Madhya Pradesh High Court
Messrs Tirupati Construction vs Priya Arora on 3 May, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.A.NO.931/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 3rd OF MAY, 2023
MISC. APPEAL No. 931 of 2023
BETWEEN:-
MESSRS TIRUPATI CONSTRUCTION
THROUGH PROPRIETOR SANTOSH TANVAR
AGED ABOUT 66 YEARS R/O DURGA CHOWK
GHODADONGRI POLICE STATION SARNI
DISTRICT BETUL (MADHYA PRADESH)
.....APPELLANT
(BY SHRI PUSHPENDRA DUBEY - ADVOCATE )
AND
1. PRIYA ARORA W/O RAKESH ARORA,
AGED ABOUT 43 YEARS, R/O ARORA
SADAN BHAVANI CHOWK MAIN ROAD
GHODADONGRI TEHSIL GHODADONGRI
DISTRICT BETUL (MADHYA PRADESH)
2. RAKESH ARORA S/O LATE SUNDERLAL
ARORA, AGED ABOUT 44 YEARS, R/O
ARORA SADAN, BHAVANI CHOWK, MAIN
ROAD, GHODADONGRI, TEHSIL
GHODADONGRI, DISTT. BETUL (MADHYA
PRADESH)
3. MUNNALAL S/O SHYAMLAL VINODIYA,
AGED ABOUT 49 YEARS, OCCUPATION:
DRIVER R/O BEHIND PATHAKHEDA
STADIUM, NEAR TANKI, AZAD NAGAR
PATHAKHEDA TEHSIL GHODADONGRI
DISTT. BETUL (MADHYA PRADESH)
2 M.A.NO.931/2023
4. BRANCH MANAGER THE NEW INDIA
ASSURANCE COMPANY LIMITED
DONGAR, PARASIYA MICRO OFFICE,
NEAR U.B.I. PARASIYA
DISTT.CHHINDWARA (MADHYA
PRADESH)
.....RESPONDENTS
(NONE FOR THE RESPONDENTS NO.1 TO 3 AND SHRI DINESH KAUSHAL -
ADVOCATE FOR THE RESPONDENT NO.4 )
This appeal coming on for admission this day, the court passed the
following:
ORDER
This Miscellaneous Appeal, under section 173 of Motor Vehicles Act, has been filed against the award dated 21.11.2022 passed by Member, Motor Accident Claims Tribunal, Betul in MACC No.115/2018.
2. This appeal has been filed by the Owner of the offending vehicle bearing registration no.MP48 H 0305.
3. Since the factum of accident has not been challenged by the counsel for the appellant, therefore, it is sufficient to mention that two persons lost their lives in a vehicular accident caused on 04.01.2018 at about 4:15 p.m.
4. By the impugned award, the Insurance Company has been exonerated on the ground that the Dumper in question was being plied without there being any valid permit and thus, there is violation of terms and conditions of the Insurance Policy.
3 M.A.NO.931/20235. Challenging the aforesaid finding given by the Claims Tribunal, it is submitted by the counsel for the appellant that the Claims Tribunal has failed to appreciate the evidence of Munnalal (D.W.1) and Sheikh Saadiq (D.W.2) in its proper prospective. It is submitted that on the date of accident, the Dumper was empty and was going to the mechanic for repair purposes and accordingly, under section 66 (3)(p) of Motor Vehicles Act, permit was not required if the vehicle is going for repair purposes.
6. Per contra, it is submitted by the counsel for the respondent/Insurance Company that the Claims Tribunal has rightly exonerated the Insurance Company on the ground of violation of the terms and conditions of the Insurance Policy.
7. Heard the learned counsel for the parties.
8. Munnalal (D.W.1) has stated that the number of the offending Dumper is MP48 H 0305 and has claimed that he is the Driver of the said Dumper. He further stated that he found that there was a leakage of Hydraulic oil of the Dumper and, therefore, he informed the Owner of the Dumper and requested that the Hydraulic is required to be repaired. Accordingly, he was instructed to take vehicle to Pathakheda to the garage of Sheikh Saadiq. It is submitted that while he was going to Pathakheda, he saw that two boys are lying on the road. He stopped the Dumper in order to see as to what has happened. Immediately thereafter a lot of persons gathered there and police also came there. The police seized the Dumper and took the Dumper to the police station. After one week, the Dumper was released and thereafter he took it to garage of Saadiq Mistri and got the Hydraulic repaired. Thus, according to this witness on the date of accident, he stopped the vehicle after noticing that 4 M.A.NO.931/2023 two boys are lying on the road and on the very same day, the Dumper was seized by the police. This witness has also stated that the Dumper was released after one week and thereafter he took it to the garage of Sheikh Saadiq and got it repaired.
9. Sheikh Saadiq (D.W.2) has stated that on one day, he received a call from Tanwarji, who pointed out that some Hydraulic work has to be done in the truck and also informed that he is sending the truck with Munna Driver. However, the truck did not come on the said date. On the next day the truck was brought to his garage and repaired the same and gave a bill of Rs.8,000/-, which was paid by Tanwarji. However, this witness could not point out the registration number of the vehicle, which was repaired by him. In cross-examination by the claimants, he admitted that the truck did not reach to his garage on 04.01.2018. He further expressed his inability to point out the date, on which the truck had come to his garage for repair purposes. He further admitted that he has not brought any document to show that he is running a garage. He further stated that he repairs the vehicle and issues the bills. He denied that he keeps the carbon copy of the bills with him. He specifically denied that he is making a false statement that the Dumper in question was repaired by him on the next date of the accident.
10. Thus according to Sheikh Saadiq (D.W.2) the Dumper was repaired by him on the next date of accident; whereas according to Munnalal (D.W.1) the Dumper in question was seized by the Police from the spot itself on the date of the accident only i.e. 04.01.2018. When the Dumper was already under seizure, then there was no question of sending the same to the garage of Sheikh Saadiq (D.W.2) on the next date of 5 M.A.NO.931/2023 accident. Even according to Munnalal (D.W.1) the Dumper was released after one week of its seizure.
11. Furthermore, neither Munnalal (D.W.1) nor Sheikh Saadiq (D.W.2) has produced the bill of Rs.8000/- to show that the Dumper was repaired. The Owner of the Dumper is a Company and whenever any payment is made, then it has to be done from the account of the Company. Even the appellant has not produced the copy of the statement to show that an amount of Rs.8000/- was paid to Sheikh Saadiq (D.W.2). Even the appellant has not filed the copy of the bill, which was purportedly given by Sheikh Saadiq (D.W.2). Even Sheikh Saadiq (D.W.2) is not in a position to disclose the date on which the Dumper was repaired by him.
12. Under these circumstances, this Court is of the considered opinion that the appellant has failed to prove that there was a leakage of Hydraulic oil in the Dumper and it was going to the garage of Sheikh Saadiq (D.W.2).
13. It is next contended by the counsel for the appellant that Banshidhar Pal (D.W.3) has stated that the Dumper was not having valid permit on the date of accident. He submitted that an objection was raised by the counsel for the appellant and Driver that the computer printout brought by Banshidhar Pal is not admissible in evidence. However, the said objection was deferred for adjudication at the time of final hearing. It is submitted that the said aspect has not been considered by the trial court.
14. Banshidhar Pal (D.W.3) has stated that the office record (Ex.D.4) is a printout of the information available in the computer. According to Banshidhar Pal (D.W.3) on 04.01.2018 Dumper No.MP48 H 0305 was not having any permit.
6 M.A.NO.931/202315. Even the appellant has not filed the copy of the permit. If the offending vehicle was having the permit, then there was no need for the appellant to take a defence that the truck was going for repair purposes, therefore, the permit was not required.
16. The fact that the appellant itself had taken a defence that the permit was not required because it was going for repair purposes coupled with the fact that the appellant had not filed the copy of the permit, clearly shows that the offending vehicle bearing registration no.MP48 H 0305 was not having permit on the date of the accident.
17. It is submitted by the counsel for the appellant that the Jharkhan High Court in the case of Smt. Kiran singh Vs. Sarju Verma and Others, reported in AIR 2009 JHARKHAND 134 has held that even in case of a diversion for specified rules, the provisions of section 66 of Motor Vehicles Act would apply. It is further submitted that in case of a fake document, the burden is on the Insurance Company to prove that the document relied upon by the Owner/Driver is a fake document and to buttress his contention the counsel for the appellant has relied upon the judgment passed by the Gauhati High Court in the case of SBI General Insurance Company Limited Vs. Smt.Laithanthuami, reported in 2022 0 Supreme (Gau) 366.
18. So far as the judgment passed in the case of Smt. Kiran Singh (supra) is concerned, the same has no application to the facts of the case. It is not a case of diversion from the specified route. It is a case as to whether the Dumper was having valid permit or not. The only defence of the appellant is that since the Dumper was being sent for repairing purposes, therefore, as per provisions of section 66(3)(p) of Motor Vehicles Act the permit was not required. This Court by a detailed 7 M.A.NO.931/2023 discussion of the evidence, which has come on record, has already held that the Dumper was not being sent for any repair purposes, therefore, the question of application of section 66(3)(p) of Motor Vehicles Act, does not apply.
19. So far as the judgment passed in the case of Smt.Laithanthuami (supra) is concerned, the same is also distinguishable. It is not the case where any document relied upon by the appellant was claimed to be a fake document. Here it is a case where there was no permit at all.
20. It is next contended by the counsel for the appellant that Praveen Kumar Chandelkar (D.W.4) has admitted in paragraph 5 of his cross- examination that before insuring the vehicle, its original documents i.e. registration, driving licence, fitness and permit are seen and thus it is submitted that since the vehicle in question was an old one, therefore, agent must have seen the permit; otherwise he would not have accepted a proposal for insurance.
21. Considered the submissions made by the counsel for the appellant.
22. The admission made by the Administrative office of the Insurance Company Shri Praveen Kumar Chandelkar (D.W.4) cannot be taken to the extent of drawing an inference in favour of the appellant.
23. The counsel for the appellant could not point out any provision of law, which requires the verification of all the necessary documents prior to the insurance of the Owner of the vehicle. The Insurance Company is not concerned as to whether who will be driving the vehicle, therefore, there is no question of verifying the driving licence of the Driver. Anybody having a valid driving licence, can drive the vehicle.
24. Since the counsel for the appellant could not point out any mandatory provision under law to issue the insurance policy only after 8 M.A.NO.931/2023 due verification regarding the documents of the vehicle, no presumption could be drawn in favour of the appellant to the effect that the agent of the appellant must have verified the permit. Even otherwise, the appellant was a person who must be in possession of the permit in question.
25. It is well established principle of law that if a party, who is in possession of the best evidence, fails to produce the same, then an adverse inference can drawn against it. The appellant is the owner of the Dumper in question. The original permit must be in possession of the appellant and the appellant has chosen not to file the same and on the contrary, tried to take a defence under section 66(3)(p) of Motor Vehicles Act, which clearly shows that the vehicle was not having any valid permit. If the agent of the Insurance Company did not verify the documents at the time of the insurance of the insured, it cannot be presumed that the vehicle was having valid permit.
26. Under these circumstances, the Claims Tribunal did not commit any mistake by holding that the truck was being plied in violation of the terms and conditions of the Insurance Company and has rightly exonerated the Insurance Company from its liability and has rightly applied the principle of pay and recover.
27. Ex consequenti, the award dated 21.11.2022 passed by Member, Motor Accident Claims Tribunal, Betul in MACC No.115/2018 is hereby affirmed.
28. The appeal fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE 9 M.A.NO.931/2023 TG/-
TRUPTI GUNJAL 2023.05.05 12:07:24 +05'30'