Madhya Pradesh High Court
Sanjeev Sharma vs Smt.Anju on 3 July, 2025
NEUTRAL CITATION NO. 2025:MPHC-GWL:13607
1 MA-786-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 3 rd OF JULY, 2025
MISC. APPEAL No. 786 of 2008
SANJEEV SHARMA
Versus
SMT.ANJU AND OTHERS
Appearance:
Shri Akshat Kumar Jain -Advocate for the appellant.
Shri R.V.Sharma - Advocate for the respondent No.3/Insurance
Company.
ORDER
Heard on I.A.No.4621/25, an application for dispensing with service of respondent No.2.
After due consideration, the application is allowed. The service of respondent No.2 is dispensed with.
2. Also heard on I.A.No.4622/25, an application for exemption to file affidavit.
For the reason mentioned in the application, the application is allowed. With the consent of counsels of parties, heard finally.
3. This Miscellaneous appeal has been preferred by the appellant challenging the award passed by by the Member, MACT, Shivpuri vide award dated 03.05.2008 in Claim Case No.74/2006 whereby MACT whereby, awarded a compensation of Rs.32,000/- along with interest @ 6% Signature Not Verified Signed by: SUBASRI MANI Signing time: 7/7/2025 5:56:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:13607 2 MA-786-2008 per annum to the claimant for injuries sustained by her on account of accident.
4. The necessary facts for disposal of this appeal are that on 27.06.2025 the appellant/claimant was travelling from Kolaras to Shivpuri in the offending Jeep bearing registration No.MP08-A/8355 which was being driven by Birju @ Ramjilal, respondent No.1, rashly and negligently. He dashed the vehicle in a tree, due to which the claimant sustained grievous injuries in her head and fingers etc, for which she was admitted in hospital for treatment.
5. It is submitted by the learned counsel for the appellant/respondent No.1 that the learned Tribunal on Issue No.3 has erroneously concluded that at the time of accident, the offending vehicle was being driven in violation of the conditions of Insurance Policey. He submitted that the Insurance Company did not adduce any evidence in that regard and in the absence of such evidence, this issue cannot be found proved by the learned tribunal. The policy in this case of offending vehicle, though is an act policy, however, it contains the premium of Rs.385/- towards "any extra loading"
which indicates that it is for the extra passengers. In this respect the learned counsel has relied upon the judgment dated 24.08.2023 of co-ordinate Bench of this Court in the case of The Oriental Company Limited Vs. Munni Bai and Others, MANU/MP/2449/2023 and also in the Case of Dulari Singh and Ors Vs. Tribhuvan Murari Dubey and Others, MANU/MP/0030/2008 and Fahim Ahmad and Ors Vs. United India Insurance Company Ltd and Ors . Therefore, prays to set aside the conclusion on Issue No.3 and to make liable Signature Not Verified Signed by: SUBASRI MANI Signing time: 7/7/2025 5:56:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:13607 3 MA-786-2008 the Insurance Company to pay the compensation amount.
6 . Per contra, the learned counsel appearing on behalf of the Insurance Company has opposed the contention on behalf of the appellant on the basis that Insurance Company has examined Arvind Kumar (NAW-1) to prove the conditions of Insurancy Policy and remained unshaken in his cross- examination, therefore, his testimony is believable. So far as the policy Ex.D/1 is concerned the payment towards "any extra loading" is not meant for passengers sitting in vehicle. The policy does not contain any premium for passengers in the vehicle therefore, learned tribunal on Issue No.3 has rightly concluded that insurance company is not liable for payment of compesation. He relied upon a judgment of Karnataka High Court in the case of The Branch Manager, The New India Assurance Co.Ltd Vs. Mahadev Pandurang Patil and Abdulrajak Hussainjamakhanwale, Owner of Jeep The Oriental Insurance Co.Ltd. (2010)10 KAR CK 004.
7. Heard learned counsel for the parties and perused the record.
8. In the case of Munni Bai (supra) the Coordinate Bench of this Court in para 13 has held as under :-
"13. DW-1 S.L. Jinwal (claim case No. 31/06) in his cross examination at para 4 stated that the premium paid in the head of 'any extra loading' was for penalty because the manufacturing of the offending vehicle was of 1997. However, the fact that the premium in the head of 'any extra loading' is taken as the offending vehicle was manufactured in 1997 is neither mentioned in Ex.D-2 nor pleaded in the written statement filed by the company. Therefore, the tribunal has rightly held that the premium for "Any extra loading" is for the risk of extra passengers and not for penalty and also not erred in rejecting the defence of insurance company and fastening liability on it for payment of compensation as the insurance company failed to prove its defence. Point No. (iii) (Amount of compensation)"Signature Not Verified Signed by: SUBASRI MANI Signing time: 7/7/2025 5:56:29 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:13607 4 MA-786-2008
9. In the case of Dulari Singh (supra) the Division Bench of this Court has held in para 11 as under :-
"11. Coming to the liability of the insurer as there is nothing on record to show that there was violation of the policy, the finding as to violation of policy is also not proper. Merely by the fact that the father of the deceased was unable to state the names of the persons taken in the jeep, it could not be inferred that jeep was being plied for hire or reward, the burden to prove the breach of the policy was upon the insurer. Ramesh (P.W. 3) has also not stated that vehicle used to be plied for carrying passengers for hire or reward, he has stated that vehicle was used to be plied for personal use. There is nothing in the statement of Deepak (P.W. 4) also to infer that there was violation of terms & conditions of the policy. The statement of Sunil Dharmadhikari (NAW-1) examined on behalf of insurer is not based on personal knowledge, thus, is of no avail so as to come to the conclusion that vehicle used to be plied for hire or reward."
10. In the case of Fahim Ahmad (supra) the Hon'ble Apex Court has held in para 6 as under:-
"6. Although the plea of breach of the conditions of policy was raised before the Tribunal, yet neither any issue was framed nor was any evidence led to prove the same. In our opinion, it was mandatory for Respondent 1 Insurance Company not only to plead the said breach, but also substantiate the same by adducing positive evidence in respect of the same. In the absence of any such evidence, it cannot be presumed that there was breach of the conditions of policy. Thus, there was no reason to fasten the said liability of payment of the amount of compensation awarded by the Tribunal on the appellants herein."
I am in complete agreement with the law laid down in aforesaid case. For proving the breach of condition of policy, the Insurance Company has to plead such violation and to lead evidence to prove the same. The burden of proving the breach of policy condition always lies upon the Insurance Company.
11. In this case, on perusal Ex.D/1 shows that except premium paid for basic 3rd party liability, for PA and legal liability for driver, premium of Signature Not Verified Signed by: SUBASRI MANI Signing time: 7/7/2025 5:56:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:13607 5 MA-786-2008 Rs.385/- has also been paid for "Any extra loading" under said policy. The "Indian Motor Tariff" reveals that any extra loading premium may be applied for adverse claims experience of the vehicle insured and individual risk perception as per the insurer's assessment. If the experience continues to be adverse, a further loading of 100% on the expiring premium may be applied.
12. Keeping in view the said provision, it cannot be said that in this particular case, "any extra loading" refers premium for passengers. Had it been the premium for passengers, then number of passengers would have also been mentioned therein. Therefore, I am in respectful disagreement with the law laid down in the case of Munni Bai (supra) . Since no premium has been paid in act liability policy (Ex.D/1)for passengers, therefore, the Insurance Company has rightly been exonerated from payment of compensation.
13. In the case of Mahadev pandurang Patil (supra) the Karnataka High Court has held in para 17 as under :-
"17. In view of the authoritative pronouncement of the Apex Court holding that an occupant/inmate/passenger in a private car, is not a third party, the finding recorded by the Tribunal that the insurance policy issued covers the risk of such persons and therefore the insurance company is liable to pay compensation amount is illegal and contrary to the law declared by the Apex Court. In fact, in the policy, no additional premium is received by the insurance company to cover the risk of such persons. It is clear from the terminology used in the policy which fact is not in dispute. In one of the cases, additional premium is collected to loading the risk of third party only, as is clear from the policy that loading was not meant to cover risk of inmates of a private car and therefore, merely because an additional premium is collected under the said policy, it cannot be inferred that the risk of inmates of a car are covered. The words are specific that the loading is done in order to cover only third party risk, it is not a case of additional premium being collected to cover the risk of inmates along with third parties. Therefore, in the facts of this case, we are Signature Not Verified Signed by: SUBASRI MANI Signing time: 7/7/2025 5:56:29 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:13607 6 MA-786-2008 satisfied, as the insured has not paid additional premium and the insurance company has not collected any additional premium, the risk of the occupants of a private car was not covered. Therefore, liability foisted on the insurance company cannot be sustained and accordingly, it is hereby set-aside."
14. In the case of United India Insurance Co. Ltd. Vs. Smt. Geeta Yadav & Ors . decided on 16th February, 2014 in M.A.No.1171/2014 the Coordinate Bench of this Court has held in the light of the decision of the Madras High Court in the matter of New India Assurance Co. Ltd. Vs. S.Krishnasamy and others, 2016(2) TAC 125(Mad.) that deceased being only occupant of private car, cannot be considered as third party of vehicle and since policy covers risk to the third party alone, therefore, policy will not cover the risk of deceased and therefore, Insurance Company cannot be held liable for payment of compensation amount and further since deceased was not a third party, in such matter doctrine of "pay and recover" cannot be applied.
15. In the light of aforesaid discussion, this appeal filed on behalf of the appellant/owner of the offending vehicle is found to be meritless, and therefore, the same is hereby dismissed.
(RAJENDRA KUMAR VANI) JUDGE mani Signature Not Verified Signed by: SUBASRI MANI Signing time: 7/7/2025 5:56:29 PM