IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE HIMANSHU JOSHI ON THE 19^th OF NOVEMBER, 2025 MISC. APPEAL No. 1797 of 2016 THE NEW INDIA ASSURANCE CO.LTD. PARYAWAS BHAWAN THIRD FLOOR M.P. NAGAR BHOPAL Versus SMT. SHIV VISHWAKARMA AND OTHERS Appearance:

Shri Dinesh Kaushal - Advocate for appellant.

Shri Mohan Lal Sharma - Advocate for respondents No.1 and 2.

ORDER The present appeal has been filed at the instance of the insurance company invoking the provisions of section 173 of the Motor Vehicle Act, 1988 whereby award dated 28/04/2016 passed in MACC No.100038 of 2015 by Member Motor Accident Claims Tribunal, Raisen has been challenged on the ground that the learned Claim Tribunal has erred in directing the insurance company to pay and recover the award amount.

2. The facts necessary for disposal of the present appeal are that an accident took place on 23/05/2015 wherein deceased Santosh Vishwakarma had died. Deceased was driving motor cycle and dashed with the offending vehicle driven by respondent No.1. The claimant has approached the Claims Tribunal for grant of compensation. The claim petition has been partly allowed vide order dated 28/04/2016 and Rs.16,84,500/- has been awarded with interest @ 8% per annum.

3. The present appeal has been filed on the ground that the insurance company is not liable to pay the compensation as the offending vehicle bearing Truck No. MP 09 KA/3269 was driven against the terms and conditions of the insurance policy. The Learned Tribunal has framed Issue No.3 on this core question, which reads as under:-

"3. whether the non-applicant nos.1 & 2 were driving the offending vehicle No. MP 09 KA 3269 in violation of the terms of the insurance policy?

4. The burden to prove this issue lies upon the shoulder of the insurance company. The bone of contention of the insurance company is that the registered owner of the vehicle was not having permit to run the offending vehicle. The record of the case reveals that the policy does not contain any provision regarding a compulsory fitness condition. The trial Court has categorically recorded the finding that necessity of fitness is not compulsory and thus there is no violation of the terms of the license.

5. The issue of permit is compulsory as mentioned in the insurance policy. D-4 is the document issued by the RTO, Indore which shows that the offending vehicle was having permit to run the vehicle on road from 19/09/2009 to 18/09/2014 and from 02/06/2015 to 01/06/2020. The date of accident was 23/05/2016 and it is very much clear from the record of the RTO, Indore that on such date, no permit was available with the offending vehicle. Non-Applicant no. 1 Birju @ Brajesh has admitted that the permit has not been filed in the case. The driver and owner of the offending vehicle has failed to revert this piece of evidence. Thus, the issue has been proved in favour of the insurance company. Nothing has been brought to notice of this Court for taking contrary opinion with the trial Court. In light of said discussion, it is found proved that the offending vehicle was plying on the road without any permit, which is violation of the term of the policy conditions.

6. In the facts and circumstances of the present case, it is observed that the learned MACT has rightly issued direction of pay and recover from the driver and owner. A reference to the following decisions would be fruitful at this stage:

A. In the case of Shamanna v. Oriental Insurance Co. Ltd., (2018)

9 SCC 650, it is held in paragraphs 12 to 14 as under: "12. The above reference in Parvathneni case [National Insurance Co. Ltd. v. Parvathneni, (2009) 8 SCC 785 : (2009) 3 SCC (Civ) 568 : (2009) 3 SCC (Cri) 943] has been disposed of on 17-9-2013 [National Insurance Co. Ltd. v. Parvathneni, (2018) 9 SCC 657] by the three-Judge Bench keeping the questions of law open to be decided in an appropriate case.

13. Since the reference to the larger Bench in Parvathneni case [National Insurance Co.