Shri S.N. Gajendragadkar, Advocate for appellant in MA No.418/2017 and for respondent no.10 in MA No.534/2017.

Shri R.P. Gupta, Advocate for respondents no.1 to 4 in both appeals.

None for remaining respondents in both appeals. Since both these appeals arise out of the common award dated 23/1/2017, therefore, this order shall govern the disposal of both these appeals.

2. These Miscellaneous Appeals under Section 173 of the Motor Vehicles Act, 1988 have been filed against the award dated 23/1/2017 passed by the Fourth Motor Accident Claims Tribunal, Gwalior in Claim Case No.268/2014.

3. These appeals have been filed by the New India Assurance Company Limited and the Oriental Insurance Company Limited. The claimants have also filed an appeal, which has been registered as MA No.516/2017. In these appeals filed by the Insurance Companies they have also challenged the quantum of compensation awarded to the Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 2 THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others claimants under the miscellaneous head. Since the question of quantum is yet to be decided in the appeal filed by the claimants, therefore, in order to avoid any conflicting judgments with regard to the amount of compensation, the grounds with regard to the quantum of compensation raised by the Insurance Company in these appeals is kept open and shall be decided while deciding the appeal filed by the claimants.

4. The necessary facts for disposal of the present appeal in short are that the deceased/injured persons were travelling in a jeep bearing registration No.MP06 BA/0287. On 5/3/2013 at about 8 PM the said jeep collided with a tractor trolley bearing registration No.MP06 AA/5382 from behind, as a result of which, Ku. Priti Parmar, Ku. Ritu Parmar, Gambhir Singh, Bhairosingh, Ramdeen Singh, Sangita Parmar and Bhagirath Singh lost their life, whereas Rajabeti and Smt. Manju Parmar sustained injuries. Accordingly, the claimants filed an application under Section 166 of the Motor Vehicles Act for grant of compensation.

5. The respondents no.6 and 7 (defendants no.1 and 2), who are the driver and owner of the tractor, filed their written statement and conceded that the respondent no.6 was the driver of the tractor and Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 3 THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others the respondent no.7 was the owner of the tractor and it was pleaded that the said tractor was insured by the Oriental Insurance Company.

6. The owner of the jeep/respondent no.9/defendant no.5 contended that he was the owner of the said jeep and Late Ramkrishna Singh was the driver and it was further pleaded that the jeep was insured by the respondent no.10/defendant no.6/New India Assurance Company Limited. It was the case of the claimants that the tractor was parked in the middle of the road without any sign or obstruction / any warning, as a result of which the offending jeep, which was being driven by Late Ramkrishna Singh @ Kallu (who also lost his life in the said accident), collided with the said tractor, as a result of which, seven persons lost their life and two persons sustained grievous injuries. Accordingly, the police also registered Crime No.41/2013 for offence under Sections 279 , 337 , 338 and 304- A of IPC against the driver of the jeep and since he had also lost his life, therefore, the closure report was filed.

7. The case of the respondents no.1 to 4 was that Late Ramdeen Parmar was the father respondents no.1 to 4 and defendant no.7. Late Ramdeen Parmar was aged about 62 years. He was a retired teacher and was getting pension of Rs.11,000/- per month and he was also Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 4 THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others earning Rs.1,00,000/- per annum by performing agricultural activities and the respondents were dependent upon him.

8. The Claims Tribunal after framing the issues and recording the evidence, allowed the claim petition and awarded the compensation amount and also held that since the tractor was parked dangerously on the road and as the driver of the jeep had also not taken sufficient precaution, therefore, it was held that the driver and owner of both the vehicles were equally responsible and accordingly, the principle of contributory negligence was applied and it was held that the owner/driver/Insurance Company of the said vehicles are responsible to pay 50% of the compensation amount.

9. Challenging the liability fixed by the Claims Tribunal, it is submitted by the counsel for the appellant that since the jeep in question was a private vehicle and as it was being used as a taxi, therefore, the Insurance Company (New Indian Assurance Company Limited) is not liable to make payment of compensation amount on the ground of violation of conditions of insurance. It is further submitted that in fact the tractor and trolley was parked dangerously on the road, therefore, the Claims Tribunal has wrongly held that the driver of the offending jeep was also negligent. Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 5

THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others

10. Per contra, it is submitted by the counsel for the respondents no.1 to 4 as well as respondent no.10 that the Claims Tribunal after considering the evidence of the witnesses has come to a conclusion that the tractor was parked on the road without any warning, as a result of which, the offending jeep collided from behind and thus, the driver of the tractor was also negligent. So far as the question of violation of condition of insurance policy is concerned, it is submitted by the counsel for the respondents no.1 to 4 that it is well established principle of law that the claim petitions are to be decided on the preponderance of probabilities and any document of criminal case cannot be taken into consideration and in the present case the witnesses have specifically denied that the deceased or injured were travelling in the jeep after making payment of fare.

11. Heard learned counsel for the parties.

12. Munnalal Chandoriya (DW-1) was the Investigating Officer of Crime No.41/2014. He has specifically stated that the tractor and trolley were parked on the road. Thus, it is clear that Munnalal Chandoriya (DW-1), who reached on the spot and investigated the matter, had found that the tractor and trolley were parked on the road. The driver and owner of the tractor and trolley have not entered in Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 6 THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others the witness-box. It was for the owner and driver of the tractor and trolley to prove that the tractor and trolley were not parked on the road or any precautionary warning in the form of distress light or any other form were put on the spot to give an indication to the oncoming vehicles with regard to the parking of the tractor and trolley on the road. The incident has taken place at about 8 in the night, therefore, it cannot be said that the driver of the jeep had every occasion to notice the parked tractor and trolley from a reasonable distance. It is not the case of the owner/driver of the tractor and trolley that the parking lights of the tractor and trolley were on. Thus, it is clear that the respondents no.6 and 7 have failed to prove that the tractor and trolley was either not parked on the road or every precautionary measures were taken to give a warning to the oncoming vehicles. Further, Sandeep Parmar (PW-7), Manju Parmar (PW-8) and Smt. Rambeti (PW-9) have clearly stated that the offending tractor and trolley was parked in the middle of the road and the driver of the jeep was also driving the vehicle in a rash and negligent manner. The driver of the jeep also did not take any precaution to avoid accident in such a condition. He should have driven the jeep cautiously. Thus, in the considered opinion of this Court the Claims Tribunal has Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 7 THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others rightly held that both the drivers and owners of the offending vehicles were equally negligent and their contributory negligence was assessed at 50%. No perversity could be pointed out by the counsel for the appellant in the findings given by the Claims Tribunal with regard to the contributory negligence in paragraph 29 and 30 of the award passed by the Claims Tribunal.

13. So far as the question of violation of conditions of insurance policy is concerned, the counsel for the appellant has relied upon the Dehati Nalish (Ex.D/1) to indicate that the passengers in the offending vehicles were travelling after making payment of fare and accordingly, it was submitted that since the offending jeep was being used as a taxi, therefore, the New India Assurance Company Limited is not responsible for making payment of compensation amount.

14. Considered the submissions made by the counsel for the appellant.

15. The Dehati Nalish (Ex.D/1) was allegedly lodged by Ajay Singh. Admittedly, Ajay Singh was not travelling in the jeep. Further, Ajay Singh has not accepted that he has lodged the Dehati Nalish, on the contrary the witnesses have specifically denied that the fare was paid. It is well established principle of law that the Claim Petitions Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 8 THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others are to be decided on the basis of the evidence, which comes on record and the same cannot be decided on the basis of the documents of the criminal case.

16. The Supreme Court in the case of Mangla Ram Vs. Oriental Insurance Co. Ltd. reported in (2018) 5 SCC 656 has held as under :-

(vi) The Tribunal is required to follow such summary procedure as it thinks fit. It may choose one or more persons possessing special knowledge of and matters relevant to inquiry, to assist it in holding the enquiry.'

9. The following further observation available in para 10 of the Report would require specific note:

9. The High Court has proceeded to reverse the finding of the Tribunal purely on the basis that the FIR which was lodged on the complaint of the appellant contained a version which was at variance with the evidence which emerged before the Tribunal. The Tribunal had noted the admission of RW 1 in the course of his cross-

examination that the insurer had maintained a separate file in respect of the accident. The insurer did not produce either the file or the report of the investigator in the case. Moreover, no independent witness was produced by the insurer to displace the version of the incident as deposed to by the appellant and by PW 3. The cogent analysis of the evidence by the Tribunal has been displaced by the High Court without considering material aspects of the evidence on the record. The High Court was not justified in holding that the Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 13 THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others Tribunal had arrived at a finding of fact without applying its mind to the documents produced by the claimant or that it had casually entered a finding of fact. On the contrary, we find that the reversal of the finding by the High Court was without considering the material aspects of the evidence which justifiably weighed with the Tribunal. We are, therefore, of the view that the finding of the High Court is manifestly erroneous and that the finding of fact by the Tribunal was correct."

The Supreme Court in the case of State of M.P. Vs. Surbhan reported in AIR 1996 SC 3345 has held as under :

The Division Bench of this Court in the case of Dhanwanti and others Vs. Kulwant singh and others reported in 1994 ACJ 708 has held as under :

THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others The co-ordinate bench of this Court in the case of Oriental Insurance Co. Ltd. Vs. Kamli and others reported in 2010 ACJ 1340 has held as under :

The Supreme Court by judgment dated 14.2.2019 passed in Civil Appeal No.1665/2019 ( Sunita and Ors. Vs. Rajasthan State Road Transport Corporation & Anr. ) has held as under :-

17. Accordingly, it is held that the Claims Tribunal did not commit any mistake by holding that the jeep was not being used as a taxi and Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 15 THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others there was no violation of any condition of the insurance policy. Accordingly, it is held that the Claims Tribunal has rightly held that the appellant-New India Assurance Company Limited is jointly and severally responsible to make payment of compensation to the extent of liability of the owner of offending jeep, i.e.50%.

18. The respondent no.10 has also filed MA No.418/2017. It is submitted by the counsel for the appellant/Oriental Insurance Company Limited that although the Claims Tribunal has given a finding that the owners and drivers with their respective insurance companies are contributory negligent to the extent of 50%, however, in the operative part, i.e. paragraph 97, the apportionment has not been done. In support of his contentions, the counsel for the appellant in MA No.418/2017 has relied upon the judgment passed by the Supreme Court in the case of Khenyei Vs. New India Assurance Company Limited and others reported in (2015) 9 SCC 273 and the judgment passed by this Court in the case of Sushila Bhadoriya (Smt.) and others Vs. M.P. State Road Transport Corporation and another reported in 2005 (1) JLJ 15.

19. Considered the submissions made by the counsel for the parties.

Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 16

THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others

20. The Claims Tribunal in paragraph 30 of the award has fixed the liability of the drivers/owners and Insurance Companies of the respective vehicles to the extent of 50%. Similar finding has been given in paragraph 96 of the award, however, in the operative part the apportionment has not been done.

21. In the case of Sushila Bhadoriya (supra) this Court has held as under:-

(underline applied) In the case of Khenyei (supra) the Supreme Court has held as under:-

"22.3 In case all the joint tortfeasors have been impleaded and evidence is sufficient, it is open to the court/Tribunal to determine inter se extent of composite negligence of the drivers. However, determination of the extent of negligence between the joint tortfeasors is only for the purpose of their inter se liability so that one may recover the sum from the other after making whole of the payment to the plaintiff/claimant to the extent it has satisfied the liability of the other. In case both of them have been impleaded and the Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 17 THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others apportionment/extent of their negligence has been determined by the court/Tribunal, in the main case one joint tortfeasor can recover the amount from the other in the execution proceedings."

22. It is fairly conceded by the counsel for the appellant/New India Assurance Company Limited as well as the counsel for the respondents no.1 to 4 that since the Claims Tribunal has already held that the drivers/owners and their Insurance Companies are liable to the extent of 50%, therefore, paragraph 97 of the award has to be read in the light of the observations made by the Claims Tribunal in paragraph 30 and 96 of the award.

23. Considering the submissions made by the counsel for the parties, it is held that the operative part in paragraph 97 of the award has to be read alongwith the findings given by the Claims Tribunal in paragraph 30 and 96 of the award and it is held that the appellant- New India Assurance Company Limited as well as the Oriental Insurance Company Limited each are liable to make payment of 50% of the compensation amount.

24. No other argument has been advanced by the counsel for the appellants except on the question of quantum of compensation and it has already been observed by this Court in the earlier part of this Digitally signed by ARUN KUMAR MISHRA Date: 13/01/2020 09:51:56 18 THE HIGH COURT OF MADHYA PRADESH MA No.534/2017 The New India Assurance Co. Ltd. Vs. Avadesh Kumar and others MA No.418/2017 The Oriental Insurance Co. Ltd. Vs. Avadesh Kumar and others order that the question of quantum shall be considered while deciding the appeals filed by the claimants.

25. As no perversity could be pointed out by the counsel for the appellants in MA No.534/2017 and MA No.418/2017, therefore, so far as the liability of the Insurance Companies and 50% contributory negligence is concerned, the same is hereby affirmed. The question of quantum of compensation shall be subject to the outcome of the appeal filed by the claimants.

26. With aforesaid observations, award dated 23/1/2017 passed by the Fourth Motor Accident Claims Tribunal, Gwalior in Claim Case No.268/2014 is hereby affirmed.

27. Accordingly, the both the appeals are hereby finally disposed of.