IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SMT. JUSTICE SUNITA YADAV th ON THE 8 OF MAY, 2023 MISC. APPEAL No. 1124 of 2019 BETWEEN:-

SMT. RAMBETI W/O SHRI RAMNATH SINGH KUSHWAH, AGE- 58 YEARS, R/O- VILLAGE JARONI POLICE STATION NOORABAD, DISTRICT MORENA (MADHYA PRADESH)

.....APPELLANT (BY SHRI GYAN SINGH YADAV - ADVOCATE)

AND

1 MAHESH SINGH YADAV S/O UMMED SINGH YADAV, AGE-

29 YEARS, R/O- 18 DEVRIKALA, TEHSIL BHITARWAR, DISTRICT GWALIOR (MADHYA PRADESH) VEHICLE OWNER DUMPER NO. M.P.7 G.A. 2675

2 M/S GIRRAJ DHARAN KOSTRAN OFFICE- C BLOCK 730 ANAND NAGAR BAHODAPUR DISTRICT GWALIOR OWNER AGE ADULT VEHICLE OWNER DUMPER NO.

M.P.07 G.A. 2675

3 UNITED INSURANCE COMPANY LIMITED, THROUGH DIVISIONAL MANAGER OFFICE FALKA BAZAR LASHKAR GWALIOR .....RESPONDENTS (SHRI RAJESH GUPTA – ADVOCATE FOR RESPONDENT NO. 3 – INSURANCE COMPANY)

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This appeal coming on for order this day, the court passed the following:

JUDGMENT

I.A. No. 738 of 2019, an application under Section 5 of Limitation Signature Not Verified Act, is taken up, considered and allowed for the reasons mentioned therein.

The delay of 42 days in filing this appeal is hereby condoned.

Present miscellaneous appeal has been filed assailing the award dated 29/09/2018 passed by First Motor Accident Claims Tribunal, Gwalior in Claim Case No.255/2017.

2. The facts in brief to decide the appeal are that present appellant / claimant filed a claim petition before learned claims tribunal for grant of compensation on account of injuries suffered by him in a motor accident occurred on 16.2.2016 involving loading dumper bearing registration No.

MP07 GA 2675.

3. Respondents No. 1 and 2 – Driver and Owner of the offending vehicle filed their written statement and denied the allegations made in the claim petition.

4. Respondent No. 3 – Insurance Company filed its written statement and denied the averments made in the claim petition stating therein that the alleged accident occurred due to negligence of the injured and at the time of accident, the offending vehicle was being plied in violation of policy terms and conditions, therefore, insurance company is not liable to pay the compensation.

Signature Not Verified

5. Learned claims tribunal framed issues and after hearing both the parties on merits and recording their evidence partly allowed the claim petition awarding compensation to the tune of Rs.17,500/- which was directed to be paid by the respondents jointly and severely.

6. The grounds taken in the appeal are that the learned Tribunal has wrongly held that the accident was on account of contributory negligence of injured without appreciating the evidence on record. Learned counsel for the appellant / claimant argued that there is no evidence on record that the accident occurred due to negligence of injured while she was crossing the road. All the documentary as well as oral evidence proved that the injured was standing near a Tiraha waiting for arrival of the bus when the accident occurred, therefore, the above finding be set aside. The further argument is that in view of the injury of victim, the amount of compensation is on lesser side and it may be enhanced appropriately.

7. On the other hand, learned counsel for respondent No. 3 – insurance company argued that learned Trial Court has rightly appreciated the evidence and found that the accident was the result of contributory negligence of the injured / claimant, therefore, he prays for dismissal of the appeal.

8. Heard learned counsel for the rival parties and perused the available Signature Not Verified record.

9. The claimant examined herself alongwith Navalkishore Gupta (PW- 2), record keeper of J.A. Hospital, Gwalior before the learned Tribunal. The claimant in her Court statement stated that at the time of accident she was waiting for arrival of bus on Tiraha when the driver of offending vehicle by driving the vehicle rashly and negligently hit her. The