IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE nd ON THE 2 OF NOVEMBER, 2023 WRIT PETITION No. 2504 of 2015 BETWEEN:-

HDFC ERGO GENERAL INSURANCE CO. LTD. THROUGH LEGAL MANAGER, 205-206, D.M. TOWER, RACE COURSE ROAD, JANJEER WALA, CHOURAHA INDORE (MADHYA PRADESH)

.....PETITIONER (BY SHRI B.K. AGRAWAL - ADVOCATE)

AND

1. SMT. USHA W/O SHRI HRISHIKESH, AGED ABOUT

42 YEARS, RESIDENT OF MARKANDESHWAR COLONY, AT PRESENT GOPALPURA, MORENA TEHSIL AND DISTRICT MORENA (MADHYA PRADESH)

2. HRISHIKESH S/O SHRI RAM KARAN SHARMA, AGED ABOUT 45 YEARS, RESIDENT OF MARKANDESHWAR COLONY, AT PRESENT GOPALPURA, MORENA TEHSIL AND DISTRICT MORENA

3. BHUPENDRA SINGH S/O SHRI YUDHISTIR RESIDENT OF SURYA VIHAR COLONY, PINTO PARK, GWALIOR AT PRESENT GOPALPURA, MORENA TEHSIL AND DISTRICT MORENA (MADHYA PRADESH)

4. SHYAM SINGH S/O SHRI VISHAL SINGH, RESIDENT OF VANKHANDI ROAD, GOPALPURA, MORENA (MADHYA PRADESH)

.....RESPONDENTS (SHRI R.P. GUPTA - ADVOCATE FOR RESPONDENT NO.1)

Signature Not Verified This petition coming on for admission this day, the court passed the following:

ORDER The present petition, under Article 227 of the Constitution of India, has been filed by the petitioner/Insurance Company being aggrieved by order dated 13.04.2015 passed by learned Fourth Motor Accident Claims Tribunal, Morena in Claim Case No.528 of 2012 whereby an application under Order 16 Rule 3 read with Section 151 of the Code of Civil Procedure, 1908, had been dismissed.

2. Short facts of the case are that respondents No.1 and 2/Claimants had preferred a claim petition under the provisions of Motor Vehicle Act, 1988 for realizing an amount of compensation to the tune of Rs.1,45,80,000/- for the death of deceased Girraj Sharma (hereinafter referred to as ''the deceased''). The deceased died in road accident dated 03.06.2012 by a car bearing registration No.MP-07-BA-0454, which was insured with the present petitioner/Insurance Company.

3. The aforesaid claim petition was opposed by the petitioner/Insurance Company inter alia on the ground that no accident was caused by the insured car, instead the deceased had died due to fall from motorcycle. On behalf of respondents No.1 and 2/claimants, the case sheet of Sahara Hospital, Gwalior (Ex.P/3) was placed on record and for proving the same, one Dr. J.P. Gupta of Sahara Hospital was examined. The aforesaid witness Dr. J.P. Gupta declined to depose regarding the facts mentioned in the case sheet (Ex.P/3) wherein it was written that the deceased had died due Signature Not Verified to fall from motorcycle. On behalf of the petitioner/Insurance Company, an application under Order 16 Rule 3 read with Section 151 CPC was moved for summoning Dr. P.C. Saxena, who had prepared the aforesaid case sheet (Ex.P/3). The aforesaid application was opposed by the respondents No.1 and 2 by way of filing the reply. Vide order dated 13.04.2015, the learned Claims Tribunal had dismissed the said application filed on behalf of the petitioner/Insurance Company. Hence, the present petition.

4. Learned counsel for the petitioner/Insurance Company has argued that from perusal of the case sheet (Ex.P/3), it was apparent that the deceased fell down from the seat of motorcycle and sustained injuries which had resulted into in his death and the aforesaid history pertaining to manner of accident was narrated to the hospital by the uncle of the deceased Bhagwati Prasad Sharma and as the aforesaid version contained in the case sheet (Ex.P/3) was the earliest version at that point of time, it was expected by Dr. J.P. Gupta of Sahara Hospital, who had proved the said document to disclose the truth, but from the statements of Dr. J.P. Gupta, it was apparent that he was not inclined to narrate the correct facts, therefore, in such circumstances, the examination of the Dr. P.C. Saxena, who had prepared the said case sheet, was necessary. The learned Claims Tribunal erred in rejecting the application preferred on behalf of the pet