Madhya Pradesh High Court
Mahendra Gupta vs Ramcharan Lal on 8 January, 2024
Author: Sunita Yadav
Bench: Sunita Yadav
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SMT. JUSTICE SUNITA YADAV
ON THE 8 th OF JANUARY, 2024
MISC. APPEAL No. 826 of 2017
BETWEEN:-
MAHENDRA GUPTA S/O SHRI L.R. GUPTA BAGLE KA
BADA DAL BAZAR LASHKAR (MADHYA PRADESH)
.....APPELLANT
(BY MR. RAMESH PRASAD GUPTA - ADVOCATE)
AND
1. RAMCHARAN LAL S/O LATE SHRI PRABHUDAYAL
GOYAL, AGED ABOUT 66 YEARS, WAREHOUSE KE
PICHE SHEOPUR (MADHYA PRADESH)
2. SMT. BADAMI (DELETED) W/O RAMCHARAN
GOYAL, AGED ABOUT 62 YEARS, OCCUPATION:
NA WARE HOUSE KE PEECHE, SHEOPUR
(MADHYA PRADESH)
3. MANDAL PRABHANDAK THE NEW INDIA
ASSURANCE CO. GDA OFFICE KE PASS RAVI
NAGAR LASHKAR (MADHYA PRADESH)
.....RESPONDENTS
(MR. ANSHU GUPTA - ADVOCATE FOR RESPONDENT NO. 1 - CLAIMANT
AND MR. BAL KRISHNA AGRAWAL - ADVOCATE FOR RESPONDENT NO.
3 - INSURANCE COMPANY)
This appeal coming on for admission this day, th e court passed the
following:
JUDGMENT
At the very outset, learned counsel for respondent No. 3 - insurance company submitted that he does not want to press I.A. No. 3973 of 2017, cross-objection filed under Order 41 Rule 22 CPC.
Signature Not Verified Signed by: ALOK KUMAR Signing time: 1/10/2024 08:39:33 PM 2In view of the above, I.A. No. 3973 of 2017 is dismissed as not pressed.
Present miscellaneous appeal has been filed against the award dated 24.4.2017 passed by First Additional Motor Accident Claims Tribunal, Sheopur (M.P.) in Claim Case No. 05/2013 filed by the respondents No. 1 and 2 - claimants for grant of compensation on account of death of Gajendra in a road traffic accident occurred on 16.6.2011 involving offending vehicle bus bearing registration No.MP07-F-2082. At the time of accident, appellant was the owner of the offending vehicle whereas the vehicle was insured with respondent No. 3
- insurance company.
Appellant - Owner of the offending vehicle filed his written statement and denied the allegations made in the claim petitioner and further stated that since the offending vehicle was insured with respondent No 3 - insurance company, therefore, insurance company is liable to pay the compensation, if any.
Respondent No. 3 - insurance company filed its written statement and denied the averments made in the claim petition and further stated that the offending vehicle was being plied in violation of policy terms and conditions, therefore, insurance company is not liable to pay the compensation.
Learned claims tribunal after hearing both the parties and going through the evidence available allowed the claim petition of the claimants and awarded compensation to the tune of Rs.2,54,000. The compensation amount was directed to be paid by respondent No. 3 - insurance company with right to recover the same from appellant - owner of the offending vehicle.
Learned counsel for the appellant argued that learned claims tribunal has wrongly fastened the liability on the appellant - owner of the offending vehicle Signature Not Verified ignoring the settled principle of law. When the accident occurred on account of Signed by: ALOK KUMAR Signing time: 1/10/2024 08:39:33 PM 3 rash and negligent act of the driver of the offending vehicle, therefore, insurance company is liable for payment of compensation. It is further argued that this is a case of contributory negligence on the part of the deceased who was travelling on the roof of the bus, therefore, compensation be reduced up to 50%.
Per contra, learned counsel for respondent No. 3 - insurance company supported the impugned award and prayed for rejection of the appeal.
Heard learned counsel for the rival parties and perused the available record.
As per the claim petition, at the time of accident, deceased Gajendra went on the roof of the bus to keep the crates of fruits and could not get down as the driver of the offending vehicle drove the bus. Thereafter, due to rash and negligent driving the driver of the offending vehicle, deceased fell from the roof of the bus and died owing to the injuries sustained by him. The documents filed in support of the claim petition i.e. Final Report (Exh. P-1), Merg Intimation (Exh. P-4), Statement of prosecution witnesses recorded under Section 161 CrPC (Exh. P-13 to P-20) corroborates the version of the claimants. Claimants have examined eye-witness Lakhan who has also stated in the same line that when the deceased went on the roof of the bus to keep the crates of fruits, the driver of the offending vehicle drove the bus in a rash and negligent manner due to which deceased fell down and died.
Statement of this eye-witness remained unchallenged in his cross- examination and nothing emerged from his cross-examination to raise doubt over his statement.
Under these circumstances, the argument of learned counsel for the appellant has no weight that the accident occurred on account of contributory Signature Not Verified Signed by: ALOK KUMAR Signing time: 1/10/2024 08:39:33 PM 4 negligence on the part of the deceased because the deceased was not travelling on the roof of the bus but he simply went on the roof to keep the baskets of fruits and the driver drove the vehicle as a result deceased fell and died.
So far as liability of the insurance company is concerned, when it is found to be proved that due to rash and negligent driving of the driver of the offending vehicle, the deceased fell down from the roof of the bus, learned claims tribunal has wrongly exonerated the insurance company from paying the compensation in the light of the law laid down by this Court in the case of Manager, Oriental Insurance Company Ltd. v. Mantola & Ors.; (2006) 3 MPLJ 329 and Bhuribai and Anr. vs. Shyam Sunder & Ors.; (2008) 1 ACC 938.
Consequently, the findings of learned claims tribunal exonerating the insurance company from the liability to pay the compensation and liberty to recover the same from the appellant - owner of the offending vehicle are hereby set aside.
Respondent No. 3 - insurance company is directed to pay the compensation to the claimant without any liberty of recovery. The compensation amount be paid to the claimant within 12 weeks from the date of receipt of certified copy of this order. Rest of the award passed by learned claims tribunal shall remain intact.
Present miscellaneous appeal is allowed to the aforesaid extent and disposed of.
(SUNITA YADAV) JUDGE AKS Signature Not Verified Signed by: ALOK KUMAR Signing time: 1/10/2024 08:39:33 PM