be Rupees Two Lakh in the premium of Rs.100/- and
in that condition if the death occurred then the owner/driver is entitled for an
amount of Rs.Two Lakh and in this instant case the Insurance Company has
charged Rs.100/- on the head of a premium for owner and driver. On that basis
if the owner or driver who died in the accident being insured and he himself was
driving the vehicle he is not entitled for an amount of more than Rs. Two lakh.
To support this contention, learned counsel for Insurance Company has relied
on the judgment of Apex Court in the of National Insurance Company Ltd.
vs. Ashalata Bhowmik and ors. decided in Civil Appeal No.9100 of 2018
vide judgment dated 31.08.2018.
8 . Learned counsel for Insurance Company has further argued that as
GR36 in the case of death of passengers in the vehicle can also be insured that
on the payment of premium of Rs.5/-, capital sum insured may Rs.10,000/- and
as per the policy of this case, Rs.300/- has been paid for unnamed passengers
and as per that direction the unnamed passengers is entitled for Rs.One Lakh,
as far as one passenger Rs.50/- has been paid as a premium.
9. Learned counsel for the Insurance Company has further submitted that
in this case the deceased insured himself was driving the vehicle and other
deceased was family member. The claimant has stated that the incident
occurred due to rash and negligent driving of other vehicle and other vehicle has
not been impleaded as a party and as per the claim petition itself no negligence
was committed by the driver of the insured vehicle, hence, insurance company
is not liable to pay the damage to the LRs of the deceased Nrapendra Singh.
10. Learned counsel for the respondents has submitted that the Claim
Tribunal has discussed the legal position in para-14 of the impugned judgment
and as per that the accident was proved and accident has happened while the
deceased was travelling in the vehicle and vehicle was insured, hence, the
Insurance Company is liable to compensate the LRs of the deceased persons.
11. I have gone through the the record of the Claim Tribunal. In the case
of death of Nrapendra Singh it is undisputed fact that the deceased was
travelling in the vehicle No.MP-53-TA-1042 and the vehicle was driven by his
father Rajendra Singh and claimant in the Claim Petition itself has stated that the
vehicle No. MP-53-TA-1042 was driven by deceased Rajendra Singh and when
they reached near Village Semra on Shahdol Rewa road unknown vehicle being
driven by rashly and negligently came and to avoid the collusion the deceased
Rajendra singh driven the vehicle in a side and due to high beam of the light he
lost the control and vehicle collide with the divider of the culvert and the vehicle
fell down in the ditch and as a result deceased died.
12. In the statement before the Court claimant Sunita (AW-2) has stated
the same facts. She has never stated that the deceased Rajendra Singh was
driving the vehicle with rash and negligent manner. Sunita Singh (AW-2) who
herself was travelling in the vehicle has stated in her statement that when they
reached near Semra an unknown vehicle driven by rashly and negligently came
and to avoid the collusion her husband turn the vehicle a side and due to high
beam of the front light he lost the control over the vehicle and vehicle collide
with the divider of the culvert and fell in the ditch and as a result all the persons
got injuries. She has admitted in para-6 that it is wrong to say that her husband
was driving the vehicle rashly and negligently.
13. Witness K.K. Singh (AW-3) has also admitted in the his cross
examination that at the time of incident the deceased Rajendra Singh was driving
the vehicle and he has denied the suggestions that the deceased was driving the
vehicle with rash and negligent manner as a result the incident has occurred and
stated that the incident occurred due to another vehicle which was being driven
rashly and negligently and due to high beam of that vehicle Rajendra Singh has
lost his control over the vehicle and accident has happened.
14. Thus it is clear that Rajendra Singh was driving the vehicle with rash
and negligent manner in the Claim under Section 166 of MV Act, the claimants
are bound to prove that the vehicle was driving with rash and negligent manner
and establish the negligent of the driver of the vehicle against whom the claim
petition for the damage is filed. On that basis claimants/respondent failed to
prove that the deceased Rajendra Singh was driving the vehicle with rash and
negligent manner, hence, the claim petition under Section 166 of the MV Act is
not maintainable.
15. Claim Tribunal has stated the certain judgments in para-14 of its
award but the principles laid down in the citations is regarding to the claim
under Section 163-A of MV Act not under Section 166 of the MV Act, hence,
on that basis the claim of the respondents/LRs of the deceased Nrapendra
Singh cannot be maintained but as the Insurance Company has argued and
admitted that Rs.100/- was paid as premium in unnamed passengers looking to
the sitting capacity of the vehicle including the driver is seven and as per the
policy LRs of the deceased are entitled for Rs.One Lakh as the amount of
contract basis.
16. On the same basis the deceased Rajendra Singh who was driving the
vehicle and judgment cited by the Insurance Company in the case of National
Insurance Company Ltd. vs. Ashalata Bhowmik and ors. (supra) held as
under :-
"8. This Court in Oriental Insurance Co. Ltd. v. Jhuma
Saha (Smt) and Ors. (2007) 9 SCC 263, was considering a
similar case where the owner himself was driving the vehicle which
due to his negligence dashed with a tree on the roadside as a result
of which he died. The Court held that the claim petition filed by his
LRs was not maintainable. It was held thus:-
"10. The deceased was the owner of the vehicle.
For the reasons stated in the claim petition or otherwise,
he himself was to be blamed for the accident. The
accident did not involve motor vehicle other than the one
which he was driving. The question which arises for
consideration is that the deceased himself being
negligent, the claim petition under Section 166 of the
Motor Vehicles Act, 1988 would be maintainable.
11. Liability of the insurer Company is to the
extent of indemnification of the insured against the
respondent or an injured person, a third person or in
respect of damages of property. Thus, if the insured
cannot be fastened with any liability under the
provisions of the Motor Vehicles Act, the question of the
insurer being liable to indemnify the insured, therefore,
does not arise".
9. Therefore, the High Court was not justified in directing
the appellant/insurer to pay the compensation determined by the
Tribunal. Since the indemnification extended to personal accident
of the deceased is limited to Rs. 2,00,000/- under the contract of
insurance, the respondents are entitled for the said amount towards
compensation. Hence, the appellant is directed to deposit the said
sum of Rs. 2,00,000/- with interest @ 9 per cent per annum from
the date of the Claim Petition till the date of deposit with the
Tribunal within a period of four weeks from today."
17. On the aforesaid principles and on the factual basis LRs of the
deceased owner and driver of the vehicle Rajendra Singh are entitled for
Rs.Two Lakh.
18. After the above discussion, appeals filed by the Insurance Company
are allowed and the award passed by the Claim Tribunal in MACC
Nos.223/2018 and 228/2018 are set aside but as per the Insurance Company the
claimants has not filed any application before the it on the basis of the Policy,
hence, it is ordered that the Insurance Company shall pay an amount of Rs.One
Lakh to the LRs of deceased Nrapendra Singh with the interest @9% per
annum from the date of Claim petition i.e. 10.10.2018 till the date of amount
deposited before the Tribunal. In the same way Insurance Company shall pay
Rs. Two lakh to the LRs of deceased Rajendra Singh with the interest @9% per
annum from the date of Claim petition i.e. 10.10.2018 till the date the amount is
deposited before the Tribunal. Amount being deposited before the Claim
Tribunal shall disburse the amount to the claimants as per direction by the Apex
Court in the case of Kerla State Road Transport Corporation vs.
Susamma Thomas (1994) 2 SCC 176.
19. Insurance Company shall deposit the amount within one months from
the order of this Court.
20. A copy of this order be kept in connected case.
21. A copy of this order along with record be sent back to the Claim
Tribunal for necessary compliance.
22. Record of this case be consigned to the Record Room.
(DEVNARAYAN MISHRA)
JUDGE
DPS
