S.B. CIVIL MISC. APPEAL NO.

2947 / 2018 1
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR
S.B. CIVIL MISC. APPEAL NO. 2947 / 2018

APPELLANT :
United India Insurance Company Limited Through Branch Office,
Pali District Pali (Raj.)
INSURANCE COMPANY………
VERSUS
RESPONDENTS :
1. Ramesh S/o Mohan Aged 31 years
2. Gayatri D/o Ramesh , Aged 7 years
3. Siddharth S/o Ramesh Aged 4 years
By Caste Banjara Bhaat, R/o Naya Gaon Pali, Tehsil &
District Pali (Raj.) Claimants No. 2 & 3 are minor through
their Natural Guardian Father Claiamnt No. 1 Ramesh.
(CLAIMAN
T)
4. Moolaram S/o Kewal , Caste Sodha (Banjara), R/o Sohanji
Dhani Nayagaon, Pali District Pali (Raj.)
5. Parasmal, S/o Sohanram, Caste Mali, R/o Naya Bera
Dhandedi, Tehsil Sojat, District Pali (Raj.)
6. Narpatram S/o Hemaram, Caste Banjara R/o Nayagaon, Pali,
Tehsil & District Pali(Raj).

***
S.B CIVIL MISC. APPEAL UNDER SECTION 173 OF THE
MOTOR VEHICLES ACT, 1988 AGAINST THE JUDGMENT
AND AWARD DATED 08.08.2018 PASSED BY THE MOTOR
ACCIDENT CLAIMS TRIBUNAL, PALI (RAJ.) PRESIDED
OVER BY SMT. DEEPA GURJAR, IN MOTOR ACCIDENT
CLAIMS CASE NO. 218/2015 [RAMESH & ORS. VS MOOLA
RAM & ORS], WHEREBY, THE LEARNED COURT BELOW
HAS GRANTED THE COMPENSATION OF RS. 8,76,328/-
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 2
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

ALONG WITH INTEREST @ 9 % P.A. FROM THE DATE

OF FILING OF THE CLAIM I.E. 01.09.2015 TILL THE
DATE OF PAYMENT.
***
Registration No. of Vehicle : RJ-22-GA-1760
Date of Accident : 24.04.2012
Valuation of the Appeal : 876328/-ALONG WITH
INTEREST @ 9% P.A.
FROM THE DATE OF
FILING THE CLAIM
I.E.
1.09.2015 /-
Court Fees : 10/- Fixed
***
To,
Hon’ble the Chief Justice and His Lordship’s
other companion Judges of the High Court of
Judicature for Rajasthan at Jodhpur.

MAY IT PLEASE YOUR HONOUR;

On behalf of the appellant-respondent Insurance

Company, it is most respectfully submitted as under:

1. That the appellant through the present Misc. Appeal is

assailing the validity and propriety of the judgment and
award dated 08.08.2018 passed by the Motor Accident
Claims Tribunal, Pali, Rajasthan [for brevity hereinafter
referred to as “Tribunal”] in MACT Case No. 218/2015
[Ramesh & Ors. V/s Moolaram & Ors.], whereby, the
learned Tribunal has granted compensation of Rs.
8,76,328/- along with Interest @ 9% p.a. from the date of
filing the claim i.e. 01.09.2015 till the date of payment.
The facts giving rise to the present misc. appeal are stated
succinctly in succeeding paras.

2. That as per the fact stated by the Claimants, the incident

is of 24.04.2012, Claimant Ramesh along with his wife
Tinku and other relatives were going in Bolero Car bearing
Number RJ-22-GA-1760 and were going from Pal to
Ramdeora and when they have reached near Pokharan ,
Lava Village because of the rash and negligent driving by
the Driver, the bolero Car Overturned and because of that
Tinku died on the spot and Ramesh Got injured. That the
FIR of the same was lodged before the Police Station
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 3
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

Pokharan, District Jaisalmer which was numbered as

70/2012.

3. That the claimants submitted that Tinku have died in the

accident and have filed Claim Petition under Section
166/140 of the Motor Vehicle Act, 1988, claiming that the
deceased was 25 years old at the time of Accident and was a
labor and filed Case claiming compensation of Rs. 57,65,000/- .
The claim petition have been decided by the learned
Tribunal below by the award dated 08.08.2018, certified
copy of the same received on 16.08.2018 is being
produced along with the present appeal as EXH-1 .

4. That the Defendants (Opposite parties) 1 & 3(4 & 6 in the

present Appeal) did not appear before the Tribunal after
serving of Notice and ex-proceeding were initiated against
them on 23.04.2016.

5. That the Defendants (Opposite parties) 2 (5 in the present

Appeal) appeared before the Tribunal and filed reply
stating that he has sold his Bolero Car bearing No. RJ-22-
GA-1760 on 15.02.2012 and have executed Form No. 29 &
30 and the Physical possession of the Vehicle was with
Narpatram i.e. Respondent No. 6 and after the date of the
execution of Form No. 29 & 30 and he is liable for
anything happens in relation to the Accident and Parasmal
is not liable for the Accident. Further he stated that Mr.
Ramesh has not suffered from any injury. The Vehicle was
insured with Insurance Company and he is liable for
anything.

6. The claim was opposed by the Defendant No. 4

(Appellant) i.e. United India Insurance Company Ltd. in
their reply and denied all the fact stated in the Claim
Petition. It was stated that Narpatram was driving the
Vehicle as per the FIR and he was not valid and effective
driving license at the time of the Accident and as he was
not having valid and effective driving license Moolaram
have been impleaded as a party and name was added
charge sheet was filed against him. At the time of the
Accident the Bolero Car was not having valid PERMIT.
That the Vehicle was insured under LIABILITY ONLY
POLICY. The Occupants of the Vehicle were not insured
and no premium was charge by the Insurance Company.
That the subject Vehicle is a Commercial Vehicle and in
this Passenger cannot sit by giving Fare. That the
Deceased and Ramesh were travelling in the Vehicle
without any authority. That there is violation of conditions
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 4
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

of Insurance Policy. Therefore, the Insurance Company is

not liable for the payment of any amount/compensation
and said to dismiss the MACT Claim filed by the claimants.

7. That the learned Court below framed four issues in order

to determine the controversy which are as under:

a.) Whether on 25.04.2012 at around 02-03:00 am , at main

Road going from Jodhpur to Jaisalmer at Lawa, due to the rash
and negligent driving of Bolero Car bearing No. RJ-22-GA-1760
driven under Supervision and Control of Respondent No. 2 i.e.
Parasmal met with accident and because of that Tinku died in
the Accident and Ramesh suffered from injuries ?

b.) Whether because of the Objections taken by the Insurance

Company in the Reply, the company is not liable to pay the
compensation as stated in the Claim Petition?

c.) Whether in MACT Case No. 218/2016 the Claimants are

entitled to compensation as stated in Claim Petition? If yes,
then how much and how ?

d.) Whether in MACT Case No. 220/2015 the Claimants are

entitled to compensation as stated in Claim Petition? If yes,
then how much and how ?

e.) Help ?

8. That on behalf of claimants, one person i.e. Ramesh was

examined and 132 documents were exhibited and on
behalf of the Respondents, NW-1 i.e. Bhanwar Singh and
NW-2 Parasmal was examined and Insurance Policy was
exhibited.

9. That after recording evidence of the parties, the learned Judge,

Motor Accident Claims Tribunal, Pali awarded Rs. 8,76,328/-
along with interest @ 9% from the date of filing of claim i.e.
01.09.2015 as compensation in favour of the claimants and
held the Defendants No. 1 & 3 jointly liable and have passed
Pay & Recovery Order in favour of Insurance Company .

10. That the learned Tribunal below has given a finding to

make payment of the said amount by the appellant, is
absolutely perverse and cannot be sustained in the eye of
law. It is in these facts and circumstances, the present
misc. appeal is being filed on the following amongst other
grounds:
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 5
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

G R O U N D S

a) That at the outset, it is submitted that the judgment and

award dated 08.8.2018 passed by the learned Tribunal
received on 16.8.2018 suffers from gross error and is
contrary to the facts and material available on record as
well as the law and therefore, the same deserves to be
quashed and set aside by this Hon’ble Court.

b) That it is submitted that the Claimant have not got

injured because of the negligence of the Vehicle Driver.
Further there was negligence on the part of deceased
and injured only. It is submitted that the learned
Tribunal below has not dealt with this issue in
appropriate manner. It is only on the basis of surmises
and conjunctures without appreciating the site plan, the
finding has been given that the accident had occurred
on account of Vehicle Driver and is liable for the
accident. In that view of the matter, the finding given by
the learned Tribunal while deciding issues is absolutely
perverse and cannot be sustained in the eye of law.
Therefore, the finding given by the learned Tribunal
below is absolutely perverse and cannot be sustained in
the eye of law.

c) That the Bolero Camper No. RJ-22-GA-1760 was insured

under “Liability Only Policy” which means “Personal
Accident Cover for the Owner Driver for a specified sum
insured” i.e. the policy conditions only covers third party
whereas Smt. Tinku and Shri Ramesh were occupants in the
Vehicle and under this Policy Insurance Company is not
liable to compensate for the liabilities of Occupants and no
premium was charged by the Insurance Company to cover
his risk. Therefore, the Insurance Company is not liable to
compensate. In that view of the matter, the finding given
by the learned Tribunal is absolutely perverse and
cannot be sustained in the eye of law and impugned
award liable to be quashed.

d) That the Bolero Camper No. RJ-22-GA-1760 is a

Commercial Vehicle in which the passengers in this
case deceased Smt. Tinku and Injured Ramesh were
travelling along with their relatives as unauthorized
passengers in Commercial Vehicle, which is a clear
breach of Policy condition and Insurance Company is
liable to be exonerate from the Liability. In that view of
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 6
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

the matter, the finding given by the learned Tribunal is

absolutely perverse and cannot be sustained in the eye
of law and impugned award liable to be quashed.

e) That in accordance with the FIR, the vehicle was driven

by Shri Narpat Singh during the accident whereas
claimant wrongly in collusion with the Police made it to
be driven by Respondent No. 1 i.e. Shri Moolaram
because the Driver(Narpat Singh) was not having Valid
license to drive the Vehicle. In that view of the matter,
the finding given by the learned Tribunal is absolutely
perverse and cannot be sustained in the eye of law and
impugned award liable to be quashed.

f) That at the time of the Accident, the Vehicle was not

having valid permit and therefore Insurance Company is
entitled to be exonerate from any liability whatsoever.
In that view of the matter, the finding given by the
learned Tribunal is absolutely perverse and cannot be
sustained in the eye of law and impugned award liable
to be quashed.

g) That the Tribunal has also held that the Insurance

Company is not liable for the payment of Claim amount
but has passed Pay and Recover Order which is not
correct and as per law. In that view of the matter, the
finding given by the learned Tribunal is absolutely
perverse and cannot be sustained in the eye of law and
impugned award liable to be quashed.

h) That no premium was charged to cover the risk of the

Occupants of the Vehicle .Therefore this is a case of
NON-COVERAGE OF RISK OF OCCUPANT AS NO
PREMIUM HAS BEEN CHARGED IN THE ISNURANCE
POLICY and the same has been accepted by he
Learned Tribunal but Pay and Recover Order was
passed. In that view the finding given by the Learned
Tribunal is absolutely perverse and cannot be sustained
in the eye of law on the basis of contradictory facts of
the accident and impugned award is liable to be
quashed.

i) That it is submitted that the Driver of the Vehicle was

not having valid License, Fitness Certificate and Permit
at the time of the Accident and there is violation of
conditions of the Insurance Policy. There is violation of
condition of insurance Policy and Insurance Company is
liable to be exonerated from the liability to pay
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 7
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

compensation to the deceased. In that view of the

matter, the finding given by the learned Tribunal is
absolutely perverse and cannot be sustained in the eye
of law and impugned award liable to be quashed.

j) That it is submitted that without producing the valid age

proof, the age of the deceased was taken as 25 years
and no documents. In that view of the matter, the
finding given by the learned Tribunal is absolutely
perverse and cannot be sustained in the eye of law and
therefore the impugned award liable to be quashed.

k) That the learned Tribunal below has awarded a

compensation to the tune of Rs.8,76,328/- along with an
interest @ 9 % p.a. from the date of filing of claim petition as
compensation i.e. 1.09.2015. Whereas the factual and legal
position perfectly remains that the awarded interest should
be given from the date of the order and shall always be in
consonance with the prevailing rate of interest of Reserve
Bank of India. As on today, the rate of interest is quite low
and therefore there was no justification in awarding such a
high interest and therefore the impugned award liable to
be quashed.

l) That the other grounds shall be urged at the time of

arguments.

PRAYER

It is, therefore, humbly prayed that the present Misc.

Appeal may kindly be allowed and the judgment and award
dated 08.8.2018 passed by the learned MACT Tribunal
Pali, Rajasthan in MACT Case No. 218/2015 may kindly be
quashed and set aside and the appellant-Insurance
Company may be absolutely exonerated from the liability
of making payment of compensation to the claimants.

Any other order which may be deemed just and

proper in the facts and circumstances of the case may
kindly be passed in favour of the Appellant-Insurance
Company.

Jodhpur COUNSEL FOR THE

APPELLANT

Date
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 8
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

(ADITYA SINGHI)

NOTES:
1. No such appeal has previously been filed in the matter.

2. PF, notices and extra copies shall be filed within the

prescribed time.

3. This has been typed by my private steno on my personal

computer,

4. As the pie papers are not readily available, print was taken on
stout papers.

5. Mobile Number :8561837038 & Email Id

adityar.sighi@gmail.com

Jodhpur COUNSEL FOR THE

APPELLANT

Date (ADITYA SINGHI)

 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 9
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN

AT JODHPUR

S.B. CIVIL MISC. STAY APPLICATION NO. /2018

IN
S.B. CIVIL MISC. APPEAL NO. /2018

APPELLANT :
United India Insurance Company Limited Through Branch Office,
Pali District Pali (Raj.)
INSURANCE COMPANY………
VERSUS
RESPONDENTS :
1. Ramesh S/o Mohan Aged 31 years
2. Gayatri D/o Ramesh , Aged 7 years
3. Siddharth S/o Ramesh Aged 4 years
By Caste Banjara Bhaat, R/o Naya Gaon Pali, Tehsil &
District Pali (Raj.) Claimants No. 2 & 3 are minor through
their Natural Guardian Father Claiamnt No. 1 Ramesh.
(CLAIMAN
T)
4. Moolaram S/o Kewal , Caste Sodha (Banjara), R/o Sohanji
Dhani Nayagaon, Pali District Pali (Raj.)
5. Parasmal, S/o Sohanram, Caste Mali, R/o Naya Bera
Dhandedi, Tehsil Sojat, District Pali (Raj.)
6. Narpatram S/o Hemaram, Caste Banjara R/o Nayagaon, Pali,
Tehsil & District Pali(Raj
***
STAY APPLICATION UNDER
ORDER 41 RULE 5 OF CPC
***
To,
Hon’ble the Chief Justice and His Lordship’s other
companion Judges of the High Court of Judicature for
Rajasthan at Jodhpur.

MAY IT PLEASE YOUR HONOUR:

The humble appellant most respectfully submits as
under: -
1. That in view of the facts and averments made and
grounds raised, in the memo of Misc. Appeal, which
may be treated as a part of the present stay application,
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 10
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

it is clear that the judgment and award impugned dated

08.08.2018 received on 16.08.2018 is not sustainable in
the eyes of law, therefore, the appellant has got a
strong prima facie case in its favour and has all the
chances to get success in the present Misc. Appeal.

2. That the balance of convenience lies in favour of the

appellant.

3. That if the interim relief as prayed is not granted in the

present Misc. Appeal then the same will cause
irreparable injury to the Appellant and the very purpose
of filing the present misc. appeal will be frustrated.

It is, therefore, humbly prayed that during the

pendency of the present Misc. Appeal, the effect and
execution of the judgment and award dated 08.08.2018
may kindly be stayed.

Any other appropriate interim order or direction,

which this Hon’ble Court may deem just and proper in the
facts and circumstances of the case, may kindly be also
passed in favour of the Appellant.

Jodhpur COUNSEL FOR THE APPELLANT

Date

(ADITYA SINGHI)
NOTES :
1. No such stay application filed in this matter on behalf of the
appellant before this Hon’ble Court.
2. Pf, notices and extra copies shall be filed within the prescribed
time.
3. This has been typed by my private steno on my personal
computer,
4. As the pie papers are not readily available, print was taken on
stout papers.
5. Mobile Number is 8561837038 & Email Id is
adityar.sighi@gmail.com

Jodhpur COUNSEL FOR THE APPELLANT

Date
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 11
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

( ADITYA SINGHI)
IN THE HIGH COURT OF JUDICATURE FOR
RAJASTHAN AT JODHPUR

S.B. CIVIL MISC. STAY APPLICATION NO. /2018

IN
S.B. CIVIL MISC. APPEAL NO. /2018

APPELLANT :

United India Insurance Company Limited

VERSUS

RESPONDENTS:

Ramesh & Ors

AFFIDAVIT IN SUPPORT OF STAY APPLICATION

I, Prabodh Raizada S/o Shri Devendra Raizada Aged about 54
years, Presently Working as Deputy Manager, Incharge TP HUB,
United India Insurance Company Limited, Jodhpur, state on oath as
under:-
1. I am the Officer In-charge on behalf of the appellant in the
above-named Misc. Appeal and am fully conversant with the
facts and circumstances of the case.
2. The annexed Stay Application has been drafted as per my
instruction by my counsel. The contents of the Stay
Application have been read over to me and I have
understood the same.
3. The contents of Para No. 1 to last of the stay application
are true and correct to my personal knowledge based on
official record available with me and the legal submissions
are true to my belief being based on legal advice.

(DEPONENT)
VERIFICATION
I, the above named deponent do hereby verify that my above
affidavit is true and correct, nothing has been concealed and no part
of it is false SO HELP ME GOD.
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 12
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

Jodhpur (Raj.) (DEPONENT)

IN THE HIGH COURT OF JUDICATURE FOR

RAJASTHAN

AT JODHPUR.

S.B.CIVIL MISC. APPEAL NO. _________/2018

APPELLANT :

United India Insurance Company Limited

VERSUS

RESPONDENT

Ramesh & Ors.

INDEX

=================================================

S.No. Particulars Page No.

=================================================

01. Civil Misc. Appeal

02. Stay Application
03. Affidavit in support of stay application

DOCUMENTS
EXH-1. Copy of judgment and order dated

08.8.2018

=================================================

(ADITYA SINGHI)
 S.B. CIVIL MISC. APPEAL NO. 2947 / 2018 13
UNITED INDIA INSURANCE COMPANY LIMITED V/S RAMESH & ORS.

COUNSEL FOR THE APPELLANT

Dated: ______/2018