Madhya Pradesh High Court
Smt.Jyoti vs H.D.F.C.Agro General Insurance ... on 28 August, 2019
Author: Vivek Agarwal
Bench: Vivek Agarwal
HIGH COURT OF MADHYA PRADESH
MA-142-2015
(Smt. Jyoti Vs. H.D.F.S.Agro General Insurance Co. Ltd. & Ors.)
1
Gwalior, Dated : 28.08.2019
Shri Dinesh Kumar Sharma, learned counsel for the
appellants.
Shri B.K.Agrawal, learned counsel for the respondent
No.1.
Shri Ram Kishore Sharma, learned counsel for the respondent No.2 and 3..
This Miscellaneous Appeal has been filed by the appellants being aggrieved by award dt.21.11.2014 passed by the Fourth Motor Accident Claims Tribunal Gwalior, in Claim Case No.211/2013, whereby learned Claims Tribunal has exonerated the Insurance Company and has held owner and driver of the offending vehicle as liable to pay the compensation as has been assessed by the learned Claims Tribunal.
2. Learned counsel for the appellants submits that the deceased Hemant Valmik was not travelling in the offending vehicle i.e. Tractor No.M.P.07-A.A.7142 but was standing on road when such tractor being driven rashly and negligently by respondent No.3 had turned turtle taking deceased Hemant within its sweep, therefore, Insurance HIGH COURT OF MADHYA PRADESH MA-142-2015 (Smt. Jyoti Vs. H.D.F.S.Agro General Insurance Co. Ltd. & Ors.) 2 Company should not have been exonerated.
3. It is also submitted that in the light of the law laid down in the case of Pappu and others Vs. Vinod Kumar Lamba and another as reported in (2018) 3 SCC 208 looking to the poor financial condition of the claimants, at least Claims Tribunal should have directed the Insurance Company to pay the compensation and recover the same from the owner, driver of the offending vehicle.
4. Learned counsel for the Insurance Company on the other hand submits that in view of the fact that there was fundamental breach and the deceased was travelling as a gratuitous passenger on the tractor and the insurance policy admittedly does not cover any risk of passengers, Insurance Company can not be directed to pay and recover and the ratio of law laid down in the case of Pappu (supra) will not be applicable.
5. Learned counsel for the appellants has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Suvarnamma (Smt.) and another Vs. United India Insurance Company Ltd. & another as reported in MACD 2018 (3) (SC) 162, wherein recording a finding that driver HIGH COURT OF MADHYA PRADESH MA-142-2015 (Smt. Jyoti Vs. H.D.F.S.Agro General Insurance Co. Ltd. & Ors.) 3 owner had not appeared in the evidence nor they challenged the judgment passed by the Tribunal, the judgment passed by the High Court dismissing the claim based on false ground was set aside and the award made by the Tribunal was restored.
6. Reliance has also been placed on the judgment of Rajashthan High Court in the case of National Insurance Company Ltd. Vs. Surjan Singh and others as reported in 2009 (III) ACC 320 (Raj.), wherein believing the statement of mother of the deceased, who was travelling alongwith the deceased that he was a pedestrian and not a passenger in tractor, Insurance Company was held liable to pay the compensation.
7. Learned counsel has also placed reliance on the judgment of High Court of Madhya Pradesh in the case of Oriental Insurance Company Ltd. Vs. Smt. Kamli and others as reported in 2009 (III) ACC 314 (M.P.) so also on the judgment of Hon'ble Supreme Court in the case of Shivraj Vs. Rajendra and another passed in Civil Appeals Nos. 8278-8279 of 2018 arising out of SLP (C) Nos.1116- 1117/2018 and submits that Insurance Company should be HIGH COURT OF MADHYA PRADESH MA-142-2015 (Smt. Jyoti Vs. H.D.F.S.Agro General Insurance Co. Ltd. & Ors.) 4 directed to pay the compensation amount with liberty to recover the same from tractor owner.
8. Learned counsel for the Insurance Company on the other hand places reliance on the judgment of the Division Bench of High Court of M.P. in the case of Araun Kumar Patel and another Vs. Smt. Terasi Saket and others as reported in I.L.R. (2008) M.P., 282 and also in the case of Single Bench of High Court of M.P. Bench at Gwalior in M.A.No.77/2009 - National Insurance Company Ltd. Vs. Bank of India and others decided on 17.2.2009, in support of the award passed by the learned Claims Tribunal.
9. As far as evidence is concerned, there is admission in the FIR (Ex.P/1) itself that deceased Hemant was sitting on the tractor. This FIR was lodged on the basis of the statement given by Vinod, Ballu, Hanuman Danda. Therefore, judgment cited by the learned counsel for the appellants in the case of Suvarnamma (Smt.) (supra), Surjan Singh (supra) and Smt. Kamli (supra) are distinguishable on their own facts.
10. As far as judgment of Hon'ble Supreme Court in the case of Shivraj HIGH COURT OF MADHYA PRADESH MA-142-2015 (Smt. Jyoti Vs. H.D.F.S.Agro General Insurance Co. Ltd. & Ors.) 5 (supra) is concerned, in that case, facts are different, inasmuch as appellant was traelling in the said tractor as a collie. There is a finding that appellant was travelling as a loader in the tractor and not a gratuitous passenger. Tribunal had also noted that the policy covered risk of one plus four passengers, whereas in the present case, facts are different as no risk was covered for a gratuitous passenger, the impugned award can not be faulted with. Therefore, appeal fails and is dismissed.
(Vivek Agarwal) Judge SP SANJEEV KUMAR PHANSE 2019.08.30 15:39:12 +05'30'