Madhya Pradesh High Court
National Insurance Co. Ltd. vs Mallabai And Ors. on 3 April, 1997
Equivalent citations: 1999ACJ223
JUDGMENT Tej Shankar, J.
1. This appeal has been preferred against the award dated 15.5.1993 passed by the Motor Accidents Claims Tribunal, Morena.
2. It appears that an accident had taken place on 2.4.1987 in which Chhotesingh, son of respondent Nos. 1 and 2 lost his life. It was claimed that respondent No. 3 was the owner and respondent No. 4 was the driver of the tractor and the vehicle was insured with the appellant. On the date of accident tractor No. CPG 6398 belonging to respondent No. 3 was being driven by respondent No. 4 at about 10 a.m. The deceased was going to appear in an examination and along with him 3 bags of mustard were kept which had to be unloaded. Ahead of Joura it was being driven carelessly and it trampled the deceased as a result of which he received injury and ultimately succumbed to his injury. He was sitting on the mudguard and on account of rash and negligent driving he had fallen. The claimant claimed a sum of Rs. 6,00,000 on various heads as detailed in para 8 of the claim petition. The owner and driver filed one written statement while the insurance company filed another. The defendants denied that accident had taken place on account of rash and negligent driving. The owner and the driver claimed that the claim made by the petitioners was not sustainable and liable to be rejected. On account of enmity they wanted to usurp their land. The insurance company admitted that vehicle No. CPG 6398 was insured with it. It pleaded that the driver had no valid licence and it was not liable for any compensation. The tractor was not for carrying passengers. The deceased was sitting on the tractor against the terms of the policy. After considering the entire material on record and hearing the parties the Tribunal awarded a sum of Rs. 54,600. Feeling aggrieved, the insurance company has preferred this appeal.
3. The learned Counsel for the appellant contended that originally the claimants came to court with the allegation that the deceased was sitting on the mudguard and was going to appear in examination when the accident had taken place. The insurance policy did not cover such cases. The insurance was only for agricultural purposes. Later on, the claimants sought amendment by introducing the fact that the deceased was also carrying 3 bags of mustard for being unloaded. This amendment in spite of opposition was wrongly allowed by the Tribunal. He contended that if this amendment is not taken into consideration no liability can be fastened upon the insurance company. The amendment ought not to have been allowed. No other argument has been raised by the learned Counsel for the appellant. Learned counsel for the respondents contended that the amendment was rightly allowed and it was not challenged in revision. He also urged that the fact that the vehicle was insured was unequivocally admitted in para 2 of the written statement. The claim of the insurance company is that the vehicle was insured for agricultural purposes only and not for the purpose of carrying passengers. It was, therefore, the duty of the insurance company to have fully substantiated this allegation. There is no insurance policy on record and as such the Tribunal was perfectly justified in passing the award. In reply the learned Counsel for the appellant contended that there is policy on record.
4. I have considered the contentions raised before me. I may mention at the very outset that the argument of the learned Counsel for the appellant relates to amendment. Originally the claimants alleged that the deceased was sitting on mudguard but later on amendment was sought and the fact that 3 bags of mustard were also being taken for unloading was introduced. The learned Counsel for the appellant drew my attention to the copy of the F.I.R. filed by the respondents-claimants which does not show that such averment was made. It, therefore, clearly appears to be an afterthought. The claim petition was presented in 1987 and the amendment was sought in 1992, i.e., after about 5 years. Had it been a fact it would have been mentioned at the earliest in the claim petition. If on the basis of such averment claim was moved on the date when the amendment was sought it would have been barred by time and consequently it could not be allowed. I, therefore, agree with learned Counsel for the appellant that the amendment was incorrectly allowed.
5. In spite of the fact that the amendment was incorrectly allowed, I am of the opinion that it will have no effect on the present case. The simple reason is that the vehicle was insured with the appellant. The fact as to whether it was insured for agricultural purposes alone or for carrying passengers ought to have been proved by the insurance company by producing the insurance policy. It is surprising that the insurance company has not filed any insurance policy. Learned counsel for the appellant referred to document No. 38 on the file of the lower court which appears to be a proforma wherein certain columns have been typed. It does not show that it is a true copy of the insurance policy or it is the insurance policy. Consequently in the absence of any insurance policy it cannot be held as to what were the terms of the insurance policy. I, therefore, agree with the learned Counsel for the respondents that in the absence of insurance policy no interference is called for in the impugned award. The appeal has, thus, no force.
6. The claimants have filed a cross-objection which has not been pressed. The appeal as well as the cross-objection both are dismissed. Costs shall, however, be borne by the parties. Appeal dismissed.