Tata Aig General Insruace Co. Ltd vs Gopal (2025:Rj-Jd:24608)
2025 Latest Caselaw 10021 Raj

Rajasthan High Court - Jodhpur

Tata Aig General Insruace Co. Ltd vs Gopal (2025:Rj-Jd:24608) on 21 May, 2025

[2025:RJ-JD:24608]



      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                 S.B. Civil Misc. Appeal No. 344/2025

Tata Aig General Insruace Co. Ltd., Branch Office, 2B Hajareshwar
Colony, Opposite Telephone Exchange Department, Court Road,
Udaipur
                                                                    ----Appellant
                                    Versus
1.        Gopal S/o Haliya, R/o Sanrampura Tehsil Bagidora District
          Banaswara Raj
2.        Smt Kavi W/o Gopal, R/o Sanrampura Tehsil Bagidora
          District Banaswara Raj
3.        Amrit Lal Kotad S/o Jivat Ram Kotad, R/o Rampura Sati,
          Tehsil And District Dungarpur
4.        Smb Technoiologies, Through Proprietor Yusuf Ali R Eg Of
          Mubarak Building Behind Laxmi Gas Agency Gali No 02
          Adarsh Nagar Dungarpur
                                                                 ----Respondents


 For Appellant(s)          :    Mr. Vishal Singhal a/w Ms. Anamika
                                Baghmar
 For Respondent(s)         :    Mr. Aman Bishnoi Bola for
                                Mr. R.S. Bhati


               HON'BLE MR. JUSTICE ARUN MONGA

Order(Oral)

21/05/2025

1. Aggrieved with the judgment and award dated 20.11.2024

passed by learned Motor Accident Claims Tribunal, Banswara, the

appellant/Insurance Company is before this Court by way of the

present appeal seeking quashing of the same.

2. Brief facts first. On August 6, 2021, at around 10:00 AM,

Nitesh, the deceased, was going on a motorcycle with his friend

Manoj towards Village Bagidora. Suddenly, near Ummedgarhi,

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Malifala Ghati, a Tata pickup vehicle (registration number RJ12-

GA-5269), allegedly driven rashly and negligently by

respondentNo.1 (driver), collided with their motorcycle. Nitesh

suffered severe injuries on account of accident, leading to his

death.

2.1. The claimants sought compensation of ₹80,70,000/- under

Section 166 and ₹50,000/- under Section 140 of the Motor

Vehicles Act. The claim is filed against three respondents:

respondentNo. 1 (the driver), respondentNo.2 (the vehicle owner)

and respondentNo.3 (the Insurance Company of the pickup

vehicle).

2.2. RespondentsNo.1 and 2 did not appear before the Tribunal,

leading to ex-parte proceedings against them on October 19, 2023.

RespondentNo.3-the insurance company, contested the claim,

denying the allegations. They argued that the claim is baseless,

the accident did not involve the vehicle insured with it and that

Nitesh, being intoxicated, was driving the motorcycle recklessly

and was not even wearing a helmet. They also claimed the driver

of the pickup lacked a valid driving license, absolving them of

liability.

2.3. After hearing both the parties and considering the material

available on record, the learned tribunal has partly allowed the

claim petition awarding a sum of Rs.12,04,824/- to the claimants

with 9% annual interest from the date of filing of the claim

petition. Hence, this appeal.

3. Learned tribunal had framed five issues, translated version of

which is as below :

 [2025:RJ-JD:24608]                     (3of 11)                           [CMA-344/2025]


      "i.    Whether, on 06.08.2021 at around 10:00 AM, at Mouja

Ummedgarhi, Malifala Ghati, District Banswara, the vehicle Tata Yodha Pickup No. RJ 12 GA 5269, owned by non-applicant No. 2 Yusuf Ali, driven by non-applicant No. 1 Amritlal under his employment, and insured by non-applicant No. 3, while being driven negligently, carelessly and at a high speed, hit the deceased Nitesh who was coming on his motorcycle, due to which deceased Nitesh died as a result of multiple injuries sustained on his body?

Claimants ii. Whether the claimants are entitled to receive the compensation amount mentioned in the claim petition or any other amount as compensation from the non-applicants? If yes, from whom and to what extent?

Claimants iii. Whether, due to the reasons mentioned in the objections raised by non-applicant No.3 in the reply to the claim petition, the non- applicants are not liable to pay the compensation amount?

Non-applicants iv. Relief? "

4. After analysing the evidence adduced by the parties and

considering the documents available on record, the learned

Tribunal rightly decided all the issues, i.e., Issue Nos. 1, 2, and 3,

in favour of the claimants and against the insurance company.

5. Learned counsel for the appellant submits that the impugned

judgment and award passed by the learned Tribunal is contrary to

the facts on record and settled principles of law, and therefore

deserves to be quashed and set aside.

5.1. He further submits that the finding recorded by the learned

Tribunal on Issue No.1, regarding the alleged negligence of the

driver of the offending pickup, is erroneous. The Tribunal has

relied solely on the police papers and the statements of AW-1 Smt.

Kavi and AW-2 Kishan, who admittedly were not eyewitnesses to

the incident. As per the claim petition, one Manoj, a friend of the

deceased and a pillion rider on the motorcycle at the time of the

accident, was the only eyewitness. However, he was not examined

before the Tribunal, thereby depriving the appellant Insurance

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Company of the opportunity to cross-examine him. In absence of

any reliable eyewitness, the finding on negligence is unsustainable

and the award deserves to be set aside on this ground alone.

5.2. It is also submitted that the deceased himself was driving

the motorcycle in a rash and negligent manner in the middle of

the road and without wearing a helmet. Despite this, the learned

Tribunal failed to consider the aspect of contributory negligence.

Given that the accident was a result of a head-on collision, it is

submitted that the Tribunal ought to have apportioned liability and

deducted a proportionate amount from the compensation,

reflecting the contributory negligence on the part of the deceased.

5.3. Learned counsel further submits that the finding on Issue

No.3, pertaining to the objections raised by the appellant

Insurance Company regarding non-liability, has also been wrongly

decided. The appellant had produced NAW-1 Rishabh Matdad, who

placed on record the documentary evidence--Ex. A1 being the

insurance policy, Ex. A2 being the cancellation letter, and Ex. A3

being the refund receipt of the policy premium. These documents

clearly established that the policy in question had been cancelled

and the premium refunded to the dealer prior to the date of the

accident. Hence, the vehicle was not covered under any insurance

policy at the relevant time and the appellant cannot be fastened

with any liability to pay compensation.

5.4. He would also submit that the appellant had filed an

application under Order 1 Rule 10 CPC seeking impleadment of CK

Motors--the dealer--as a necessary party. The learned Tribunal, by

its order dated 14.11.2024, had directed that the said application

would be considered at the time of final decision. However, the

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Tribunal dismissed the application in an arbitrary manner, holding

that no defence regarding cancellation of the policy had been

taken in the written statement, despite such defence having been

clearly raised in the written arguments.

5.5. Learned counsel also contends that the learned Tribunal has

committed a grave error in assessing the income of the deceased

at Rs.7,770/- per month, based on minimum wages for unskilled

labour in the year 2021, without any supporting documentary

evidence. In the absence of any proof of income, the Tribunal

ought to have applied the notional income of Rs.15,000/- per

annum (Rs.1,250/- per month) as prescribed in the Second

Schedule of the Motor Vehicles Act, 1988, for non-earning

members. The assessment made is thus arbitrary and excessive.

6. Per contra, learned counsel for the respondents has

supported the impugned award by the learned Tribunal in its

entirety, contending that the findings have been recorded after

proper appreciation of the evidence on record. He submits that the

award is just, reasonable, and calls for no interference by this

Court. Hence, the present appeal deserves to be dismissed.

7. In the aforesaid backdrop, I have heard the rival contentions

of learned counsels which are more or less on the same lines as

the grounds taken in the pleadings and perused the case file. I

shall now proceed to deal with the merits and demerits thereof

and render my opinion based on the discussion and reasoning

contained hereafter.

8. First and foremost, let us have a look at the relevant of the

award, which is as below:

[2025:RJ-JD:24608] (6of 11) [CMA-344/2025]

18. Both these issues were required to be proved by the claimant's and defendant's and looking to the issues, it is imperative that the same be decided together so as to avoid the repetition of the evidences produced by both the parties.

19. Burden of proof that the offending vehicle was being driven rashly and negligently is always on the claimants. To succeed in a claim petition filed under Section 166 of Motor Vehicles Act claimants have to show that the offending vehicle was being driven rashly and negligently.

20. The detail submissions of the ld. counsels for the respective parties have been already reproduced by this Tribunal, therefore, the same are not repeated.

21. In so far the accident is concerned, the same is proved by the fact that the accident occurred on 06.08.2021 and the FIR, was lodged on the same day. Further, the police after investigation has filed charge sheet No. 126/2021 dt. 18.08.2021, Ex.7 against the driver who is defendant No. 1 u/s 279, 337 and 304A IPC read with 134/187 of the MV Act before the competent court of jurisdiction. in District Banswara. Certified copy of charge-sheet along with documents submitted with the said charge-sheet is on record. Moreover owner and driver of the ill-fated Pickup in response to notice u/s 133 & 134 of the MV Act, Ex.12 & 13 have categorically admitted the factum of the accident. It is beyond comprehension that anybody would admit the guilt of the offense merely on the pressure of the police and is ready to face criminal trial. Further, driver/defendant no. 1 has not stepped into the witness box to explain why he was prosecuted by the investigating officer which is also prima-facie suggestive of negligence of defendant No. 1, driver in driving the offending vehicle. It is settle law that the claimants were merely to establish their case on the touchstone of preponderance of probability and standard of proof beyond reasonable doubt cannot be applied by the Tribunal whiledealing with the motor accident case.

22. Further, the claimants produced two witnesses i.e. AW-1 & AW-2 and both of them in their chief have stated the factum of the accident. On analysing, the cross-examination of the aforesaid witnesses, it would reveal that even in the cross-examination the factum of accident was proved as nothing contrary material came on record which could suggest that no accident occurred on 06.08.2021 and the contrary suggestions of the Id. counsel for the defendant no. 3 were denied.

23. In so far the contention of Mr. Modi that the present ill-fated vehicle was not insured by defendant no. 3 is required to be adjudicated.

24. The defendant no. 3 is the TATA AIG General Insurance company which has issued the insurance policy of the ill-fated vehicle which is Ex.4 & Ex.A1. The period of insurance has been indicated as 24.09.2020 το 23.09.2021 and the policy no. is 0147276043. Ex.A2 is a letter regarding cancellation of insurance policy no. 0147276043 sent by the dealer CK Motors to TATA Motors Insurance Broking & Advisory Service Ltd., Mumbai, which indicate that the dealer CK Motors requested to cancel the issued policy and has written the letter indicating that "due to some technical problem in vehicle, vehicle not delivered to customer. Till vehicle in out custody please cancel the policy and refund to favour

[2025:RJ-JD:24608] (7of 11) [CMA-344/2025]

on CK Motor". In Ex.A2 name of the customer is mentioned as Yusuf Ali i.e. defendant no. 2 and Ex.A3 is cancellation & refund receipt issued by TATA Motors Insurance Broking & Advisory Service Ltd., Mumbai, which indicates that the cancellation requested on 28.09.2020 and the request was approved on the same day for a sum of Rs. 15,044/-. Thus, Ex.4and Ex.A1 insurance policy was issued but however the same was unilaterally canceled by TATA Motors Insurance Broking & Advisory Service Ltd., Mumbai, on the request of dealer CK motors. Thus, admittedly Ex.4 & A1 was issued by defendant no. 3 which provide the period of insurance from 24.09.2020 to 23.09.2021 but however, as per Ex.A3 the same was canceled on 28.09.2020 during the pendency of the insurance period. This Tribunal fails to comprehend as to how the insurance contract could be canceled suo-moto by the insurance company and that to without giving any notice to the insured before cancellation.

25. Additionally, it is interesting to note that Ex.4/A1 is the insurance policy issued by TATA AIG General Insurance Company Ltd. i.e. defendant no.3 but the cancellation of the said policy was done at the behest of the CK Motors, Ex.A2 who appears to be the dealer of TATA Motors as per the letter head, Ex.A2. On perusal of Ex.A2 would reveal that the policy duly issued with effect from 24.09.2020 was canceled but no date has been given in Ex.A2 as to when the said policy was sought to be canceled. Even otherwise if the policy was sought to be canceled on account of some technical problem in vehicle and specifically it has been written that the vehicle was not delivered to the customer and yet the vehicle was delivered as subsequently on 06.08.2021 the said vehicle met with an accident. Further, the status of TATA Motors Insurance Broking & Advisory Service Ltd., Mumbai, is not known as the insurance policy Ex.4 & Ex.A1 was issued by TATA AIG General Insurance Company Ltd. and thus, in what capacity TATA Motors Insurance Broking & Advisory Service Ltd., Mumbai, could be approached to cancel the issued policy. There is another issue which emerges from the perusal of Ex.A3 that the said TATA Motors Insurance Broking & Advisory Service Ltd.,Mumbai, received the cancellation request on 28.09.2020 and the refund of premium amount was directed to be refunded to the dealer and it also provide that the policy cancellation approval date was 28.09.2020 and the approved refund amount was 15,044/-. There is no evidence on record as to whether the amount of Rs. 15,044/- was actually paid to the dealer i.e. CK Motors and in turn the said dealer i.e. CK Motors has refunded the amount of premium to the customer i.e. the owner/defendant no. 2. Thus, the entire process of refund was between TATA Motors Insurance 21 Broking & Advisory Service Ltd., Mumbai and CK Motors and nowhere the present insurance company i.e. TATA AIG General Insurance Company Ltd. and the customer Yusuf Ali who was the insured as per Ex.4 and Ex.Al were involved in the aforesaid process.

26. It is not in dispute that if the said insurance company was desirous to cancel the issued policy then in accordance with principles of natural justice a notice to the insured was mandatory as the insurance is contract between the insured and the insurance company and the contract cannot be canceled unilaterally. The insured was not given any opportunity of hearing and arbitrarily the policy was canceled.

[2025:RJ-JD:24608] (8of 11) [CMA-344/2025]

27. Ex. 4 & Al is the insurance policy by which total premium of Rs. 15,044/- has been taken by the insurance company and Ex.A3 the refund receipt does not indicate the date of refund and moreover there is no jota of evidence which could indicates that the refund was credited in bank account of the dealer and was refunded to the insured/defendant no. 2.

28. Admittedly, the accident occurred on 06.08.2021 and as per Ex.4 & A1 the insurance policy was valid from 24.09.2020 to 23.09.2021 but the same was canceled by TATA Motors Insurance Broking & Advisory Service Ltd., Mumbai, unilaterally on 28.09.2020 and the reasons for the cancellation was the letter of CK Motors who is the dealer of the ill-fated vehicle and also the amount of premium has not been refunded to the insured. Further, as per Ex.A2 and Ex.A3 the vehicle in question was not delivered to the customer but yet since the accident occurred on 06.08.2021, it would be presumed that the vehicle was delivered to the customer/insured and since the insured had valid policy for the period 24.09.2020 to 23.09.2021 and the cancellation as aforesaid was done at the back of the insured, in such circumstances, it cannot be said that the defendant no. 3 has validly canceled the policy and defendant no. 3 is held liable to pay the compensation to the claimants.

29. During the course of argument on 14.11.2024, the Id. counsel for the insurance company Mr. Modi filed an application under Order 1 Rule 10 read with 151 CPC praying that CK Motors be impleaded as necessary party in the present proceedings. This Tribunal vide order dt. 14.11.2024 directed that the said application would be decided at the time of judgment.

30. The present application is a gross abuse of process of law as admittedly, the present claim petition was filed before this Tribunal on 31.08.2021 and the insurance company appeared on 08.04.2022 and the written statements were filed 19.10.2023. No such stand was taken in the written submissions that the police stands canceled. The case has been picked up in National Action Plan which has been started under the direction of Hon'ble Rajasthan High Court and therefore the present application filed by Mr. Modi is dismissed as the issue of cancellation and the refund of the premium amount is between the dealer of TATA Motors i.e. CK Motors and between TATA Motors Insurance Broking & Advisory Service Ltd., Mumbai and moreover, not a single iota of evidence has been produced indicating that the amount of premium i.e. 15,044/- has been actually refunded to the insured. In absence of the proof that the premium of Rs. 15,044/- has been duly refunded to the insured on 28.09.2020 i.e. the date of cancellation of the valid insurance policy, it cannot be said that the insurance policy has been rightly canceled and thus, the application filed by Mr. Modi is dismissed.

31. Thus, in view he aforesaid clinching documentary and oral evidence it is clear that the Pickup in question met with an accident which was driven by defendant No. 1 in rash & negligent manner causing grievous injury to the deceased which caused the death of the deceased.

32. The upshot of the above discussion and on the basis of the entire evidence available on record as discussed above, the claimants have proved issue No. 1 in their favour and further the issue no. 3 is decided against the defendant insurance company."

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9. Having heard the learned counsel for the appellant as well as

having perused the impugned award and record of the learned

Tribunal, the conceded position emerges before this Court is that

the relationship of insurer and insuree was between the appellant-

Insurance Company and one Yusuf Ali, the purchaser of the

offending vehicle, i.e., Motor Cycle.

10. Neither is the receipt of premium amount qua the vehicle

disputed, nor even otherwise it is the case of the Insurance

Company that the insuree, who was its consumer, was put to any

prior notice before the so-called cancellation of the insurance

policy; nor did it refund the amount to the consumer (though the

stand taken is that the amount was refunded to the Motor

Insurance Service Provider (MISP), i.e., Dealer, but as per the

finding of the learned Tribunal, the same was not even

established).

11. There are far too many lacunae which cannot be

countenanced, i.e. :-

(i) Firstly, the stand taken that the vehicle was not delivered to

its buyer is neither pleaded in the reply, which was the first

instance for the Insurance Company to respond to the claim

petition, nor at the subsequent stage, it was proved based on the

evidence adduced by it; nor even otherwise were any steps taken

subsequently to amend its reply to the claim petition.

(ii) The offending vehicle was purchased from the dealer, namely

CK Motors, and the entire edifice of the opposition to the claim

petition both before the learned Tribunal and even in the appellate

proceedings is that the Insurance Company acted under the

instructions of CK Motors. And yet, it is rather intriguing that at

[2025:RJ-JD:24608] (10of 11) [CMA-344/2025]

the first instance on the reply was filed, no steps were taken to file

any application seeking impleadment of CK Motors, on whose

shoulders the entire burden was shifted by the appellant-

Insurance Company. Furthermore, it was open to the Insurance

Company to put the representative of CK Motors in the witness-

box in support of its stand taken in the reply; even that was

conveniently not done. It waited for the entire trial to get over and

belatedly filed an application under Order 1 Rule 10 of CPC at the

final stage of the trial when the arguments to be heard. The same

has though been dismissed by the learned Tribunal.

(iii) However, in order to avoid any prejudice to the rights of the

appellant-Company, it is made clear that the dispute, if any,

between appellant-Insurance Company and the CK Motors was not

the subject matter before the learned Tribunal, and the same is

left open to be decided by filing appropriate proceedings, in case

the Insurance Company is so advised.

(iv) As far as the owner-purchaser of the motor vehicle is

concerned, no default can be found with him as the so-called

cancellation of the policy was completely at his back, which is not

even disputed by the Insurance Company since conceded stand

taken is that it was not under his instructions, but under the

instructions of the seller i.e. CK Motors.

(v) Lastly, trite it may sound, but a 3rd party to a contract is a

rank outsider once the contract stood concluded. Prior to the

payment of the premium, no doubt Motor Insurance Service

Provider (MISP) could have taken steps, but that too only prior to

delivery of the vehicle.

[2025:RJ-JD:24608] (11of 11) [CMA-344/2025]

12. The argument of learned counsel for the appellant that non-

examination of the eyewitness-Manoj, who was a pillion rider at

the time of the accident, is fatal to the entire testimony of the

other eyewitnesses who were produced by the claimant in support

of their claim, the said argument is also being noted only to be

rejected, inasmuch as the learned Tribunal has dealt with it

elaborately and given the finding in favour of the claimants, since

the testimony of both the witnesses remainsunimpeached in the

cross-examination. Not only that, had it been a case that the

occurrence of the accident and/or involvement of the vehicle was

otherwise not established by the claimants, possibly their would

have been a use of bringing eye-witness for the examination, but

the same since already stood proved, I find no grounds to

interfere with the findings returned by the learned Tribunal.

13. As an upshot, no grounds to interfere.

14. Dismissed.

15. In the parting, I may also hasten to add here that the stand

taken that the argument that motor vehicle was not delivered is

completely out of place, as the glaring facts are self-speaking, i.e.,

the motorcycle being plied outside the dealer premises on the

road itself clearly proved that it was delivered. The argument is

being noted, only to be rejected, once again.

16. Pending application(s), if any, stand disposed of.

                                                                                                        (ARUN MONGA),J
                                   9-/Jitender/SP


                                   Whether fit for reporting :      Yes     /       No.









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