Madhya Pradesh High Court
United India Insurance Co. Ltd. vs Smt. Shami Bano on 7 July, 2023
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 7 th OF JULY, 2023
MISC. APPEAL No. 4406 of 2022
BETWEEN:-
UNITED INDIA INSURANCE CO. LTD. THROUGH
BRANCH MANAGER UNITED INDIA INSURANCE CO.
LTD BRANCH OFFICE PATNI COMPLEX PARASIYA
ROAD CHHINDWARA TEHSIL AND DISTRICT
CHHINDWARA (M.P.) (INSURANCE COMPANY OF
VEHICLE) (MADHYA PRADESH)
.....APPELLANT
(BY SHRI DINESH KAUSHAL - ADVOCATE)
AND
1. SMT. SHAMI BANO W/O LATE MD KALIM, AGED
ABOUT 42 YEARS, WARDM NO.37 ALI NAGAR
DEEWANCHIPURA CHHINDWARA THANA AND
TEHDSIL AND DISTRICT CHHINDWARA (M.P.)
(MADHYA PRADESH)
2. KU. AASHNA MURSAT D/O LATE MD. KALIM
KHAN, AGED ABOUT 18 YEARS, R/O WARD NO. 37,
ALI NAGAR, DEEWANCHIPURA CHHINDWARA
(MADHYA PRADESH)
3. M D . ANWARUL S/O LATE MD. KALIM KHAN,
AGED ABOUT 16 YEARS, OCCUPATION: MINOR
THROUGH GUARDIAN MOTHER SMT. SHAMIM
BANO R/O WARD NO. 37, ALI NAGAR,
DEEWANCHIPURA CHHINDWARA (MADHYA
PRADESH)
4. MD. MUWASSIR(MINOR) S/O LATE MD. KALIM
KHAN, AGED ABOUT 12 YEARS, OCCUPATION:
MINOR THROUGH GUARDIAN MOTHER SMT.
SHAMIM BANO R/O WARD NO. 37, ALI NAGAR,
DEEWANCHIPURA CHHINDWARA (MADHYA
PRADESH)
5. NAUSHAD ALI S/O HANIF ALI MUSALMAN, AGED
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 7/7/2023
6:53:51 PM
2
ABOUT 42 YEARS, OCCUPATION: DRIVER OF
VEHICLE R/O VILLAGE RAMPUR, THANA
SEHESPUR, TEHSIL VIKASNAGAR, DISTRICT
DEHRADUN(UTTRAKHAND) (UTTARAKHAND)
6. JAMEEL S/O MEER HASSAN MUSALMAN, AGED
ABOUT 42 YEARS, OCCUPATION: OWNER OF
VEHICLE R/O H.NO. 87, HASANPUR SHERPUR,
THANA SEHESPUR, TEHSIL VIKASNAGAR,
DISTRICT DEHRADUN(UTTRAKHAND)
(UTTARAKHAND)
.....RESPONDENTS
(NONE)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This appeal under Section 173(1) of the Motor Vehicles Act, 1988, is filed by the appellant-Insurance Company being aggrieved of award dated 11.03.2022, passed by learned II Member to First Additional Motor Accident Claims Tribunal, Chhindwara (M.P.), in MACC No.82/2019, on the ground that deceased Kalim Khan, was driving the pick up van bearing registration No.MP- 50-G/1374, which had rammed in the Truck bearing registration No.UK-07- CB/0543, insured with the present appellant i.e. United India Insurance Company Ltd. from behind, therefore, aspect of contributory negligence should have been taken into consideration by the learned Claims Tribunal and, accordingly, amount of compensation should have been appropriated or deducted as the case may be.
2. Brief facts leading to the present appeal are that an accident took place on 13.08.2018, when Kalim Khan along with his friend Shakeel Khan, was travelling in a pick up vehicle bearing registration No. MP-50-G/1374 along with his animals from Chhindwara to Nagpur. Near Kailash Dhaba, accident took place Signature Not Verified with Truck bearing registration No.UK-07-CB/0543. It is submitted that since Signed by: ASHWANI PRAJAPATI Signing time: 7/7/2023 6:53:51 PM 3 the pick up van rammed in the truck from behind, therefore, aspect of contributory negligence is apparent from face of record and thus, at least some percentage of compensation should have been reduced on account of contributory negligence.
3. As per office report dated 20.03.2023, respondents No. 1, 2, 5 and 6 are already served. None of them are appearing before the High Court, therefore, they are proceeded ex-parte.
4. After hearing learned counsel for the appellant and going through the record, it is pointed out by Shri Kaushal, reading from the evidence of Shri Kalim Khan, who was a co-passenger in the pick up vehicle that in para 6, he was subjected to cross-examination to the effect that the road from Chhindwara to Nagpur is a main road and the width of the road is sufficient to accommodate 3-4 wheeler vehicles which can cross each other. The place of the accident is 26 kms from Chhindwara. Reading this evidence, it is submitted that when the width of the road was sufficient, then aspect of contributory negligence on the part of the driver of the pick up van is automatically established and, therefore, the award needs to be modified.
5. The fact of the matter is that the argument which has been put-forth by the learned counsel for the appellant before this appellate Forum i.e. High Court is not borne out from the record. In whole of the cross-examination of the co-
passenger of the deceased in the pick up van, there is no suggestion of any contributory negligence or the driver being drunked or being not cautious to drive. On the contrary, it has come on record that the driver of the truck bearing registration No. UK-07-CB/0543, had suddenly braked the truck which was moving ahead without any light or indicator as a result of which pick up Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 7/7/2023 6:53:51 PM 4 van had rammed into the truck from behind causing grievous injuries to the Kalim Khan on his head and stomach.
6. Thus, when there is no evidence on the part of the Insurance Company nor there is any suggestion to the eye witness of the incident that there was an aspect of contributory negligence on the part of the deceased, then merely for asking it will not be proper to draw adverse inferences on the basis of half baked cross- examination of the claimants witnesses in the hands of the Insurance Company. Thus, Insurance Company having been failed to establish the aspect of contributory negligence, onus of which was on the Insurance Company, impugned award cannot be faulted with.
7. Appeal fails and is dismissed.
8. Record of Claims Tribunal be sent back.
(VIVEK AGARWAL) JUDGE A.Praj.
Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 7/7/2023 6:53:51 PM