Rajasthan High Court – Jodhpur
Tata Aig General Insruace Co. Ltd vs Gopal (2025:Rj-Jd:24608) on 21 May, 2025
[2025:RJ-JD:24608]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Misc. Appeal No. 344/2025
Tata Aig General Insruace Co. Ltd., Branch Office, 2B Hajareshwar
Colony, Opposite Telephone Exchange Department, Court Road,
Udaipur
----Appellant
Versus
1. Gopal S/o Haliya, R/o Sanrampura Tehsil Bagidora District
Banaswara Raj
2. Smt Kavi W/o Gopal, R/o Sanrampura Tehsil Bagidora
District Banaswara Raj
3. Amrit Lal Kotad S/o Jivat Ram Kotad, R/o Rampura Sati,
Tehsil And District Dungarpur
4. Smb Technoiologies, Through Proprietor Yusuf Ali R Eg Of
Mubarak Building Behind Laxmi Gas Agency Gali No 02
Adarsh Nagar Dungarpur
----Respondents
For Appellant(s) : Mr. Vishal Singhal a/w Ms. Anamika
Baghmar
For Respondent(s) : Mr. Aman Bishnoi Bola for
Mr. R.S. Bhati
HON'BLE MR. JUSTICE ARUN MONGA
Order(Oral)
21/05/2025
1. Aggrieved with the judgment and award dated 20.11.2024
passed by learned Motor Accident Claims Tribunal, Banswara, the
appellant/Insurance Company is before this Court by way of the
present appeal seeking quashing of the same.
2. Brief facts first. On August 6, 2021, at around 10:00 AM,
Nitesh, the deceased, was going on a motorcycle with his friend
Manoj towards Village Bagidora. Suddenly, near Ummedgarhi,
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Malifala Ghati, a Tata pickup vehicle (registration number RJ12-
GA-5269), allegedly driven rashly and negligently by
respondentNo.1 (driver), collided with their motorcycle. Nitesh
suffered severe injuries on account of accident, leading to his
death.
2.1. The claimants sought compensation of ₹80,70,000/- under
Section 166 and ₹50,000/- under Section 140 of the Motor
Vehicles Act. The claim is filed against three respondents:
respondentNo. 1 (the driver), respondentNo.2 (the vehicle owner)
and respondentNo.3 (the Insurance Company of the pickup
vehicle).
2.2. RespondentsNo.1 and 2 did not appear before the Tribunal,
leading to ex-parte proceedings against them on October 19, 2023.
RespondentNo.3-the insurance company, contested the claim,
denying the allegations. They argued that the claim is baseless,
the accident did not involve the vehicle insured with it and that
Nitesh, being intoxicated, was driving the motorcycle recklessly
and was not even wearing a helmet. They also claimed the driver
of the pickup lacked a valid driving license, absolving them of
liability.
2.3. After hearing both the parties and considering the material
available on record, the learned tribunal has partly allowed the
claim petition awarding a sum of Rs.12,04,824/- to the claimants
with 9% annual interest from the date of filing of the claim
petition. Hence, this appeal.
3. Learned tribunal had framed five issues, translated version of
which is as below :
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"i. Whether, on 06.08.2021 at around 10:00 AM, at Mouja
Ummedgarhi, Malifala Ghati, District Banswara, the vehicle Tata
Yodha Pickup No. RJ 12 GA 5269, owned by non-applicant No. 2
Yusuf Ali, driven by non-applicant No. 1 Amritlal under his
employment, and insured by non-applicant No. 3, while being driven
negligently, carelessly and at a high speed, hit the deceased Nitesh
who was coming on his motorcycle, due to which deceased Nitesh
died as a result of multiple injuries sustained on his body?
Claimants
ii. Whether the claimants are entitled to receive the compensation
amount mentioned in the claim petition or any other amount as
compensation from the non-applicants? If yes, from whom and to
what extent?
Claimants
iii. Whether, due to the reasons mentioned in the objections raised
by non-applicant No.3 in the reply to the claim petition, the non-
applicants are not liable to pay the compensation amount?
Non-applicants
iv. Relief? ”
4. After analysing the evidence adduced by the parties and
considering the documents available on record, the learned
Tribunal rightly decided all the issues, i.e., Issue Nos. 1, 2, and 3,
in favour of the claimants and against the insurance company.
5. Learned counsel for the appellant submits that the impugned
judgment and award passed by the learned Tribunal is contrary to
the facts on record and settled principles of law, and therefore
deserves to be quashed and set aside.
5.1. He further submits that the finding recorded by the learned
Tribunal on Issue No.1, regarding the alleged negligence of the
driver of the offending pickup, is erroneous. The Tribunal has
relied solely on the police papers and the statements of AW-1 Smt.
Kavi and AW-2 Kishan, who admittedly were not eyewitnesses to
the incident. As per the claim petition, one Manoj, a friend of the
deceased and a pillion rider on the motorcycle at the time of the
accident, was the only eyewitness. However, he was not examined
before the Tribunal, thereby depriving the appellant Insurance
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Company of the opportunity to cross-examine him. In absence of
any reliable eyewitness, the finding on negligence is unsustainable
and the award deserves to be set aside on this ground alone.
5.2. It is also submitted that the deceased himself was driving
the motorcycle in a rash and negligent manner in the middle of
the road and without wearing a helmet. Despite this, the learned
Tribunal failed to consider the aspect of contributory negligence.
Given that the accident was a result of a head-on collision, it is
submitted that the Tribunal ought to have apportioned liability and
deducted a proportionate amount from the compensation,
reflecting the contributory negligence on the part of the deceased.
5.3. Learned counsel further submits that the finding on Issue
No.3, pertaining to the objections raised by the appellant
Insurance Company regarding non-liability, has also been wrongly
decided. The appellant had produced NAW-1 Rishabh Matdad, who
placed on record the documentary evidence–Ex. A1 being the
insurance policy, Ex. A2 being the cancellation letter, and Ex. A3
being the refund receipt of the policy premium. These documents
clearly established that the policy in question had been cancelled
and the premium refunded to the dealer prior to the date of the
accident. Hence, the vehicle was not covered under any insurance
policy at the relevant time and the appellant cannot be fastened
with any liability to pay compensation.
5.4. He would also submit that the appellant had filed an
application under Order 1 Rule 10 CPC seeking impleadment of CK
Motors–the dealer–as a necessary party. The learned Tribunal, by
its order dated 14.11.2024, had directed that the said application
would be considered at the time of final decision. However, the
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Tribunal dismissed the application in an arbitrary manner, holding
that no defence regarding cancellation of the policy had been
taken in the written statement, despite such defence having been
clearly raised in the written arguments.
5.5. Learned counsel also contends that the learned Tribunal has
committed a grave error in assessing the income of the deceased
at Rs.7,770/- per month, based on minimum wages for unskilled
labour in the year 2021, without any supporting documentary
evidence. In the absence of any proof of income, the Tribunal
ought to have applied the notional income of Rs.15,000/- per
annum (Rs.1,250/- per month) as prescribed in the Second
Schedule of the Motor Vehicles Act, 1988, for non-earning
members. The assessment made is thus arbitrary and excessive.
6. Per contra, learned counsel for the respondents has
supported the impugned award by the learned Tribunal in its
entirety, contending that the findings have been recorded after
proper appreciation of the evidence on record. He submits that the
award is just, reasonable, and calls for no interference by this
Court. Hence, the present appeal deserves to be dismissed.
7. In the aforesaid backdrop, I have heard the rival contentions
of learned counsels which are more or less on the same lines as
the grounds taken in the pleadings and perused the case file. I
shall now proceed to deal with the merits and demerits thereof
and render my opinion based on the discussion and reasoning
contained hereafter.
8. First and foremost, let us have a look at the relevant of the
award, which is as below:
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“ISSUE No. 1 & 3
18. Both these issues were required to be proved by the claimant’s
and defendant’s and looking to the issues, it is imperative that the
same be decided together so as to avoid the repetition of the
evidences produced by both the parties.
19. Burden of proof that the offending vehicle was being driven
rashly and negligently is always on the claimants. To succeed in a
claim petition filed under Section 166 of Motor Vehicles Act
claimants have to show that the offending vehicle was being driven
rashly and negligently.
20. The detail submissions of the ld. counsels for the respective
parties have been already reproduced by this Tribunal, therefore, the
same are not repeated.
21. In so far the accident is concerned, the same is proved by the
fact that the accident occurred on 06.08.2021 and the FIR, was
lodged on the same day. Further, the police after investigation has
filed charge sheet No. 126/2021 dt. 18.08.2021, Ex.7 against the
driver who is defendant No. 1 u/s 279, 337 and 304A IPC read with
134/187 of the MV Act before the competent court of jurisdiction. in
District Banswara. Certified copy of charge-sheet along with
documents submitted with the said charge-sheet is on record.
Moreover owner and driver of the ill-fated Pickup in response to
notice u/s 133 & 134 of the MV Act, Ex.12 & 13 have categorically
admitted the factum of the accident. It is beyond comprehension that
anybody would admit the guilt of the offense merely on the pressure
of the police and is ready to face criminal trial. Further,
driver/defendant no. 1 has not stepped into the witness box to
explain why he was prosecuted by the investigating officer which is
also prima-facie suggestive of negligence of defendant No. 1, driver
in driving the offending vehicle. It is settle law that the claimants
were merely to establish their case on the touchstone of
preponderance of probability and standard of proof beyond
reasonable doubt cannot be applied by the Tribunal whiledealing
with the motor accident case.
22. Further, the claimants produced two witnesses i.e. AW-1 & AW-2
and both of them in their chief have stated the factum of the accident.
On analysing, the cross-examination of the aforesaid witnesses, it
would reveal that even in the cross-examination the factum of
accident was proved as nothing contrary material came on record
which could suggest that no accident occurred on 06.08.2021 and
the contrary suggestions of the Id. counsel for the defendant no. 3
were denied.
23. In so far the contention of Mr. Modi that the present ill-fated
vehicle was not insured by defendant no. 3 is required to be
adjudicated.
24. The defendant no. 3 is the TATA AIG General Insurance
company which has issued the insurance policy of the ill-fated
vehicle which is Ex.4 & Ex.A1. The period of insurance has been
indicated as 24.09.2020 το 23.09.2021 and the policy no. is
0147276043. Ex.A2 is a letter regarding cancellation of insurance
policy no. 0147276043 sent by the dealer CK Motors to TATA
Motors Insurance Broking & Advisory Service Ltd., Mumbai, which
indicate that the dealer CK Motors requested to cancel the issued
policy and has written the letter indicating that “due to some
technical problem in vehicle, vehicle not delivered to customer. Till
vehicle in out custody please cancel the policy and refund to favour
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on CK Motor”. In Ex.A2 name of the customer is mentioned as Yusuf
Ali i.e. defendant no. 2 and Ex.A3 is cancellation & refund receipt
issued by TATA Motors Insurance Broking & Advisory Service Ltd.,
Mumbai, which indicates that the cancellation requested on
28.09.2020 and the request was approved on the same day for a sum
of Rs. 15,044/-. Thus, Ex.4and Ex.A1 insurance policy was issued
but however the same was unilaterally canceled by TATA Motors
Insurance Broking & Advisory Service Ltd., Mumbai, on the request
of dealer CK motors. Thus, admittedly Ex.4 & A1 was issued by
defendant no. 3 which provide the period of insurance from
24.09.2020 to 23.09.2021 but however, as per Ex.A3 the same was
canceled on 28.09.2020 during the pendency of the insurance period.
This Tribunal fails to comprehend as to how the insurance contract
could be canceled suo-moto by the insurance company and that to
without giving any notice to the insured before cancellation.
25. Additionally, it is interesting to note that Ex.4/A1 is the
insurance policy issued by TATA AIG General Insurance Company
Ltd. i.e. defendant no.3 but the cancellation of the said policy was
done at the behest of the CK Motors, Ex.A2 who appears to be the
dealer of TATA Motors as per the letter head, Ex.A2. On perusal of
Ex.A2 would reveal that the policy duly issued with effect from
24.09.2020 was canceled but no date has been given in Ex.A2 as to
when the said policy was sought to be canceled. Even otherwise if
the policy was sought to be canceled on account of some technical
problem in vehicle and specifically it has been written that the
vehicle was not delivered to the customer and yet the vehicle was
delivered as subsequently on 06.08.2021 the said vehicle met with
an accident. Further, the status of TATA Motors Insurance Broking
& Advisory Service Ltd., Mumbai, is not known as the insurance
policy Ex.4 & Ex.A1 was issued by TATA AIG General Insurance
Company Ltd. and thus, in what capacity TATA Motors Insurance
Broking & Advisory Service Ltd., Mumbai, could be approached to
cancel the issued policy. There is another issue which emerges from
the perusal of Ex.A3 that the said TATA Motors Insurance Broking
& Advisory Service Ltd.,Mumbai, received the cancellation request
on 28.09.2020 and the refund of premium amount was directed to be
refunded to the dealer and it also provide that the policy
cancellation approval date was 28.09.2020 and the approved refund
amount was 15,044/-. There is no evidence on record as to whether
the amount of Rs. 15,044/- was actually paid to the dealer i.e. CK
Motors and in turn the said dealer i.e. CK Motors has refunded the
amount of premium to the customer i.e. the owner/defendant no. 2.
Thus, the entire process of refund was between TATA Motors
Insurance 21 Broking & Advisory Service Ltd., Mumbai and CK
Motors and nowhere the present insurance company i.e. TATA AIG
General Insurance Company Ltd. and the customer Yusuf Ali who
was the insured as per Ex.4 and Ex.Al were involved in the aforesaid
process.
26. It is not in dispute that if the said insurance company was
desirous to cancel the issued policy then in accordance with
principles of natural justice a notice to the insured was mandatory
as the insurance is contract between the insured and the insurance
company and the contract cannot be canceled unilaterally. The
insured was not given any opportunity of hearing and arbitrarily the
policy was canceled.
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27. Ex. 4 & Al is the insurance policy by which total premium of Rs.
15,044/- has been taken by the insurance company and Ex.A3 the
refund receipt does not indicate the date of refund and moreover
there is no jota of evidence which could indicates that the refund
was credited in bank account of the dealer and was refunded to the
insured/defendant no. 2.
28. Admittedly, the accident occurred on 06.08.2021 and as per Ex.4
& A1 the insurance policy was valid from 24.09.2020 to 23.09.2021
but the same was canceled by TATA Motors Insurance Broking &
Advisory Service Ltd., Mumbai, unilaterally on 28.09.2020 and the
reasons for the cancellation was the letter of CK Motors who is the
dealer of the ill-fated vehicle and also the amount of premium has
not been refunded to the insured. Further, as per Ex.A2 and Ex.A3
the vehicle in question was not delivered to the customer but yet
since the accident occurred on 06.08.2021, it would be presumed
that the vehicle was delivered to the customer/insured and since the
insured had valid policy for the period 24.09.2020 to 23.09.2021
and the cancellation as aforesaid was done at the back of the
insured, in such circumstances, it cannot be said that the defendant
no. 3 has validly canceled the policy and defendant no. 3 is held
liable to pay the compensation to the claimants.
29. During the course of argument on 14.11.2024, the Id. counsel for
the insurance company Mr. Modi filed an application under Order 1
Rule 10 read with 151 CPC praying that CK Motors be impleaded
as necessary party in the present proceedings. This Tribunal vide
order dt. 14.11.2024 directed that the said application would be
decided at the time of judgment.
30. The present application is a gross abuse of process of law as
admittedly, the present claim petition was filed before this Tribunal
on 31.08.2021 and the insurance company appeared on 08.04.2022
and the written statements were filed 19.10.2023. No such stand was
taken in the written submissions that the police stands canceled. The
case has been picked up in National Action Plan which has been
started under the direction of Hon’ble Rajasthan High Court and
therefore the present application filed by Mr. Modi is dismissed as
the issue of cancellation and the refund of the premium amount is
between the dealer of TATA Motors i.e. CK Motors and between
TATA Motors Insurance Broking & Advisory Service Ltd., Mumbai
and moreover, not a single iota of evidence has been produced
indicating that the amount of premium i.e. 15,044/- has been
actually refunded to the insured. In absence of the proof that the
premium of Rs. 15,044/- has been duly refunded to the insured on
28.09.2020 i.e. the date of cancellation of the valid insurance policy,
it cannot be said that the insurance policy has been rightly canceled
and thus, the application filed by Mr. Modi is dismissed.
31. Thus, in view he aforesaid clinching documentary and oral
evidence it is clear that the Pickup in question met with an accident
which was driven by defendant No. 1 in rash & negligent manner
causing grievous injury to the deceased which caused the death of
the deceased.
32. The upshot of the above discussion and on the basis of the entire
evidence available on record as discussed above, the claimants have
proved issue No. 1 in their favour and further the issue no. 3 is
decided against the defendant insurance company.”
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9. Having heard the learned counsel for the appellant as well as
having perused the impugned award and record of the learned
Tribunal, the conceded position emerges before this Court is that
the relationship of insurer and insuree was between the appellant-
Insurance Company and one Yusuf Ali, the purchaser of the
offending vehicle, i.e., Motor Cycle.
10. Neither is the receipt of premium amount qua the vehicle
disputed, nor even otherwise it is the case of the Insurance
Company that the insuree, who was its consumer, was put to any
prior notice before the so-called cancellation of the insurance
policy; nor did it refund the amount to the consumer (though the
stand taken is that the amount was refunded to the Motor
Insurance Service Provider (MISP), i.e., Dealer, but as per the
finding of the learned Tribunal, the same was not even
established).
11. There are far too many lacunae which cannot be
countenanced, i.e. :-
(i) Firstly, the stand taken that the vehicle was not delivered to
its buyer is neither pleaded in the reply, which was the first
instance for the Insurance Company to respond to the claim
petition, nor at the subsequent stage, it was proved based on the
evidence adduced by it; nor even otherwise were any steps taken
subsequently to amend its reply to the claim petition.
(ii) The offending vehicle was purchased from the dealer, namely
CK Motors, and the entire edifice of the opposition to the claim
petition both before the learned Tribunal and even in the appellate
proceedings is that the Insurance Company acted under the
instructions of CK Motors. And yet, it is rather intriguing that at
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[2025:RJ-JD:24608] (10of 11) [CMA-344/2025]the first instance on the reply was filed, no steps were taken to file
any application seeking impleadment of CK Motors, on whose
shoulders the entire burden was shifted by the appellant-
Insurance Company. Furthermore, it was open to the Insurance
Company to put the representative of CK Motors in the witness-
box in support of its stand taken in the reply; even that was
conveniently not done. It waited for the entire trial to get over and
belatedly filed an application under Order 1 Rule 10 of CPC at the
final stage of the trial when the arguments to be heard. The same
has though been dismissed by the learned Tribunal.
(iii) However, in order to avoid any prejudice to the rights of the
appellant-Company, it is made clear that the dispute, if any,
between appellant-Insurance Company and the CK Motors was not
the subject matter before the learned Tribunal, and the same is
left open to be decided by filing appropriate proceedings, in case
the Insurance Company is so advised.
(iv) As far as the owner-purchaser of the motor vehicle is
concerned, no default can be found with him as the so-called
cancellation of the policy was completely at his back, which is not
even disputed by the Insurance Company since conceded stand
taken is that it was not under his instructions, but under the
instructions of the seller i.e. CK Motors.
(v) Lastly, trite it may sound, but a 3rd party to a contract is a
rank outsider once the contract stood concluded. Prior to the
payment of the premium, no doubt Motor Insurance Service
Provider (MISP) could have taken steps, but that too only prior to
delivery of the vehicle.
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12. The argument of learned counsel for the appellant that non-
examination of the eyewitness-Manoj, who was a pillion rider at
the time of the accident, is fatal to the entire testimony of the
other eyewitnesses who were produced by the claimant in support
of their claim, the said argument is also being noted only to be
rejected, inasmuch as the learned Tribunal has dealt with it
elaborately and given the finding in favour of the claimants, since
the testimony of both the witnesses remainsunimpeached in the
cross-examination. Not only that, had it been a case that the
occurrence of the accident and/or involvement of the vehicle was
otherwise not established by the claimants, possibly their would
have been a use of bringing eye-witness for the examination, but
the same since already stood proved, I find no grounds to
interfere with the findings returned by the learned Tribunal.
13. As an upshot, no grounds to interfere.
14. Dismissed.
15. In the parting, I may also hasten to add here that the stand
taken that the argument that motor vehicle was not delivered is
completely out of place, as the glaring facts are self-speaking, i.e.,
the motorcycle being plied outside the dealer premises on the
road itself clearly proved that it was delivered. The argument is
being noted, only to be rejected, once again.
16. Pending application(s), if any, stand disposed of.
(ARUN MONGA),J
9-/Jitender/SP
Whether fit for reporting : Yes / No.
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