IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SMT. JUSTICE SUNITA YADAV JUDGEMENT DATED 7^th JULY, 2023 MISC. APPEAL No. 1651 /2011 Between:-

SURESH ADIVASI S/O LATE SHIV DAYAL, AGED ABOUT 34 YEARS, OCCUPATION: NIL R/O GOLA KA MANDIR, GWALIOR (MADHYA PRADESH)

.....APPELLANT/CLAIMANT (BY MR. R.P. GUPTA - ADVOCATE )

AND

1. KALLU @ PUSHKAR RAJ S/O VISHNU DEMRA, AGED ABOUT 25 YEARS, OCCUPATION: DRIVER R/O DASHRATH KA MAKAN,A.V.ROAD,MOTIJHEEL P.S. PURANI CHHAWNI, GWALIOR (MADHYA PRADESH)

2. VISHNU DEMRA(SINDHI) S/O JAGGUMAL, AGED ABOUT 60 YEARS, OCCUPATION: DASHRATH RAI KA MAKAN,A.B.ROAD,MOTIJHEEL,P.S.PURANI CHAWANI DISTT.GAWLIOR (MADHYA PRADESH)

3. THE I.C.I.C.I.LOMBARD GENERAL INSURANCE COMPANY LTD. TH: DIVISIONAL MANAGER,OFFICE COMMERCE HOUSE,SECOND FLOOR, 07 RACECOURSE ROAD, INDORE (MADHYA PRADESH) ..... RESPONDENTS (NONE PRESENT FOR RESPONDENTS NO. 1 & 2)

(RESPONDENT NO. 3/INSURANCE COMPANY BY MR. S.N.

GAJENDRAGADKAR - ADVOCATE)

This appeal coming on for final hearing this day, the court passed the following:-

J U D G M E M T Signature Not Verified Signed by: SANJAY Signing time: 11-07-2023 This Misc. Appeals under Section 173(1) of Motor Vehicles Act, 1988 has been filed by the appellant/claimant against the award dated 30/09/2011 passed in Claim Case No. 93/2010 by 4^th Additional M.A.C.T., District Gwalior (M.P.).

2. The facts in brief to decide this appeal are that on 05/03/2010 at about 3.30 Pm, the appellant/claimant-Suresh Adhiwasi after loading grinding stones in the loading vehicle bearing registration No. M.P.-07-L-0190 from Motizheel Fruit Market was coming back from the way of Motizheel Pahadiya to his home situated at Gole Ka Mandir, Gwalior. The offending vehicle was coming down on the way of Motizheel Pahadiya, at that time, the driver of the offending vehicle drove the offending vehicle in rash and negligent manner, due to which, the offending vehilce turned turtle and fell down on the body of the claimant/appellant. Thereafter, the people who were passing near-by admitted the claimant/appellant in the J.A. Hospital, Gwalior, where, he had undergone medical treatment, but since he did not get relief from his ailment, therefore, he was admitted by his family members in Dr. Suresh Bandil's Hospital, where after due medical examination, the claimant/appellant had undergone surgery as the doctor concerned has inserted steel rod in his left leg. On the basis of aforesaid, FIR bearing crime No. 59/2010 was registered at police station Purani Chawani against the driver of the offending vehicle for the offence punishable under section 279, 337 of IPC. Thereafter, the appellant/claimant filed claim petition under section 166 of Motor Vehicles Act before the Claims Tribunal.

S3ig.n atureT Nhoet V neroifine-dapplicant / respondents No. 1 & 2 did not appear before the claims Signed by: SANJAY STignrinigb tuimne:a 1l1 -a07n-2d0 2t3hey were proceeded ex-parte.

4. Respondent No. 3 – Insurance Company filed its written statement and denied the averments made in the claim petition. It is argued that the insurance company is not liable to pay the compensation to appellant/claimant because the offending vehicle was being driven in violation of terms and conditions of the Insurance Policy as the driver of offending vehicle did not have any valid and effective driving license at the time of accident.

5. Learned Claims Tribunal after hearing learned counsel for the rival parties framed as many as five (5) issues and dismissed the claim petition filed by the appellant /claimant.

6. Learned counsel for the appellant/claimant argued that learned Claims Tribunal has erred in dismissing the claim petition only on account of the fact that there is delay in filing FIR. It is further submitted that the claimint has proved his case on the basis of oral as well as documentary evidence, however, the learned Claims Tribunal has ignored this material piece of evidence. Therefore, prayed that the impugned order be set aside/quashed and the claim p