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Madhya Pradesh High Court · body

2013 DIGILAW 86 (MP)

New India Insurance Company Ltd. v. Sheela Devi

2013-01-17

J.K.MAHESHWARI

body2013
ORDER 1. This appeal, under section 173 of the Motor Vehicles Act, 1988, has been filed by the appellant-Insurance Company assailing the award dated 30.10.2007 passed by IIIrd Addl. Motor Accident Claims Tribunal, Bhopal in Claim Case No. 2157/2006 whereby the compensation to the tune of Rs. 3,48,000/- for death of Mangal Singh has been awarded. 2. Brief facts of the case are that on 23.4.2006 at about 7:55 in the evening when the driver of the marshal jeep bearing registration No. UP/16-9092 driving it rashly and negligently dashed Mangal Singh the accident took place. Sub-Inspector lodged the FIR at Police Station Misrod whereby the offence was registered as Crime No. 97/06 inter alia contending that in the accident deceased has died and Marshal Jeep overturned on the spot. The postmortem report is available on record.Thus, for the death of Mangal Singh two claim cases under section 166 of the Motor Vehicles Act, bearing MCC No. 2157/2006 and MCC No. 3089/2006 were filed by the wife, sister and brother of the deceased seeking compensation to the tune of Rs. 67,50,000/- and 35,50,000/- respectively. Both the claim petitions have been decided by a common award. It is not in dispute that the charge-sheet under sections 302, 201/34 of the IPC was filed in the said case wherein accused persons have been acquitted. 3. Insurance Company has raised plea in the written statement that the accident has not taken place due to negligence on the part of driver of the offending vehicle but, in fact, it is a case of murder, which later on has been termed as an accident case, therefore, in such circumstances the compensation should not be awarded. It is also contended that the driver of the offending vehicle was not possessing a valid driving licence in view of the certificate in issued by RTO Allahabad (Ex.D5), therefore, the vehicle was driver violation of the terms and conditions of the policy, however, the Insurance Company cannot be held liable to indemnify the owner and driver of the offending vehicle. 4. The Claims Tribunal recorded the finding on issue Nos. 1A and B in favour of the claimants and held that the vehicle was driven rashly and negligently by the driver and on account of road accident Mangal Singh had died. 4. The Claims Tribunal recorded the finding on issue Nos. 1A and B in favour of the claimants and held that the vehicle was driven rashly and negligently by the driver and on account of road accident Mangal Singh had died. The finding has also been recorded that the vehicle was insured at the time of accident and violation of terms and conditions of the policy has not been proved. In view of the foregoing, Claims Tribunal has awarded a sum of Rs. 3,48,000/- in total alongwith the interest @ 6% per annum to the claimants. 5. Shri Dinesh Kaushal, learned counsel for the Insurance Company has strenuously urged that it is not a case of road accident but, in fact, a case of murder wherein negligence of the driver because of which accident occurred, has not been established in view of the pleadings, evidence of the claimants as well other material available on record. Therefore, the finding recorded by the Claims Tribunal may be set aside. It is also contended that the Claims Tribunal has committed an error in disbelieving the certificate of the RTO Allahabad and not taking the said document on record being a public document. In support of the said contention, reliance has been placed on the decision of this Court in the case of Oriental Insurance Company Ltd. Vs. Smt. Mulayam Bai and others reported in 1998 Vol.2 MPLJ Short Note 33. It is further contended that on 16.10.2007, an application under order 16 rule 1 of the CPC to call for the RTO Clerk has been filed which was decided by the Claims Tribunal. However, the opportunity to lead evidence to prove the document (Ex. D5) was denied to them. In such circumstances, the award passed by the Claims Tribunal may be set aside and in alternative the prayer to remand the case before the Claims Tribunal may be allowed. 6. Per contra, learned counsel for the respondents-claimants referring para 8, 9 and 11 of the impugned award of Claims Tribunal has contended that after appreciation of the evidence brought on record and relying upon the FIR, the finding has been recorded by the Claims Tribunal that the accident arising out of the use of motor vehicle took place due to rash and negligent driving of the driver. In such circumstances, the Claims Tribunal has rightly awarded the compensation. In such circumstances, the Claims Tribunal has rightly awarded the compensation. It is also contended that the document (Ex. D5) cannot be treated as a public document without having its proof. Reliance has been placed in this regard on the Division Bench Judgment of this Court in the case of National Insurance Company Ltd. vs. Mainabai and ors reported in ILR 2001 page 1736 and it is urged that the Claims Tribunal has rightly awarded the compensation because no legal evidence has been brought on record to prove the violation of terms and conditions of the policy. In view of the foregoing, the prayer is made to dismiss the appeal. 7. After hearing learned counsel for the parties and on perusal of the record, it is crystal clear that at the time of accident none of the claimants were present. After the accident, the FIR was lodged by Sub Inspector, namely, S.K. Pathariya. In the said FIR, it has been specifically mentioned that the marshal jeep has overturned and the dead body of a 30 years aged person is lying there. In the later part of the FIR it is specifically mantioned that the said jeep driver dashed the deceased. In the present case, the Claims Tribunal found that the claimants are not eyewitnesses and relying upon the FIR, the Claims Tribunal recorded a finding that the accident took place on a account of rash and negligent driving of the driver, who dashed the deceased. After going through the contents of the FIR and the finding recorded by the Claims Tribunal in the considered view of this Court, there is no perversity in recording the finding of accident by use of the motor vehicle driven by the driver and it can be safely said that accused persons have been tried for the offences under sections 302, 201/34 of the IPC wherein they have been acquitted having no negligen on their part having no effect. In the present case, looking to the averments made in the FIR and the finding recorded by the Claims Tribunal, in the considered opinion of this Court, the accident has rightly been proved due to rash and regligent driving of the driver. The aforesaid contention may find support from the injuries received to the deceased in the accident as revealed in the postmortem report. The aforesaid contention may find support from the injuries received to the deceased in the accident as revealed in the postmortem report. In view of this matter, the arguments advanced by learned counsel for the Insurance Company that it is not a case of accident but in fact, a case of murder, is not established, hence repealed. 8. Now coming to the point of violation of the terms and condition of the policy. In view of certificate (Ex. D5), it is to be observed here that filing a document is a different thing and proving it by way of legal evidence is a next step to establish the defence. As per the judgment of the Division Bench of this Court it is apparent that when the document has been produced to show that the driver was not having valid driving licence, but it has not been proved by adducing legal evidence by the Insurance Company then it cannot be relied upon. In the considered opinion of this Court, the aforesaid analogy appears to be just based on the sound principle of law. In the said context, the judgment so relied upon by the counsel appearing on behalf of the Insurance Company is of no avail. 9. Now dealing with the argument that the Court has not called upon the RTO clerk to prove the said document (Ex. D5), though the application has been filed for the purpose. I have gone through the order sheet of the trial Court and found that the application was filed by the Insurance Company. As per the said order sheet, the statement of Vijay Krishn Mishra was recorded and on the same day despite filing of an application, the counsel for the Insurance Company has closed its evidence. In the context of the said order-sheet, it cannot be disbelieved or disregarded that once the counsel of the Insurance Company did not want to press the application for calling any witnesses from the RTO office and he himself closed the evidence, the Court was not required to persuade on the said application. It is to be further observed here that on behalf of the Insurance Company, list of evidence is not available. It is to be further observed here that on behalf of the Insurance Company, list of evidence is not available. In absence of that list and without calling any person, the evidence has been closed by the Insurance Company without taking further recourse to press the said application, which has been filed and available on record. It is not incumbent to the trial Court to persuade the said application when the Insurance Company itself did not want to adduce any further evidence. In this view of the matter, the argument regarding non-consideration of the application is devoid of any substance. In the context with respect to document Ex. D5, it may be observed that the certificate recording non-issuance of driving licence of the driving of the motor vehicle has not been proved by legal evidence, therefore, even if the said document is available on record, it cannot be relied upon for the purpose of leading doucuments in support of the Insurance Company in its statement. In such circumstances, the contention advanced by the counsel for the Insurance Company is not established and is repealed. 10. In view of the foregoing discussion and in the considered opinion of this Court, the appeal filed by the Insurance Company is devoid of any substances, hence it is dismissed with cost, which is quantified to Rs. 5,000/-.