Madhya Pradesh High Court
United India Insurance Co.Ltd. vs Padmabai on 9 May, 2024
Author: Anil Verma
Bench: Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 9 th OF MAY, 2024
MISC. APPEAL No. 4047 of 2018
BETWEEN:-
UNITED INDIA INSURANCE CO.LTD. THROUGH TP HUB,
IDA BUILDING, INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI SUDHIR DANDWATE - ADVOCATE)
AND
1. PADMABAI Wd/O MUKESH PATIDAR, AGED
ABOUT 34 YEARS, OCCUPATION: HOUSE WIFE R/O
BALSAMUND, TEH. KASRAWAD, DISTT.
KHARGONE (MADHYA PRADESH)
2. AADESH S/O MUKESH PATIDAR, AGED ABOUT 14
YEARS (MINOR) THROUGH NATURAL GUARDIAN
MOTHER SMT. PADMABAI W/O MUKESH
PATIDAR R/O: BALSAMUND, TEHSIL KASRAWAD,
DISTRICT KHARGONE (MADHYA PRADESH)
3. ABHAY S/O MUKESH, AGED ABOUT 12 YEARS
(MINOR) THROUGH NATURAL GUARDIAN
MOTHER SMT. PADMABAI W/O MUKESH
PATIDAR, R/O: BALSAMUND, TEHSIL KASRAWAD,
DISTRICT KHARGONE (MADHYA PRADESH)
4. GAJANAND S/O VALJI PATIDAR, AGED ABOUT 72
Y E A R S , OCCUPATION: AGRICULTURE R/O
BALSAMUND, TEHSIL KASRAWAD, DISTRICT
KHARGONE (MADHYA PRADESH)
5. BASANTIBAI W/O GAJANAND PATIDAR, AGED
ABOUT 65 YEARS, OCCUPATION: HOUSEWORK
R/O BALSAMUND, TEHSIL KASRAWAD, DISTRICT
KHARGONE (MADHYA PRADESH)
6. SUBHASH S/O RAMESHCHAND PATIDAR, AGED
ABOUT 35 YEARS, OCCUPATION: AGRICULTURIST
R/O GRAM SUNDAREL, TEHSIL DHARAMPURI,
Signature Not Verified
Signed by: TRILOK SINGH
SAVNER
Signing time: 09-05-2024
18:55:00
2
DISTRICT DHAR (MADHYA PRADESH)
.....RESPONDENTS
(SHRI SAMEER VERMA - ADVOCATE FOR RESPONDENTS NO.1 TO 5)
(NONE FOR RESPONDENT NO.6)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
1. This miscellaneous appeal has been preferred by the
appellant/insurance company under Section 173(1) of the Motor Vehicles Act,
1988 (in short "MV Act") for setting aside the impugned award dated 17.5.2018
passed by the 1st Addl Member, MACT, Mandleshwar in Claim Case
No.79/14, whereby an award of Rs.7,59,544/- with interest has been passed in
favour of respondents No.1 to 5.
2. The relevant and necessary facts of the case are that the respondent
No.6, driver and owner of the offending vehicle bearing registration No.MP12-
B-1372 rashly and negligently driven the vehicle and hit the motorcycle of the
deceased Mukesh Patidar, due to which he fell down and sustained fatal injuries
on the vital parts of the body. He was taken to the Kasrawad Hospital for
treatment, then he was referred for Indore, but on the way to Indore he has been
died. FIR bearing Crime No.331/11 has been registered at P.S. Kasrawad
against the unknown person.
3. Respondents No.1 to 5/claimants being LRs of the deceased
preferred a claim petition under Section 166 of the MV Act before the below
Tribunal on account of death of Mukesh Patidar. At the time of accident age of
the deceased was 41 years and he was earning Rs.15,000/- per month by
farming. Respondent No.1 is wife of the deceased, respondents No.4 & 5 are
parents of the deceased and respondents No.2 & 3 are the sons of the
deceased.
4. Appellant/non applicant No.2 before the below Tribunal contended
that the FIR has been lodged against the unknown vehicle after delay of 45
days. At the time of accident deceased was not having any valid licence for
driving the motorcycle. Offending vehicle was being driven in violation of the
terms and conditions of the insurance policy, registration, driving licence,
permit, fitness and other rules of the transport. Owner of the motorcycle and
insurance company of the motorcycle is also necessary party in this case.
Therefore, insurance company is not liable for any compensation.
5. The below Tribunal after framing the issues and recording the
evidence, partly allowed the claim petition by awarding compensation of
Rs.7,59,544/- in favour of respondents No.1 to 5. Being aggrieved by the
impugned award, appellant/insurance company has filed this appeal.
6. Learned counsel for the appellant contended that the FIR has been
lodged against the unknown vehicle after 45 days of the accident. As per the
FIR Chetram was the eyewitness, but he was not examined before the below
Tribunal. Shailendra Patidar was not the eyewitness as per the charge-sheet of
the criminal case, therefore, below tribunal has committed error in relying his
evidence. Impugned award passed by the below tribunal is against the law and
facts. Mere prosecution itself is not sufficient to hold that the accident was
done by the insured vehicle. The findings given by the below tribunal is not
based upon proper appreciation of evidence. Hence, he prays that the
impugned award be set aside against the appellant.
7. Per contra, learned counsel for respondents No.1 to 5 opposes the
prayer and prays for its rejection by submitting that the impugned award passed
by the below Tribunal is just and proper. The judgment of criminal court is not
binding upon the below Tribunal and evidence of the criminal case cannot be
considered in the claim case.
8. Learned counsel for the parties heard at length and perused the entire
record with due care.
9. Padmabai Patidar (PW-1) deposed before the below tribunal that on
16.5.2011 at about 8.00 p.m. while her husband Mukesh Patiedar was coming
on his motorcycle from Kasrawad to Balsamud, when he reached near Arihant
Nagar, at that time driver of Maruti Van bearing registration No.MP12-B-1372
came there rashly and negligently by wrong side and hit the motorcycle driven
by her husband Mukesh, due to which Mukesh sustained serious injuries over
the head and other parts of the body. He was taken to PHC Kasrawad and
thereafter admitted in Suyash Hospital, Indore but during the treatment on
29.5.2011 he has been died. The FIR is Ex.P/1, charge-sheet is Ex.P/2, Mouka
Naksha is Ex.P/3 and seizure memo & arrest memo is Ex.P/4 to P/6. Shailendra
Patidar (PW-2) deposed before the below Tribunal that at the time of accident
one motorcycle was going ahead before him, then he saw that driver of the
Maruti Van bearing registration No.MP12-B-1372 came there rashly and
negligently and dashed the motorcycle, due to which motorcycle rider sustained
fatal injuries and later on he has been died.
10. In the instant case, the accident had taken place on 16.5.2011 and
FIR (Ex.P/1) was lodged on 6.7.2011 against the unknown vehicle, in which
neither vehicle number nor name of the driver was mentioned. FIR has been
lodged after 45 days. No justification has been given for the huge delay. As per
the charge sheet (Ex.P/2) Chetram was the eyewitness who was examined
before the criminal court and vide judgment dated 17.9.2014 (Ex.D/1)
respondent No.6/accused Shubhash has been acquitted from the charges under
Section 279 and 304-A of IPC. As per the charge sheet and judgment (Ex.D/1)
Chetram was the sole eyewitness. Although his examination on affidavit has
been filed before the below Tribunal, but Chetram was not examined before the
below tribunal. In place of Chetram, Shailendra has been examined before the
below Tribunal as an eyewitness. In the charge sheet (Ex.P/2) name of
Shailendra was not mentioned and he did not record his deposition before the
investigating officer during the investigation. Therefore, Shailendra cannot be
considered as an eyewitness. The below Tribunal has not considered the
evidence of Shailendra Patidar (PW-2) in proper way and relied upon his
deposition and given erroneous finding.
11. The judgment (Ex.D/1) passed in the criminal case has not been
challenged before any other appellate authority, therefore, the judgment attained
finality. Accordingly respondent No.6 has been acquitted from the charges
related with the aforesaid accident.
12. The coordinate Bench of this Court in the case of National
Insurance Co. Ltd. Vs. Smt. Setubai W/o Late Kalusingh Bilwal and
others reported in MACD 2010(2) (M.P.) 885 has held as under:-
"11. .................. If the claimants wanted to explain the contents then
they were obliged to inform the Court that under some
misapprehension wrong details of the offending vehicle were given
in the FIR. The learned Court below in our considered opinion
committed an absolute illegality in observing that as the Police had
filed challan against the driver of the bus and as the driver of the
bus has not taken any steps against filing of the challan it has to be
presumed that the bus and the driver of the bus were involved in the
accident. The approach of the learned Court below in our
considered opinion is absolutely perverse. Filing of the challan
against a particular person would only show that there was some
evidence to connect the person with the alleged crime but on the
basis of filing the challan a Court would not be entitled to presume
or record a finding that such person was involved in commission of
the crime. If the approach of the learned Court below is accepted as
a principle of law then the ceremonial trial would not be required
and simply on the basis of filing of the challan an accused would
stand convicted. Filing of the challan against a particular person
would only clothe a Court to go for a trial. In our system after giving
due opportunity of hearing to the parties a Court is required to
record a finding that whether the person had authored the crime or
not. Filing of the challan would not gag the mouth of the Court in
delivering a judgment in favour of the accused. In the present case
the learned Court below simply observed that because the driver
and the owner have not challenged the contents of the challan before
any Superior Court or under Section 482 of the Code of Criminal
Procedure, it would be justified to hold that the bus and the driver
were involved in the offence."
13. On the basis of the aforesaid law laid down by the coordinate Bench
of this Court, this Court is of the considered opinion that the vehicle driven by
respondent No.6 was not involved in commission of the said offence.
Unfortunately the below Tribunal erred in not appreciating the evidence available
on record in true perspective. The alleged eyewitness Chetram was not
examined before the below Tribunal. For proving such prima facie opinion, the
claimants were obliged to examine the investigating officer which they failed to
examine. Therefore, the findings recorded by the below Tribunal are absolutely
wrong. The below Tribunal has placed reliance upon the statement of
Shailendra (PW-2), but as per the opinion of this Court he was not the
eyewitness of the accident.
14. On the basis of the aforesaid analysis, this Court is of the considered
opinion that there is no evidence available on record to connect the offending
vehicle with the alleged offence, which was insured by the appellant/insurance
company.
15. For the reasons stated aforesaid, this Court has no hesitation to hold
that the findings recorded by the below Tribunal are not based upon proper
appreciation of the evidence. The findings given by the below Tribunal is
erroneous. Therefore, the impugned award against the appellant deserves to be
set aside.
16. Accordingly this appeal is allowed and the impugned award in
respect of the liability of the appellant/insurance company is hereby set aside.
17. The parties shall bear their own costs.
(ANIL VERMA)
JUDGE
trilok
