Madhya Pradesh High Court
United India Insurance Co.Ltd. Thr. vs Smt. Suman Kumari on 16 October, 2023
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 16 th OF OCTOBER, 2023
MISC. APPEAL No. 828 of 2015
BETWEEN:-
UNITED INDIA INSURANCE CO.LTD. THR. DEPUTY
MANAGER DIVISIONAL OFFICE AT CENTER POINT
COMPLEX PHOOL BAG (MADHYA PRADESH)
.....APPELLANT
(BY MR. BADRI NATH MALHOTRA - ADVOCATE)
AND
1. SMT. SUMAN KUMARI W/O LATE SHRI BALRAM
R/O VILLAGE SIKRODA P.S.GORMI (MADHYA
PRADESH)
2. SONU S/O SHRI BALRAM SINGH, AGED ABOUT 17
YEARS, OCCUPATION: MINOR U/G MOTHER SMT.
SUMAN KUMARI W/O LATE BALRAM SINGH
VILLAGE SIKRODA P.S. GORMI (MADHYA
PRADESH)
3. KU. ANKITA D/O BALRAM SINGH, AGED ABOUT
14 YEARS, OCCUPATION: MINOR U/G MOTHER
SMT. SUMAN KUMARI W/O LATE BALRAM SINGH
SIKORDA P.S. GORMI (MADHYA PRADESH)
4. KU. SWATANTRA D/O LATE BALRAM, AGED
ABOUT 12 YEARS, OCCUPATION: MINOR U/G
MOTHER SMT. SUMAN KUMARI W/O LATE
BALRAM SINGH VILLAGE SIKRODA P.S. GORMI
(MADHYA PRADESH)
5. SMT. RAMWATI (DELETED) ALIAS RAMAM BAI
W/O GANGA SINGH, AGED ABOUT 64 YEARS,
OCCUPATION: NA VILLAGE SIKORDA P.S. GORMI
(MADHYA PRADESH)
6. GANGA SINGH (DELETED) S/O PRATAP SINGH,
AGED ABOUT 67 YEARS, OCCUPATION: NA
VILLAGE SIKRODA P.S. GORMI (MADHYA
Signature Not Verified
Signed by: ALOK KUMAR
Signing time: 10/18/2023
09:42:10 PM
2
PRADESH)
7. PAPPI SINGH RAJPUT S/O MANTURI SINGH
OCCUPATION: NA VILLAGE NAWADA POST
BIDONDI TAJPUR TEHSIL SIKANDRABAD DISTT.
BULANDSAHAR THROUGH INDRAJEET SINGH JAI
AMBAY NAGAR MARG, (MADHYA PRADESH)
8. INDRAJEET S/O NA OCCUPATION: NA JAI AMBAY
NAGAR MARG (MADHYA PRADESH)
.....RESPONDENTS
(MR. ASHOK KUMAR YADAV - ADVOCATE FOR RESPONDENTS NO. 1 TO 6
- CLAIMANTS)
T h is appeal coming on for orders this day, t h e cou rt passed the
following:
JUDGMENT
Heard on I.A. No. 4644 of 2015, an application under Order 41 Rule 27 CPC read with Section 169 of Motor Vehicles Act.
This interlocutory application has been filed by the insurance company fo r taking report of Investigator appointed by it along with report of license authority on record according to which the driver of the offending vehicle was not having valid and effective driving license at the time of accident. The reason for not filing the said report before tribunal is mentioned that the report was received on 20.08.15 after passing the award on 29.04.15.
Learned counsel for the claimants vehemently opposed the application and prayed for its dismissal.
Heard and perused the available record.
There is nothing on record to show that insurance company had applied due diligence and took necessary step to obtain the said report when the trial was going on before tribunal and even after applying due diligence company was not able to produce the report before the tribunal. Under these Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/18/2023 09:42:10 PM 3 circumstances, there is no ground to take the said report as additional evidence. Consequently, I.A. No. 4644 of 2015 is dismissed.
Present miscellaneous appeal has been filed against the award dated 29.4.2015 passed by Fifth Additional Member, Motor Accident Claims Tribunal, Gwalior (M.P.) in Claim Case No. 107 of 2014 filed by respondents No. 1 to 6 - claimants for grant of compensation on account of death of deceased Balram Singh in a road traffic accident occurred on 02.9.2012 involving offending vehicle truck bearing registration No. MP09-KD-0774. At the time of accident, respondent No. 7 was the driver and respondent No. 8 was the owner of the offending vehicle whereas the offending vehicle was insured with appellant - insurance company.
Respondents No. 7 and 8 remained absent before learned claims tribunal and were proceeded ex-parte.
Appellant - 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 breach of terms and conditions of the insurance policy, therefore, insurance company is not liable to pay the compensation.
Learned claims tribunal after hearing both the parties and after going through the evidence available allowed the claim petition of the claimants and awarded compensation to the tune of Rs.9,90,000/- which was directed to be paid by respondents No. 7 and 8 as well as appellant jointly and severely.
Learned counsel for the insurance company argued that there was breach in the terms and conditions of the insurance policy because at the time of accident, driver of the offending vehicle was not carrying valid and effective driving license, therefore, insurance company is not liable to pay the compensation. It is further argued that the spot map clearly indicates that the Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/18/2023 09:42:10 PM 4 said accident occurred due to rash and negligent driving of Scorpio driver namely Pramod Kumar in which deceased was travelling. Further argument is that earning of the deceased has also been assessed on the higher side by the insurance company. Hence, prayed to set aside the impugned award.
On the other hand, learned counsel for the claimants supported the impugned award and prayed for rejection of the appeal.
Heard learned counsel for the rival parties and perused the available record.
In the case, during trial, insurance company has not adduced any evidence to prove that at the time of accident, driver of the offending vehicle was not carrying valid and effective driving license or offending vehicle was being plied without permit and fitness certificate. It is well settled that the burden is on the insurance company to prove the defence taken by it. Since the company has not discharged it's burden; therefore, there is no ground to exonerate the insurance company to pay the compensation.
So far as contributory negligence of the driver of Scorpio in which deceased was travelling is concerned, in this case on the basis of evidence of eye-witness Pramod Kumar @ Banti (AW-4), it is apparent that the accident occurred on account of rash and negligent driving of respondent No. 1 - Pappi Singh Rajpoot, driver of the offending vehicle. Insurance Company has not adduced any evidence to contradict the case of claimants. Even, Pappi, driver of the offending vehicle, did not appear before the learned claims tribunal to contradict the version of the eye witness in respect to details of accident. Statement of eye-witness Pramod (AW-4) remained unchallenged in his cross- examination. Therefore, learned claims tribunal has rightly held that the accident Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/18/2023 09:42:10 PM 5 occurred on account of rash and negligent driving of driver of the offending vehicle Truck bearing registration No. MP09-KD-0774.
So far as income of the deceased is concerned, in the light of the evidence adduced before it, learned claims tribunal has rightly assessed the income of the deceased as well as awarded compensation accordingly and no interference is warranted in the same.
Consequently, present miscellaneous appeal fails and is hereby dismissed.
(SUNITA YADAV) JUDGE AKS Signature Not Verified Signed by: ALOK KUMAR Signing time: 10/18/2023 09:42:10 PM