Madhya Pradesh High Court
National Insurance Company Ltd. vs Ayan Ali on 24 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:33878
1 MA-1200-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KHOT
ON THE 24th OF JULY, 2025
MISC. APPEAL No. 1200 of 2022
NATIONAL INSURANCE COMPANY LTD.
Versus
AYAN ALI AND OTHERS
Appearance:
Smt. Amrit Kaur Ruprah - Advocate for appellant/Insurance
Company.
Shri Jagdish Sakalle- Advocate for respondent No. 1.
ORDER
With the consent of parties, the matter is heard finally.
2. The present appeal has been filed by the appellant/Insurance
Company challenging the impugned award dated 24-12-2021, whereby the
respondent/claimant has been awarded the compensation to the tune of Rs.
3,80,000/- for the injuries sustained by the respondent/Claimant due to
accident occurred on 26-04-2018, while Mustafa Seth was carrying the
applicant Parvez on motor-cycle towards Nagtune. When fuel of the motor-
cycle got consumed, the applicant and Parvez were standing on the left side
of the road at the Little Flower School, at about 8'O clock at night, the driver
of the offending vehicle owned by non-applicant No. 1 Tavera bearing
registration No. MP-09BD-6289 driving the vehicle rashly and negligently
dashed the respondent/claimant, by which he suffered serious injury in his
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knee. He was taken to hospital. The doctors have found fracture, for which,
he was referred to MY Hospital, Indore where he was treated and operated
by fixing screws and rods. On the basis of aforesaid, it has been submitted by
the respondent/Claimant that the offence has been registered at Crime No.
0125/18 under Sections 279 & 337 of IPC against the driver of the offending
vehicle. It has been submitted that because of the injuries sustained by the
claimant, he suffered permanent disability and various discomfort of the
body, he could not do his everyday activities and on the basis of the said
facts prayed for compensation to the tune of Rs. 16, 25,000/-.
3. The driver of the offending vehicle had expired during the
pendency of the claim application. The owner of the vehicle though filed
reply but, then declared ex- parte and the impugned award has been passed
wherein, the owner of the vehicle is shown to be ex- parte.
4. In this appeal also, despite of efforts made by the appellant by
submitting process fee twice, through ordinary as well as registered mode on
the address mentioned in the FIR, non-applicant No. 1, owner remained
unserved. Learned counsel for the appellant prayed that as the non-applicant
No.1 remained ex parte before the Court, his services be dispensed with. On
the prayer of the appellant, the services of the non-applicant No. 1, owner is
dispensed with at the risk and cost of the appellant.
5. It has been contended by the learned counsel for the appellant that
the challenge has been made against the award on the ground of breach of
Policy as well on the quantum. It has been submitted that the driver of the
offending vehicle was not having valid and effective driving licence at the
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time of accident. Therefore, the offending vehicle was being plied in breach
of the terms and conditions of Policy, Insurance Company is not liable to pay
any compensation to the claimant. Secondly, it has been submitted that the
learned Tribunal has not assessed the compensation correctly on the ground
that in absence of any document of disability, the court has opined functional
disability for assessing earning capacity of the claimant. It has been
submitted that he was a boy of 16 years of age at the time of accident and
therefore, prayed that the amount being on higher side deserves to be reduced
by this Court. It has been submitted by the learned counsel for the appellant
that it is a case of false implication of the vehicle because in the final report
and in the FIR, number of the vehicle is MP-12BD-6289 whereas the claim
application has been filed against the offending vehicle Tavera No. MP-
09BD-6289.
6. Refuting the submissions made by the learned counsel for the
appellant, the respondent counsel has submitted that the impugned award is
in consonance with settled principles of law. It has been submitted that in the
FIR ( Ex.P/2) there is a mention of registration number of the offending
vehicle MP-09BD-6289 and by typographical mistake in the last line (MP-
12) has been mentioned. It has further been submitted that the Insurance
Company in the evidence also, brought the Policy Ex.D/1, which is for the
vehicle having registration No. MP-09BD-6289. It is further submitted that
the investigating agency has seized the vehicle and in seizure memo also the
vehicle number is MP-09BD-6289 is mentioned in Ex.-A/5. On that basis
prayed, that if some typographical error has crept in the document of the
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investigating agency, that cannot be the sole basis to throw out the case of
the applicant on the basis of false implication.
7. It has further been submitted that the claimant has suffered
fracture, for which he has undergone treatment in different hospitals at
Khandwa and Indore, for which, he remained in hospital for many days. The
claimant was a young boy and his future is at stake because of the injury
sustained by him and prayed for dismissal of the appeal.
8. Learned counsel for the appellant has relied on the judgment of
Hon'ble Apex Court passed in the case of Pappu vs. Vinod kumar Lamba
reported in (2018) 3 SCC 208 to state that the foundational fact of
involvement of vehicle, liability of Insurance Company and driver not
possessing valid and effective driving licence are to be established by the
owner and driver then only, onus shifts on the Insurance Company to rebut
it. In absence of such proof, the Insurance Company is not required to prove
that the vehicle in question was involved in the accident.
9. Heard the learned counsel for the parties and perused the record.
10. The legal question which has been raised in regard to the onus of
proof on the claimant on the basis of the judgment of Hon'ble Apex Court
passed in the case of Pappu (supra), it is found by this court that document
submitted by the claimant mentions the registration number of the offending
vehicle Tavera MP-09BD-6289 and the same has been seized by the
Investigating Agency vide seizure memo Ex. A/5. The fact that driver was
not possessing valid and effective driving licence is apparent from the
criminal record in which the case has been registered under Section 3/181 of
NEUTRAL CITATION NO. 2025:MPHC-JBP:33878
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Motor Vehicles Act against the driver of the offending vehicle, which goes
to show that the driver of the offending vehicle was not possessing any
licence at the time of accident. The claimant in their application has
submitted that the vehicle which has been seized and mentioned in the FIR
was insured with the appellant/Insurance Company. The Insurance Company
has examined its officer before the Court, who has stated before the Court
that Ex.D/1 is the Policy by which, the offending vehicle was insured.
Scrutinising the aforesaid factual and evidentiary aspect of the matter, this
Court is of the considered opinion that the claimant has established the
foundational fact of the occurrence of the accident by the offending vehicle
Tavera No. MP-09BD-6289. Therefore, the appellant cannot not take support
of the judgment passed by Hon'ble the Apex Court in the case of Pappu
(supra).
11. Now, the second question in regard to that the offending vehicle
was being plied in breach of terms and conditions of the Policy is also
apparent from the record as the the offence has been registered under Section
3/181 of Motor Vehicles Act, 1988. The document Ex.P/1 and P/2, final
report and FIR proves the very fact that the driver of the offending vehicle
was not possessing valid and effective driving licence at the time of
accident.
12. The learned counsel for the respondent/claimant could not
dispute this fact in evidence. In the light of the glaring evidence available on
record, this Court finds that the offending vehicle was being plied in breach
of terms and conditions of the Policy for which, the Tribunal ought to have
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considered the defence of the Insurance Company, which has not been
considered and found to be not proved in Issue No. 3. Therefore, it is found
that as the offending vehicle was being plied in breach of the terms and
conditions of the Policy of the Insurance Company, the Insurance Company
is liable to recover the amount, if already paid, and if not paid, then, after
making the payment, the same shall be recovered from the owner and driver
of the offending vehicle.
13. Third question is with regard to the quantum of compensation, it
is seen from the record that the Tribunal has rightly discussed the functional
disability of respondent/claimant in paragraph-17 and found him entitled for
compensation of Rs. 3,17,000/-in the head of loss of income because of
functional disability of 30% and in other heads also, the compensation
awarded by the Tribunal is found to be just and proper, as it is not exorbitant.
Therefore, the appeal of the Insurance Company is partly allowed and the
award is modified to the extent discussed above. No orders as to cost.
(DEEPAK KHOT)
JUDGE
PG
