Madhya Pradesh High Court
National Insurance Co. Ltd. vs Smt. Shamim Bano on 17 January, 2024
Author: Hirdesh
Bench: Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE HIRDESH
ON THE 17th OF JANUARY, 2024
MISC. APPEAL No. 5922 of 2019
BETWEEN:-
NATIONAL INSURANCE CO. LTD. BRANCH MANAGER OFFICE, RATLAM
(MADHYA PRADESH)
.....APPELLANT
(SHRI PRADIP KUMAR GUPTA AND SHRI BHASHKAR AGRAWAL, LEARNED
COUNSEL FOR THE APPELLANT)
AND
1. SMT. SHAMIM BANO W/O FARIDUDDIN ANSARI, AGED ABOUT 40
YEARS, OCCUPATION: HOUSEWIFE HOUSE NO. 4, VED VYAS COLONY,
RATLAM (MADHYA PRADESH)
2. FAKHRUDDIN S/O LATE FARIDUDDIN ANSARI, AGED ABOUT 21
YEARS, HOUSE NO. 4, VED VYAS COLONY, RATLAM (MADHYA
PRADESH)
3. IRFANUDDIN S/O LATE FARIDUDDIN ANSARI, AGED ABOUT 17 YEARS,
OCCUPATION: NIL HOUSE NO. 4, VED VYAS COLONY, RATLAM
(MADHYA PRADESH)
4. KU. SAIMA MINOR THROUGH NATURAL GUARDIAN MOTHER
SHAMIMA BANO W/O FARIUDDIN ANSARI, AGED ABOUT 40 YEARS,
OCCUPATION: HOUSEWIFE HOUSE NO. 4, VED VYAS COLONY,
RATLAM (MADHYA PRADESH)
5. NANDLAL S/O GULABSINGH MAYDA, AGED ABOUT 21 YEARS, GRAM
TAMBOLIYA, TEHSIL RAWTI, DIST RATLAM (MADHYA PRADESH)
6. RAJKUMAR S/O RATANLAL THROUGH NANDLAL S/O GULABSINGH
MAYDA, AGED ABOUT 21 YEARS, GRAM TAMBOLIYA, TEHSIL RAWTI,
DIST RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(NONE APPEARED FOR RESPONDENTS)
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This appeal coming on for orders this day, the court passed the
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following:
ORDER
This miscellaneous appeal by appellant/insurance company for exoneration of liability under Section 173 of Motor Vehicle Act has been filed challenging the impugned award dated 21.11.2017 passed by Motor Accident Claims Tribunal, Ratlam in Claim Case No.148/16 whereby tribunal has awarded a sum of Rs.7,56,000/- as compensation with interest @6% p.a. to the claimants from the date of institution of claim petition by the claimants.
2. Brief facts of the case are that on 08.01.2016, when deceased Fariuddin along with one Moinuddinn Pathan was going on Activa motorcycle bearing registration number MP-45-D-3269 from Petlawad to Ratlam, offending vehicle No.MP-43-MA-3694 came in a very rash and negligent manner and dashed the motorcycle of the deceased due to which Fariuddin fell down from motorcycle and sustained grievous injury on his head. He was immediately taken to Civil Hospital, Petlawad where doctor declared him dead.
3. Claimants filed claim case against respondent Nos.5 and 6- the driver and the owner of the offending vehicle as well as appellant-insurance company for compensation of Rs.27,00,000/- towards death of husband of respondent No.1 and father of respondent Nos.2 to 4 before the tribunal. Respondent No.6 was ex-parte before the tribunal and did not file written statement. Respondent No.5 filed written statement before the tribunal and denied all the allegations and submitted that offending vehicel was insured with the appellant/insurance company so he is not liable to pay compensation. Appellant-insurance company also filed written statement and denied all the allegations and submitted that driver and owner of the
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offending vehicle has breached the terms and conditions of insurance company so insurance company is not liable to pay any compensation. Tribunal after framing issues and after appreciating evidence on record passed an award of Rs.7,56,000/- against respondent Nos.5 and 6 jointly and severely with 6% interest per annum.
4. Being aggrieved by the award, appellant-insurance company filed this present appeal mainly on the ground that driver of the offending vehicle was not having valid and effective driving licence, hence, it is a breach of terms and conditions of insurance policy. Tribunal has also not appreciated the fact that police registered crime under Section 3/181, which is indicative of the fact that driver of the offending vehicle was not possessing valid and effective driving licence at the time of accident so insurance company is not liable to pay the compensation.
5. On the other hand, learned counsel for the respondent/claimants submitted that tribunal has rightly passed the award and prayed for dismissal of the present appeal.
6. Heard the learned counsel for the parties and perused the record of the case.
7. Learned counsel for the appellant argued that police registered a case under Section 3/181 against the driver of offending vehicle so it is the duty of driver of offending vehicle to prove that he was having valid and effective driving licence at the time of accident. Learned counsel has placed reliance upon a judgment delivered by the Apex Court in the case of Oriental Insurance Company Limited Vs. Premlata Shukla and others, 207 (13) SCC, 476. The Apex Court in the aforesaid judgment in para Nos.12 to 15 has held as under:-
"12. In Narbada Devi (supra) whereupon reliance has been
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placed, this Court held that contents of a document are not automatically proved only because the same is marked as an Exhibit. There is no dispute with regard to the said legal proposition.
13. However, the factum of an accident could also be proved from the First Information Report. It is also to be noted that once a part of the contents of the document is admitted in evidence, the party bringing the same on record cannot be permitted to turn round and contend that the other contents contained in the rest part thereof had not been proved. Both the parties have relied thereupon. It was marked as an Exhibit as both the parties intended to rely upon them.
14. Once a part of it is relied upon by both the parties, the learned Tribunal cannot be said to have committed any illegality in relying upon the other part, irrespective of the contents of the document been proved or not. If the contents have been proved, the question of reliance thereupon only upon a part thereof and not upon the rest, on the technical ground that the same had not been proved in accordance with law, would not arise.
15. A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon. In Hukam Singh (supra), the law was correctly been laid down by the Punjab and Haryana High Court stating;
"8. Mr. G.C. Mittal, learned counsel for the respondent contended that Ram Partap had produced only his former deposition and gave no evidence in Court which could be considered by the Additional District Judge. I am afraid there is no merit in this contention. The Trial Court had discussed the evidence of Ram Partap in the light of the report Exhibit D.1 produced by him. The Additional District Judge while hearing the appeal could have commented on that evidence and held it to be inadmissible if law so permitted. But he did not at all have this evidence before his mind. It was not a
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case of inadmissible evidence either. No doubt the procedure adopted by the trial Court in letting in a certified copy of the previous deposition of Ram Partap made in the criminal proceedings and allowing the same to be proved by Ram Partap himself was not correct and he should have been examined again in regard to all that he had stated earlier in the statement the parties in order to save time did not object to the previous deposition being proved by Ram Partap himself who was only cross- examined. It is not a case where irrelevant evidence had been let in with the consent of the parties but the only objection is that the procedure followed in the matter of giving evidence in Court was not correct. When the parties themselves have allowed certain statements to be placed on the record as a part of their evidence, it is not open to them to urge later either in the same Court or in a court of appeal that the evidence produced was inadmissible. To allow them to do so would indeed be permitting them both to appropriate and reprobate."
8. Learned counsel for the appellant submits that Apex Court has held that where parts of a document have been relied on by both the parties then Claims Tribunal may rely on the same irrespective of whether the contents of the document have been proved or not.
9. In the case of Dulari Singh and others Vs. Tribhuvan Murari Dubey and another, 2010 (4) MPLJ, Note 10, it is held that burden of proof for breach of policy lies upon insurance company so it is the duty of insurance company to prove that driver of offending vehicle had no effective and valid driving licence at the time of accident. But, in the present case, insurance company has not produced any document showing that driver of the offending vehicle did not have any valid and effective driving licence and offending vehicle was being driven by the driver in contravention of the policy of insurance company. So, without adducing any evidence, appellant/insurance company is not able to prove that at the time of accident, the driver of offending vehicle was not having valid and effective driving licence.
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10. In view of aforesaid discussion, it was not found proved that at the time of accident, the driver of offending vehicle was not having any valid and effective licence and offending vehicle was being driven in contravention of the insurance policy, hence, present appeal being devoid of merits is hereby dismissed.
(HIRDESH) JUDGE N.R. Digitally signed by NARENDRA KUMAR RAIPURIA Date: 2024.01.27 15:43:48 +05'30'