Vasudev vs Rajesh And Anr.
2024 Latest Caselaw 13718 MP

Madhya Pradesh High Court

Vasudev vs Rajesh And Anr. on 10 May, 2024

Author: Hirdesh

Bench: Hirdesh

                                                --1--

IN THE               HIGH COURT                       OF MADHYA PRADESH

                                    AT I N D O R E
                                           BEFORE
                      HON'BLE SHRI JUSTICE HIRDESH

                             ON THE 10th OF MAY, 2024



                          MISC. APPEAL No. 2298 of 2011

BETWEEN:-
VASUDEV S/O MAHADEV, AGED ABOUT 46 YEARS, 72, NEW ANJANI
NAGAR NEAR BHAMORI INDORE (MADHYA PRADESH)
                                                                              .....APPELLANT

(MS. MINU RAJPAL, LEARNED COUNSEL FOR THE APPELLANT)

AND
1. RAJESH AND ANR. S/O HARIBHAJAN YADAV 159, ANJANI NAGAR
   INDORE (MADHYA PRADESH)
2. NATIONAL INSURANCE COMPANY LTD. 11, DR.SARJUPRASAD
   MARG, GOKULDAS BHAVAN,INDORE (MADHYA PRADESH)
                                                                          .....RESPONDENTS
(NONE FOR THE RESPONDENTS)
-------------------------------------------------------------------------------------------------------

      This appeal coming on for orders this day, the court passed the
following:
                                             ORDER

This miscellaneous appeal by the claimant under Section 173 of Motor Vehicle Act is arising out of the award dated 27.07.2011 passed by 5th Motor Accident Claims Tribunal, Indore in claim case No.697/09 on account of rejection of the claim petition filed by the claimant.

--2--

2. Brief facts of the case are that on 29.08.2008, the appellant/claimant was coming by motorcycle bearing registration No.MP09-MC-4751 and when he reached near Mahidpur road Indira Nagar at 11 p.m. in the night he dashed with a stationary tractor. He received injuries and lodged F.I.R. at police station-Mahidpur. Thereafter he filed claim petition seeking compensation from the respondents.

3. Respondents filed their written statement and denied the averments.

4. Tribunal framed the issues and after taking evidence dismissed the claim petition filed by the claimant.

5. Claimant filed this appeal on the ground that tribunal has committed error in holding that no other vehicle was involved in the accident. He also stated that tribunal has committed error in holding that appellant is only 5% disabled and judgment is contrary to the law looking to the facts and circumstances of the case. He prays for allowing the appeal and seeks compensation. Learned counsel for the appellant placed reliance upon the judgments delivered by the Apex Court in cases of Oriental Insurance Co.Ltd. Vs. Subramaniam and others, 2022 ACJ 1686 and Ramkhiladi Vs. United India Insurance Company, 2020 0 Supreme (SC) 7.

6. On the other hand, learned counsel for the insurance company prays for rejection of the appeal and supports the impugned award.

7. After hearing the learned counsel for the parties and perusal of the record of the tribunal, it is found that claimant filed claim petition before the tribunal under Section 163(A) of the Motor Vehicles Act. It is settled law that in claim petition under Section 163(A) of the Motor Vehicles

--3--

Act, the claimant has to prove that accident occurred in involvement of the vehicle. In this provision, negligence need not to be proved. But, in the case of National Insurance Co.Ltd Vs. Sinitha & Ors, 2012 SC, 797, Apex Court has held that in claim petition which is filed under Section 163(A) of the Motor Vehicles Act, insurance company takes defence that claimant was injured due to self negligence in driving the vehicle.

8. In the present case, claimant pleaded in his pleading that he dashed the tractor which was in stationary position. He further stated that he lodged the report but in the present case, claimant has not filed police report before the tribunal. In MLC it was written that accident occurred in road traffic accident so it is the duty of the claimant to produce criminal document which shows that tractor was in a stationary position in middle of the road and it had no symbol of being in the stationary position and he was not negligent. When police report was lodged and criminal document was not produced by the appellant/claimant so presumption is drawn against the appellant that he was negligent.

9. Claimant and his witnesses accepted in their cross-examination that headlight of the motorcycle was on and in spite of light being on they dashed with tractor which was in a stationary position. It draws presumption against the appellant that he was negligent. So in view of the aforesaid discussion, claimant was unable to prove that he was not negligent and in pleading insurance company took plea that applicant was negligent, hence, it is the duty of the claimant/appellant to prove that he was not negligent.

10. Considering the evident adduced before the tribunal, it is clear that claimant was negligently in driving the motorcycle and dashed with the

--4--

tractor which was in stationary position. So in light of the decision in National Insurance Co.Ltd (supra), the claimant is not entitled to get any compensation under Section 163(A) of the Motor Vehicles Act. Hence, present appeal stands dismissed.

(HIRDESH) JUDGE N.R.