Madhya Pradesh High Court
Universal Sompo General Insurance ... vs Smt. Archana Thakur on 6 April, 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 6 th OF APRIL, 2023
MISC. APPEAL No. 4824 of 2022
BETWEEN:-
UNIVERSAL SOMPO GENERAL INSURANCE COMPANY
LTD. THROUGH ITS MANAGER UNIT 401, 4TH FLOOR,
SANGAM COMPLEX, 127 ANDHERI KURLA ROAD,
ANDHERI EAST MUMBAI (MAHARASHTRA)
.....APPELLANT
(BY SHRI ROHIT JAIN - ADVOCATE )
AND
1. SMT. ARCHANA THAKUR W/O LATE SHRI
POORANSINGH THAKUR, AGED ABOUT 48 YEARS,
R/O VILLAGE HALGAJ, P.S. HINDORIYA, DISTRICT
DAMOH (MADHYA PRADESH)
2. TANMAY THAKUR S/O LATE SHRI POORANSINGH
THAKUR, AGED ABOUT 24 YEARS, R/O VILLAGE
HALGAJ P.S. HINDORIYA DISTRICT DAMOH
(MADHYA PRADESH)
3. SANSKAR THAKUR S/O LATE SHRI
POORANSINGH THAKUR, AGED ABOUT 18 YEARS,
R/O VILLAGE HALGAJ P.S. HINDORIYA, DISTRICT
DAMOH (MADHYA PRADESH)
4. LAXMINARAYAN PRAJAPATI S/O SHRI
RAMSEVAN PRAJAPATI, AGED ABOUT 26 YEARS,
R/O VILLAGE TENDUKHEDA DISTRICT
NARSINGHPUR (MADHYA PRADESH)
5. BANSHIKA CONSTRUCTION PR. RA. RAMLAL
J H A R I Y A THROUGH RAJESH KUMAR
CHOUDHARY,AGED ADULT, R/O RAJMARG
VARMAN DISTRICT NARSINGHPUR (MADHYA
Signature Not Verified
SAN PRADESH)
6. MAKHANLAL SINGH GOND S/O SHRI INDAR
Digitally signed by MONIKA CHOURASIA
Date: 2023.04.06 19:14:29 IST
SINGH GOND, AGED ADULT, R/O VILLAGE DEVLI
2
KHARI P.S. KESLI DISTRICT SAGAR (MADHYA
PRADESH)
7. NATIONAL INSURANCE CO. LTD. 495 MARHATAL
JABALPUR (INSURANCE COMPANY) (MADHYA
PRADESH)
8. SMT. ARCHANA @ PARWATI W/O SHRI POORAN
SINGH THAKUR, AGED ABOUT 49 YEARS, R/O MIG
190 CIVIL WARD NO. 6 VIVEKANAND NAGAR
DISTRICT DAMOH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI D.N. SHUKLA - ADVOCATE FOR THE RESPONDENT NO.7)
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This miscellaneous appeal under Section 173(1) of the Motor Vehicles Act, 1988 is filed by the Universal Sompo General Insurance Company Limited being aggrieved of award dated 20/12/2021 passed by the learned IIIrd Additional Motor Accident Claims Tribunal, Damoh in MACC No.300044/2016 on the ground that in the FIR, it is mentioned that negligence was that of the bolero driver and no FIR was recorded against the dumper bearing registration no.MP-49-H-1555. No investigation was carried out against the said dumper and since there is no whisper of dumper in the FIR therefore, the insurance company of the dumper should have been exonerated.
Placing reliance on the judgment of Division Bench of this High Court in the case of National Insurance Company Limited Vs. Setubai and others, 2008 ILR (MP) 2367, it is submitted that Hon'ble Division Bench has discussed scope of Section 102 of the Evidence Act and has held that in a Signature Not Verified SAN claim petition filed under Section 166 of the Motor Vehicle Act, if there is Digitally signed by MONIKA CHOURASIA Date: 2023.04.06 19:14:29 IST change in the version of the eyewitness then claimants are required to examine 3 I.O. and the first informant that how another vehicle came to be implanted.
Placing reliance on this judgment it is submitted that insurance company of the dumper should be exonerated.
Shri D.N. Shukla, learned counsel for the National Insurance Company Limited i.e. the insurer of the bolero vehicle submits that FIR is crystal clear. It reveals that it is not an eyewitness account. Accident had taken place somewhere in the night whereas FIR was lodged on the next day morning. From the narration of the FIR itself it is clear that it is not an eyewitness account.
It is submitted that insurance company of the dumper did not examine any eyewitness to prove that their dumper was not involved. Though, there is a specific mention of dumper in the FIR.
After hearing learned counsel for the parties and going through the record, relevant portion of the FIR (EX.P/2) and Dehati Nalishi (Ex.P/1) on the basis of which FIR (Ex.P/2) was lodged reveals that accident took place at about 10 p.m. accidented vehicle was seen at 7 a.m. on the next date. There is a specific mention of the fact that when Kubbi Singh got up in the morning, he saw an accidented bolero standing in front of the agricultural fields of Jugal. He saw a person sitting in the bolero. On approach to the bolero they found that the concerned person was dead after sustaining grievous injuries on various parts of body. It is also mentioned in the FIR itself that bolero vehicle which was probably coming from the side of Sagar and hit the dumper from behind by rashly and negligently driving the bolero vehicle. As a result, Pooran Singh sustained injuries and died. It is also mentioned in the FIR itself Pooran Singh Signature Not Verified SAN was wearing his identity card around his neck and therefore, his name and Digitally signed by MONIKA CHOURASIA Date: 2023.04.06 19:14:29 IST details could be ascertained and thus report was lodged.
4Two things are evident from the report. One, author of the report is not an eyewitness. To this extent, decision of Hon'ble Division Bench in National Insurance Company will not be applicable because there is no eyewitness to the incident to prove or disprove the negligence of bolero vehicle. The author of the FIR is a person, who had seen the accidented vehicle in the next morning. Second aspect is that there is a specific mention of bolero hitting the dumper from behind. Thus, when there is no eyewitness account, then onus was on the owner driver of the dumper, to have examined themselves in the court of law to prove that they were not at fault and accident took place purely due to negligence of the driver of the bolero vehicle. Apparently, owner driver of the dumper did not examine themselves. Insurance Company of the dumper also did not bothered to examine either their own officers, investigator or owner driver. Now, it is vehemently argued that dumper was even if standing, in absence of examination of the I.O. for which onus was on the claimants no claim could have been allowed against the owner, driver and insurer of the dumper.
Facts in the case of National Insurance Company Limited (Supra) are different. In that case, originally FIR was lodged against the truck and later on a bus was shown to be involved in the accident. In under those facts and circumstances, Hon'ble Division Bench of this Court has held that onus was on the claimants who has examined the I.O. and the eyewitness to prove that accident had not taken place with a truck but with a bus.
In the present case, facts are totally different. Therefore, ratio of Signature Not Verified SAN judgment in case of National Insurance Company (Supra) will not be applicable.
Digitally signed by MONIKA CHOURASIAIn the FIR itself it is clearly mentioned that accident had taken place between Date: 2023.04.06 19:14:29 IST 5 bolero and the dumper. Dumper driver could have been the best witness. Since he is not examined, and there is a mention of this fact by Smt. Archana Parwati that accident had taken place when bolero had hit the dumper which was standing without any indicator etc., onus was on the Appellant Insurance Company to have put specific questions in this regard that dumper was standing with the lights indicators etc. on.
There is another aspect to it, dumper was standing in the local area, where accident took place. Report was lodged by the local people of the area where dumper was standing. When examined from this aspect that report was lodged by a person, who was not an eyewitness and dumper belongs to a local area then it is possible and it cannot be ruled out that with a view to give benefit to the local person, whose dumper was standing on the road, FIR was lodged in such a manner so to give a clean chit to the dumper but to avail the benefit of the clean chit , onus was on the owner driver of the dumper to have examined himself to prove the actual fact and should have offered themselves to get their vehicle examined.
On the fault of the police authorities in not investigating the matter properly and not filing any case against the owner driver of the dumper, claimants cannot be put to disadvantage when it is not a case of false implication of a vehicle as was a case in case of National Insurance Company Limited (Supra).
Thus when examined from all these aspects, then impugned award cannot be faulted with, specially when circumstances speak for themselves.
Appeal fails and is dismissed.
Signature Not Verified SANLCR be sent back.
Digitally signed by MONIKA CHOURASIA Date: 2023.04.06 19:14:29 IST 6(VIVEK AGARWAL) JUDGE m/-
Signature Not Verified SAN Digitally signed by MONIKA CHOURASIA Date: 2023.04.06 19:14:29 IST