Madhya Pradesh High Court
Sanjay Khatri vs Ashok Kumar Agrawal on 17 February, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:8364
1 MA-4331-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
MISC. APPEAL No. 4331 of 2008
SANJAY KHATRI
Versus
ASHOK KUMAR AGRAWAL AND OTHERS
Appearance:
Shri Akash Lalwani- Advocate for the appellant.
None for the respondent No.1.
Shri V.K.Pandey - Advocate for the respondent No.2/Insurance
Company.
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RESERVED ON : 19.02.2025
PRONOUNCED ON : 27.02.2025
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This appeal having been heard and reserved for judgment, coming on for
pronouncement on this day, the court passed the following:-
ORDER
This appeal has been filed by the appellant under Section 173 (1) of
the Motor Vehicles Act, 1988 against the award dated 22.08.2009 passed in
Claim Case No.39/2007 by Member Motor Accident Claims Tribunal,
Khandwa, District-Khandwa seeking setting aside of impugned award and
grant of suitable compensation, whereas, cross objections have been filed on
behalf of the respondent/Insurance-Company for affirming the findings
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recorded by the Tribunal.
2. Brief facts of the case are that on 14.04.2006, appellant was going
towards his house on foot with his brother Jai Khatri's vehicle Hero Puch,
which had got punctured. At that time, in Padam Nagar, Khandwa, near
Vinay Balwani's house, non-applicant No.1 Ashok Kumar Agrawal came
riding his Hero Honda CD Dawn motorcycle bearing registration number
MP-12-F-8626 from wrong side and hit appellant as well as Hero Puch
vehicle. On account of which, appellant sustained various injuries. On the
basis of FIR registered at outpost Padam Nagar, Police Station Moghat road,
Khandwa, offence under Sections 279, 337 and 338 of the IPC was
registered against non-applicant No.1, having Crime No.195 of 2006. After
investigation into the accident, charge-sheet was filed against non-applicant
No.1 and the same is pending as Criminal Case No.3501 of 2006.
3. Learned counsel for the appellant submits that in the instant case,
accident occurred on 14.04.2006 at about 9:30 p.m. in the night and FIR has
been lodged on 15.04.2006. Thus, there is a delay of only one day in lodging
FIR. On account of serious injuries, appellant was referred to Apollo
Hospital Indore. Hence, delay in lodging FIR is immaterial. It is also urged
that learned Tribunal has dismissed appellant's claim petition primarily on
the ground that in Ex.D/1 and D/2, it has been mentioned that appellant
sustained injury on account of fall from cycle. Learned counsel for the
appellant further submits that in the instant case, facts mentioned in Ex.D/1
and Ex.D/2 have been recorded by Dr. Dilip Jain but Dr. Dilip Jain has not
been examined before the Tribunal. Further, after investigation into the
NEUTRAL CITATION NO. 2025:MPHC-JBP:8364
3 MA-4331-2008
accident, charge-sheet has been filed against non-applicant No.1 and in
investigation, it was found that accident has occurred from motorcycle ridden
by non-applicant No.1.
4. Learned counsel for the appellant further submits that present case
pertains to compensation arising out of accident from motor vehicle.
Therefore, claimant is not required to prove its case beyond reasonable
doubt. It is also urged that the injuries sustained by the applicant are not
possible on account of fall from cycle. Therefore, with respect to above
submissions, learned counsel for the appellant has relied upon Sajeena Ikhbal
and Others Vs. Mini Babu George and Others 2024 SCC Online SC 2883
and Bimla Devi and Others Vs. Himachal Road Transport Corporation and
Others 2009 (13) SCC 530. Hence, learned Tribunal has erred in dismissing
appellant's claim petition.
5. Learned counsel for the appellant also submits that compensation
calculated by the Tribunal is not proper. Expenses incurred on treatment in
Apollo Hospital Indore have not been taken into consideration. Further, no
compensation with respect to expenses pertaining to attendant and
Ambulance charges have been awarded. No compensation has been awarded
for loss of income during treatment period. Thus, compensation assessed by
the Tribunal is not proper. On above grounds, it is urged that impugned
award be set aside and suitable compensation be awarded to appellant.
6. Learned counsel on behalf of the respondent/Insurance Company
submits that in view of findings recorded by the Tribunal in impugned
award, especially, from para-14 to 28, it cannot be said that in the instant
NEUTRAL CITATION NO. 2025:MPHC-JBP:8364
4 MA-4331-2008
case, accident occurred from motorcycle ridden by respondent No.1.
Findings recorded by the Tribunal with respect to aforesaid are well
supported by evidence on record. In the instant case, owner of offending
vehicle (respondent No.1), has examined himself as non-applicant witness
and from his testimony also, it is not established that accident occurred from
offending vehicle. In documents Ex.D/1 and Ex.D/2, it is clearly mentioned
that appellant sustained injuries on account of fall from cycle. It is also urged
that appellant has not examined the person, who lodged FIR. It is further
submitted that applicant witness Shankar Lal has deposed that he did not
lodge FIR and he does not remember the number of motorcycle. Hence,
findings recorded by the Tribunal are just and proper and no interference is
required in the same. Therefore, appeal filed by the appellant be dismissed
and cross-objections filed by the respondents be allowed.
7. Heard and perused record of the case.
ANALYSIS AND FINDINGS:-
8. Primary issue involved in the case is whether instant accident
occurred on account of rash and negligent riding of motorcycle/offending
vehicle by respondent No.1 Ashok Kumar Agrawal. Applicant
witness/claimant Sanjay Khatri has deposed in his examination-in-chief that
on 14.04.2006, at about 9:30 p.m. to 10:00 p.m. in the night, he was going
with his brother Jai Khatri's Hero Puch vehicle, which had got punctured, on
foot, then, in Padam Nagar, Khandwa, near Vinay Balwani's house, non-
applicant Ashok Kumar Agrawal came with his Hero Honda motorcycle
bearing registration number MP-12-F-8626 by riding it rashly and
NEUTRAL CITATION NO. 2025:MPHC-JBP:8364
5 MA-4331-2008
negligently and after coming on the wrong side, hit him/his vehicle.
Applicant witnesses Jai Khatri and Shankar Lal Kotwani have also deposed
almost identically to that of Sanjay Khatri's testimony but Jai Khatri's
testimony reveals that he is not an eye-witness to the incident and he had
reached the scene of accident, after accident had already taken place.
9 . From testimony of applicant witness Shankar Lal Kotwani, it is
evident that he is eye-witness to the accident and he has passed the test of
cross-examination. There is nothing in his cross-examination, so as to render
him unreliable or to show that he is not an eye-witness to the incident or he
is otherwise unreliable on any ground whatsoever. From para-6 and 7 of
cross-examination of Shankar Lal Kotwani also, presence of Shankar Lal
Kotwani at the time of accident, stands clearly established. Similarly, perusal
of cross-examination of applicant witness Sanjay Khatri reveals that he has
also passed the test of cross-examination and there is nothing in his cross-
examination so as to show that he could not witness the registration number
of offending vehicle/driver of vehicle.
10. Thus, from depositions of applicant witnesses Sanjay Khatri and
Shankar Lal Kotwani, it is evident that at alleged date, time and place, non-
applicant/respondent Ashok Kumar Agrawal caused present accident by
riding his motorcycle rashly and negligently and hitting appellant, after going
on the wrong side of the road.
11. Further, record of the case reveals that in the instant case,
owner/rider of offending vehicle i.e. non-applicant Ashok Kumar Agrawal
has remained present before Tribunal and has also filed written statement,
NEUTRAL CITATION NO. 2025:MPHC-JBP:8364
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has cross-examined applicant witnesses and has also examined himself as
non-applicant witness. In reply, non-applicant Ashok Agrawal has stated that
no accident occurred from his vehicle and as per information received,
appellant was himself riding Hero Puch vehicle rashly and negligently and
accident occurred on account of the same.
12. Perusal of cross-examination of applicant witness Sanjay Khatri
and Shankar Lal Kotwani and non-applicant witness Ashok Kumar Agrawal
reveal that in cross-examination of applicant witnesses, no such suggestions,
as mentioned in reply filed by non-applicant Ashok Agrawal, have been
given to applicant witnesses and neither facts mentioned in reply have been
deposed by non-applicant Ashok Agrawal in his deposition. In deposition,
Ashok Agrawal has only stated that no accident occurred from his vehicle.
13. Further, perusal of reply filed by non-applicant Ashok Agrawal,
depositions of applicant witnesses as well as non-applicant Ashok Agrawal
reveal that in reply, suggestions given to applicant witnesses in their cross-
examinations and deposition of non-applicant Ashok Agrawal himself, it has
not been mentioned if accident did not occur from offending vehicle, then,
on the date and time of accident, where was non-applicant No.1 and his
vehicle i.e. offending vehicle.
14. Further, in aforesaid, it is also not mentioned that if accident did
not occur on account of rash and negligent riding of motorcycle by non-
applicant Ashok Kumar Agrawal, then, why offending vehicle has been
involved in the instant case and why FIR has been lodged against non-
applicant and his offending vehicle. There is nothing on record to show that
NEUTRAL CITATION NO. 2025:MPHC-JBP:8364
7 MA-4331-2008
applicant as well as non-applicant Ashok Agrawal were acquainted with
each other prior to the accident or there was any enmity/collusion between
applicant and non-applicant Ashok Agrawal. Thus, it cannot be said that non-
applicant Ashok Agrawal and his vehicle has been falsely implicated in the
instant accident.
15. In the instant case, FIR (Ex.P/1-A) has been lodged on the next day
of accident and therein name of non-applicant Ashok Agrawal and number
of vehicle are clearly mentioned. In FIR, it is also mentioned that accident
has been caused by Ashok Kumar Agrawal by riding his motorcycle bearing
registration number MP-12-F-8626 by hitting Sanjay Khatri's Hero Puch
No.E9993.
16. Further, in the instant case, accident occurred on 14.04.2006 and
offending vehicle has been recovered from non-applicant Ashok Agrawal on
the next day of accident and in seizure memo, it is mentioned that there are
scratch marks over front mudguard. Non-applicant Ashok Kumar Agrawal
has not furnished any explanation with respect to aforesaid scratch marks. In
Ex.P/4, (MLC of CHL-Apollo Hospital Indore), it is mentioned that hit by a
motorcycle on 14.04.2006 at about 10:00 p.m.
1 7 . Perusal of impugned award reveals that Tribunal has primarily
dismissed appellant's claim on the ground that in Ex.D/1 and D/2, it has been
mentioned that applicant fell from cycle. Perusal of Ex.D/1 reveals that it is
not legible. In Ex.D/2, it is mentioned that Sanjay Khatri has sustained injury
on account of fall from cycle and it is not a police case, responsibility for the
same is of Rakesh Khatri. In the instant case, neither Rakesh Khatri nor
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concerned Doctor, who prepared Ex.D/2, has been examined.
18. Further, as per averments in the claim petition as well as reply
filed by non-applicant Ashok Kumar Agrawal, at the time of accident,
appellant/claimant was going with Hero Puch vehicle and not on cycle. This
fact has been mentioned in FIR (Ex.P/1-A). Applicant witnesses Sanjay
Khatri and Shankar Lal Kotwani have also deposed in their examination-in-
chief that at the time of accident, Sanjay Khatri was with Hero Puch vehicle.
Hence, as at the time of accident, appellant/claimant Sanjay Khatri was going
with Hero Puch, therefore, question of appellant's falling from cycle does
not arise at all.
19. Further, it is well established that in a claim petition filed under
Motor Vehicle Act for compensation arising out of use of Motor Vehicle,
claimant is not required to prove his case beyond reasonable doubt. The
Court is required to look and examine the preponderance of probabilities.
Hon'ble Apex Court in Bimla Devi (Supra) has held in para-15 as under:-
''15. In a situation of this nature, the Tribunal
has rightly taken a holistic view of the matter.
It was necessary to be borne in mind that
strict proof of an accident caused by a
particular bus in a particular manner may not
be possible to be done by the claimants. The
claimants were merely to establish their case
on the touchstone of preponderance of
probability. The standard of proof beyond
reasonable doubt could not have
been applied. For the said purpose, the High
Court should have taken into consideration
the respective stories set forth by both the
parties.''
.
20. I n Sajeena Ikhbal (Supra) , Hon'ble Apex Court has held that in
NEUTRAL CITATION NO. 2025:MPHC-JBP:8364
9 MA-4331-2008
claim cases, arising out of motor accident, the Court has to apply the
principles of preponderance of probability and cannot apply the test of proof
beyond reasonable doubt.
21. Hence, if evidence available on record and as discussed in
preceding paras, is examined in the light of principles of law laid down by
Hon'ble Apex Court in Sajeena Ikhbal (Supra) and Bimla Devi (Supra), in
this Court's considered opinion, if evidence available in the instant case is
tested on the principles of preponderance of probability, then, it give rise to
only one conclusion and only conclusion that can be drawn from evidence
available on record is that instant accident occurred on account of rash and
negligent riding of motorcycle bearing registration number MP-12-F-8626
by non-applicant No.1.
22. Hence, learned Tribunal has committed material illegality in
dismissing appellant's claim petition on the ground that appellant failed to
prove that accident did not occur on account of rash and negligent riding of
motorcycle by non-applicant Ashok Kumar Agrawal.
23. Resultantly, in view of discussion in the foregoing paras, it is held
that instant accident occurred on account of rash and negligent riding of
motorcycle by non-applicant No.1.
24. Next Issue before this Court is amount of Compensation. Perusal
of FIR (Ex.P/1-A) and MLC CHL- Apollo Hospital Indore (Ex.P/4) bill
(Ex.P/6) and testimony of Dr. Subodh Jain (PW-1) and applicant Sanjay
Khatri reveal that after accident, initially, appellant was admitted in Jain
Nursing Home, Khandwa and thereafter, he was shifted to CHL-Apollo
NEUTRAL CITATION NO. 2025:MPHC-JBP:8364
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Hospital, Indore and he remained admitted in CHL-Apollo Hospitals Indore
from 15.04.2006 to 01.05.2006 and in the accident, appellant has sustained
fracture in left leg. Hence, in view of aforesaid evidence, appellant is entitled
to receive amount of Rs.1,98,014/- as per Ex.P/6 (Rs.1,18,549/-
(Hospitalization bills) + Rs.57,958/- (medicines) + Rs.1,600 (CT Scan) +
Rs.3,000/- (Ambulance) + Rs.16,907 (OPD) as medical expenses.
2 5 . Appellant is not entitled to receive amount of medical bills
Exs.P/7, P/8, P/9 and Ambulance bill (Exs.P/15, 16, 17 and 18) as there are
no prescriptions with respect to aforesaid. Ex.P/19's bill has been included in
Ex.P/6. Ex.P/20-P/21 are not original bills and they are only photocopies.
Therefore, appellant is not entitled to receive amount of Ex.P/20-P/21.
26. Further, appellant is not owner of Hero Puch. Therefore, he is not
entitled to receive amount with respect to damage caused to Hero Puch in
the accident. Hence, appellant is not entitled to receive amount of Ex.P/13.
27. But appellant is entitled to receive Rs.25,000/- for pain and
suffering. Appellant is also entitled to receive Rs.15,000/- for attendant
charges and other miscellaneous charges. In the instant case, appellant has
also suffered fracture in the left leg. Therefore, it may be presumed that
appellant was not able to work for three months. Hence, in view of nature of
profession, as disclosed from testimony as well as documents on record,
appellant is also entitled to receive Rs.10,000/- for loss of income during
treatment period.
28. Hence, in view of discussion in the foregoing paras, appellant is
entitled to receive Rs.2,48,014/- (Rs.1,98,014/- as medical expenses +
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Rs.25,000/- (pain and suffering) + Rs.15,000/- (for other miscellaneous
charges) + Rs.10,000/- (for loss of income) as compensation.
29. Further, appellant is also entitled to receive interest @ 6% per
annum on aforesaid amount from the date of application.
30. As per findings recorded by the Tribunal in para-35, offending
vehicle was insured with respondent No.2 and it is not established that
offending vehicle was being driven in violation of terms and conditions of
Insurance Policy. Respondent No.1 is owner of offending vehicle. Hence,
appellant is entitled to receive aforesaid compensation from respondents
jointly and severely.
31. Hence, no ground is made out to allow cross objections filed by
respondent/Insurance Company.
32. Hence, in view of aforesaid, appellant is entitled to receive
Rs.2,48,014/- from respondents jointly and severely along with 6% per
annum simple interest from the date of application.
33. Hence, appeal is allowed and disposed of accordingly and cross
objections filed by respondent No.2 are dismissed.
34. Appeal and cross objections are disposed of accordingly.
(ACHAL KUMAR PALIWAL)
JUDGE
vai
