Madhya Pradesh High Court
Vinod Kumar & Anr. vs Radhelal & Ors. on 24 April, 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 24 th OF APRIL, 2023
MISC. APPEAL No. 690 of 2004
BETWEEN:-
1. VINOD KUMAR S/O SHRI HARBHAJAN GUPTA,
OCCUPATION : DUMPHER OWNER, R/O VILLAGE
KARARKHEDA, PARGANA PICHHORE, DISTRICT
SHIVPURI (M.P.)
2. PAJAN SINGH S/O SHRI GAJRAJ SINGH KUSHWAH,
AGE 25 YEARS OCCUPATION : DRIVER, R/O KASBA
NARWAR, TEHSIL NARWAR, DISTRICT SHIVPURI (M.P.)
.....APPELLANTS
(BY MS. AYUSHI POPHLI - ADVOCATE)
AND
1. RADHELAL S/O SHRI R.D. BAGHEL, AGE 45 YEARS.
2. AJMER SINGH S/O SHRI R.D. BAGHEL, AGE 18 YEARS.
3. KISHORI S/O SHRI RADHELAL BAGHEL, AGE 13
YEARS
4. MAHESH S/O RADHELAL BAGHEL, AGE 15 YEARS.
5. PUSHPENDRA S/O SHRI RADHELAL BAGHEL, AGE 5
YEARS.
RESPONDENTS NO. 3 TO 5 ARE MINORS AND UNDER
THE GUARDIANSHIP OF THEIR FATHER SHRI
RADHELAL BAGHEL
ALL ARE R/O VILLAGE NANAKPUR, TEHSIL NARWAR,
DISTRICT SHIVPURI (M.P.)
PRESENT : R/O BYPASS ROAD, SHIVPURI (M.P.)
6. DIVISIONAL MANAGER, NATIONAL INSURANCE
COMP. LTD., DIVISIONAL OFFICE GWALIOR (M.P.)
.....RESPONDENTS
(MR. NAVAL KISHOR GUPTA - ADVOCATE FOR RESPONDENTS NO. 1 TO
5 - CLAIMANTS AND MR. R.V.SHARMA - ADVOCATE FOR RESPONDENT
NO. 6 - INSURANCE COMPANY)
Th is appeal coming on for hearing this day, t h e court passed the
following:
ORDER
Signature Not Verified Signed by: ALOK KUMAR Signing time: 28-Apr-23 9:52:33 AM 2 Present miscellaneous appeal under Section 173 of Motor Vehicles Act, 1988 has been filed against the award dated 01.5.2004 passed in Claim Case No. 179/2003 by Second Additional Motor Accident Claims Tribunal, Shivpuri.
The facts in brief to decide these appeals are that respondent respondents No. 1 to 5 / claimants preferred a claim petition under Section 166 of Motor Vehicles Act for grant of compensation on account of death of deceased Shanti Bai in road traffic accident dated 08.4.2003 involving vehicle Dumper bearing registration No. MP33-H-0277. On the fateful day, the aforesaid vehicle was insured with respondent No. 6 - insurance company.
Appellants No. 1 and 2 - owner and driver of the offending vehicle respectively filed their written statements and denied the allegations made in the claim petition. They also denied the liability to pay the compensation and stated that if any compensation amount is payable, that should be paid by the insurance company.
Respondent No. 6 - insurance company filed its written statement and denied all the allegations and stated that insurance company is not liable to pay the compensation.
Learned Claims Tribunal framed issues and after taking into consideration the facts and material available on record partly allowed the claim petition holding respondents No. 1 to 5 / claimants entitled for an amount of compensation to the tune of Rs.1,62,000/- along with interest at the rate of 5% per annum and directed the appellants to pay the compensation amount.
Learned counsel for the appellants argued that learned claims tribunal has erred in holding that at the time of accident, deceased was sitting on the dumper. The evidence adduced before the learned claims tribunal clearly Signature Not Verified indicate that the deceased was on the ground when the accident occurred due to Signed by: ALOK KUMAR Signing time: 28-Apr-23 9:52:33 AM 3 which her legs were crushed under the dumper, which is supported by the postmortem report of the deceased. It is further argued that Section 2 (f) of M.P. Motor Vehicles Rules, 1994 provides the definition of " Passenger" and according to this definition, since deceased was not sitting or travelling on the dumper at the time of accident, she is a third party and, therefore, claimant is entitled to get compensation from the insurance company. In support of his submissions, learned counsel for the appellants relied upon the case law of Ram Saroop & Ors. vs. Balbir Singh & Ors.; MANU/DE/0637/1987.
On the other hand, learned counsel for the insurance company opposed the arguments of learned counsel for the appellants and argued that at the time of accident, deceased was travelling in the dumper, which was being used as a loading vehicle. Since deceased was neither the owner nor the authorized representative of the owner, therefore, insurance company is not liable to pay the compensation. In support of his submissions, learned counsel for the insurance company relied upon the case law of Sanjeev Kumar Samrat vs. National Insurance Co. Ltd. & Ors.; 2013 (1) ACJ 1 (SC), Manager, National Insurance Co. Ltd. vs. Saju P. Paul & Anr.; 2013 (1) ACJ 554 (SC), Manager, Cholamandalam MS Gen. Insurance Co. Ltd. vs. Ajay Choudhary & Ors.; 2020 (1) ACJ 649 MPHC and Bhav Singh vs. Smt. Savirani & Ors.; 2008 (I) MPJR (FB) 11.
Heard learned counsel for the rival parties and perused the available record.
The perusal of record reveals that Ajmer Singh, who is the son of the deceased, has been examined as A.W.-1. This witness has deposed that he along with her mother Shanti Bai (deceased) were going for their regular work Signature Not Verified Signed by: ALOK KUMAR Signing time: 28-Apr-23 9:52:33 AM 4 as laborers. When they got off from the dumper, then driver of the dumper Pajan Singh turned the dumper around and hit his mother who was standing on the ground. The dumper crushed the legs of his mother, who died on the spot. He lodged the FIR to the concerned police station. This witness has proved the documents relating to charge-sheet filed in this case in respect to this accident, which are Ex. P-1 to P-6. Aforesaid documents corroborate the statement of this witness as well as case of the claimants that a case against the driver of the offending vehicle was registered in respect to this accident under Section 304-A of IPC for causing death of Shanti Bai by driving the dumper rashly and negligently. The postmortem report also reveals that the legs of deceased Shanti Bai was crushed on account of motor vehicular accident. This fact also supports that at the time of accident, deceased Shanti Bai was on the ground. In his cross-examination, this witness remained consistent.
Driver of the offending vehicle did not appear before the learned claims tribunal to contradict the pleadings and evidence of the claimants. Insurance company has also not produced any eye-witness to contradict the statement of the claimants.
In view of the above discussion, it is not proved that the deceased was travelling in the dumper at the time of accident.
When the deceased was not sitting or travelling in the offending vehicle at the time of accident, she becomes third party and, therefore, claimants are entitled to get the compensation from the insurance company.
Since it is not proved that the deceased was travelling on the offending vehicle at the time of accident, therefore, the case laws of Sanjeev Kumar Samrat (supra), Saju P. Paul (supra), Ajay Choudhary (supra) and Bhav Singh (supra) do not help the insurance company.
Signature Not Verified Signed by: ALOK KUMAR Signing time: 28-Apr-23 9:52:33 AM 5Accordingly, appellants are exonerated from payment of compensation and respondent No. 6 - insurance company is held liable for payment of compensation to the claimants, which shall be done within a period of 12 weeks from the date of production of certified copy of this order. If the compensation amount has already been paid by the appellants - owner and driver of the offending vehicle, then insurance company shall pay the same to the appellants. Rest of the award passed by the claims tribunal shall remain intact.
Present miscellaneous is allowed and disposed of in above terms.
(SUNITA YADAV) JUDGE AKS Signature Not Verified Signed by: ALOK KUMAR Signing time: 28-Apr-23 9:52:33 AM